DANNY THOMAS FRANCE V. AHLSTROM FILTRATION, INC.
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RENDERED:
December 27, 1996; 2:00 p.m.
NOT TO BE PUBLISHED
NO. 96-CA-0623-MR
DANNY THOMAS FRANCE
APPELLANT
APPEAL FROM HOPKINS CIRCUIT COURT
HONORABLE CHARLES W. BOTELER, JUDGE
ACTION NO. 94-CI-307
V.
AHLSTROM FILTRATION, INC.
and NORMAN JOHNSON
APPELLEES
OPINION
AFFIRMING
* * * * * * * *
BEFORE:
GARDNER, JOHNSON and KNOPF, Judges.
GARDNER, JUDGE:
Appellant, Danny France (France), appeals from an
opinion and order of the Hopkins Circuit Court granting summary
judgment for the appellees in this action seeking recovery under
the tort of outrage. After reviewing the record and the applicable
law, we affirm the circuit court's judgment.
Appellee, Ahlstrom Filtration (Ahlstrom), operates a
manufacturing plant in Madisonville, Kentucky. The other appellee,
Norman Johnson (Johnson), is the plant's maintenance supervisor.
Ahlstrom
temporarily
shuts
down
the
operations
at
the
annually so that maintenance and repairs can be performed.
plant
During
this annual shutdown, Ahlstrom utilizes in part temporary workers
employed by Manpower, Inc. (Manpower).
France was employed by
Manpower and assigned to work at the Madisonville plant during its
temporary annual shutdowns between October 1988 and October 1991.1
During this time, Johnson supervised France's work.
France has alleged that he was subjected to outrageous
conduct by Johnson.
He has alleged that he was forced to do
personal favors or jobs for Johnson such as purchasing him liquor,
mowing his yard and cleaning his car.
He also alleged that Johnson
on one occasion called him profane names over the intercom and
ordered
him
not
to
leave
at
the
end
of
the
day
with
other
employees, and on another occasion called him a profane name in
front of other employees while he was on break in the plant's break
room.
France maintained that on yet another occasion, Johnson
called him another profane name in front of other workers when
Johnson believed that France had failed to tighten some bolts which
loosened and resulted in a delay of the plant's operations. France
related several occasions in which Johnson allegedly treated him
badly including an incident where Johnson told France to pay him
$100 in order to keep his job but later returned it, and another
incident during which Johnson ordered him to crawl between two
large rollers at the plant and berated him when he expressed
reluctance to do this.
One of the final incidents related by
France involved Johnson directing him in front of other employees
to place his nose in a circle drawn on a piece of paper and leave
1
France applied several times during this period for permanent
employment at the plant.
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it there. France declined and told him using obscene language that
he would not do it.
investigation
Johnson's behavior was reported and an
conducted
by
Madisonville plant began.
without pay.
company
officials
outside
the
Johnson was suspended for two weeks
France did not work at the plant after this time.
In May 1994, France filed a complaint against Ahlstrom
and Johnson in circuit court. He contended that Johnson's behavior
was outrageous and caused him to suffer severe emotional distress
and
that
superior.
Ahlstrom
was
liable
under
the
theory
of
He sought compensatory and punitive damages.
respondeat
Discovery
proceeded, and appellees later moved for summary judgment.
The
circuit court in an order of January 31, 1996, granted summary
judgment for the appellees.
The circuit court found that France
had failed to show that Johnson's behavior constituted outrageous
conduct as set out in Kentucky law and that he had suffered severe
emotional distress.
This appeal has followed.
France first argues on appeal that the trial court did
not properly apply the test for summary judgment, and therefore
erred in granting the appellees' motion for summary judgment.
also
contends
that
the
court
did
not
apply
the
correct
regarding the tort of outrage that is recognized in Kentucky.
He
law
We
have found no error by the trial court.
Kentucky recognized the tort of outrageous conduct in
Craft v. Rice, Ky. 671 S.W.2d 247 (1984).
Kentucky adopted the
test for outrageous conduct established in Restatement (Second) of
Torts § 46 (1965), which provides,
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(1) One who by extreme and outrageous
conduct
intentionally
or
recklessly
causes severe emotional distress to
another is subject to liability for such
emotional distress, and if bodily harm to
the other results from it, for such
bodily harm.
See also Whittington v. Whittington, Ky. App., 766 S.W.2d 73
(1989); Pierce v. Commonwealth Life Ins. Co., 825 F.Supp. 783 (E.D.
Ky. 1993).
The elements necessary to prove this tort are:
(1) [t]he wrongdoer's conduct must be
intentional or reckless; (2) the conduct
must be outrageous and intolerable in
that it offends against the generally
accepted
standards
of
decency
and
morality; (3) there must be a causal
connection
between
the
wrongdoer's
conduct and the emotional distress; and
(4) the emotional distress must be
severe.
Humana of Kentucky, Inc. v. Seitz, Ky., 796 S.W.2d 1, 2-3 (1990),
quoting Craft v. Rice, 671 S.W.2d at 249; Pierce v. Commonwealth
Life Ins. Co., 825 F.Supp. at 788.
See also The Kroger Co. v.
Willgruber, Ky., 920 S.W.2d 61 (1996).
"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."
Humana of Kentucky, Inc. v. Seitz, 796
S.W.2d at 3, quoting Restatement (Second) of Torts, § 46, comment
d.
See The Kroger Co. v. Willgruber, 920 S.W.2d at 65; Webster v.
Allstate Ins. Co., 689 F.Supp. 689 (W.D.Ky. 1986).
The court is to
make the initial determination as to whether the conduct complained
of can reasonably be regarded as so extreme and outrageous as to
permit recovery.
Whittington v. Whittington, 766 S.W.2d at 74,
-4-
citing
Restatement
(Second)
of
Torts,
comment
Commonwealth Life Ins. Co., 783 F.Supp. at 788.
h;
Pierce
v.
It has been held
that it takes more than bad manners or friction between an employee
and his supervisor to constitute outrageous conduct.
Allstate Ins. Co., 689 F.Supp. at 693.
Webster v.
Cf. The Kroger Co. v.
Willgruber, 920 S.W.2d at 65.
Summary
judgment
should
only
be
used
to
terminate
litigation when as a matter of law it appears that it would be
impossible
for
the
respondent
to
produce
evidence
at
trial
warranting a judgment in his or her favor against the movant.
Steelvest, Inc. v. Scansteel Service Center, Inc., Ky., 807 S.W.2d
476, 483 (1991), quoting Paintsville Hospital Co. v. Rose, Ky., 683
S.W.2d 255 (1985); Farmer v. Heard, Ky. App., 844 S.W.2d 425, 427
(1992). Summary judgment is properly granted only when there is no
genuine issue as to any material fact; and the movant is entitled
to prevail as a matter law.
Mullins v. Commonwealth Life Ins. Co.,
Ky., 839 S.W.2d 245, 247 (1992); Kentucky Rule of Civil Procedure
(CR) 56.03.
The movant bears the burden of showing that there is
no genuine issue of material fact.
Id.
The court must review the
record in the light most favorable to the party opposing the
motion.
Id.; Farmer v. Heard, 844 S.W.2d at 427.
In the case at bar, the trial court applied the correct
standard for summary judgment and the correct legal standards for
the tort of outrageous conduct in granting a summary judgment for
the
appellees.
The
court
correctly
determined
that
even
considering the evidence in the light most favorable to France, the
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actions of Johnson while crude and offensive, simply did not rise
to outrageous behavior that is intolerable in that it offended the
generally accepted standards of morality and decency. The standard
for the tort of outrageous conduct is very stringent, and after
considering
the
other
Kentucky
cases
which
have
considered
complaints alleging the commission of this tort, it is clear that
Johnson's behavior in this case did not meet the necessary elements
of the tort.
Byle v. Anacomp, Inc., 854 F.Supp 738 (D.Kan. 1994);
ITT Rayonier, Inc. v. McLaney, 420 S.E.2d 610 (Ga. App. 1992), and
comments to § 46 of the Restatement (Second) of Torts, considered
by the court below show that Johnson's behavior did not rise to the
level
necessary
for
the
commission
of
the
tort
of
outrage.
France's argument that the trial court applied the wrong standard
of law or another state's standard is simply unfounded.
Finally, France argues that the trial court erred in
granting summary judgment by relying on the conclusion that he
failed
to
present
any
evidence
that
he
had
suffered
emotional distress because of Johnson's conduct.
severe
This argument
clearly lacks merit.
Two of the necessary elements of the tort of outrageous
conduct are that there must be a causal connection between the
wrongdoer's conduct and the emotional distress, and the emotional
distress must be severe.
See The Kroger Co. v. Willgruber, 920
S.W.2d at 65; Humana of Kentucky, Inc. v. Seitz, 796 S.W.2d at 3.
The law intervenes only where the distress inflicted is so severe
that no reasonable person could be expected to endure it; severe
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distress must be proven.
comment j.
Restatement (Second) of Torts, § 46,
It is for the court to determine whether considering
the evidence, severe emotional distress can be found; it is for the
jury to determine whether on the evidence, it has in fact existed.
Id.
Thus, the court in the instant case correctly determined that
France had failed to show any evidence that would prove severe
emotional distress, a necessary element of the tort.
In fact,
there was simply no evidence of the injury of severe emotional
distress.
We decline to disturb the circuit court's decision.
For the foregoing reasons, the judgment of the Hopkins
Circuit Court is affirmed.
KNOPF, JUDGE, CONCURS.
JOHNSON, JUDGE, CONCURS IN RESULT ONLY AND FILES SEPARATE
OPINION.
JOHNSON, JUDGE, CONCURRING.
I concur in the result
reached by the Majority Opinion, but choose to state my reasoning
separately.
I would affirm the summary judgment based on France's
failure to present any evidence that his emotional distress was
severe.
This is a necessary element of this tort.
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BRIEF AND ORAL
APPELLANT:
ARGUMENT
FOR
BRIEF FOR APPELLEE:
John R. Bode
Karen M. Smith
Chattanooga, Tennessee
James C. Brantley
Dawson Springs, Kentucky
ORAL ARGUMENT FOR APPELLEE:
John R. Bode
Chattanooga, Tennessee
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