Bevan Ex Rel. Bevan v. Fix

[11] Appellant minors, Brittany Bevan and Steven Tyler Bevan (Brittany and Steven) appeal, through their father and next friend Steven Matthew Bevan (Bevan), from the district court's grant of summary judgment in favor of appellee William R. Fix (Fix) on their claims of intentional infliction of emotional distress. Having determined that the record reveals genuine issues of material fact sufficient to preclude summary judgment for the appellee on either child's claim, we reverse.

[12] After addressing the scope of the duty an attorney owes former clients, however, we affirm the district court's grant of summary judgment in favor of appellee Fix on appellant Bevan's claim of legal malpractice. Affirmed in part, reversed in part, and remanded.

ISSUES

[T3] Appellants present two issues for review:

*1017 I. Did the District Court err in granting defendant's Motion for Summary Judgment because genuine issues of material fact existed to support the Plaintiffs Second Cause of Action for Intentional Infliction of Emotional Distress{?]1

II. Did the District Court err in granting defendant's Motion for Summary Judg ment because genuine issues of material fact existed to support the Plaintiffs Fourth Cause of Action for Legal Malpractice[?]

FACTS AND PROCEDURAL HISTORY

[14] Pursuant to our standard of review for summary judgments, the recitation of facts is from the vantage point most favorable to the plaintiffs, as the parties opposing the motions, awarding them all favorable inferences that may be drawn from the facts. S & G Investors, LLC v. Blackley, 994 P.2d 941, 943 (Wyo.2000).

[T5] Defendant William Fix is an attorney licensed to practice law in the state of Wyoming with an office in Jackson. In July of 1992, Bevan hired Fix to represent him as defense counsel on a charge of criminal battery for family violence against his then girlfriend Jenni Jones (Jones). Fix represented Bevan throughout the course of those proceedings, which ultimately ended in a plea agreement. In December of 1994, Bevan and Jones married. Brittany and Steven are the couple's biological children. Brittany was born in August of 1991, Steven in April of 1994.

[16] In January of 1997, Jones, represented by Fix, filed a complaint for divorce from Bevan. Bevan was not consulted in regard to Fix's representation of his wife Jones nor did he consent to the representation. Subsequently, in June of 1997, Fix withdrew from representation of his client Jones because he had begun a sexual relationship with her. Bevan further alleges that during the course of the couple's divorce proceedings Fix, upon hearing a rumor that Bevan was going to file a lawsuit against him, phoned Bevan and threatened, "if I messed with him he would bury me." 1 Bevan and Jones' divorcee was finalized in December of 1997.

[17] The facts that relate to the Bevan children's claims are as follows. On the evening of March 29, 1998, Jones and her children Brittany and Steven, as well as two teenage babysitters, were invited to Fix's home to spend the night. 2 Jones and Fix left the children in the care of the babysitters and spent the evening drinking in a local bar with various others. After returning to Fix's home, the following events took place over the course of the night and the subsequent morning.

[18] It appears from the record that everyone present agrees that Fix, Jones, and at least two other guests continued drinking and that eventually four adults, including Fix and Jones, were soaking in Fix's hot tub. At some point while in the hot tub, a verbal altercation between Fix and Jones escalated into physical violence. Over the next several hours, this pattern of verbal and physical conflict between the two continued, eculminat-ing in the violent physical confrontation that forms the basis for the Bevan children's tort claims.

[19] According to the affidavit of Jones: 3 In the early morning hours of March 30, 1998, I was awoken from my sleep by Bill Fix who was in the process of throwing me out of the bed. I landed flat on my back on the floor. I tried to sit up several times and he kept pushing me to the floor. He then grabbed my head and started violently banging it against the wall. At the same time that he was banging my head against the wall he was kicking and punch *1018 ing me. Although I was barely conscious at this time, I could see my blood spattered on the wall. I finally got free of Fix and made it into the bathroom to call my brother and 911. I was terrified and confused and didn't know what else to do. Fix hung up the phone and screamed he was going to 'kill me several times. Fix then started punching and kicking me again. I managed to get to the phone again and call 911 a second time and was told that help was on the way. Fix then broke into the bathroom and drug me by my hair out of the bathroom, out of the bedroom and out into the hallway. I believe that I lost consciousness briefly. The next thing I remember is Fix holding me up in the air against the wall, at the top of the stairs, with his hands around my neck, choking me, banging my head against the wall, and him sereaming incoherently.

I thought I was going to die at that moment and as I turned my head to the side I saw my three year old son looking at me in absolute horror. I will never forget the fear and horror I saw in his face. Fix then looked at my son Steven Tyler Bevan and said "it's okay sweetie, go back to bed." Steven then ran down the stairs and Fix threw me to the floor and kicked me one more time. As I was being thrown to the floor and kicked again I saw my daughter and the two babysitters, Michelle and Chelsey standing down the hallway also watching. - Shortly thereafter the Sheriff's Deputies arrived." 4

Both Fix and Jones were arrested at the scene; and, in the course of the investigation, police reports were generated which contain interviews with those witnesses present.

[110] Relatively soon after these events, Steven began "acting out" in preschool. His angry behavior included swearing and choking his classmates. Brittany reportedly had difficulty sleeping and was experiencing nightmares. Both Steven and Brittany began seeing a counselor for their behaviors; and, although the counselor "felt like both kids were, had been impacted by, in a negative way by witnessing this violence," he concentrated on Steven, believing that Brittany was "very quiet and seemed to be kind of, either seemed to be dealing with this better or at least in a different way than Steven." The counselor, following consultation with Steven's parents, caretakers, and teachers, diagnosed Steven as suffering from post-traumatic stress disorder (PTSD). Some months later, the children began seeing a second counselor in the same facility. This second counselor also diagnosed Steven as suffering from PTSD and, in addition, diagnosed Brittany as suffering from "dysthmic disorder," a form of depression. At the time summary judgment was granted, both children continued to see the second counselor therapeutically.

[111] In addition, a clinical psychologist who specializes in treating children has evaluated Brittany and Steven. According to her deposition testimony, this psychologist disclosed that Brittany has been very depressed and, while being interviewed, admitted continued suicidal feelings, including a specific incident in the summer of 1998. The psychologist flatly stated, "I think that these children are in significant distress. I'm quite worried about both of them."

[112] In March of 2000, defendant Fix moved for summary judgment on all of the plaintiffs' claims. The plaintiffs opposed this motion through memorandum supported by deposition testimony and affidavit, Following a hearing on April 10, 2000, the district court entered its order granting summary judgment to Fix on all claims. This timely appeal on the claims of intentional infliction of emotional distress and legal malpractice followed.

STANDARD OF REVIEW

[118] Summary judgment is appropriate if the record, viewed in the light most favorable to the non-moving party, reveals that no genuine issues of material fact exist and the prevailing party is entitled to *1019 judgment as a matter of law. Worley v. Wyoming Bottling Co., Inc., 1 P.3d 615, 620 (Wyo.2000); Terry v. Pioneer Press, Inc., 947 P.2d 273, 275 (Wyo.1997); Davis v. Wyoming Medical Center, Inc., 934 P.2d 1246, 1250 (Wyo.1997); W.R.C.P. 56(c). A fact is material if it establishes or refutes an essential element of a claim or defense. Tidwell v. HOM, Inc., 896 P.2d 1322, 1324 (Wyo.1995). In evaluating summary judgment, we apply the same standards as the trial court, without affording any deference to the trial court's decisions on issues of law. Wilder v. Cody Country Chamber of Commerce, 868 P.2d 211, 216 (Wyo.1994).

DISCUSSION

Intentional Infliction of Emotional Distress

[114] In R.D. v. W.H., 875 P.2d 26, 32 (Wyo.1994), this court expressly adopted the third party intentional infliction of emotional distress cause of action found in Restatement, Second, Torts, § 46(2) (1965). This subsection provides:

(2) Where such [extreme and outrageous] conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress

(a) to a member of such person's immediate family who is present at the time, whether or not such distress results in bodily harm, or

(b) to any other person who is present at the time, if such distress results in bodily harm.

Thus, one claiming injuries for emotional distress caused by outrageous conduct under § 46(2)(a) must show:

1) that the conduct was "extreme and outrageous";

2) that such conduct was directed at a third person;

8) that the claimant is a member of the immediate family of the third person;

4) that the claimant was personally present when the extreme and outrageous conduct took place; 5

5) that the claimant sustained severe emotional distress as a result of that conduct (whether or not the claimant sustained bodily harm); and

6) that the person whose conduct is complained of "intentionally" or "recklessly" caused severe emotional distress to the claimant.

[T15] In its application of the Restate ment provision to the instant case, the district court premised its grant of summary judgment to defendant Fix on the Bevan children's claims of intentional infliction of emotional distress on the first enumerated element. The court concluded that defendant Fix's conduct was not extreme and outrageous as a matter of law, and thus granted summary judgment to him on that basis. The court determined:

[TJhis case involves one isolated altercation. There was no continuing course of abuse of either Jenni or the children, and under the cireumstances the conduct the children saw, although deplorable, is not sufficient to support the Plaintiffs' claim.

Disputes over boundary lines, over the cause of motor vehicle collisions, or over a multitude of real or imagined wrongs, are likely to cause tempers to flare; words (vulgar and otherwise) to be uttered in anger; fists-or anything else handy-to be shaken; and assaults to oceur. Such happenings are wholly unplanned, - spur-of-the- moment - occurrences; unfortunately, they occur all too frequently. But we cannot say that the brief outbursts constitute "extreme and outrageous" conduct. Wiehe v. Kukal, 225 Kan. 478, 592 P.2d 860, 864 (1979) (emphasis added) 6

*1020 Such unfortunate occurrences occur all too often between intimates and are properly the subject of eriminal and injunctive relief. However, not every domestic altercation constitutes extreme and outrageous conduct or results in sufficiently severe emotional impact to support a third party claim. Absent a showing of exceptional circumstances, such as a continuing course of abuse and facts showing severe emotional distress to those third party claimants as a result of what they witnessed, such an altercation will not support a claim for intentional infliction of emotional distress. Summary judgment, therefore, is properly granted on this claim as well.

We disapprove the above reasoning of the district court and its application of the Restatement provisions to the facts of this case for the following reasons.

[116] First, no language in Restatement § 46 or its accompanying illustrations indicates that "a continuing course of abuse" rather than a single "isolated altercation" is required before an actor is subject to liability for intentional infliction of emotional distress. In fact, none of the Restatement section's twenty-two illustrations, culled from actual cases, constitute a continuing course of conduct; rather, all involve isolated incidents. For example:

TIilustration 1: As a practical joke, A falsely tells B that her husband has been badly injured in an accident, and is in the hospital with both legs broken. B suffers severe emotional distress. A is subject to liability to B for her emotional distress. If it causes nervous shock and resulting illness, A is subject to lability to B for her illness.

Illustration 11: A, who knows that B is pregnant, intentionally shoots before the eyes of B a pet dog, to which A knows that B is greatly attached. B suffers severe emotional distress which results in a miscarriage. A is subject to liability to B for the distress and for the miscarriage.

[117] Clearly, no rule of law announced in Restatement § 46 requires that the conduct alleged be repetitive or recurrent before it can be considered extreme and outrageous. Nor has this court in its application of the section announced such a rule. On the contrary, in Kanzler v. Renner, 937 P.2d 1337, 1343 (Wyo.1997), a case involving sexual harassment in the workplace, we expressly recognized the inverse proposition: "repeated harassment ... may compound the outrageousness of incidents which, taken individually, might not be sufficiently extreme to warrant liability." Id. (quoting Boyle v. Wenk, 378 Mass. 592, 392 N.E.2d 1053, 1056 (1979)).

[118] The district court was in error by reasoning that simply because the alleged extreme and outrageous conduct of this case constitutes domestic violence among intimates it somehow necessitates that the plaintiffs make a "showing of exceptional cireum-stances" such as a "continuing course of abuse" by the defendant. Our affirmance of this conclusion would, as a consequence, impose on a certain class of plaintiffs a burden greater than that set forth in the general rules of Restatement § 46 based solely on the subject matter of the complained conduct and the relationship of the parties We decline to impose such an additional burden.

[T19]1 Instead, a survey of this court's jurisprudence on the claim of intentional infliction of emotional distress reveals that in analyzing whether given conduct is "extreme and outrageous" this court has consistently utilized the following language found in Restatement § 46 emt. d:

Liability has been 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. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to *1021 exclaim, "Outrageous! 7

The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.

See e.g. Leithead v. American Colloid Co., 721 P.2d 1059, 1066 (Wyo.1986); Kanzler v. Renner, 937 P.2d at 1341; Worley v. Wyoming Bottling Co. Inc., 1 P.3d at 628; McCulloh v. Drake, 2001 WY 56, ¶ 25, 24 P.3d 1162, ¶ 25 (Wyo.2001).

[120] We have further approved the Restatement description of the roles of both judge and jury in application of the "outra-geousness" element of § 46 found in emt. h:

Court and jury. It is for the court to determine, in the first instance, whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery, or whether it is necessarily so. Where reasonable men may differ, it is for the jury, subject to the control of the court, to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability.

[T21] Thus, we have held, "[when presented with a motion for summary judgment, the court, as a matter of law, makes preliminary determinations regarding the outra-geousness of the conduct and the severity of the emotional distress." Kanzler v. Renner, 937 P.2d at 1341; see also Anderson v. Solvay Minerals, Inc., 3 P.3d 236, 241 (Wyo.2000). However, as outlined in Restatement § 46 erat. h, the court's preliminary determination as to the outrageousness of the conduct is simply to decide whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery. If this threshold question can be answered either in the affirmative or by a finding that reasonable men and women may differ in deciding the issue, then the court must allow a jury to ultimately decide whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability,. The court's gate-keeping function in this regard is solely to eliminate those frivolous and meritless claims in which no reasonable jury, composed of a fair cross-section of the community, could find the defendant's conduct sufficiently extreme and outrageous to permit recovery.

[122] Additionally, we disapprove the district court's reasoning that because appellee Fix's alleged conduct was "properly the subject of criminal and injunctive relief" that fact somehow militates against a determination that the behavior is "beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Restatement emt. d. Rather, the fact that the alleged conduct has been criminalized would appear to weigh in favor of recognition that society has determined the acts to be injurious as beyond "mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities." 8 Id.

[123] Lastly, while we generally agree with the district court's statement that, "not every domestic altercation constitutes extreme and outrageous conduct or results in sufficiently severe emotional impact to support a third party claim," (emphasis added) we have also consistently rejected so-called "floodgate of litigation" arguments to support denial of emotional distress claims. See McCulloh v. Drake, 2001 WY 56, ¶ 26, 24 P.3d 1162. When this court adopted the tort in Leithead v. American Colloid Co. we expressly stated, "[wihile these problems are not to be dismissed lightly, they can certainly be solved without rejecting the action entirely. That would be the equivalent of 'employ *1022 ing a cannon to kill a flea' " Id. 721 P.2d at 1065 (quoting Nehring v. Russell, 582 P.2d 67, 79 (Wyo.1978)). Likewise, in adopting the tort of negligent infliction of emotional distress, this court explored its concerns that the new cause of action would overly burden the judicial system and ultimately concluded with some frony, "if the only purpose of our law was to unburden the court system, then we would reach the zenith of judicial achievement simply by closing the district courts to all litigants and allowing all wrongs to come to rest on innocent victims." Gates v. Richardson, 719 P.2d 193, 197 (Wyo.1986).

[124] Clearly, we rejected arguments to effectively close the courts to a class of plaintiffs in Leithead and Gates, as again we do so in the instant case. We believe that simply because the alleged extreme and outrageous conduct can be labeled a "domestic altercation," does not modify the fundamental analysis undertaken in deciding the case. Regrettably, this court must recognize the prevalence, and some argue tolerance, of domestic violence within our society; however, we cannot allow judicial fear of an avalanche of cases due to the ubiquity of the conduct alleged as "extreme and outrageous" to deny a remedy to those individual parties with legitimate claims. Instead, we remain confident that lower courts are capable of properly separating those cases with merit from those without. See generally Merle H. Weiner, Domestic Violence and the Per Se Standard of Outrage, 54 Md. L.Rev. 183 (1995) and cases cited therein; Leonard Karp and Cheryl L. Karp, Beyond the Normal Ebb and Flow ... Infliction of Emotional Distress in Domestic Violence Cases, 28 Fam. LQ. 389 (1994) and cases cited therein; Dr. G. Steven Neeley, The Psychological and Emotional Abuse of Children: Suing Parents in Tort for the Infliction of Emotional Distress, 27 N. Ky. L.Rev. 689 (2000) and cases cited therein.

[¥25) Viewing the evidence in the light most favorable to Brittany and Steven Bevan, we find that Fix's alleged conduct, including beating, kicking, punching, dragging by the hair, and choking Jones while screaming that he wanted to kill her, is behavior beyond mere insults, indignities and petty oppressions and which, if proved, could be construed as outrageous, atrocious, and utterly intolerable in a civilized community. At the very least, reasonable persons could differ in their conclusions as to whether Fix's conduct was extreme and outrageous. Consequently, it is for a jury to determine whether his conduct was sufficiently outrageous to result in liability.

[126] However, our analysis does not end here. Although the district court premised its grant of summary judgment to Fix solely on the first element of the children's intentional infliction of emotional distress claims, other factual issues and contentions have been raised by the appellee related to the remaining elements of the tort. We may uphold the grant of summary judgment upon any proper legal ground finding support in the record. In re HC, 983 P.2d 1205, 1209 (Wyo.1999); Ahearn v. Anderson-Bishop Partnership, 946 P.2d 417, 422 (Wyo.1997). Consequently, because the plaintiffs' failure to satisfy any single element would justify affirmance, in the interests of judicial economy and further development of the law in this area, we will address the remaining elements of the claim as applied to the instant case.

[127] Clearly, the second and third elements are met. Appellee Fix's conduct was directed toward a third person, Jenni Jones. Brittany and Steven Bevan, as her children, are members of the immediate family of Jen-ni Jones. As to the fourth element, appellee argues that Brittany Bevan was not personally present at the time Fix's alleged outrageous conduct took place because, when questioned by defense counsel in deposition, she indicated that she had not actually visually observed him beating her mother. Instead, then eight year-old Brittany stated in regard to the events two years prior: "Well, I woke up early and I heard screaming and shouting, and then I went back to sleep because I was kind of seared." When asked what happened next, she replied: "When I woke up I saw mom, I heard erying and I walked, I stepped down from the bed with the ladder, and I saw mom erying and Steven holding her and saying it's okay." When asked what else she remembered, Brittany *1023 stated: "Bill Fix slammed her against the wall or the floor. It was either one of those because I heard a bounce."

[T28] Appellee essentially urges that we reject Brittany's claim because, according to her remembrance, she was not an eyewitness to the alleged outrageous conduct. First, as a purely factual matter, it is unclear from the record precisely what Brittany Bevan observed of the violent confrontation between Fix and her mother, Jones. Jones' affidavit and sworn complaint for family violence protective order both state that Jones saw Brittany, along with her two sitters, observing the alleged beating. 9 Thus, in any event, a fact question remains as to the events actually visually observed by Brittany. More importantly, however, we do not believe that cither the Restatement comment and caveat or our precedent on the issue support the very narrow interpretation of the "presence" element urged by appellee.

[129] This court first had occasion to address the issue when we adopted the third party intentional infliction of emotional distress claim in R.D. v. W.H., 875 P.2d 26 (Wyo.1994). There we stated that most cases interpreting the presence requirement have held that "present at the time" means that the plaintiff must be present when the outrageous conduct occurs. Id. at 83. However, the opinion continued by citing both Restatement § 46 emt. 1 and the caveat:

Conduct directed at a third person. Where the extreme and outrageous conduct is directed at a third person, as where, for example, a husband is murdered in the presence of his wife, the actor may know that it is substantially certain, or at least highly probable, that it will cause severe emotional distress to the plaintiff. In such cases the rule of this Section applies. The cases thus far decided, however, have limited such hability to plaintiffs who were present at the time, as distinguished from those who discover later what has occurred. The limitation may be justified by the practical necessity of drawing the line somewhere, since the number of persons who may suffer emotional distress at the news of an assassination of the President is virtually unlimited, and the distress of a woman who is informed of her husband's murder ten years afterward may lack the guarantee of genuineness which her presence on the spot would afford. The Caveat is intended, however, to leave open the possibility of situations in which presence at the time may not be requrred.

Cmt 1 (emphasis added). The caveat referred to in the comment states:

The Institute expresses no opinion as to whether there may not be other cireum-stances under which the actor may be subject to liability for the intentional or reckless infliction of emotional distress.

[130] Ultimately, in R.D. v. W.H., this court stated that "[wle believe that it is generally a better practice to limit recovery for intentional infliction of emotional distress to plaintiffs who were present when the outrageous conduct occurred.... [However] [wle hold that the facts of this case place it within the narrow exception to the general rule that a plaintiff must be present when the outrageous conduct occurs in order to recover for intentional infliction of emotional distress." Id. at 88. There the husband and minor child of the decedent sued her stepfather and his physician for acts which they contended led to her suicide by drug overdose. While we recognized that the plaintiffs were not present either when the defendant's alleged sexual abuse of the decedent took place, or when the defendant provided the decedent with a firearm with which she attempted suicide, or when the defendant provided the decedent with the preseription nar-cotiecs by which she ultimately killed herself, we allowed the claim because "Appellant and the minor child were present in the immediate aftermath of the tragic results of Appel-lee's outrageous conduct, and the suicide was the final result of a continuing course of conduct instigated by Appellee." Id. at 38-34.

*1024 [131] In R.D. v. W.H. we decided the claim by placing it outside the general rule that the claimant must be "present at the time" of the alleged outrageous conduct and therefore did not expressly address what it means to be "present" for the purposes of an intentional infliction of emotional distress claim. Accordingly, we consider it here as an issue of first impression, and we do not think that a plaintiff must necessarily visually observe the outrageous conduct to be considered "present at the time" that it occurs. "Present" is defined by Webster's Third New International Dictionary (1971) as "being in one place and not elsewhere; being within reach, sight, or call or within contemplated limits; being in view or at hand; being before, beside, with, or in the same place as someone or something." Id. at 1798.

[T32] Therefore, we hold that in order for a plaintiff to be considered "present at the time" of the outrageous conduct for purposes of an intentional infliction of emotional distress claim, he must simply show his 'sensory and contemporaneous observance' of the defendant's acts. Consequently, the claimant is not required to have seen the outrageous acts but may still recover, without resort to the Restatement caveat, if he gained personal and contemporaneous knowledge of them through the use of his remaining senses. We trust this holding does more than merely reflect "the practical necessity of drawing the line somewhere," emt. l, and instead strikes an appropriate balance between an actor's interest in limiting his liability to those acts committed with the reasonable foreseeability that they will cause a third-party witness emotional distress, and the interests of those claimants who have witnessed outrageous conduct directed toward their family members. See generally, Annotation, Immediacy of Observation of Injury as Affecting Right to Recover Damages for Shock or Mental Anguish from Witnessing Injgury to Another, 5 A.L.R Ath 838 (1981 & Supp.2001).

[188] Applying the law we have herein set out to the instant case, we think the record discloses sufficient facts indicating Brittany's 'sensory and contemporaneous' observance of Fix's alleged outrageous conduct directed toward her mother to preclude summary judgment against her on this element. Likewise, Steven testified in deposition among other things, "I remember when Bill Fix choked my mom by a wall." The children's statements, coupled with Jones' affidavit, are sufficient to preclude summary judgment for Fix on the "presence" element of the children's claims.

[T34] As to the fifth element of Brittany and Steven's claims for intentional infliction of emotional distress that they sustained severe emotional distress as a result of that conduct, appellee's brief makes many factual arguments regarding the children's memories of the events, the manner in which they describe and attribute their distress, the duration and nature of their counseling, et-cetera; however, we think these factual arguments are better addressed by a jury than by this appellate court. In numerous cases we have approved the following language found in Restatement § 46 emt. j defining severe emotional distress. See Kanzler v. Renner, 937 P.2d at 1341 (quoting emt. j, Restatement, Second, Torts § 46); Davis v. Consolidated Oil & Gas, Inc., 802 P.2d 840, 849 (Wyo.1990); Leithead, 721 P.2d at 1066-67.

Emotional distress passes under various names, such as mental suffering, mental anguish, mental or nervous shock, or the like. It includes all highly unpleasant mental reactions, such as fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry, and nausea. - It is only where it is extreme that the liability arises. Complete emotional tranquility is seldom attainable in this world, and some degree of transient and trivial emotional distress is a part of the price of living among people. The law intervenes only where the distress inflicted is so severe that no reasonable [person] could be expected to endure it. The intensity and the duration of the distress are factors to be considered in determining its severity. Severe distress must be proved; but in many cases the extreme and outrageous character of the defendant's conduct is in itself important evidence that the distress has existed. For example, the mere recital of the facts in Mlustra *1025 tion 1 above goes far to prove that the claim is not fictitious ....

Addressing the court's gate-keeping function in this regard, comment j continues:

It is for the court to determine whether on the evidence severe emotional distress can be found; it is for the jury to determine whether, on the evidence, it has in fact existed.

[185] We conclude sufficient evidence of emotional distress was presented to preclude summary judgment for appellee. The facts alleging the children's changes in behavior, their own deposition testimony, the affidavit of Jones, and the deposition testimony of the two counselors and psychologist who have subsequently interviewed and diagnosed the children's disorders are more than sufficient to give rise to a genuine issue of material fact on the issue of Brittany and Steven's severe emotional distress.

[186] Lastly, we must consider whether the record discloses facts sufficient to allow a jury to reasonably conclude that Fix "intentionally" or "recklessly" caused severe emotional distress to Brittany and Steven. Restatement emt. i provides:

Intention and recklessness. The rule stated in this Section applies where the actor desires to inflict severe emotional distress, and also where he knows that such distress is certain, or substantially certain, to result from his conduct. It applies also where he acts recklessly, as that term is defined in § 500, in deliberate disregard of a high degree of probability that the emotional distress will follow.

The Restatement addresses reckless conduct in § 500, emt. (a) (1965) thusly:

Types of reckless conduct. Recklessness may consist of either of two different types of conduct. In one the actor knows, or has reason to know ... of facts which create a high degree of risk of physical harm to another, and deliberately proceeds to act, or to fail to act, in conscious disregard of, or indifference to, that risk. In the other the actor has such knowledge, or reason to know, of the facts, but does not realize or appreciate the high degree of risk involved, although a reasonable man in his position would do so. An objective standard is applied to him, and he is held to the realization of the aggravated risk which a reasonable man in his place would have, although he does not himself have it. ... For either type of reckless conduct, the actor must know, or have reason to know, the facts which create the risk.

Recklessness requires actual or imputed knowledge. The person who is reckless must have prior knowledge; he must know or have reason to know of facts which create a high degree of risk of harm to another, and then, indifferent to what harm may result, proceed to act.

[137] We find in the evidence a reasonable basis for expecting, and for Fix to have expected, such results. The assault in question was of a type and of such a nature as would ordinarily cause emotional injury to mere bystanders, even more so if they were the family members of the person being assaulted. Additionally, the fact that the witnesses are the young children of the woman assaulted would certainly cause the average person to anticipate that those children may experience severe "fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry, and nausea" as a result of the witnessed conduct. Cmt. j. At a minimum, we think a reasonable jury could find that by his conduct Fix "recklessly" caused severe emotional distress to Brittany and Steven Bevan on March 80, 1998.

[138] We conclude that genuine issues of material fact are present on each element of the Bevan children's claims for intentional infliction of emotional distress against Fix. Consequently, we reverse the district court's grant of summary judgment in his favor.

Legal Malpractice

[139] Bevan contends that the district court committed error by granting summary judgment to Fix on Bevan's claim of legal malpractice, which he argues arose when Fix represented Jones against Bevan, his former client, in the couple's divorce proceeding. After analysis of this claim in its procedural posture, we affirm the district court's grant of summary judgment in favor of Fix.

*1026 [140] In Moore v. Lubnau, this court outlined the elements that must be satisfied by a plaintiff bringing a claim of legal malpractice. Adopting the same test that applies to medical malpractice suits, we held that, after establishing a duty, the plaintiff has the obligation to establish the accepted standard of legal care; that the attorney's conduct departed from that standard; and that his conduct was the legal cause of the injuries suffered. 855 P.2d 1245, 1248 (Wyo. 1993). We accepted that the standard of care to which an attorney would be held was, "that degree of care, skill, diligence and knowledge commonly possessed and exercised by a reasonable, careful and prudent lawyer in the practice of law in this jurisdiction." Id. We went on to hold that a party trying to establish the standard adhered to by a "reasonable, careful and prudent" lawyer must typically use expert testimony because "most lay people are not competent to pass judgment on legal questions." Id. at 1249. We noted, however, that an exception exists, "when a lay person's common sense and experience are sufficient to establish the standard of care." Id.

[¥41] In the procedural posture of summary judgment, this court held that the attorney, as the moving party, first must make a prima facie showing that no genuine issue of material fact exists before summary judgment can be granted in his favor. Id. at 1248. To that end, the attorney, through expert testimony or affidavit, is "required to demonstrate that his conduct conformed to the accepted standard of legal care." Id. In Moore v. Lubnau, we held that the moving attorney's own affidavit was insufficient to support the grant of summary judgment in his favor. Within the opinion the court had first rejected the "locality rule" to establish the standard of care for attorneys practicing within the state reasoning that, "[alll attorneys must satisfy certain minimum requirements before being allowed to practice law in Wyoming. The level of knowledge required for admission to the bar does not vary from community to community. Altering the requisite degree of knowledge and care because an attorney begins practicing in a certain community makes little sense." At 1249-50. As a consequence of this holding, the court rejected Lubnaun's affidavit as insufficient because within it he only claimed to satisfy the standard of care for attorneys in Campbell County. However, a majority of the court found the deposition testimony of the then-retired judge who had presided over the underlying case sufficient to meet Lubnau's prima facie burden. The majority found that it adequately demonstrated that Mr. Lubnau met the standard of care for attorneys in Wyoming because the judge had specifically testified, "[Imly opinion is that he more than met the standards of practice in the Sixth Judicial District and in the State of Wyoming." Id. at 1250. Nevertheless, this court went on to state: "Ideally, the judge would have described Ms. Moore's allegations of wrongful conduct, stated the ordinary manner in which Wyoming attorneys handle each situation, and then stated whether or not Mr. Lubnau's conduct conformed to that standard." Id.

[142] In Moore v. Lubnau, the court's discussion continued, ultimately to hold: "Onee Mr. Lubnau met his initial burden of proof, Ms. Moore was obligated to demonstrate through expert testimony that his conduct was not that of a reasonable Wyoming attorney. Her failure to submit countervailing expert testimony established