Unruly Response to Heckling Fan by Basketball Player Not Grounds for Emotional Distress Claim

In March 2019, the Utah Jazz were playing a game against the Oklahoma City Thunder. Midway through the second quarter, Russell Westbrook, the Thunder’s point guard at the time, had a verbal altercation with Shane Keisel, a Jazz fan who was sitting next to his girlfriend Jennifer Huff just a few rows up from the court. In the initial moments of this altercation, Keisel said something to Westbrook that included the phrase “on your knees.” Westbrook shouted: “I swear to God, I’ll fuck you up, you and your wife, I’ll fuck you up, I promise you on everything I love, on everything I love, I promise you.” “Due to the highly subjective and volatile nature of emotional distress and the variability of its causations, the courts have historically been wary of dangers in opening the door to recovery therefor.” On an intentional infliction of emotional distress claim, our courts require a plaintiff to demonstrate: (a) that a defendant intentionally engaged in some conduct toward the plaintiff considered outrageous and intolerable in that it offends the generally accepted standards of decency and morality; (b) with the purpose of inflicting emotional distress or where any reasonable person would have known that such would result; and (c) that severe emotional distress resulted as a direct consequence of the defendant’s conduct. And to sustain such a claim, “a defendant’s alleged conduct must be more than unreasonable, unkind, or unfair, it must instead be so severe as to evoke outrage or revulsion.” And while courts commonly disapprove profane outbursts, they are not enough to sustain an intentional infliction of emotional distress claim. Westbrook had an outburst at a professional sports event, where society expects some intemperate behavior and the outburst was also in response to an initial sexual if not homophobic slur from the fan. Despite allegations of being physically threatened, the couple watched the game after the incident, which does not support a real risk of harm being felt. Westbrook’s profane language does not support the intentional or negligent infliction of emotional distress claims legal standards. Sports and society would be better off without such language. But under established standards, Westbrook’s outburst could not support a claim for either intentional or negligent infliction of emotional distress.