McQuay v. Guntharp

Annotate this Case
Cathy McQUAY, Sam McQuay, Sue Beebe, Sharion
Cantrell, Rachel Keech, Charman Rowe, 
Dennis Rowe, and Randy Thatch v. 
Randall GUNTHARP, M.D., and Northeast
Arkansas Internal Medicine Clinic, d/b/a
Pocahontas Family Clinic

96-1523                                            ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered February 19, 1998


1.   Civil procedure -- when motion to dismiss treated as one for summary
     judgment. -- Ordinarily, when matters outside the pleadings are
     presented and not excluded by the trial court in connection
     with a motion to dismiss under Ark. R. Civ. P. 12(b)(6), the
     appellate court treats the motion as one for summary judgment
     under Ark. R. Civ. P. 56.

2.   Judgment -- summary judgment -- matters considered. -- The matters to
     be considered in summary-judgment proceedings are limited to
     affidavits, depositions, admissions, and answers to
     interrogatories.

3.   Pleading -- court must look to complaint to determine whether particular
     cause of action stated. -- In determining whether the trial court
     erred in characterizing appellants' claim as a battery as
     opposed to outrage and thus ruling that the action was barred
     by the one-year statute of limitations pertaining to battery,
     the supreme court was obliged to look to the complaint itself. 
     

4.   Limitation of actions -- statute with longest limitations applies. --
     Where two or more statutes of limitations apply to a cause of
     action, the supreme court generally applies the statute with
     the longest limitations. 

5.   Pleading -- Arkansas recognizes only "facts pleadings." -- Although
     appellants' complaint stated that their action was one for
     outrage, the supreme court was required to look to the facts
     alleged because Arkansas does not recognize "notice
     pleadings," but only "facts pleadings"; the court looks to the
     gist of the action in making such a determination.

6.   Torts -- outrage -- necessary elements. -- To establish an outrage
     claim, a plaintiff must demonstrate the following elements:
     (1) the actor 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," was "beyond all possible bounds of decency," and
     was "utterly intolerable in a civilized community"; (3) the
     actions of the defendant were 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. 

7.   Torts -- outrage -- determined on case-by-case basis. -- The type of
     conduct that meets the standard for outrage must be determined
     on a case-by-case basis.

8.   Torts -- outrage -- clear-cut proof required. -- The supreme court
     gives a narrow view to the tort of outrage and requires
     clear-cut proof to establish the elements in outrage cases;
     merely describing the conduct as outrageous does not make it
     so; clear-cut proof, however, does not mean proof greater than
     a preponderance of the evidence.

9.   Appeal & error -- issue not ruled upon by trial court not addressed on
     appeal. -- Although appellees raised the issue of the
     applicability of the statute of limitations pertaining to
     medical injury in their motion to dismiss, the record did not
     reflect that the trial court ever ruled on the issue, and,
     accordingly, the supreme court did not address the argument on
     appeal.   

10.  Torts -- outrage -- complaint demonstrated sufficient facts to support
     claim for -- trial court erred in characterizing action as battery. --
     Appellants' complaint demonstrated sufficient facts to support
     a claim for outrage separate and apart from a claim for
     battery where, among other things, appellants were patients of
     appellee-physician, who, during their physical examinations,
     improperly touched, examined, and fondled their breasts; where
     appellants specifically pleaded that the trauma of having a
     doctor, whom each had trusted, fondle their breasts in a
     sexually suggestive manner had caused them to be less trusting
     of physicians in general; and where two appellant-husbands
     asserted that they had suffered a loss of consortium of their
     wives as a result of appellee-physician's actions; the trial
     court erred in characterizing the cause of action as
     constituting the tort of battery.

11.  Torts -- outrage -- nature of physician-patient relationship made outrage
     suit appropriate. -- The nature of the physician-patient
     relationship and the nature of the allegations presented by
     appellants made appropriate a suit for the tort of outrage; a
     patient entrusts his or her body and sense of dignity to a
     physician; looking to the facts alleged in the complaint, it
     was apparent that appellants were most vulnerable in
     presenting their bodies to a physician whom they trusted to
     exercise professionalism in his treatment, only to be taken
     advantage of by a doctor seeking his own personal
     gratification.  

12.  Limitation of actions -- trial court erred in dismissing complaint --
     three-year outrage limitations applied -- reversed and remanded. -- The
     supreme court, concluding that the trial court erred in
     dismissing the complaint because sufficient facts were alleged
     to state a cause of action for the tort of outrage, which is
     governed by the three-year statute of limitations found in
     Ark. Code Ann.  16-56-105 (1987), reversed the dismissal of
     the complaint and remanded the matter to the trial court.


     Appeal from Randolph Circuit Court; Harold S. Erwin, Judge;
reversed and remanded.
     Boswell, Tucker, Brewster & Hicks, by: George R. Wise, Jr.,
for appellants.
     Womack, Landis, Phelps, McNeill & McDaniel, by:  Lucinda
McDaniel, for appellees.

     Donald L. Corbin, Justice.
     Appellants Cathy and Sam McQuay, Sue Beebe, Sharion Cantrell,
Rachel Keech, Charman and Dennis Rowe, and Randy Thatch, appeal the
judgment of the Randolph County Circuit Court dismissing with
prejudice their claim against Appellees Dr. Randall Guntharp and
Northeast Arkansas Internal Medicine Clinic.  Our jurisdiction of
this appeal is pursuant to Ark. Sup. Ct. R. 1-2(a)(15), as it
presents a question concerning the law of torts.  Appellants raise
one point for reversal.  We reverse.
     Dr. Guntharp is a licensed physician with a medical practice
in Pocahontas, employed by the Northeast Arkansas Internal Medicine
Clinic, d/b/a Pocahontas Family Clinic.  It is undisputed that he
last saw Appellants in his office on the following dates:  Rachel
Keech on November 30, 1993; Charman Rowe on February 4, 1994;
Sharion Cantrell on March 11, 1994; Randy Thatch on April 4, 1994;
Sue Beebe on October 25, 1994; and Cathy McQuay on January 30,
1995.  On February 28, 1996, Appellants filed a complaint for the
tort of outrage, alleging that Dr. Guntharp had "improperly
touched, examined, and otherwise fondled" their breasts during
their physical examinations.  In an amended complaint filed on
April 25, 1996, Appellants Sam McQuay and Dennis Rowe alleged a
loss of consortium of their wives based upon Dr. Guntharp's
outrageous conduct.    
     Appellees filed a motion to dismiss the complaint on April 3,
1996, stating that the allegations of wrongful touching constituted
a battery, and were thus barred by the one-year statute of
limitations, as provided in Ark. Code Ann.  16-56-104 (Supp.
1995).  Attached to the motion as Exhibit 2 was Dr. Guntharp's
affidavit, which merely set out the last dates on which he had seen
each of the Appellants in his office.  Appellees alternatively
moved to dismiss the complaint on their theory that the allegations
of distress arising from Dr. Guntharp's professional services
constituted a medical injury, which therefore barred the claims of
Rachel Keech and Charman Rowe through the two-year statute of
limitations.  See Ark. Code Ann.  16-114-203 (Supp. 1997).
     The trial court dismissed the complaint with prejudice,
holding that Appellants' claims constituted a battery and was
therefore barred by the one-year statute of limitations applicable
to such action.  At the dismissal hearing, the trial court stated
that the facts pleaded in the case did not rise to the level of
outrage and added, "it's got to be terrible in order for outrage to
occur."  On appeal, Appellants do not dispute that the initial
complaint was filed more than one year after Dr. Guntharp had any
contact with each of them.  Instead, they argue that the trial
court erred by finding that the complaint described claims for
battery instead of outrage.
     Ordinarily, when matters outside the pleadings are presented
and not excluded by the trial court in connection with a motion to
dismiss under ARCP Rule 12(b)(6), we treat the motion as one for
summary judgment under ARCP Rule 56.  Clark v. Ridgeway, 323 Ark.
378, 914 S.W.2d 745 (1996).  The matters to be considered in
summary judgment proceedings are limited to affidavits,
depositions, admissions, and answers to interrogatories.  Id. 
Here, the trial court considered Dr. Guntharp's affidavit in
support of Appellees' assertion that the claim was barred by the
one-year statute of limitations for battery or, alternatively, the
two-year statute of limitations for medical injuries.
     The circumstances of this case are somewhat unusual in that
the trial court's dismissal of the case was based solely upon its
characterization of the nature of the claim, which resulted in a
ruling that the action was barred by the statute of limitations. 
Accordingly, we must decide whether the trial court erred in
characterizing the claim as a battery, as opposed to outrage, and
thus ruling that the action was barred by the one-year statute of
limitations pertaining to battery.  In making this determination,
we must look to the complaint itself.  O'Bryant v. Horn, 297 Ark.
617, 764 S.W.2d 445 (1989); Dunlap v. McCarty, 284 Ark. 5, 678 S.W.2d 361 (1984).  See also Goldsby v. Fairley, 309 Ark. 380, 831 S.W.2d 142 (1992) (holding that in making the determination on the
application of the statute of limitations, this court looks to the
complaint itself, despite the fact that the trial court had
actually granted summary judgment).  Where two or more statutes of
limitations apply to a cause of action, we generally apply the
statute with the longest limitations.  O'Bryant, 297 Ark. 617, 764 S.W.2d 445; Jefferson v. Nero, 225 Ark. 302, 280 S.W.2d 884 (1955). 
Although the complaint states that the action is one for outrage,
we must look to the facts alleged, as Arkansas does not recognize
"notice pleadings," only "facts pleadings."  Dunlap, 284 Ark. at 7,
678 S.W.2d   at 363.  We look to the gist of the action in making
such a determination.  O'Bryant, 297 Ark. 617, 764 S.W.2d 445;
Andrews v. McDougal, 292 Ark. 590, 731 S.W.2d 779 (1987).  
     To establish an outrage claim, a plaintiff must demonstrate
the following elements:  (1) the actor 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," was "beyond all possible bounds of
decency," and was "utterly intolerable in a civilized community";
(3) the actions of the defendant were 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.  Angle v. Alexander, 328 Ark. 714, 945 S.W.2d 933 (1997).  The
type of conduct that meets the standard for outrage must be
determined on a case-by-case basis.  Hollomon v. Keadle, 326 Ark.
168, 931 S.W.2d 413 (1996).  This court gives a narrow view to the
tort of outrage, and requires clear-cut proof to establish the
elements in outrage cases.  Croom v. Younts, 323 Ark. 95, 913 S.W.2d 283 (1996).  Merely describing the conduct as outrageous
does not make it so.  Renfro v. Adkins, 323 Ark. 288, 914 S.W.2d 306 (1996).  Clear-cut proof, however, does not mean proof greater
than a preponderance of the evidence.  Croom, 323 Ark. 95, 913 S.W.2d 283.   
     In M.B.M. Co., Inc. v. Counce, 268 Ark. 269, 596 S.W.2d 681
(1980), this court officially recognized the separate tort of
outrage, relying in part on the teachings of Professor Prosser:
     [Professor Prosser] theorized that there was no necessity
     that a tort have a name.  According to him, the new tort
     consisted of intentional, outrageous infliction of mental
     suffering in the extreme form and that it resembled
     assault.  He pointed out that, in spite of the fact that
     mental anguish had been recognized in early assault
     cases, the law had been reluctant to accept interest in
     peace of mind as entitled to independent legal
     protection.  He described the matter dealt with in this
     new tort as outrageous conduct of a kind especially
     calculated to cause serious mental and emotional
     disturbance.  Prof. Prosser pointed out that in many
     cases in which recovery for mental suffering was
     permitted as parasitic damage, that element was the only
     substantial damage actually sustained.  Our cases are
     certainly illustrative of this statement.

Id. at 278, 596 S.W.2d   at 686 (citing William L. Prosser,
Intentional Infliction of Mental Suffering: A New Tort, 37 Mich. L.
Rev. 874 (1939)).  This court stated further: 
     [W]e can and do now recognize that one who by extreme and
     outrageous conduct wilfully or wantonly causes severe
     emotional distress to another is subject to liability for
     such emotional distress and for bodily harm resulting
     from the distress.  

          It is of little consequence that different terms are
     used in describing the element of compensable damages
     involved as mental suffering, mental anguish, emotional
     distress, etc.  Prof. Prosser sees the term mental
     anguish comprehensive enough to cover everything from
     nervous shock to emotional upset, and agrees that the
     words emotional distress may well be used.  In his view
     they include all highly unpleasant mental reactions, such
     as fright, horror, grief, shame, humiliation, anger,
     embarrassment, chagrin, disappointment, worry and nausea. 
     The emotional distress for which damages may be sought
     must be so severe that no reasonable person could be
     expected to endure it.  It must be reasonable and
     justified under the circumstances.  Liability arises only
     when the distress is extreme. 
 
          By extreme and outrageous conduct, we mean conduct
     that is 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 society.

Id. at 280, 596 S.W.2d   at 687 (citations omitted) (emphasis added). 
Additionally, in M.B.M. Co., this court cited with approval
Professor Prosser's theory that the relationship between the
plaintiff and the defendant may give rise to the extreme and
outrageous nature of the conduct:
     Prof. Prosser states that there are cases in which the
     extreme and outrageous nature of the conduct arises not
     so much from what is done as from the abuse by the
     defendant of a relationship with the plaintiff which
     gives him power to damage the plaintiff's interests.

Id. at 281, 596 S.W.2d   at 688 (emphasis added) (citing William L.
Prosser, Insult & Outrage, 44 Cal. L. Rev. 40 (1956)).  Similarly,
in Croom, 323 Ark. 95, 913 S.W.2d 283, wherein the plaintiff
asserted a claim for outrage based upon sexual acts, this court
viewed as important the relationship between the plaintiff, a
fifteen-year-old girl, and the defendant, her fifty-one-year-old
cousin, holding that "[t]he conclusion that his age and
relationship exerted considerable influence over a minor girl is
undeniable."  Id. at 103, 913 S.W.2d   at 287 (emphasis added).   
     In Jefferson, 225 Ark. 302, 280 S.W.2d 884, the plaintiff, a
patron in a local tavern, had filed an action alleging that the
defendant, the owner and proprietor of the tavern, had violated his
duty of ordinary care in unlawfully injuring the plaintiff.  The
facts demonstrated that the defendant had shot the plaintiff after
the two men had been engaged in an altercation inside the tavern. 
The complaint alleged that the relationship of proprietor-invitee
existed between the parties, and that the defendant-proprietor had
attempted to eject plaintiff-invitee from the tavern, using more
force than was necessary, causing injury to the plaintiff.  On
appeal to this court, the defendant argued that the action was
really one for assault and battery, and that the trial court had
erred in refusing to dismiss the action as being barred by the one-
year statute of limitations.  This court agreed with the trial
court's ruling that the claim was one for negligence founded on an
implied liability growing out of a special relationship, that of
proprietor-invitee, which may be brought within three years.  This
court rejected the defendant's citation to the prior decision of
McAlister v. Gunter, 164 Ark. 611, 262 S.W. 636 (1924), in which
this court held that an action for shooting and wounding the
plaintiff was barred by the one-year statute of limitations.  In
distinguishing that holding from the facts of the case before it,
the Jefferson court stated that "[t]he effect of our holding in
that case was that an assault and battery was the only cause of
action relied upon by the plaintiff, and that no special
relationship, like that of proprietor-invitee asserted here, was
alleged or proved."  Jefferson, 225 Ark. at 305, 280 S.W.2d   at 886.
In concluding that the claim was not barred by the statute of
limitations, this court relied on the general principle that where
two statutes of limitations may apply, the longest of the two is
ordinarily applied.        
     Notwithstanding the way in which Appellants have pleaded their
claim, Appellees argue that the gist of this case is a claim for
battery and not one of outrage.  Relying on Turner v. Baptist
Medical Ctr., 275 Ark. 424, 631 S.W.2d 275 (1982), Appellees state
that the alleged mental distress is merely an element of damage
resulting from the wrongful touching, which constitutes a battery. 
Appellees contend in the alternative that the claim is one for
medical injury and, as such, is governed by the two-year statute of
limitations found in section 16-114-203.  Although Appellees raised
the issue of the applicability of the statute of limitations
pertaining to medical injury in their motion to dismiss, the record
does not reflect that the trial court ever ruled on the issue.  As
such, we do not address the argument on appeal.  See Slaton v.
Slaton, 330 Ark. 287, 956 S.W.2d 150 (1997).      
     Appellants respond by arguing that the Turner case dealt
mainly with the tort of false imprisonment and can be distinguished
on the particular facts of that case.  They argue that the holding
in Jefferson, 225 Ark. 302, 280 S.W.2d 884, supports their
position, as there is a special relationship between a doctor and
a patient, and the outrage lies in the doctor's violation of the
trust the women had placed in him.  They argue that the existence
of a special relationship justifies the finding by this court that
the gist of the claim arose out of the violation of that
relationship, rather than the physical touching.  We agree.      
     In Turner, the plaintiff brought an action against Baptist
Medical Center for false imprisonment and assault and battery.  The
plaintiff alleged that the defendant hospital had illegally
confined her to its hospital for approximately sixteen days and had
mistreated her during that time.  The plaintiff filed an amended
complaint to include as a defendant Dr. Charles Betts, asserting
false imprisonment, assault and battery, and the intentional
infliction of mental and emotional distress.  The trial court
entered summary judgment in favor of the hospital and dismissed the
claims against Dr. Betts as being barred by the statute of
limitations.  On appeal, this court upheld the trial court's
dismissal of the claims against Dr. Betts, holding that they were
barred by the one-year statute of limitations governing false
imprisonment and battery.  As to the claim of intentional
infliction of emotional distress, this court held:
     No facts were alleged that would make the assertion of
     mental and emotional distress anything more than an
     element of damage flowing from the imprisonment and
     mistreatment; so the same one-year statute would apply.
Turner, 275 Ark. at 426, 631 S.W.2d   at 277.  It is upon this
language that Appellees rely.  That reliance is misplaced, however,
as the facts alleged in the present complaint establish that the
outrage flows not merely from the physical touching of the women's
breasts, which would make out a claim for battery, but from the
violation of a trusted relationship.  In this respect, the trauma
suffered is not the result of the act of unwanted, improper
physical touching, but from the position and occupation of the
actor.  
     In looking to other jurisdictions, we observe that in Mindt v.
Shavers, 337 N.W.2d 97 (Neb. 1983), a sexual assault case, the
Supreme Court of Nebraska found that while the victim could have
chosen to seek recovery on the theory of assault and battery, if
properly pleaded, she was equally able to seek recovery on the
theory of an intentional infliction of emotional distress.  The
court concluded:
     [A] "cause of action" is the operative facts which give
     rise to a "right of action" or the remedial right
     affording redress.  Thus, there may be several rights of
     action arising out of a cause of action.  A single cause
     of action may give rise to more than one theory upon
     which recovery may be had.

          . . . . 

          Applying this principle to the instant case, it is
     apparent that the facts of the case give rise to two
     possible theories of recovery, one for assault and
     battery and the other for the intentional infliction of
     severe emotional distress.

Id. at 100 (citations omitted).  The court stated that the very
nature of the tortious act involved in that case was uniquely
appropriate for a suit based upon a theory of the intentional
infliction of emotional distress, reasoning that "[a] sexual
assault may involve much more than a mere assault and battery." 
Id. at 101.  We are persuaded by that reasoning. 
     The complaint filed below demonstrates sufficient facts to
support a claim for outrage separate and apart from a claim for
battery.  Appellants were patients of Dr. Guntharp.  During their
physical examinations, he informed them that he needed to check
their heart rate or lungs.  While using a stethoscope, Dr. Guntharp
improperly touched, examined, and fondled Appellants' breasts. 
Appellants stated that as a result of the trauma of the incident,
they have suffered and continue to suffer from extreme mental
anguish.  Appellants specifically pleaded that the trauma of having
a doctor, whom each Appellant had trusted, fondle their breasts in
a sexually suggestive manner has caused all of them to be less
trusting of physicians in general.  Appellants claimed that as a
result of these acts, they missed work and should be compensated
for lost wages.  Appellants claimed further to have sustained
medical expenses in the past, and that they may sustain future
medical expenses.  Appellants Sam McQuay and Dennis Rowe asserted
that they have suffered a loss of consortium of their wives as a
result of Dr. Guntharp's actions.  The foregoing facts sufficiently
state a claim for outrage.  The trial court thus erred in
characterizing the cause of action as constituting the tort of
battery.  
     The nature of the physician-patient relationship and the
nature of the allegations presented by Appellants create the
appropriateness of a suit for tort of outrage.  A patient entrusts
his or her body and sense of dignity to a physician.  The patient
subjects himself or herself to a loss of this dignity and a loss of
privacy by even divulging his or her personal thoughts as to what
ails him or her.  Looking to the facts alleged in the complaint, it
is apparent that these patients were most vulnerable by presenting
their bodies to a physician whom they trusted to exercise
professionalism in his treatment, only to be taken advantage of by
a doctor seeking his own personal gratification.  
     We thus conclude that the trial court erred in dismissing the
complaint, as sufficient facts were alleged to state a cause of
action for the tort of outrage, which is governed by the three-year
statute of limitations found in Ark. Code Ann.  16-56-105 (1987). 
Accordingly, we reverse the dismissal of the complaint and remand
the matter to the trial court for further proceedings consistent
with our decision.
     Charles A. Banks, Sp.J., joins in this opinion.
     Newbern and Imber, JJ., dissent.
     Glaze, J., not participating.

     David Newbern, Justice, dissenting.  To establish the tort of
outrage or intentional infliction of emotional distress, a
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.  Angle v. Alexander, 328 Ark. 714, 945 S.W.2d 933 (1997); Milam v. Bank of Cabot, 327 Ark. 256, 937 S.W.2d 653 (1997).  The Trial Court correctly concluded that the complaint
in this case, while stating a claim for battery, failed to state a
claim for the tort of outrage.
     Each of the women who are the appellants in this case alleges
the improper touching by the doctor.  Presumably it occurred on
only one occasion with each of them.  Nothing is alleged to suggest
it occurred more than once as to any of them.  The cases in which
we have dealt with sexual improprieties amounting to outrage have
concerned protracted sexual misconduct with or harassment of the
plaintiff.  More important, they have been cases in which there
were allegations of the kind of devastating emotional injury
described in the fourth element of the tort stated above.  The
allegations in the complaint now before us do not measure up.
     Since recognizing the tort of outrage in M.B.M. Co. V. Counce,
268 Ark. 269, 569 S.W.2d 681 (1980), we have addressed outrage in
a cautious manner, Dillard Depþt Stores, Inc. v. Adams, 315 Ark.
303, 867 S.W.2d 442 (1993), and have stated that we take a strict
approach and give a narrow view to the tort of outrage.  Croom v.
Younts, 323 Ark. 95, 913 S.W.2d 283 (1996).  As the majority
opinion states, when analyzing an outrage claim where no physical
injury or harm is evident, the courts tend to look for more in the
way of extreme outrage as an assurance that the mental disturbance
claim is not fictitious.  In this case, there is no allegation of
physical injury or harm; therefore, we must look for more in the
way of emotional distress.
     In reaching its conclusion, the majority has ignored aspects
of prior cases in which we have considered allegations of sexual
harassment and misconduct.  See Croom v. Younts, supra.  See also
Hale v. Ladd, 308 Ark. 567, 826 S.W.2d 244 (1992).  In the Croom
case, we held that evidence of the tort of outrage was sufficient
when a 51-year-old male began having sexual relations with his 15-
year-old cousin after giving her alcohol and medication.  Following
the first episode, the two engaged in sexual relations on ten to
fifteen additional occasions.  Subsequently, the young girl made
two attempts to commit suicide.    
     In the Hale case, where we held there was a clear
preponderance of evidence supporting the claim of outrage, the
evidence included frequent suggestive remarks and unwanted physical
contact directed toward an employee by her employer over a two-
month period resulting in her having a spastic colon.  
     In both of those cases, the conduct giving rise to the claim
of outrage allegedly occurred on numerous occasions over an
extended period of time.  The duration of the conduct is a factor
in determining whether the conduct rises to the level of outrage. 
See Dillard Depþt Stores, Inc. v. Adams, 315 Ark. 303, 867 S.W.2d 442 (1993) (noting the appellee testified that the incident lasted
less than an hour as an apparent factor in the determination that
the trial court erred in denying appellantþs motion for a directed
verdict); see also Smith v. American Greetings Corp., 304 Ark. 596,
804 S.W.2d 683 (1991) (citing Sterling Drug, Inc. v. Oxford, 294
Ark. 239, 743 S.W.2d 380 (1988)) (stating þ[t]he 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
employerþs conduct towards an employee was outrageousþ); Sterling
Drug, Inc. v. Oxford, supra,) (noting the length of time that the
conduct occurred and stating that in the Hess case, we based our
decision in part on the fact that Hessþ actions continued over a
two year time span); Hess v. Treece, 286 Ark. 434, 693 S.W.2d 792
(1985) (noting that the conduct continued over a period of two
years or more in determining that there was substantial evidence to
support a finding that the tort of outrage occurred).
     Although the majority opinion cites no authority in support of
its conclusion that the special relationship between a physician
and patient is significant in the context of determining whether
the physician's conduct constitutes the tort of outrage, it is a
conclusion to which I could subscribe in a proper case.  It has
been discussed in obiter dicta elsewhere and said to be a factor
making the outrage standard "less stringent."  Sharrow v. Bailey,
910 F. Supp. 187, 194 (M.D. Pa. 1995).  See also Angie M. v.
Superior Court (Hiemstra), 44 Cal. Rptr. 2d 197 (Cal. App. 4 Dist.
1995).  Again, the main problem with the complaint here is that it
does not state facts showing the claimants suffered emotional
distress of the sort that no person could be expected to endure.  
     Here are the relevant excerpts from the abstract of the
complaint.

          The trauma of having a doctor whom each of the Plaintiffs
     trusted fondle their breasts in a sexually suggestive manner
     has caused all of the Plaintiffs to become less trusting of
     physicians in general.
                               ***
          ...[E]ach of the plaintiffs missed time from work....
                               ***
          ...[T]he plaintiffs have sustained medical expenses in
     the past and may sustain future medical expense....

These allegations, apparently made in an attempt to satisfy the
requirement that facts be stated to show that the plaintiffs have
suffered emotional distress "so severe that no reasonable person
could be expected to endure it," are largely conclusory.  They
hardly rise to the level of those in the Croom case where there was
an attempted suicide by the minor who had been violated or the
allegation of protracted sexual harassment resulting in a specific
medical condition as in the Hale case.
     In Turner v. Baptist Medical Center, 275 Ark. 424, 631 S.W.2d 275 (1982), we held that an allegation of intentional infliction of
emotional distress against a psychiatrist who allegedly caused
false imprisonment of the plaintiff in a psychiatric treatment
facility was insufficient.  The majority opinion attempts to
distinguish that case on the basis that it contained no allegation
of violation of a trusted relationship.  That misses the point of
the opinion which was, "No facts were alleged that would make the
assertion of mental and emotional distress anything more than an
element of damage flowing from the imprisonment and mistreatment." 
275 Ark. at 426, 631 S.W.2d   at 277 (emphasis supplied.)  The focus
there was not on the act that caused the alleged injury, but on the
"assertion of mental and emotional distress" that was found to be
inadequate.  The same is true in this instance.
     No doubt the conduct alleged in this case was an unpermitted
touching or battery, but if the allegation of mental or emotional
distress amounts to anything more than an indication of appropriate
anger resulting from such conduct, it is not sufficient to rise to
the level of the tort of outrage.
     We should honor the Trial Court's dismissal of the complaint
of outrage on the ground that it failed to state facts sufficient
to allege that tort.  
     I respectfully dissent.
     Imber, J., joins in this dissent.