Screaming at a Crying Child in a Public Place: What is the Right Thing to Do?

As a business owner, what would you do if patrons of yours had a child with them that they would (or could) not stop from crying?

Before you answer, assume that 1) the establishment is full of other customers that are both annoyed with the crying and will see what you are about to do and 2) that we are living in the era of the “hyper gotcha-media”1)tm pending where we all now have electronic devices that can easily take video of what happens around us, and will likely tattle at the first whiff of unreasonable behavior.

Not an easy hypothetical, is it2)I have a more personal anecdote. A few weeks ago I flew back to Las Vegas from New York on a late night flight [the equivalent of a red-eye going west]. This couple with at least 4 children did not purchase a seat for their two very young kids, presuming [I assume] that they would hold the child through the 6 hour flight. For whatever reason, the child cried continuously [this is an appropriate time to use the term ‘literally’] for the entire flight. If you do not know many New Yorkers, they are more likely than most to tell you exactly how they feel about a particular set of circumstances. I could see folks starring lasers at the young couple in the back of the plane, then leaning over to the person next to him/her and stage whispering nasty thoughts that I will not repeat here. I was concerned that someone was about to get up, start an altercation, and we would all end up in Denver for the night. Luckily, this did not occur. But still, what were we all supposed to do? I felt both sorry for the young couple and angry at them for not being more responsible. I imagine the customers in the following scenario felt a similar cognitive dissonance. I share this tale only so you know, before I evaluate the behavior of the folks involved in this scenario, that I am certainly not better or superior to them.?

Hopefully, if this happens to you, the following does not occur:

In Portland, ME, a few weeks ago, a young couple with their toddler daughter arrived at a small, busy, breakfast establishment. After waiting thirty minutes for a table, the couple had to wait an additional forty minutes for their food to be prepared3)those familiar with the east coast small breakfast establishments will not find this wait time surprising. Unlike the spacious kitchens in Southern Nevada, there is a finite amount of space that these folks have to cook in, and it takes a bit longer to get your food. Plus, there is no pressure from the casino to get you out of the restaurant and back on the floor.

What happened next is not very clear; it depends upon whom you ask. All I can report with certainty is that the toddler became unruly, and there was a confrontation between the toddler’s family and the restaurant owner. I will allow you to read what each party stated on the facebook, and allow you to do your best Judge Judy4)it is shame we do not have more of her. If are sensitive to belligerent language, you may want to skip the posts from Marcy’s Diner.

 

Crying child, portland maine, restaurant owner, tort

Ms. Carson then went on to write an op-ed for the Washington Post regarding the incident5)It is tough for the Post to find hard news to report without an upcoming election..oh wait.

Again, I do not know for sure, the following is not anything more than conjecture, but there seems to be an agreement that the restauranteur addressed the child directly in an unfriendly manner. I know this may shock you, loyal reader, but the internets went into a tizzy over this. Most folks have previously been similarly situated, and therefore, have a strong opinion as to what was right for the parents/restauranteur to do.

The Press Herald of Portland, ME, polled their readers to discover how the public would adjudicate this issue. Out of 5500 votes, 61% of the respondents said that they approved of the way Ms. Neugebauer handled the unruly child.6)Source  I, for one, was a bit shocked by the result. And here I thought America loved children unconditionally. Perhaps it is just when they are seen, but not heard.

I got a lukewarm take of my own, as a matter of fact! It is a bit more nuanced than most of the opinions I have seen, so please bear with me.

 

If this crying child scenario happened in Nevada, is there a potential tort?

Assuming that folks name-calling on the facebook is not the most efficacious means to resolve societal issues, is the court system the right forum? If so, assuming the mother’s account of the events is correct, do the parents have a cause of actions against the restauranteur? Before we begin, know that each state has its own tort law, so what is true in Nevada is not necessarily true anywhere else. Given what we know of the facts, it is possible that a similarly situated plaintiff in Nevada might have a cause of action against the restauranteur through Intentional Infliction of Emotional Distress(IIED) cause of action. The necessary elements of IIED are as follows:

1) the defendants’ conduct was extreme and outrageous;

2) defendants’ conduct was non-privileged;

3) defendants acted with the intention to cause plaintiffs emotional distress, or with reckless disregard for the probability for causing such distress;

4) plaintiffs actually suffered severe or extreme emotional distress; and

5) defendants’ conduct actually or proximately caused the emotional distress.7)Alam v. Reno Hilton Corp., 819 F. Supp. 905, 911 Dist. Court, D. Nevada 1993

 

If I may guess, you have read through those elements and are still not sure if these facts meet those standards. Fair enough. I am happy to elaborate in the pertinent ones. Elements 2 and 3 are easily met in our hypothetical restaurant scenario. There is no legal privilege to yell at another person’s child, and the restauranteur clearly intended to yell at the child, as expressed in her facebook post. As to the other three elements, things get a bit murky.

Was the conduct “extreme and outrageous?” That is a tough question to answer. “Extreme and outrageous” conduct “go[es] beyond all possible bounds of decency, is atrocious and utterly intolerable.”8)Id. I can hear you muttering under your breathe; more synonyms do not make the issue any more clear. The behavior of the restauranteur is what is called a question of fact that would be decided by a judge or jury.  The finder of fact would query, “is the behavior ‘extreme and outrageous’ in the eyes of the hypothetical reasonable person?” The answer again is unclear. As we saw last year with the hoopla surrounding Adrian Peterson9)the football player that was suspended for punishing his young son with a switch, mores with respect to parenting vary greatly through the country. If these facts were presented to a jury in the affluent part of the Bay Area/Park Slope, Brooklyn/Los Angeles, my guess is that the twelve, randomly selected folks would be more inclined to find yelling at another’s child as “extreme and outrageous.” If the case was tried in rural Texas, the deep south, or middle-west, I think it would be less likely.

As to the fourth element, the Alam court states “the stress must be so severe and of such intensity that no reasonable person could be expected to endure it. Moreover, the less extreme the outrage…the more appropriate it is to require evidence of physical injury or illness from the emotional distress.”10)Id. Citation omitted A similar social mores issue as above exists here. Depending on where you are, folks have different expectations of their children. Some think tough love is good for them, others think nurture is more important than nature. Considering the Las Vegas Valley is in between these two extremes, it is difficult to predict how a 12-person jury would decide.

In order for there to be a valid claim, the child would need to manifest actual harm suffered that was caused by the event. The kid would need to go from being gregarious around adults to needing multiple sessions of psychotherapy a week, for example. Even then, if the child suffered a trauma before the incident, it might be difficult to determine if this restauranteur is the actual or proximate cause of the child’s damages.

That was my long-winded way of telling you that a potential case, like most, will be fact-specific. As to the possibility of a tort, a few years ago in New York, Patti Labelle11)according to news accounts returned to an apartment building where she was staying, saw an unsupervised child, and lost her cool, to say the least12)read more here. The case did not go to trial, but Ms. Labelle decide to settle for six-figures before she was to be deposed. Although there is no telling why she settled, it is not that common for folks to pay out six-figures over frivolous claims.

 

Compassion for the Crying Child

Before we wrap up here, if I may, a few words13)#Synecdoche on sympathy, empathy and compassion. At least from the press accounts I have come across, I have yet to see my writer friends get to the underlying issue of this unfortunate incident. Comment if you disagree, but my feelings are that folks heard the details of the story, then latched onto the perspective that they were most familiar: either empathy for the toddler’s parents after they have suffered through a similar, painful episode with their own uncontrollable children, or empathy for the restauranteur as a person with no kids that who is tired of parents that cannot control their children in public.

Is this what we have become? Only able to understand perspectives we are most familiar with? Over the weekend I finished Ta-Nehisi Coates’ Between the World and Me14)Highly recommended. There are too many great parts to elaborate on in a footnote, but I must say that I deeply admire his vulnerability. The book elicited thoughts of Vollmann’s “sleepwalkers” in Europe Central, Ellison’s Invisible Man [thematically], Morrison’s Song of Solomon [again, thematically], and the comment made by David Foster Wallace to David Lipsky in Although Of Course You End Up Becoming Yourself[This is in no way an endorsement of that movie. I am about to paraphrase.] that the real heroes of our society are the ones who will let go of the cynical irony and be genuine, honest, and vulnerable about how they feel, without any regard for how the remaining cynics will react. Toward the end of the letter to his son, Mr. Coates describes an incident in New York City when he was walking with his young son and a woman of another race shoved his son out of the way as if he was not entitled any amount of human decency. Mr. Coates describes becoming agitated (as I am sure we all would) and addressing the woman in a stern manner in reference to what she had done. Other men of the woman’s race saw the conversation and stepped in and threatened to have Mr. Coates arrested for speaking to the woman in such a way. Mr. Coates went on to express his regret to his son on how he had 1) lost his cool and 2) put his son at risk through the confrontation. How many of us would have responded in the same way and been left with similar regrets?

What is most apparent about the restaurant incident is that neither party seems to have any regard for how the other side must be feeling. It is doubtful that the parents of the toddler wanted her to be crying in the restaurant for all that time15)they do not seem like malicious people from what I have seen. To respond the way the restauranteur makes it look as if she thought the parents were trying to drive away her weekend breakfast crowd. Even if she cannot understand why the parents cannot or will not stop the child from crying, would not sympathy and compassion lead to a better outcome? Bring the child a little something to eat to tide her over? How about a crayon and a piece of paper? Upon their arrival, let the parents know that there will be a bit of wait with the breakfast rush so they know what they are getting into? If these options are not functional, and the child is crying in a manner unsuitable to the owner, perhaps pull the parent(s) aside and speak to them respectfully about why the disturbance is unacceptable. To yell at a small child seems to be the worst outcome possible besides violence (as we saw from the facebook post, the restaurateur was not against that option). Not that I am judging folks here, but I cannot fathom why it is necessary to call the small child those horrible names on the facebook. It is not like the family will be returning to the restaurant.

Ah, but what about the parents? Even if it takes a village to raise a child, perhaps the villagers should be permitted to opt in? Just because you are used to the volume of your crying child, it is not fair to assume others are as well. The restaurateur, her employees, and their fellow customers deserve more respect than that. If you do not know what to do, you could always ask for help! Like Mr. Coates spoke of, as parents you are possibly putting your child at unnecessary risk by not addressing the incessant crying. How important could those pancakes possibly be? Worse, instead of trying to understand why the restauranteur would respond in an unconscious manner16)as Eckhart Tolle would put it, you chose to instigate further harm by attacking the restaurant owner on the facebook, which is what triggered the media firestorm. Clearly the parents do not want to behave this way from the comment the mother made to her child after the yelling about not wanting the young girl to grow up to be that way. So is it ok to behave that way online? Now they have turned the incident into a crying shame, for the parents and the child. And for what good? Did shaming the owner bring about the desired result? Or just create a shame cycle?

Is this a product of our friends in the media exploiting conflict for their own profit without regard for the feelings of those involved? Who is to say. No one made the participants publish responses on the facebook and Washington Post, they all made that choice. But we in the media could show more compassion as well. Clear these folks were a bit out of mind during this incident, but by turning the incident into click-bait, we have defined these poor people by their worst behavior of one weekend morning17)it would be a different story if the incident was so-called “news-worthy,” but you will have a difficult time persuading me that breakfast incident in Portland, Maine, affects any of our lives. I do not think any of us want to be defined by our worst actions. Just because we can make a snap judgments does not mean we should.

Nor will you be able to persuade me that if each party showed sympathy and compassion for one another that it would not have led to a more desired result. Anger, shame and humiliation resulted in worse outcome for all involved. It does not have to be this way! Let us follow Mr. Coates’ example and use this incident to stay more conscious and have more sympathy for one another, even if it is not clear why in the moment. Good can come of all this hoopla after all.

 

More reading for your perusal:

NY Post on Patti Labelle

The Washington Post

The USA Today

Footnotes   [ + ]

1. tm pending
2. I have a more personal anecdote. A few weeks ago I flew back to Las Vegas from New York on a late night flight [the equivalent of a red-eye going west]. This couple with at least 4 children did not purchase a seat for their two very young kids, presuming [I assume] that they would hold the child through the 6 hour flight. For whatever reason, the child cried continuously [this is an appropriate time to use the term ‘literally’] for the entire flight. If you do not know many New Yorkers, they are more likely than most to tell you exactly how they feel about a particular set of circumstances. I could see folks starring lasers at the young couple in the back of the plane, then leaning over to the person next to him/her and stage whispering nasty thoughts that I will not repeat here. I was concerned that someone was about to get up, start an altercation, and we would all end up in Denver for the night. Luckily, this did not occur. But still, what were we all supposed to do? I felt both sorry for the young couple and angry at them for not being more responsible. I imagine the customers in the following scenario felt a similar cognitive dissonance. I share this tale only so you know, before I evaluate the behavior of the folks involved in this scenario, that I am certainly not better or superior to them.
3. those familiar with the east coast small breakfast establishments will not find this wait time surprising. Unlike the spacious kitchens in Southern Nevada, there is a finite amount of space that these folks have to cook in, and it takes a bit longer to get your food. Plus, there is no pressure from the casino to get you out of the restaurant and back on the floor
4. it is shame we do not have more of her
5. It is tough for the Post to find hard news to report without an upcoming election..oh wait
6. Source 
7. Alam v. Reno Hilton Corp., 819 F. Supp. 905, 911 Dist. Court, D. Nevada 1993
8. Id.
9. the football player that was suspended for punishing his young son with a switch
10. Id. Citation omitted
11. according to news accounts
12. read more here
13. #Synecdoche
14. Highly recommended. There are too many great parts to elaborate on in a footnote, but I must say that I deeply admire his vulnerability. The book elicited thoughts of Vollmann’s “sleepwalkers” in Europe Central, Ellison’s Invisible Man [thematically], Morrison’s Song of Solomon [again, thematically], and the comment made by David Foster Wallace to David Lipsky in Although Of Course You End Up Becoming Yourself[This is in no way an endorsement of that movie. I am about to paraphrase.] that the real heroes of our society are the ones who will let go of the cynical irony and be genuine, honest, and vulnerable about how they feel, without any regard for how the remaining cynics will react.
15. they do not seem like malicious people from what I have seen
16. as Eckhart Tolle would put it
17. it would be a different story if the incident was so-called “news-worthy,” but you will have a difficult time persuading me that breakfast incident in Portland, Maine, affects any of our lives
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