SEPTEMBER 2025 | 29 THE OKLAHOMA BAR JOURNAL Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. conduct has been characterized by ‘malice.’”51 And, further, that liability will be “found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”52 So the Dean court gave us some idea of the degree and severity of the willful conduct one must suffer in order to bring a surviving IIED claim. LATE 20TH CENTURY CASES Williams v. Lee Way Motor Freight, Inc. The 80s saw a flurry of emotional distress cases in which courts finally ruled that physical suffering was not a prerequisite for such claims. The court, in Williams v. Lee Way Motor Freight, Inc.,53 explained that Oklahoma continues to follow the Restatement (Second) of Torts, Section 46, which provides that “the right to recover damages for emotional distress is not dependent on physical injury,” but the court specifically recognized that Oklahomans have rights to “emotional and mental security ... sufficiently important to warrant protection even in the absence of physical suffering.”54 Ellington v. Coca-Cola Bottling Co. of Tulsa Next came Ellington v. Coca-Cola Bottling Co. of Tulsa,55 addressing a negligent emotional distress claim where the physical injury was, in fact, caused by the plaintiff’s emotional distress. In Ellington, the plaintiff drank from a Coke bottle in which she later observed a foreign object, which she feared was a worm.56 She immediately became physically ill at the thought that she might have ingested a worm (it turned out to be a piece of candy!).57 Ms. Ellington’s illness – consisting of nausea, diarrhea and fever – persisted for a month, and she eventually became dehydrated and developed a kidney infection. There was no question that the “plaintiff’s vomiting and illness was due to a psychological reaction.”58 The Ellington court ultimately concluded that physical injury need not precede an emotional distress claim. It declared that recovery for mental damages should not depend on whether mental suffering preceded or succeeded the physical suffering.59 The court surmised that, historically, recovery was not denied to “persons suffering mental anguish which causes physical harm to the person enduring the mental suffering.”60 Therefore, it ultimately held, “Here the fact that plaintiff’s physical injury was induced by the emotional shock of finding the foreign substance in her drink is not fatal to her recovery – the mental pain and anguish was connected to physical suffering and injury.”61 Slaton v. Vansickle In the 1990s, the Supreme Court of Oklahoma decided Slaton v. Vansickle,62 wherein a defendant asserted a NIED claim against a co-defendant firearm manufacturer. In Slaton, defendant Mr. Vansickle placed a rifle in the back of his truck, where it discharged, killing a bystander, plaintiff Mr. Slaton’s daughter. He then “left [it] in his truck not knowing of the death until he was contacted a few hours later.”63 Mr. Vansickle cross-claimed against the firearm manufacturer under what the court determined was the bystander theory. He alleged “great pain of body and mind, emotional and mental distress” as a result of the young girl’s death.64 The trial court found for the manufacturer and entered summary judgment on the NIED claim. Our Supreme Court upheld the trial court’s ruling “regarding negligent infliction of emotional distress because Vansickle was in fact arguing bystander theory and Oklahoma law did not entitle him to recover.”65 Mr. Vansickle did not “have a recognizable cause of action under Oklahoma law.”66 The court reasoned, “He must have shown a personal injury directly resulting from the gun’s discharge. This he cannot do.”67 Specifically, Mr. Vansickle’s “injury came about only after learning the gun’s accidental discharge had caused a death, not, because he was injured from the discharge. Vansickle is in truth, arguing nothing different than negligent infliction of emotional distress under some type of bystander theory.”68 The court explained it was not any act of the gun manufacturer that led to the plaintiff’s mental suffering, but the true cause of the mental distress was the death of the bystander.69 This implicated the supervening and intervening cause doctrines. It was sure to reiterate that “a rule long recognized in Oklahoma that recovery for mental anguish is restricted to such mental pain or suffering as arises from an injury or wrong to the person rather than from another’s suffering or wrongs committed against another person.”70 So the court was firm in holding that bystanders alleging NIED claims have no cognizable cause of action.
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