dissenting.
The majority has erred in dismissing the cross-appeal, at least with regard to St. Vincent. The circuit court’s order that is the subject of the appeal dismissed St. Vincent from the lawsuit. It was the appellant, Ms. Cannady, who sought a Rule 54(b), certification to attempt to draw St. Vincent back into the lawsuit.
In its second motion for summary judgment, St. Vincent raised two reasons why it should be dismissed from the lawsuit: (1) the conduct involved was not sufficiently extreme and outrageous to constitute the tort of outrage, and even if it was, Arkansas does not allow a claim for outrage to be pursued when the conduct was directed toward a third party; and (2) it was not vicariously liable for the conduct of its employees Griffin and | uMiller. While the circuit court denied St. Vincent relief on the first theory, it granted St. Vincent relief on the second. The circuit court stated in its order, “Plaintiffs Complaint, as amended, is therefore, dismissed with prejudice as to'St. Vincent Infirmary Medical Center.” Significantly, the order further states, “Plaintiffs claims against the- remaining Defendants, Griffin, Miller, and Holland may continue.”
With Ms. Cannady appealing, St. Vincent prudently filed a cross-appeal. Cf. Hall v. Freeman, 327 Ark. 720, 942 S.W.2d 230 (1997); Van Houten v. Pritchard, 315 Ark. 688, 870 S.W.2d 377 (1994); Mears v. Little Bock Sch. List., 268 Ark. 30, 593 S.W.2d 42 (1980). Its cross-appeal placed its alternative theory for relief before this court. This was not a mere prophylactic measure to cover the eventuality of this court reversing the circuit court. Finding for St. Vincent on its appeal ended the lawsuit in its entirety. Even though, the circuit court’s order found that St. Vincent had no liability for the actions of its employees, one has to recognize that it was a public-relations nightmare for the venerable institution which is forever- linked to one of the most ■ notorious crimes in the history of this state.
The elephant in the room throughout the long procedural history of this case—Ms. Cannady filed her first complaint on October 16,2009—has always been whether the conduct complained of actually supported a cause of ¿ction recognized in Arkansas law. Ms. Cannady asserted-two theories to address the unauthorized viewing of her daughter’s medical records: the tort of invasion of privacy and the tort of outrage. The former was |1Beliminated when this court partially affirmed a directed verdict in Cannady v. St. Vincent Infirmary Med. Ctr., 2012 Ark. 369, 423 S.W.3d 548. That left only the tort of outrage.
In my view, the allegations in Ms. Can-nady’s complaint simply do not constitute the tort of outrage. 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 plaintiffs distress; and (4) the emotional distress sustained by the plaintiff was so severe that no reasonable person could be expected to endure it. Crockett v. Essex, 341 Ark. 558, 19 S.W.3d 585 (2000). Histor-really, this court has required clear-cut proof to establish the elements in outrage cases. Id.1
|1fiBy comparison, conduct held to constitute the tort of outrage: Travelers Ins. Co. v. Smith, 338 Ark. 81, 991 S.W.2d 591 (1999) (workers’-compensation carrier interfered with the burial of a worker killed on the job by demanding an autopsy, delaying the process of embalming, ultimately not even having the autopsy performed, but in the process making the body unfit for an open casket funeral); Growth Props. I v. Cannon, 282 Ark. 472, 669 S.W.2d 447 (1984) (owners of a cemetery drove heavy equipment across several grave sites and exposed the vaults of plaintiffs’ deceased relatives); McQuay v. Guntharp, 331 Ark. 466, 963 S.W.2d 583 (1998) (physician had inappropriately touched, examined, and fondled patients’ breasts).
Significantly, whether the conduct1' is “extreme and outrageous, beyond all possible bounds of decency, and utterly intolerable in a civilized community,” is not a factual question as the circuit court found, but a threshold question of law to be decided by the court. Accordingly, the circuit court’s conclusion that this threshold issue was a factual 117question for the jury was clearly erroneous. By letting this matter go forward, this court is not serving due process, judicial economy, or any identifiable concept of justice.
All of the foregoing would be merely academic were I able to join the majority’s opinion on the merits of the direct appeal. While I can accept the majority’s analysis of Ms. Cannady’s law-of-the-case argument, I cannot agree with the majority’s rationale for disposing of Ms. Cannady’s second point. Summary judgment is proper if there is no issue of material fact to be tried, and the case may be resolved as a matter of law. Anglin v. Johnson Reg’l Med. Ctr., 375 Ark. 10, 289 S.W.3d 28 (2008). I cannot agree that either prong of the summary-judgment test has been satisfied in this case.
I agree that it is not disputed that St. Vincent had created policies regarding the viewing of patients’ medical records and that St. Vincent took steps to promulgate these policies to its employees. However, there is at least a factual question about the efficacy of these measures. After all, viewing a patient’s medical records was an integral part of the daily work routine of each of the employees in the lawsuit. In my view, whether the measures adopted by St. Vincent were sufficient to relieve it of vicarious liability is a factual question for the jury.
Likewise, I cannot accept that the measures taken by St. Vincent were sufficient to relieve it of vicarious liability as a matter of law. It violates the separation of powers for this court to create law that completely immunizes an employer against vicarious liability if the |1Remployer promulgates a policy that proscribes a certain behavior. If such a law were to be adopted in Arkansas, it would be up to the legislature to do so.
I would reverse and dismiss this case on cross-appeal; therefore I respectfully dissent.
. An admittedly nonexaustive list of cases refusing to find the tort of outrage is illustrative: Smith v. American Greetings Corp., 304 Ark. 596, 804 S.W.2d 683 (1991) (an employer threatening his employee, hitting the employee, and then firing the employee for "provoking a fight”); Ross v. Patterson, 307 Ark. 68, 817 S.W.2d 418 (1991) (a doctor who developed a substance abuse problem with drugs and alcohol treating a pregnant patient while suffering from addiction, then being unavailable at the time of the child's birth as a result of the substance abuse problem); Kelley v. Ga.-Pac. Corp., 300 F.3d 910 (8th Cir. 2002) (a supervisor providing an employee’s 19-year-old daughter with narcotics, taking her to a strip club, and watching her dance topless); and Crockett, supra (a funeral director engaged in the following behavior; urging participants in the funeral to hurry and to shorten the funeral service at the funeral home; driving the hearse to the grave site in excess of sixty-five miles per hour, thereby leaving mourners who otherwise would have attended the burial service behind; acting annoyed during the burial service and hurrying the burial service along; putting a disabled family member in another family member's car and driving that car over graves and gravestones; and the funeral director talking on his cell phone for an extended period of time during the funeral service).