Todd v. Byrd

ANDREWS, Presiding Judge,

concurring in part and dissenting in part.

I concur in the majority opinion except for Divisions 4 and 10, to which I respectfully dissent.

As to Division 4, because the defendants’ conduct did not meet the threshold necessary to sustain a claim for intentional infliction of emotional distress, the trial court erred by denying summary judgment on this claim. Construed in favor of Sylvia Byrd’s claims brought on behalf of her minor child, the evidence fails to establish all of the elements which must be present to support a claim for intentional infliction of emotional distress: “(1) the conduct must be intentional or reckless; (2) the conduct must be extreme and outrageous; (3) there must be a causal connection between the wrongful conduct and the plaintiffs emotional distress; and (4) the emotional distress must be severe.” (Citations omitted.) MARTA v. Mosley, 280 Ga. App. 486, 490-491 (634 SE2d 466) (2006). Although Byrd produced evidence that the defendants acted intentionally or recklessly toward her child (element 1), and evidence showing a causal connection between the defendants’ conduct and some degree of emotional distress suffered by the child (element 3), she failed to produce evidence sufficient to show that the defendants’ conduct was extreme and outrageous (element 2), or that the emotional distress suffered by the child as a result of the defendants’ conduct was severe (element 4).

The female child at issue was nine years old at the time of the incident, but she was large for her age weighing between 200 and 230 pounds according to Byrd. The child testified by deposition that she walked into Fred’s store to use the restroom, and that, after entering *50the restroom, she left without using it because she saw “dookey” on the toilet seat, saw blood, bloody underwear, and package wrappers in the trash can, and smelled a “real bad” odor of “dookey.” A store employee, Phyllis Purcell, stated by affidavit that she was near the door of the restroom when the child left, and that, because of the strong smell of feces emanating from the restroom, she went inside to check the restroom. Purcell stated that she saw fresh feces on the toilet, wall, and floor, saw fresh blood on the toilet, floor, and trash can, and saw bloody underwear and an empty merchandise wrapper in the trash can. Based on these observations, Purcell thought the child probably had some sort of problem in the restroom and was responsible for the feces and blood, and she suspected that, because of the problem, the child may have taken some Fred’s merchandise and left the empty wrapper in the trash can. According to Purcell and the store manager, Joyce Todd, Purcell notified Todd of the situation, and Todd approached the child and asked her to walk back to the restroom.

The child testified that, as she walked out of the store immediately after leaving the restroom, Purcell approached her, said she stole some underwear and some pads, then took her by the hand, led her back into the store, and told Todd that she had stolen some underwear and pads. She said Todd held her hand and took her into the restroom accompanied by Purcell. According to the child, Todd said she stole something, “asked her if she had done the poop that was on the seat,” asked her if she was “on her period,” then used a glove to pick up the bloody underwear from the trash can and asked her if the underwear belonged to her. The child said she told Todd and Purcell that she did not steal anything, that she did not mess up the seat, and that it was not her underwear. The child further testified that, while they were in the restroom, Purcell asked if she could see her underwear, and then lifted up her shirt enough to look at the top band of her underwear which was visible above the waistband of her pants. According to the child, Purcell said that her underwear was not the same kind as the underwear in the trash can. At that point, the child said Todd told her that she could go and told her not to come back to the store unless she was accompanied by an adult.

The child testified that she left the store and immediately told her mother, Byrd, who was shopping in an adjacent store, that she had been accused of stealing from Fred’s store and messing up the restroom, and that the people at Fred’s wanted to talk to her. The child said she was crying at that point because she had been accused of stealing and might get in trouble with her mother. The child testified that, when they got to the store, her mother started “yelling real loud,” cursing and throwing shoes. Byrd recalled at her deposition that she called Todd a bitch and a whore, and that she knocked *51paperwork by the store cash register onto the floor and threw shoes and other store merchandise. According to the child, her mother’s “crazy” conduct in the store scared her worse than being brought back in the store by Todd and Purcell, and that when she fainted later in the day it was because her mother had gotten her upset. When asked if the incident at Fred’s store bothered her after that day, the child said she had dreams about “people coming to get me,” but she said her dreams were no worse after the Fred’s incident than they were before the incident. In fact, the child repeatedly testified at her deposition that Todd and Purcell spoke to her sweetly and were nice to her during the entire incident. Defense counsel questioned the child at length about any emotional distress she may have suffered as a result of the incident.

Q: What I’m asking about is things that happened to you or problems you had because of Fred’s. You didn’t have any more bad dreams because of the Fred’s situation, did you?
A: No.
Q: And everybody at Fred’s was very nice to you, weren’t they?
A: Yes.
Q: So I mean, there wasn’t anything terrible about that, was it?
A: No.
Q: The thing that worried you the most was your mom getting all upset about it. Right?
A: Yes.
Q: Because the people at Fred’s never acted bad to you at all, did they?
A: No.
Q: Any other bad dreams that you ever had after the Fred’s incident?
A: No.

The child testified that, since the incident at Fred’s, it “kind of’ bothers her to go into stores because “it might happen again.” Byrd testified that her child had not started her menstrual cycle, did not know what “a period” was prior to being asked about it during the Fred’s incident, and that, when she subsequently explained menstruation to the child, the child did not understand, had nightmares about it, and sometimes had to sleep with her. The child recalled that her mother spoke to her after the incident about menstruation, but denied having any bad dreams about menstruation and said the incident at Fred’s kept her up at night on one occasion. She also testified that she woke up because of bad dreams and slept with her *52mother just as much before the Fred’s incident as she did after the incident. Byrd further testified that, after the Fred’s incident, her child started having some back problems, and that she thought this might have been caused by stress or nervousness from the incident. When asked about the child fainting shortly after the Fred’s incident, Byrd conceded that the child had a history of fainting prior to the incident any time she got nervous or upset. Finally, Byrd testified that “the aggravation of the Fred’s accident could have something to do with [the child] slacking off on her work and her ability to learn.” There is no evidence in the record to support the majority opinion’s statement that, when Todd showed the bloody underwear to the child in the restroom, she put it “in her face for her to see.”

Whether the conduct at issue was sufficiently extreme or outrageous to support a claim for intentional infliction of emotional distress is a question of law for the court. Kaiser v. Tara Ford, Inc., 248 Ga. App. 481, 488 (546 SE2d 861) (2001). As the majority opinion states, to meet this stringent burden of proof, the conduct “must beso 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.” (Citation and punctuation omitted.) Id. It is not enough to prevail on a claim for intentional infliction of emotional distress to show “that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by malice, or a degree of aggravation that would entitle the plaintiff to punitive damages for another tort.” (Citation and punctuation omitted.) Odem v. Pace Academy, 235 Ga. App. 648, 654-655 (510 SE2d 326) (1998). Moreover, there is no recovery for intentional infliction of emotional distress for insults, threats, indignities, or the like, which cause commonly inflicted emotional distress “including] all highly unpleasant mental reactions such as fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry, and nausea.” (Citation and punctuation omitted.) Peoples v. Guthrie, 199 Ga. App. 119, 121 (404 SE2d 442) (1991); Ashman v. Marshall’s &c., Inc., 244 Ga. App. 228, 229-230 (535 SE2d 265) (2000). Rather, there must be major outrage in the conduct complained of, so beyond the bounds of decency and so atrocious and intolerable in civilized society, that it inflicts emotional distress “so severe that no reasonable [person] could be expected to endure it.” (Citation, punctuation and emphasis omitted.) Guthrie, 199 Ga. App. at 121; Ashman, 244 Ga. App. at 229-230.

Construing the record in favor of Byrd on summary judgment, there is evidence that the conduct at issue was harsh, inappropriate, insulting, and embarrassing, and that it could be sufficient to support the award of damages (including possible punitive damages) for the *53commission of other torts. But the conduct was not sufficient to satisfy the stringent standards for a claim of intentional infliction of emotional distress. Moreover, the record is devoid of any evidence that, as a result of the conduct at issue, Byrd’s child suffered severe emotional distress.

Decided December 1, 2006 — Reconsideration denied December 15, 2006 Bouhan, Williams & Levy, Peter Muller, for appellants. Sapp & Moore, Joseph E. Sapp, Joseph C. Nelson III, for appellee.

In Division 10, the majority opinion addresses whether Purcell’s conviction for violating OCGA § 16-10-24 can be used for impeachment at trial. Although the appellants enumerate as error that the trial court failed to strike the conviction, the appellants did not file a motion to strike the conviction, and the trial court has not ruled on this evidentiary issue. The present interlocutory appeal was taken from the trial court’s denial of the appellants’ motion for summary judgment, which does not raise the issue. In supplemental briefs in support of their motion for summary judgment, the appellants argued that Byrd was apparently attempting to impeach Purcell in her response, and that the court should “strike such evidence” because it was “irrelevant and highly prejudicial” and “does not affect the outcome of the ... motion for summary judgment.” All this amounts to is an argument that evidence of the conviction should not affect the trial court’s ruling on summary judgment. The trial court’s ruling on the summary judgment motion was not a ruling on this evidentiary issue for trial, so this Court, which only addresses issues ruled on by the trial court, has no jurisdiction to address it. Carver v. Empire Fire & Marine Ins. Co., 270 Ga. App. 100, 105 (605 SE2d 842) (2004).

I am authorized to state that Judge Bernes joins in this opinion, and that Presiding Judge Blackburn joins in this opinion as to Division 10 of the majority opinion.