Appeal by plaintiff from order entered 16 January 2003 by
Judge Orlando F. Hudson, Jr. in Superior Court, Durham County.
Heard in the Court of Appeals 1 April 2004.
Hollowell, Mitchell, Peacock & Von Hagen, P.A., by Joseph T.
Copeland, for plaintiff-appellant.
Adkins & Flowers, P.A., by Philip S. Adkins, for defendants-
appellees.
McGEE, Judge.
Bobby Ray Proctor (plaintiff) filed a complaint alleging
claims of intentional infliction of emotional distress and
negligent infliction of emotional distress as a result of ridicule
and harassment by Mark Yates, Derek Wells, Roger Fowler, Chris
Warren and David Mann (collectively employee defendants).
Plaintiff also alleged that Johnson Body Shop, Inc. (Johnson
Body Shop), Lemmuel O. Johnson, Jr. (Johnson), and Matt Brown
(Brown) (collectively employer defendants) failed to stop the
complained of conduct, instead expressly approving and ratifyingit. Plaintiff alleged that the actions of employer defendants
constituted negligent hiring, retention, and supervision. In an
answer and counterclaim filed 24 January 2002, all defendants moved
to dismiss plaintiff's complaint pursuant to N.C. Gen. Stat. § 1A-
1, Rule 12(b)(6). In addition, both Johnson Body Shop and Brown
asserted counterclaims against plaintiff. Plaintiff replied to
these counterclaims on 28 March 2002. Defendants moved for summary
judgment in a motion dated 25 November 2002. In an order filed 16
January 2003, the trial court granted the motion by all defendants
for summary judgment and dismissed plaintiff's complaint. The
trial court further granted summary judgment in favor of Johnson
Body Shop against plaintiff in the amount of $527.61 and in favor
of Brown against plaintiff in the amount of $5,000.00. Plaintiff
appeals.
Plaintiff was employed as a technician by Johnson Body Shop
from 1997 until 1999 and again from January 2000 until July 2001.
Plaintiff alleged that during his second tenure at Johnson Body
Shop he was "subjected to extreme and outrageous ridicule and
harassment by his co-workers" and that employer defendants did
nothing to stop this ridicule and harassment. In addition,
plaintiff named Johnson Body Shop, Johnson, and Brown as defendants
under the theory of respondeat superior. In his brief, plaintiff
notes multiple events of ridicule and harassment by employee
defendants, including, but not limited to, numerous practical
jokes, writings, photographs, songs, poems, and signs ridiculing
plaintiff. In his affidavit, plaintiff testified that thisharassment resulted in his hospitalization and treatment for major
depression and suicidal ideations. Plaintiff also stated in his
affidavit that he complained to both Brown and Johnson on numerous
occasions about the ridicule and harassment and that both Brown and
Johnson observed much of the complained of conduct firsthand.
However, the harassment never ceased and Brown and Johnson never
disciplined or terminated any employee defendants.
Plaintiff argues the trial court erred in finding that there
was no genuine issue of material fact as to his claims. N.C. Gen.
Stat. § 1A-1, Rule 56(c) (2003) provides that summary judgment is
appropriate when the evidence submitted by the parties presents "no
genuine issue as to any material fact and that any party is
entitled to a judgment as a matter of law." "A party moving for
summary judgment satisfies its burden of proof (1) by showing an
essential element of the opposing party's claim is nonexistent or
cannot be proven, or (2) by showing through discovery that the
opposing party cannot produce evidence to support an essential
element of his or her claim." Belcher v. Fleetwood Enters., Inc.,
162 N.C. App. 80, 84, 590 S.E.2d 15, 18 (2004). The trial court
must view the evidence in a light most favorable to the non-moving
party. Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 63,
414 S.E.2d 339, 342 (1992).
I. Intentional Infliction of Emotional Distress
Plaintiff first argues that the trial court erred in granting
summary judgment in favor of employee defendants on plaintiff's
claim for intentional infliction of emotional distress. In orderto prevail on his claim for intentional infliction of emotional
distress (IIED), plaintiff must show (1) that defendants engaged in
extreme and outrageous conduct and (2) that the conduct was
intended to and did in fact cause (3) severe emotional distress.
Waddle v. Sparks, 331 N.C. 73, 82, 414 S.E.2d 22, 27 (1992).
Plaintiff alleged an IIED claim against only employee defendants,
not against employer defendants. A plaintiff can recover for the
injurious acts of a co-employee without his employer being liable.
Pleasant v. Johnson, 312 N.C. 710, 713, 325 S.E.2d 244, 247 (1985).
Our Supreme Court has clearly stated that "an injured worker may
maintain a tort action against a co-employee for intentional
injury[,]" and "the Workers' Compensation Act does not preclude a
suit against a co-employee for intentional torts."
Id. For the
reasons stated below, we hold that employee defendants in this case
can be held liable for the intentional torts alleged by plaintiff
even in the absence of liability on behalf of employer defendants.
The first element of an IIED claim of whether conduct is
sufficiently extreme and outrageous to support a claim is a
question of law for the trial court.
Hogan v. Forsyth Country Club
Co., 79 N.C. App. 483, 490, 340 S.E.2d 116, 121,
disc. review
denied, 317 N.C. 334, 346 S.E.2d 140 (1986). "However, once
conduct is shown which may be reasonably regarded as extreme and
outrageous, it is for the jury to determine, upon proper
instructions, whether the conduct complained of is, in fact,
sufficiently extreme and outrageous to result in liability."
Hogan,
79 N.C. App. at 491, 340 S.E.2d at 121. In the case beforethis Court, the trial court found as a matter of law that the
conduct of employee defendants was not sufficiently extreme and
outrageous to support an IIED claim. For the reasons stated below,
we disagree.
To meet the standard of extreme and outrageous conduct, the
conduct must be "'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[.]'"
Id.
at 493
, 340 S.E.2d at 123 (quoting Restatement
(Second) of Torts § 46 Comment (d) (1965)). We note that with
respect to extreme and outrageous conduct, "'liability clearly does
not extend to mere insults, indignities, [and] threats.'"
Hogan,
79 N.C. App. at 493, 340 S.E.2d at 123) (quoting Restatement
(Second) of Torts, § 46 comment (d)). Rather, to give rise to a
successful claim, the complained of conduct must "'exceed[] all
bounds usually tolerated by decent society' and . . . 'cause[]
mental distress of a very serious kind.'"
Stanback v. Stanback,
297 N.C. 181, 196, 254 S.E.2d 611, 622 (1979)(quoting Prosser,
The
Law of Torts, § 12, p. 56 (4th Ed. 1971)).
We note that "it is extremely rare to find conduct in the
employment context that will rise to the level of outrageousness
necessary to support a claim of intentional infliction of emotional
distress."
Thomas v. Northern Telecom, Inc., 157 F. Supp. 2d 627,
635 (M.D.N.C. 2000);
see Atkins v. USF Dugan, Inc., 106 F. Supp. 2d
799, 810-11 (M.D.N.C. 1999);
Wilson v. Southern Nat. Bank of North
Carolina, Inc., 900 F. Supp. 803, 811-12 (W.D.N.C. 1995). However,in
Phillips v. Restaurant Mgmt. of Carolina,
L.P., our Court stated
that it could not say, as a matter of law, that a restaurant
employee's act of spitting in a plaintiff's food "does not rise to
the level of 'extreme and outrageous.'"
Phillips, 146 N.C. App.
203, 213, 552 S.E.2d 686, 693,
disc. review denied, 355 N.C. 214,
560 S.E.2d 132 (2001). In
Phillips, we noted that one jurisdiction
has even made it a felony for prisoners to "'intentionally cause or
knowingly cause another to come in contact with blood, semen,
saliva, urine or feces.'"
Phillips, 146 N.C. App. at 213, 552
S.E.2d at 693
(quoting 19 Pa. C.S.A. § 2703.1).
In the present case, there was evidence that employee
defendants spread animal feces on the handles of plaintiff's tools
with which plaintiff routinely came into contact. Further,
employee defendants telephoned plaintiff's wife "posing as
representatives of a funeral home with news of [plaintiff's] death
and inquiring about disposal of [plaintiff's] body." There is also
ample evidence of employee defendants continually teasing and
ridiculing plaintiff. In consideration of the reprehensible nature
of the actions of employee defendants, we cannot say as a matter of
law that employee defendants' actions do not rise to the level of
"extreme and outrageous conduct."
The remaining elements of an IIED claim are whether the
conduct was intended to cause severe emotional distress, and
whether the conduct did in fact cause severe emotional distress.
Waddle, 331 N.C. at 82, 414 S.E.2d at 27. We note that the second
element of intent "may also be proven by a showing that thedefendant acted with 'reckless indifference to the likelihood' that
his or her acts 'will cause severe emotional distress.'"
Miller v.
Brooks, 123 N.C. App. 20, 29, 472 S.E.2d 350, 356 (1996) (quoting
Dickens v. Puryear, 302 N.C. 437, 452, 276 S.E.2d 325, 335 (1981)),
disc. review denied, 345 N.C. 344, 483 S.E.2d 172 (1997).
Regarding the recklessness standard for showing intent, our Supreme
Court has stated that a defendant is liable if he "'acts recklessly
. . . in deliberate disregard of a high degree of probability that
the emotional distress will follow[.]'"
Dickens, 302 N.C. at 449,
276 S.E.2d at 333 (quoting Restatement (Second) of Torts § 46,
Comment i (1965)).
Here, plaintiff has forecast sufficient
evidence of these elements to survive summary judgment.
Regarding the element of intent,
plaintiff alleged that
employee defendants' conduct was "intended to inflict emotional
distress in Plaintiff[.]" Plaintiff testified in his deposition
that employee defendants knew he was "softhearted" but they would
"start messing with [him], and [he would] ask them to stop and they
[wouldn't] and [he would] get upset[.]" Plaintiff further
testified in his deposition that employee defendants "knew [he] was
easy to upset[.]" Plaintiff also testified that both he and Brown
asked employee defendants on numerous occasions to leave plaintiff
alone.
In fact, plaintiff testified in his affidavit that he
"begged and pleaded" with employee defendants to stop harassing
him.
This testimony demonstrates that employee defendants were
aware that the teasing and harassing were upsetting plaintiff, yet
they refused to stop bothering plaintiff. This constitutes aforecast of evidence that employee defendants acted with a
disregard that plaintiff would suffer emotional distress.
Regarding the third element of emotional distress, plaintiff
presented substantial evidence of hospitalization, treatment,
medication and psychological evaluation to support his contention
that he suffered severe emotional distress.
Plaintiff brought forth evidence regarding all three elements
of an IIED claim. Accordingly, we conclude that the trial court
erred in granting summary judgment in favor of employee defendants
and this portion of the trial court's order is reversed.
II. Negligent Infliction of Emotional Distress
Plaintiff next argues that the trial court erred in granting
summary judgment in favor of employee defendants on plaintiff's
claim for negligent infliction of emotional distress (NIED). For
the reasons stated below, we disagree.
In order to succeed on his claim of NIED, plaintiff must prove
(1) that employee defendants negligently engaged in conduct, (2)
that it was reasonably foreseeable that their conduct would cause
plaintiff severe emotional distress, and (3) that the conduct did
in fact cause plaintiff severe emotional distress.
Johnson v.
Ruark Obstetrics, 327 N.C. 283, 304, 395 S.E.2d 85, 97 (1990). In
addressing plaintiff's argument, we find
Guthrie v. Conroy, 152
N.C. App. 15, 567 S.E.2d 403 (2002)
controlling. Our Court in
Guthrie stated that "[n]egligence is the breach of a legal duty
owed by defendant that proximately causes injury to plaintiff."
Guthrie, 152 N.C. App. at 25, 567 S.E.2d at 410. Further, "'[i]norder to establish actionable negligence, a plaintiff must show
that: (1) defendant failed to exercise due care in the performance
of some legal duty owed to plaintiff under the circumstances; and
(2) the negligen[t] breach of such duty was the proximate cause of
the injury.'"
Id. at 25, 567 S.E.2d at 410-11 (quoting
Gordon v.
Garner, 127 N.C. App. 649, 660-61, 493 S.E.2d 58, 65 (1997),
disc.
review denied, 347 N.C. 670, 500 S.E.2d 86 (1998)).
In
Guthrie, the plaintiff failed to allege any duty owed by
the defendant to the plaintiff and failed to present any evidence
showing that the defendant breached any duty of care owed to the
plaintiff.
Guthrie, 152 N.C. App. at 25, 567 S.E.2d at 411. Our
Court therefore held that "[a]bsent a breach of duty of care,
plaintiff's suit against [the defendant] for NIED cannot be
maintained" and concluded that summary judgment was proper.
Id. at
25-26, 567 S.E.2d at 411. Similarly, in the case before our Court,
plaintiff failed to allege and failed to present any evidence that
employee defendants owed any duty to plaintiff.
Accordingly, as in
Guthrie, we conclude that the trial court did not err in granting
summary judgment in favor of employee defendants on plaintiff's
NIED claim.
We note that plaintiff also argues that employer defendants
are liable for IIED and NIED under the doctrine of
respondeat
superior. An employer can be liable where "(1) the employer
expressly authorizes the employee's act; (2) the tort is committed
by the employee in the scope of employment and in furtherance of
the employer's business; or (3) the employer ratifies theemployee's tortious conduct."
Denning-Boyles v. WCES, Inc., 123
N.C. App. 409, 414, 473 S.E.2d 38, 41 (1996). Thus, for an
employer to be liable under the theory of
respondeat superior, a
plaintiff must show that an employer's conduct fits within one of
the above categories.
Id. at 414, 473 S.E.2d at 42.
In the case
before us, plaintiff only argues that employer defendants are
liable based upon ratification of employee defendants' conduct.
Regarding Brown, plaintiff presented sufficient evidence supporting
his contention that Brown knew that employee defendants were
ridiculing plaintiff. However, plaintiff failed to present
evidence that Brown ratified the acts of employee defendants. In
fact, plaintiff testified multiple times in his deposition that
Brown met with employee defendants and told them to stop harassing
plaintiff. Further, when asked specifically whether Brown ratified
employee defendants' conduct, plaintiff testified that Brown
"didn't approve of [employee defendants] doing what they [were]
doing." Regarding Johnson, plaintiff testified repeatedly in his
deposition that he complained only to Brown and not to Johnson
about the harassment.
Thus, there is no evidence that Johnson was
aware of the harassment and certainly no evidence that Johnson
ratified the acts of employee defendants. Accordingly, we hold the
trial court did not err in granting summary judgment in favor of
employer defendants for IIED and NIED on the theory of
respondeat
superior.
III. Negligence Claim against Employer Defendants
Plaintiff also argues in his brief that employer defendantswere negligent in failing to stop the harassment by employee
defendants. This argument is based on plaintiff's allegation in
his complaint regarding negligent hiring, retention and supervision
on behalf of employer defendants.
However, plaintiff's sole
assignment of error on appeal states that there were genuine issues
of material fact regarding his IIED and NIED claims. Plaintiff did
not include negligent hiring, retention and supervision claims in
this assignment of error. Accordingly, plaintiff has failed to
preserve this portion of his argument for appellate review.
See
N.C.R. App. P. 10(a) (stating that "the scope of review on appeal
is confined to a consideration of those assignments of error set
out in the record on appeal").
Affirmed in part; reversed in part.
Judges CALABRIA and STEELMAN concur.
Report per Rule 30(e).
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