Ward v. Oakley

[Cite as Ward v. Oakley, 2013-Ohio-4762.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

ROBERT S. WARD, et al., :
CASE NO. CA2013-03-031
Plaintiffs-Appellants, :
OPINION
: 10/28/2013
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:

BRETT OAKLEY, et al., :

Defendants-Appellees. :

CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CV2011-11-4110

Brennan, Manna & Diamond, LLC, Christopher B. Congeni and Katherine R. Basch, 75 East
Market Street, Akron, Ohio 44308, for plaintiffs-appellants

Jeffrey M. Silverstein & Associates, Jeffrey M. Silverstein and Jason P. Matthews, 627 South
Edwin C. Moses Boulevard, Dayton, Ohio 45408, for defendants-appellees

M. POWELL, J.

{¶ 1} Plaintiff-appellant, Robert S. Ward ("Ward"), on behalf of his minor daughter,

R.W., appeals a decision of the Butler County Common Pleas Court granting summary

judgment in favor of defendants-appellees, Brett Oakley ("Oakley") and B.A.O. Productions,

LLC (collectively, "appellees"), regarding claims of hostile work environment sexual

harassment and intentional infliction of emotional distress. For the reasons set forth below,
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we affirm in part and reverse in part the judgment of the trial court.

I. FACTS

{¶ 2} For purposes of our review, we examine the evidence in the record, as well as

the inferences to be drawn from the underlying facts contained in the evidence, in the light

most favorable to Ward. Four-O Corp. v. Mike's Trucking, Ltd., 12th Dist. Madison No.

CA2007-01-002, 2007-Ohio-5628, ¶ 11, citing Turner v. Turner, 67 Ohio St.3d 337, 341,

1993-Ohio-176.

{¶ 3} In the fall of 2011, R.W., a high school student, worked with Ward and her

stepmother, Lori, at Land of Illusion, a haunted theme park owned and operated by

appellees. While at work, R.W. was under the supervision of several individuals including

Oakley, who had final authority over all issues which arose at the park.

{¶ 4} Ward's claims arose from conversations that allegedly occurred between R.W.

and Oakley on Sunday, October 16, 2011, when R.W. was 16 years old and Oakley was 48

years old. On that Sunday, R.W. arrived at Land of Illusion between 6:00 p.m. and 7:00 p.m.

to work in the theme park's concession stand with her friend and coworker, T.D. According to

R.W.'s deposition testimony, Oakley entered the concession stand a short time after her

arrival and "jokingly at first" brought up the subject of birth control. Oakley told R.W. and T.D.

they needed "to be with a guy that had a vasectomy" and "really needed to be on birth

control." Oakley offered to talk to Ward because Oakley "wanted [R.W.] to be safe about

having sex." Although R.W. felt Oakley was just "trying to help [her] out" and "trying to act

like a friend" to Ward, the conversation made R.W. feel "awkward," "a little embarrassed,"

and "kind of confused." After the conversation, Oakley left the concession stand and R.W.

went to Land of Illusion's gift shop to use the restroom. R.W. was then instructed by another

supervisor to stay and work at the gift shop rather than return to the concession stand.

{¶ 5} Approximately two minutes after R.W. began working by herself in the gift shop,
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she was again approached by Oakley, who continued to discuss sex and birth control.

According to R.W.:

[Oakley] started—he continued with the conversation of the birth
control. That's how he started with the conversation. And then
he asked me if I'd ever had sex, and I said no. He said—he
looked at me like I was lying. He said no, R.W., how many guys,
and I said [Oakley,] I've never. And he said he didn't believe me,
that I looked like the type of girl that would have already had sex.
* * * [A]nd then he said that guys my age didn't know how to have
real sex, that they weren't experienced enough as somebody his
age. He asked me how far I was willing to go, and I said like I
don't know. I've never—I don't know. He just said well, like—just
guess an age. I was like I don't know, I don't know, I don't know,
[Oakley]. He was just like well, my age, and I didn't say anything.
I just kind of shook my head and put my head down. I didn't
know what to say. I was in shock. I was just so surprised that he
ever said that. I never dreamed he would have said that to me.

***

He said that there was this place out in Kentucky, that if I ever
got a chance to like get out of the house just for a day, that I
could call him up—I could call him up and he would take me to
this place out in Kentucky that had a pool inside the hotel room,
and he said he would give me the experience of a lifetime, that I
would never forget, and just—he said I'll show you what real sex
is like, guys your age don't know, because I could just tell he still
didn't believe me when I said I never had sex.

***

He said like when I turned twenty-one—he mentioned something
about when I turned twenty-one, that there's this place—he
would take me to Las Vegas, but he said that I couldn't tell
anybody because, first of all, it would ruin him and my dad's
friendship. You know, he could lose—get divorced and lose his
company.

{¶ 6} R.W. explained this second conversation took place over ten minutes while

customers were in and out the gift shop. When a customer approached R.W. and Oakley, he

would stop talking, but would continue when the customer walked away. R.W. stated the

conversation was also occasionally interrupted by "calls" Oakley received over a headset he

wore that allowed him to communicate with individuals in different areas of the theme park.

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The conversation between R.W. and Oakley ceased when Oakley received a call over his

headset and "ran out the door toward the Haunted Trail." R.W. explained she was "in shock"

by what Oakley had said and "so scared" that Oakley would return to the gift shop. R.W.

sent a text message to T.D. and stated she needed to talk after work. When R.W.'s shift

ended around 11:30 p.m., she met with T.D. and recounted the conversation she had with

Oakley in the gift shop, stating she never wanted to work at Land of Illusion again. R.W. then

drove herself home and went straight to bed.

{¶ 7} The following day, Monday, October 17, 2011, R.W. testified she "could not

think straight" at school and continued to think about what Oakley had said to her. That

evening, R.W. told Ward and her stepmother what Oakley had said to her on October 16,

2011, breaking down into tears during the conversation. Neither R.W. nor her parents ever

returned to work at Land of Illusion.

{¶ 8} Since October 16, 2011, R.W. testified she has attempted to come to terms

with what happened, but that her encounter with Oakley is "always on [her] mind" and

"forever will be." R.W. has had trouble sleeping and her grades in school fell for a short

period of time. R.W.'s father and stepmother testified R.W. has become "distant from the

family" and remains "visibly upset" when she talks about Oakley. As of her March 22, 2012

deposition, R.W. had not sought counseling or medical treatment due to her encounter with

Oakley. R.W. further testified that she saw no need for counseling, that she was "just dealing

with it" and had no recollection of ever discussing counseling with Ward or her stepmother.

{¶ 9} Oakley admitted during his deposition that he discussed birth control with R.W.

on October 16, 2011. Oakley explained, after he had heard rumors about R.W. being caught

with a boy in her bed, he took it upon himself to ask R.W. whether she was practicing safe

sex and whether she had discussed birth control with her parents. Oakley told R.W. that if

she would not talk to her parents about birth control, he "would talk to them." Oakley testified
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he also had a conversation with R.W. at Land of Illusion's gift shop, where he told her that

Ward would "kill" Oakley if he knew Oakley had talked to R.W. about birth control. Oakley

denies ever propositioning R.W. for sex or inviting her to a hotel in Kentucky or to Las Vegas,

but admits he did mention a hotel in Kentucky in reference to his plans with his wife for

Sweetest Day. At the end of their conversation in the gift shop, Oakley claims R.W. asked

him to bring her a pretzel and drink from the concession stand, which he did.

{¶ 10} As a result of the encounter between R.W. and Oakley on October 16, 2011,

Ward, individually and on behalf of R.W., filed suit against appellees for sexual harassment

in violation of R.C. 4112.02 and for intentional infliction of emotional distress. Following

discovery, appellees moved for summary judgment on June 29, 2012. On February 11,

2013, the trial court issued a decision granting appellees' motion for summary judgment.

Although the trial court acknowledged that issues of fact existed as to whether R.W. was a

Land of Illusion employee or independent contractor, it found that Ward's causes of action

did not satisfy the legal threshold for claims of a hostile work environment, sexual

harassment, or intentional infliction of emotional distress.1

{¶ 11} From the trial court's grant of summary judgment, Ward appeals, raising two

assignments of error.

II. ANALYSIS

{¶ 12} "Summary judgment is a procedural device used to terminate litigation when

there are no issues in a case requiring a formal trial." Bowman v. AK Steel Corp., 12th Dist.

Butler No. CA2010-06-141, 2010-Ohio-6433, ¶ 13, citing Forste v. Oakview Const., Inc., 12th

Dist. Warren No. CA2009-05-054, 2009-Ohio-5516, ¶ 7. Summary judgment is proper when:

1. R.C. 4112.02 does not apply to hostile work environment harassment claims involving independent
contractors. Bower v. Henry Cty. Hosp., 3d Dist. Seneca No. 13-12-46, 2013-Ohio-2844, ¶ 27; Berger Hosp. v.
Ohio Civ. Rights Com'n, 4th Dist. Pickaway No. 86 CA 7, 1987 WL 13493, *2 (June 26, 1987).

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(1) no genuine issues of material fact remain to be litigated; (2) the moving party is entitled to

judgment as a matter of law; and (3) it appears from the evidence, which must be viewed in a

light most favorable to the nonmoving party, that reasonable minds can come to but one

conclusion, and that conclusion is adverse to the nonmoving party. Civ.R. 56(C); Creech v.

Brock & Assoc. Constr., 183 Ohio App.3d 711, 2009-Ohio-3930, ¶ 10 (12th Dist.).

{¶ 13} An issue of fact exists when the relevant factual allegations in the pleadings,

affidavits, depositions, or interrogatories are in conflict. Scott v. Kings Island Co., 12th Dist.

Warren No. CA98-04-044, 1999 WL 74585, *2 (Feb. 16, 1999). In deciding whether there is

a genuine issue of material fact, the evidence must be construed in the nonmoving party's

favor. Id., citing Hannah v. Dayton Power & Light Co., 82 Ohio St.3d 482, 485 (1998).

Further, “the inferences to be drawn from the underlying facts contained in the evidentiary

materials, such as affidavits and depositions, must be construed in a light most favorable to

the party opposing the motion.” Hannah, citing Turner, 67 Ohio St.3d at 341.

{¶ 14} The party requesting summary judgment bears the initial burden of informing

the court of the basis for the motion and identifying those portions of the record that

demonstrate the absence of a genuine issue of material fact as to the essential elements of

the nonmoving party's claims. Marcus v. Rusk Heating & Cooling, Inc., 12th Dist. Clermont

No. CA2012-03-026, 2013-Ohio-528, ¶ 44, citing Dresher v. Burt, 75 Ohio St.3d 280, 293

(1996). Once a party moving for summary judgment has satisfied its initial burden, the

nonmoving party has the reciprocal burden to set forth specific facts showing that genuine

issues remain. Id.; Civ.R. 56(E). Summary judgment is proper if the party opposing the

motion fails to set forth such facts. Dresher at 293.

{¶ 15} An appellate court must review a trial court's decision to grant or deny summary

judgment de novo, without any deference to the trial court's judgment. Bowman at ¶ 13,

citing Bravard v. Curran, 155 Ohio App.3d 713, 2004-Ohio-181, ¶ 9 (12th Dist.).
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{¶ 16} Assignment of Error No. 1:

{¶ 17} THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFF-

APPELLANT BY GRANTING THE DEFENDANT[S]-APPELLEES' MOTION FOR SUMMARY

JUDGMENT ON [WARD'S] SEXUAL HARASSMENT--HOSTILE WORK ENVIRONMENT

CLAIM.

{¶ 18} In his first assignment of error, Ward contends the trial court improperly granted

summary judgment in favor of appellees on Ward's sexual harassment claim made pursuant

to R.C. 4112.02, as genuine issues of material fact remain regarding Oakley's inappropriate

comments to R.W.

{¶ 19} R.C. 4112.02(A) makes it an unlawful discriminatory practice "[f]or any

employer, because of the * * * sex * * * of any person, * * * to discriminate against that person

with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter

directly or indirectly related to employment." R.C. 4112.02(A); Bowers v. Hamilton City

School Dist. Bd. of Educ., 12th Dist. Butler No. CA2001-07-160, 2002-Ohio-1343, 2002 WL

449499, *3; Hampel v. Food Ingredients Specialties, Inc., 89 Ohio St.3d 169, 175 (2000).

The Ohio Supreme Court has recognized two types of sexual harassment claims stemming

from R.C. 4112.02(A); namely, "quid pro quo" harassment, i.e., harassment that is directly

linked to the grant or denial of a tangible economic benefit, and "hostile environment"

harassment, i.e., harassment that, while not affecting economic benefits, has the purpose or

effect of creating a hostile or abusive working environment. Bowman, 2010-Ohio-6433 at ¶

16, citing Hampel at paragraph one of the syllabus. "Federal case law interpreting Title VII of

the Civil Rights Act of 1964 is generally applicable to cases involving alleged violations of

R.C. Chapter 4112." Bowers at *3.

{¶ 20} Ward contends R.W. was subjected to hostile work environment sexual

harassment. In order to establish a prima facie case of hostile work environment sexual
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harassment, Ward must show:

(1) that the harassment was unwelcome, (2) that the harassment
was based on sex, (3) that the harassing conduct was sufficiently
severe or pervasive to affect the terms, conditions, or privileges
of employment, or any matter directly or indirectly related to
employment, and (4) that either (a) the harassment was
committed by a supervisor, or (b) the employer, through its
agents or supervisory personnel, knew or should have known of
the harassment and failed to take immediate and appropriate
corrective action.

Hampel at paragraph two of the syllabus; Bowman at ¶ 17.

{¶ 21} In construing the evidence in a light most favorable to Ward, we find reasonable

minds could conclude that the first two elements necessary to establish a claim of hostile

work environment sexual harassment under R.C. 4112.02 were satisfied, i.e., that the

harassment was unwelcome and based on sex. In addition, we find, as the trial court did,

that genuine issues of material fact remain as to whether R.W. was an employee of Land of

Illusion. Therefore, the remaining issue is whether a trier of fact could conclude that Oakley's

alleged sexually suggestive conversation with R.W. was sufficiently severe or pervasive to

create a hostile work environment and alter the conditions of R.W.'s employment.

{¶ 22} To establish actionable harm based upon hostile work environment sexual

harassment, "the conduct in question must (1) be 'severe or pervasive enough to create an

objectively hostile or abusive work environment,' and (2) be subjectively perceived by the

victim to be abusive." E.E.O.C. v. R&R Ventures, 244 F.3d 334, 339 (4th Cir.2001), quoting

Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367 (1993); Jordan v. Ohio Civ.

Rights Comm., 173 Ohio App.3d 87, 2007-Ohio-3830, ¶ 20 (12th Dist.). In conducting the

subjective inquiry, we need only look at the testimony of R.W. R.W. subjectively perceived

the environment at Land of Illusion to be hostile, as she felt "shocked" and "scared" by

Oakley's sexual advances, was reduced to tears when recounting Oakley's statements, and

never returned to work after October 16, 2011. Therefore, we find genuine issues of material
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fact exist with regard to the subjective component of the inquiry and shall proceed to consider

the objective inquiry.

{¶ 23} In conducting the objective inquiry, courts should examine all of the

circumstances including "(1) the frequency of the discriminatory conduct; (2) its severity; (3)

whether it is physically threatening or humiliating, or merely offensive; and (4) whether it

unreasonably interferes with an employee's work performance." R&R Ventures at 339, citing

Harris at 23. In order to determine whether the harassing conduct was sufficiently severe or

pervasive, the trier of fact must view the work environment as a whole and consider the

totality of all the facts and surrounding circumstances, including the cumulative effect of all

episodes of sexual or other abusive treatment. Hampel, 89 Ohio St.3d at 181, citing Ellison

v. Brady, 924 F.2d 872, 878 (C.A.9. 1991) ("the required showing of severity or seriousness

of the harassing conduct varies inversely with the pervasiveness or frequency of the

conduct"); and Robinson v. Jacksonville Shipyards, Inc., 760 F.Supp. 1486, 1524

(M.D.Fla.1991) ("greater severity in the impact of harassing behavior requires a lesser degree

of pervasiveness in order to reach a level at which Title VII liability attaches"). The "ordinary

tribulations of the work place, such as sporadic use of abusive language, gender-related

jokes, and occasional teasing" will not constitute a hostile work environment. Faragher v.

City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275 (1998); Armaly v. City of

Wapakoneta, 3d Dist. Auglaize No. 2-05-45, 2006-Ohio-3629, ¶ 31.

{¶ 24} The trial court failed to view the totality of the circumstances in determining

whether Oakley's conduct toward R.W. was severe or pervasive. The trial court questioned

only whether Oakley's alleged conduct was frequent and physically threatening to R.W,

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concluding that it was neither.2 The trial court did not review whether Oakley's statements to

R.W. were severe, humiliating, and/or unreasonably interfered with R.W.'s work performance.

We find that reasonab0le minds could conclude that Oakley's conduct toward R.W. on

October 16, 2011, while certainly not frequent or physically threatening, was still sufficiently

severe to constitute hostile work environment sexual harassment under R.C. 4112.02.

{¶ 25} While "rare or isolated incidents of sexual harassment rarely rise to the level of

pervasiveness required to create a hostile work environment," the harassment becomes

actionable when it "reaches the point where it 'alter[s] the conditions of [the victim's]

employment and create[s] an abusive working environment.'" Gliatta v. Tectum, Inc., 211

F.Supp.2d 992, 1001-02 (S.D.Ohio 2002), citing Morris v. Oldham Cty. Fiscal Court, 201 F.3d

784 (6th Cir.2000), and Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct.

2399 (1986). "There is no 'magic number' of incidents required to establish a hostile

environment. * * * [E]ven one act of harassment will suffice if it is egregious." Hostetler v.

Quality Dining, Inc., 218 F.3d 798, 808 (7th Cir.2000); Gliatta at 1002. Moreover, "the

objective severity of harassment should be judged from the perspective of a reasonable

person in the plaintiff's position, considering 'all the circumstances,'" including "the social

context in which particular behavior occurs and is experienced by its target." Oncale v.

Sundowner Offshore Services, Inc., 523 U.S. 75, 81, 118 S.Ct. 998 (1998), citing Harris, 510

U.S. at 21.

{¶ 26} According to the evidence presented by Ward, Oakley had two conversations

2. In its analysis, the trial court provided:

Was the activity here frequent, having known Oakley for years, and having worked
for a number of nights prior to the incident, Oakley allegedly had only two
discriminatory conversations with R.W., one of which R.W. herself dismissed? Was
there any threat to R.W. when the second, allegedly more disturbing, conversation
took place where the public was walking in and out, Oakley was listening to, and
responding to hails from the radio he carried with him, and after which R.W.
continued to work until the end of her shift? The Court finds that a reasonable jury
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with R.W. that were of a sexual nature. First, Oakley discussed R.W.'s use of birth control

while in Land of Illusion's concession stand. Second, while at the theme park's gift shop,

Oakley offered to take R.W. to a hotel in Kentucky to show her how to have "real sex" with a

"man" and then promised to take R.W. to Las Vegas for her 21st birthday. Oakley then

requested R.W.'s silence so his friendship with her parents and his relationship with his wife

would not be affected.

{¶ 27} R.W. felt "awkward" and "a little embarrassed" about the birth control

conversation, but admitted that she was not humiliated by the conversation and thought

Oakley was just trying to help her as a family friend. This conversation alone was neither

sufficiently severe nor pervasive to constitute a hostile work environment. But, within

minutes, Oakley re-engaged R.W. in additional sexually suggestive conversation in the gift

shop.

{¶ 28} R.W. was "shocked" and "scared" by Oakley's sexual advances during the

encounter in the gift shop. After the gift shop conversation, R.W. broke down in tears when

recounting the conversation to her friend, and stated she never wanted to work at Land of

Illusion again. The next day, R.W. again broke down in tears when she informed her parents

of Oakley's comments. Neither R.W. nor her parents ever returned to work at Land of

Illusion, though the theme park would remain open another seven days that season.

{¶ 29} These two exchanges between R.W. and Oakley are so proximate in time as to

constitute a single incident and, therefore, are not pervasive. However, the lack of multiple

incidents must be balanced against the objective severity of Oakley's alleged conduct. Here,

viewing the evidence in a light most favorable to Ward, a 16-year-old girl was subjected to a

thinly veiled solicitation for sex by a long-time, close family friend who was 32 years her

could only answer the questions in the negative, even considering the fact most
strongly in favor of [Ward].
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senior. See R&R Ventures, 244 F.3d at 340 (discussing the creation of a hostile work

environment based upon the conduct of "an adult male in a supervisory position over young

women barely half his age"). Additionally, Oakley, as owner of Land of Illusion, had the

ultimate authority over R.W. and her parents, whether they be employees or independent

contractors. Furthermore, Oakley impressed upon R.W. the need to stay silent in order to

protect his relationship with her parents and his own wife. Oakley admitted to stating that

Ward would "kill him" if Ward knew Oakley had spoken to R.W. about birth control. As

Oakley was the owner of the company, there was no one for R.W. to turn to for redress.

Oakley placed R.W. in the untenable position of choosing between continued exposure to

Oakley or jeopardizing her employment at Land of Illusion and that of Ward and her

stepmother. This conduct eclipses the threshold of severity required to defeat summary

judgment.

{¶ 30} We find, viewing the evidence in the light most favorable to Ward, that genuine

issues of material fact remain as to whether these conversations between Oakley and R.W.

created a hostile work environment based upon sexual harassment. See Peterson v.

Buckeye Steel Casings, 133 Ohio App.3d 715, 724 (10th Dist.1999) ("Whether a work

environment is a hostile environment is a question of fact"). The trial court erred in granting

summary judgment in favor of appellees on Ward's R.C. 4112.02 claim.

{¶ 31} Accordingly, Ward's first assignment of error is sustained.

{¶ 32} Assignment of Error No. 2:

{¶ 33} THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFF-

APPELLANT BY GRANTING THE [APPELLEES'] MOTION FOR SUMMARY JUDGMENT

ON [WARD'S] INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CLAIM.

{¶ 34} In his second assignment of error, Ward claims the conduct his daughter was

subjected to was so severe, pervasive, and offensive that he is entitled to recover for
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intentional infliction of emotional distress and the trial court erred in dismissing this claim on

summary judgment.

{¶ 35} In order to survive summary judgment on his claim of intentional infliction of

emotional distress, Ward was required to show: (1) Oakley either intended to cause

emotional distress or knew or should have known the actions taken would result in serious

emotional distress to R.W.; (2) Oakley's conduct was so extreme and outrageous as to go

beyond all possible bounds of decency and was such that it can be considered as utterly

intolerable in a civilized community; (3) Oakley's actions were the proximate cause of R.W.'s

psychic injury, and (4) the mental anguish suffered by R.W. is serious and of a nature that no

reasonable person could be expected to endure it. See Curry v. Blanchester, 12th Dist.

Clinton Nos. CA2009-08-010 and CA2009-08-012, 2010-Ohio-3368, ¶ 52; Burkes v. Stidham,

107 Ohio App.3d 363, 375 (8th Dist.1995).

{¶ 36} In the case before us, the trial court found that Ward failed to prove the mental

anguish suffered by R.W. was serious and of a nature that no reasonable person could be

expected to endure it. As we find this issue dispositive of Ward's intentional infliction of

emotional distress claim, we shall begin our analysis here.

{¶ 37} In order to constitute serious emotional distress, "the injury that is suffered must

surpass upset or hurt feelings, and must be such that 'a reasonable person, normally

constituted, would be unable to cope adequately with the mental distress engendered by the

circumstances in the case.'" Radcliff v. Steel Elec., Inc., 164 Ohio App.3d 161, 2005-Ohio-

5503, ¶ 42 (9th Dist.), citing McPherson v. Goodyear Tire & Rubber Co., 9th Dist. Summit

No. 21499, 2003-Ohio-7190, ¶ 35. A court must determine whether a plaintiff has stated a

cause of action for intentional infliction of emotional distress "by ruling whether the emotional

injury alleged is 'serious' as a matter of law." Winkle v. Zettler Funeral Homes, Inc., 182 Ohio

App.3d 195, 2009-Ohio-1724, ¶ 34 (12th Dist.). The "seriousness" of the emotional distress
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is "decided on a case-by-case basis" and must be "more than trifling, mere upset, or hurt

feelings." Id. at ¶ 34-35, citing Paugh v. Hanks, 6 Ohio St.3d 72, 78 (1983).

{¶ 38} The person claiming serious emotional distress must present some "guarantee

of genuineness" in support of his or her claim to prevent summary judgment. Powell v. Grant

Med. Ctr., 148 Ohio App.3d 1, 2002-Ohio-443, ¶ 15 (10th Dist.), citing Paugh at 76. This is in

contrast with what is necessary in a cause of action claiming emotional distress as merely an

element of damages arising from a separate tortious injury. In such cases, the emotional

distress need not satisfy the "severe and debilitating" standard. See Binns v. Fredendall, 32

Ohio St.3d 244 (1987), paragraph one of the syllabus. Here, the injury upon which the action

is based is the alleged emotional distress from which all other claimed damages arise.

Because psychic injuries are much more easily feigned than are physical and economic

injuries, a more arduous standard applies.

{¶ 39} In most instances, a plaintiff can supply this genuineness with expert medical

testimony. Id., citing Schultz v. Barberton Glass Co., 4 Ohio St.3d 131, 135 (1983). Such

testimony, however, is not always necessary. Id. at ¶ 16. In lieu of expert testimony, a

plaintiff may submit testimony of lay witnesses who "testify as to any marked changes in the

emotional or habitual makeup that they discern in the plaintiff." Paugh at 80; Buckman-

Peirson v. Brannon, 159 Ohio App.3d 12, 2004-Ohio-6074, ¶ 57 (2d Dist.). "A court may

decide whether the emotional injury alleged constitutes 'serious emotional distress' as a

matter of law." Ford Motor Credit Co. v. Ryan, 189 Ohio App.3d 560, 2010-Ohio-4601, ¶ 57

(10th Dist.), citing Buckman-Peirson at ¶ 41.

{¶ 40} In the case at hand, R.W. does not present any medical testimony relating to

her mental anguish from the events of October 16, 2011. During their March 2012

depositions, R.W. and her parents testified R.W. had a temporary drop in her school grades

and had become more distant and detached from her family and friends. Ward testified R.W.
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cried when she initially told him about her encounter with Oakley and had cried the night

before giving her deposition, but had not been brought to tears other than those occasions

and was not seeking counseling. R.W. testified she had not sought counseling or any form of

treatment for her distress, stating that she was "just dealing with it" and saw no need for

treatment. R.W.'s stepmother also testified that, though she had thought about discussing

counseling with R.W., the family had never sought counseling for R.W. However, in his

affidavit submitted in opposition to appellees' motion for summary judgment in July 2012,

Ward averred R.W. was seeking counseling. The affidavit did not specify when such

counseling began or the frequency or duration of the counseling.

{¶ 41} After a thorough review of the record, we find there is no evidence to suggest

R.W. suffered the serious emotional distress necessary to constitute an actionable claim for

intentional infliction of emotional distress. Paugh at 78 ("By the term serious, we of course

go beyond trifling mental disturbance, mere upset or hurt feelings. We believe that serious

emotional distress describes emotional injury which is both severe and debilitating"). Though

the testimony of R.W. and her parents shows she was upset about what occurred between

herself and Oakley, there is no evidence her emotional distress was so serious and of a

nature that no reasonable person could be expected to endure it. R.W.'s testimony that she

was "just dealing with it" supports the conclusion that a reasonable person could be expected

to endure Oakley's conduct and, in fact, that R.W. was enduring it. Moreover, the fact that

R.W. did not seek counseling until after the issue was raised in her March 2012 deposition is

reflective of her lack of serious emotional distress. Although testimony from a mental health

professional is not required to prove serious emotional distress, the lack of such testimony is

critical in this case.

{¶ 42} For the foregoing reasons, we find Ward has failed to prove his claim of

intentional infliction of emotional distress and, therefore, the trial court did not err in granting
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 Butler CA2013-03-031

summary judgment in favor of Oakley.

{¶ 43} Accordingly, Ward's second assignment of error is overruled.

III. CONCLUSION

{¶ 44} For the reasons set forth above, the judgment of the trial court is hereby

affirmed in part, reversed in part, and remanded for further proceedings consistent with this

Opinion.

RINGLAND, P.J., and PIPER, J., concur.

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