Hollomon v. Keadle

Mary HOLLOMON v. Dr. W.R. KEADLE

95-1231                                            ___ S.W.2d ___

                    Supreme Court of Arkansas
              Opinion delivered September 30, 1996


1.   Judgment -- summary judgment -- when appropriate. -- Summary
     judgment is only appropriate when no issue of material fact
     exists, and the movant is entitled to judgment as a matter of
     law.

2.   Torts -- outrage -- must be considered first. -- The supreme
     court must first decide whether a party's accusations, taken
     as true, state a claim for the tort of outrage; if the party
     cannot state a claim for outrage, then any unresolved factual
     issues are simply irrelevant.

3.   Torts -- outrage -- elements of. -- To succeed on a tort-of-
     outrage claim, the plaintiff must prove that (1) the defendant
     intended to inflict emotional distress or knew or should have
     known that emotional distress was the likely result of his
     conduct; (2) the conduct was extreme and outrageous, and was
     utterly intolerable in a civilized community; (3) the
     defendant's conduct was the cause of the plaintiff's distress;
     and (4) the emotional distress sustained by the plaintiff was
     so severe that no reasonable person could be expected to
     endure it.

4.   Torts -- outrage -- appellant failed to show that employer was
     made aware that she was peculiarly susceptible to emotional
     distress. -- The supreme court concluded that appellant failed
     to establish that appellee-employer was made aware that she
     was "not a person of ordinary temperament" or that she was
     "peculiarly  susceptible to emotional distress by reason of
     some physical or mental condition or peculiarity."

5.   Torts -- outrage -- appellant failed to show that employer had
     notice of alleged severity of emotional distress. -- The
     supreme court could not say that appellant alleged that
     appellee-employer had notice of the alleged severity of her
     emotional distress where it could not be determined from her
     abstract that she ever made appellee aware that he had
     inflicted upon her distress "so severe that no reasonable man
     could be expected to endure it."

6.   Torts -- outrage -- narrow view taken in recognizing claim. --
     The supreme court has consistently taken a narrow view in
     recognizing claims for the tort of outrage that arise out of
     the discharge of an employee; the reason is that an employer
     must be given considerable latitude in dealing with employees,
     and, at the same time, an employee will frequently feel
     considerable insult when discharged. 

7.   Torts -- outrage -- conduct that meets standard must be
     determined on case-by-case basis. -- The type of conduct that
     meets the standard for an outrage cause of action must be
     determined on a case-by-case basis; the extreme and outrageous
     character of the conduct may arise from the employer's
     knowledge that the employee is peculiarly susceptible to
     emotional distress by reason of some physical or mental
     peculiarity; the conduct may become outrageous if the employer
     continues it in the face of such knowledge, where it would not
     be so if he did not know; the fact that an employer continues
     unjustifiable conduct over a long period of time can be an
     important factor weighing in favor of a finding that the
     employer's conduct towards an employee was outrageous.

8.   Torts -- outrage -- appellant knew that employer was given to
     yelling and cursing -- allegations insufficient to state
     claim. -- Where appellant knew by the second day of her
     employment with appellee-employer that he was a singularly
     unpleasant man given to constantly yelling and cursing, yet
     she remained in his employ for more than two years, and where
     there was no showing that appellee-employer had knowledge that
     appellant-employee was "peculiarly susceptible to emotional
     distress by reasons of some physical or mental condition or
     peculiarity" and proceeded in the face of such knowledge, the
     supreme court did not depart from its position that abusive
     profanity alone is not sufficient reason to bring a cause of
     action for the tort of outrage.

9.   Appeal & error -- First Amendment issue not reached. --
     Because the supreme court affirmed the trial court's finding
     that appellant's allegations were insufficient as a matter of
     law to state a claim for the tort of outrage, it did not reach
     the issue of whether appellee's speech was protected by the
     First Amendment.  


     Appeal from Garland Circuit Court; Walter Wright, Judge;
affirmed.
     William T. Mathis II, for appellant.
     Wright, Chaney, Berry & Daniel, P.A., by: Edward M. Slaughter,
for appellee.

     Andree Layton Roaf, Justice.
     This case involves a claim for the tort of outrage brought by
Appellant Mary Hollomon against her former employer, Dr. W. R.
Keadle. Hollomon alleges that Keadle repeatedly insulted her and
subjected her to veiled threats of bodily harm.  The trial court
found that  Hollomon's allegations were insufficient as a matter of
law to state a claim for the tort of outrage, and further, that the
First Amendment protected  Keadle's statements; the trial court
accordingly granted  Keadle's motion for summary judgment.  We
affirm. 
     Mary Hollomon worked for Dr. Keadle, a sixty-eight-year-old
physician, for approximately two years before she voluntarily left
his employ.  Hollomon alleges that during her employment, Keadle
repeatedly cursed her and referred to her with offensive terms,
such as "white nigger," "slut," "whore," and "the ignorance of
Glenwood, Arkansas."  Hollomon contends that Keadle frequently
made, in her presence, degrading remarks about women such as: 
"women should be at home, not working, and if they are out there
working they are whores and prostitutes...only whores and
prostitutes work" and "any time a woman wears rings [other than
wedding rings], she is a whore and a slut."  In addition, Hollomon
claims that Keadle frequently directed profanity at her in front of
patients and other employees.  In her deposition, Hollomon stated
that she became aware that Keadle was a "grouch" by the second day
of her employment with him and that he constantly yelled and cursed
and used the "F" word almost every day.  She stated that he cursed
and belittled his wife and other women in his office.
     According to Hollomon's deposition, Keadle also told her that
he had connections with the mob in California and could pay one of
his schizophrenic patients $500.00 to "take care of" anyone he
chose.  As an example of these "connections," Hollomon stated that
Keadle told her that one of his former female employees
"supposedly" died in an automobile accident in California. 
Finally, Hollomon states that Keadle told her that he carried a gun
and that he had recently pulled the gun on a patient who angered
him.  Hollomon asserts that Keadle told her these stories to
intimidate her and to suggest that he would have her killed if she
quit or caused trouble.
      Hollomon contends that she did not resign earlier because she
feared Keadle would have her killed.  In addition, Hollomon asserts
that her status as a single parent and her dire financial
condition, of which Keadle was aware, prevented her from leaving
the job.  Hollomon claims that Keadle's comments caused her 
stomach problems, loss of sleep, loss of self-esteem, anxiety
attacks, and embarrassment. In her deposition, Hollomon stated that
she told Jim Butler, a counselor, about the constant ridicule by
Keadle but admitted that she did not go to his office or seek
counseling services from him.  She further stated that Keadle's
cursing upset her stomach and that Keadle and a Dr. Jansen gave her
medication for her stomach problems. After two years and three
months of working for Keadle, Hollomon alleges that she resigned
because of his cursing. In his deposition, Keadle denied all of
Hollomon's allegations. 
     On her first argument for reversal, Hollomon claims that the
trial judge erred in granting summary judgment because genuine
issues of material fact existed concerning whether or not Dr.
Keadle made the alleged statements.  Hollomon correctly argues that
summary judgment is only appropriate when no issue of material fact
exists, and the movant is entitled to judgment as a matter of law. 
See, Ark. R. Civ. P. 56 (c); Browning v. Browning, 319 Ark. 205,
890 S.W.2d 273 (1995).  However, this court must first decide
whether Hollomon's accusations, taken as true, state a claim for
the tort of outrage.  Rainey v. Travis, 312 Ark. 460, 850 S.W.2d 839 (1993).  As we explained in Rainey, if the appellant cannot
state a claim for outrage then any unresolved factual issues are
simply irrelevant.  Id.
     Hollomon next asserts that the trial court erred by holding
that the facts she alleged did not support a cause of action for
the tort of outrage or intentional infliction of emotional
distress. We have said that to succeed on a tort-of-outrage claim,
the plaintiff must prove:  1) the defendant intended to inflict
emotional distress or knew or should have known that emotional
distress was the likely result of his conduct; 2) the conduct was
extreme and outrageous, and was utterly intolerable in a civilized
community; 3) the defendant's conduct was the cause of the
plaintiff's distress; and 4) the emotional distress sustained by
the plaintiff was so severe that no reasonable person could be
expected to endure it.  Cherepski v. Walker, 323 Ark. 43, 913 S.W.2d 761 (1996);  Croom v. Younts, 323 Ark. 95, 913 S.W.2d 283
(1996).
     Hollomon relies primarily on the case of Tandy Corp. v. Bone,
283 Ark. 399, 678 S.W.2d 312 (1984) to support her argument that
the trial court erred when it found that her allegations, even if
true, did not state a claim for the tort of outrage.  Tandy also
involved an action by an employee against an employer.  Although
this court reversed a jury verdict in favor of the plaintiff-
employee based on an improper jury instruction and certain comments
made by the trial court, we found that the evidence presented by
Bone was sufficient to allow a jury to determine whether his
employer was guilty of outrageous conduct that was the proximate
cause of his emotional distress.
     However, in Tandy , we stated that:
     [w]e have taken a somewhat strict approach to this cause
     of action.  Recognition of this new tort should not and
     does not open the doors of the courts to every slight
     insult or indignity one must endure in life. For example,
     abrasive profanity alone is not sufficient reason to have
     a cause of action. 

Tandy, 283 Ark. at 405, 678 S.W.2d  at 315.

     Bone was the manager of a Radio Shack store who was questioned
by his employer in the course of an investigation into thefts which
took place at his store.  Bone testified that he was questioned
throughout an entire day, and was cursed and threatened by Tandy's
security personnel.  He further alleged that he was twice refused
permission to take a tranquilizer which had been prescribed to him
by a psychiatrist for three years.  It was the latter testimony by
Bone which concerned this court, and we stated that:
     The conduct on the part of the employer that does give us
     difficulty is the undisputed evidence that Bone was
     obviously undergoing a good deal of stress, requested his
     Valium or medication, and was denied that privilege.  The
     employer was on notice at that point that Bone may not
     have been a person of ordinary temperament, able to
     endure a stressful situation such as he was placed in
     without injury...We emphasize that the notice to the
     employer of Bone's condition is the only basis for a jury
     question of extreme outrage.

Tandy, 283 Ark. at 405-408, 678 S.W.2d  at 316. (Emphasis added.)

     Because of the holding in Tandy, we do not reach the question
of whether Keadle's conduct was "extreme and outrageous" and
"utterly intolerable in a civilized community," that is,  whether
"the recitation of the facts to an average member of their
community would arouse his resentment against the actor and lead
him to exclaim,' outrageous.'" See Restatement (Second) of Torts 
 46, cmt. d.
     We conclude that Hollomon, unlike Bone, has failed to
establish that her employer was made aware that she was "not a
person of ordinary temperament" or that she was "peculiarly 
susceptible to emotional distress by reason of some physical or
mental condition or peculiarity."  See Restatement of Torts
(Second)   46, cmt. f.  In her brief filed in response to Keadle's
motion for summary judgment, Hollomon asserted that she was
"assured that Keadle's actions would cease."  She does not state in
her abstract who assured her of this or whether she notified Keadle
of any mental or physical condition which would make her peculiarly
susceptible to stress.  Although she claims that her status as a
single parent caused her to remain in Keadle's employment for over
two years, we cannot say that this status is in any respect unique,
or that it constitutes a physical or mental condition necessary
under our holding in Tandy, supra. 
     We also cannot say that Hollomon has alleged that Keadle had
notice of the alleged severity of the emotional distress. In her
deposition, Hollomon stated that Keadle gave her Zantac for her
stomach and that she also obtained medication from Dr. Jansen for
her upset stomach.  However, even if Hollomon's general assertions
of stomach problems, loss of sleep, anxiety, and embarrassment can
be said to constitute distress "so severe that no reasonable man
could be expected to endure it," we cannot determine from her
abstract that she ever made Keadle aware that he had inflicted such
distress upon her.  In fact, Hollomon stated that Keadle on
occasion urged her to "[T]ake up for your God damn self!" but said
that she was reluctant to let him know how upset she was with him
and that she was afraid to voice her opinion to him because of her
lack of self-esteem.  She further stated that she filed the lawsuit
against him because "I'm tired of him belittling women." As to her
allegations that Keadle made veiled threats to have her "taken care
of,"  Hollomon admitted that Keadle never directly threatened her
and stated simply that she "didn't put anything past the man."  
     Keadle argues in response that even if Hollomon's assertions
are true, this court has established strict requirements for the
tort of outrage, particularly in the context of employment; he is
correct.  We have considered this issue a number of times in cases
of employee discharge; however, only in Tandy, supra, have we held
that an employee has met the standard for proving the tort of
outrage in such a case.             
     In City of Green Forest v. Morse, 316 Ark. 540, 873 S.W.2d 155
(1994), we reversed a jury verdict for unlawful discharge and for
the tort of outrage.  Morse was discharged as a policeman after he
was involved in an accident during a high speed chase.  Morse
alleged in his outrage claim that the chief of police, during a
fourteen-month employer-employee relationship, showed anger towards
him, cursed him, asked whether he was paying his creditors and
whether he held parties at which he served alcohol to minors,
chastised him about drinking soft drinks in his patrol car, accused
him of lying and of filing a false accident report, and told him 
that sheriffs in three counties would arrest him for making a false
report.  Morse claimed that he was constantly on edge during his
employment.  In reversing and dismissing Morse's outrage claim, we
said:
     We have consistently taken a narrow view in recognizing
     claims for the tort of outrage that arise out of the
     discharge of an employee.  The reason is that an employer
     must be given considerable latitude in dealing with
     employees, and at the same time, an employee will
     frequently feel considerable insult when discharged. 

Green Forest, 316 Ark. at 542, 873 S.W.2d  at 156.    
 
     In Smith v. American Greetings Corp., 304 Ark. 596, 804 S.W.2d 683 (1991), we upheld the dismissal of an outrage claim in an
employee-discharge context where the employee alleged that he was
wrongfully terminated after his shift leader had hit him during a
dispute, stating:
     The type of conduct that meets the standard for an
     outrage cause of action must be determined on a case-by-
     case basis.  We have taken a strict view in recognizing
     such a claim, especially in employment relationship
     situations. The extreme and outrageous character of the
     conduct may arise from the employer's knowledge that the
     employee is peculiarly susceptible to emotional distress
     by reason of some physical or mental peculiarity.  The
     conduct may become outrageous if the employer continues
     it in the face of such knowledge, where it would not be
     so if he did not know. The fact that an employer
     continues unjustifiable conduct over a long period of
     time can be an important factor weighing in favor of a
     finding that the employer's conduct towards an employee
     was outrageous. 
 
Smith, 304 Ark. at 602, 804 S.W.2d  at 686. (Citations omitted.)

     Likewise, in Sterling v. Upjohn Healthcare Servs. Inc., 299
Ark. 278, 772 S.W.2d 329 (1989), we upheld the granting of summary
judgment in favor of the employer where an employee alleged that
his supervisor took a dislike to him, undermined him in various
ways, falsely told other employees that he was always drunk,
falsely accused him of lying on his job application, cursed him,
and became violent when discussing him with other employees.  See
also Mechanics Lumber Co. v. Smith, 296 Ark. 285, 752 S.W.2d 763
(1988); Ingram v. Pirelli Cable Corp., 295 Ark. 154, 747 S.W.2d 103
(1988); Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380
(1988); Givens v. Hixson,  275 Ark. 370, 631 S.W.2d 263 (1982).
     Although Hollomon was not discharged, nor does she claim that
she was constructively discharged, we have consistently stated that
we will take a strict view in recognizing a claim for the tort of
outrage in employment-relationship situations. The rationale for
doing so holds true whether the employee bringing such a claim has
been discharged or resigns.  Here, Hollomon knew by the second day
of her employment with Keadle that he was a singularly unpleasant
man given to constantly yelling and cursing, yet she remained in
his employment for more than two years.  In Tandy, supra, we said
that "abrasive profanity alone is not sufficient reason to bring a
cause of action."  Absent a showing that the employer had knowledge
that the employee was "peculiarly susceptible to emotional distress
by reasons of some physical or mental condition or peculiarity" and
"proceeds in the face of such knowledge," we do not depart from
that position. See Restatement of Torts (Second)  46.
     Because we affirm the trial court's finding that Hollomon's
allegations were insufficient as a matter of law to state a claim
for the tort of outrage, we do not reach the issue of whether
Keadle's speech was protected by the First Amendment.  
     Affirmed.