French v. Dell Rapids Community Hospital, Inc.

WUEST, Chief Justice

(concurring in part and dissenting in part).

I concur with those portions of the majority opinion affirming the decision of the trial court. Bearing in mind the guidelines for granting summary judgment,1 however, I dissent from the parts of the majority opinion that reverse the trial court’s decision.

FRAUD AND DECEIT

The majority opinion correctly states that liability for the tort of deceit is statutorily imposed on “[o]ne who willfully deceives another, with the intent to induce him to alter his position to his injury or risk....” SDCL 20-10-1. It also accurately sets forth conduct which, according to SDCL 20-10-2, constitutes deceit.2 Although the majority opinion correctly states the law regarding deceit, it errs in concluding that summary judgment was inappropriate under the facts in the present case.

According to French, he was contacted and hired by Olson who was fully aware of the fact that French possessed only a two-year degree. French claims his being hired caused “dissatisfaction” with others in the Hospital who would have preferred someone with a four-year degree. As stated in the majority opinion, French further claims that Olson failed to disclose this dissatisfaction to him and that he was induced to accept employment in Dell Rapids by Olson’s intentional misrepresentations and material omissions regarding the acceptance of his academic credentials. French contends that the dissatisfaction over his academic credentials resulted in his dismissal.

*291The record indicates that the dissatisfaction over French’s credentials and his being hired did not arise until after he started working. In her deposition, Alinda Wiarda (Wiarda), a lab technician, stated that she felt cheated because she possessed a four-year degree while French did not. Wiarda, however, apparently did not disclose her sentiments to Olson until after French had been hired. Donna Overvaag (Overvaag), the assistant administrator, also stated in her deposition that neither Wiarda or the other lab employee complained to her about French’s being hired even though he did not meet the four-year degree requirement in the job description. After French started working, however, 'Wiarda and the lab employee did complain about his failure to carry his share of the work load, his lack of lab expertise, and his inability to answer the questions of the lab technicians.

It is also apparent that some of the doctors shared doubts about either French’s academic training or his previous work experience. These doubts, however, were not realized until after French started working. The record clearly indicates that when the decision was made to hire French, the medical staff was not as concerned with the fact that he lacked a four-year degree per se as it was with the possibility that he might be incapable of satisfactorily performing his duties.

Although some of the staff either held some reservations about French’s ability or harbored some resentment because they were equally or more academically qualified, French did not indicate that those reservations would have been an important consideration for him or that he would not have taken the job if he had known about them. By his own affidavit, it is clear that French knew there was a preference for someone with a four-year degree. Furthermore, French’s own testimony establishes that any dissatisfaction over his credentials and hiring arose after he was hired.

The trial court properly analyzed the fraud and deceit claim when it stated:

The dissatisfaction arose after he took the new employment and not before he terminated his former employment at the other hospital. Based upon this factual scenario, this Court is hard pressed to determine where the fraud and deceit exists in inducing Mr. French to come to the Dell Rapids Hospital. Everything he requested he received, that is: the position, the job benefits, as well as the pay that went with it. It is after he arrived that things went sour, not before. The fact that problems arose afterwards, which is clear from everybody’s testimony and affidavits, does not mean that fraud or deceit or misrepresentations were made to induce him to come to the Dell Rapids Hospital. The Court cannot find in the record any evidence that demonstrates that fraud or deceit was practiced upon Mr. French before he came to the Dell Rapids Hospital which caused him to leave the former employment.

Settled Record at 181 (emphasis in original). I agree with the trial court’s analysis and believe summary judgment was appropriate on this cause of action.

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

French also argues that he should be able to pursue a cause of action for intentional infliction of emotional distress. Again, the majority opinion correctly states the law as it pertains to this cause of action but misapplies it to the facts. “One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress_” Ruple v. Brooks, 352 N.W.2d 652, 654 (S.D.1984) (citing Restatement (Second) of Torts § 46(1) at 71 (1965).3 A prima facie case on *292the tort of intentional infliction of emotional distress is established by the presence of the following elements: “(1) an act by defendant amounting to extreme and outrageous conduct; (2) intent on the part of the defendant to cause plaintiff severe emotional distress; (3) the defendant’s conduct was the cause in-fact of plaintiff’s injuries; and (4) plaintiff suffered an extreme emotional response to defendant’s conduct.” Groseth Intern., Inc. v. Tenneco, Inc., 410 N.W.2d 159, 169 (S.D.1987) (emphasis in original). The defendant’s conduct must be “so extreme in degree as to go beyond all possible bounds of decency to be regarded as atrocious and utterly intolerable in a civilized community.” Strauss v. Cilek, 418 N.W.2d 378, 379 (Iowa App.1987).

Turning to the summary judgment question, I note that two basic rules as to questions of law or fact appear in the Restatement (Second) of Torts and are mentioned in the majority opinion. First, it is for the trial court to determine, in the first instance, whether a defendant’s conduct may be reasonably regarded as so extreme and outrageous so as to permit recovery, or whether it is necessarily so. Second, the jury determines whether the conduct has been sufficiently extreme and outrageous to result in liability only when reasonable minds may differ. Restatement (Second) of Torts § 46, comment (h) at 77 (1965).

French argues that the Hospital intentionally inflicted emotional distress. Although the trial court did not specifically address this question of law in its memorandum opinion, it did grant summary judgment as to all issues except one. Viewing the entire record, I cannot see where the trial court erred in dismissing French’s cause of action for intentional infliction of emotional distress. There is no evidence that the Hospital acted with the purpose of causing any distress. Nor do I find any actions by the Hospital that could reasonably be regarded as so extreme and outrageous so as to permit recovery. Therefore, I see nothing that would lead me to find that the trial court abused its discretion in granting summary judgment on this issue.

. In Dahl v. Sittner, 429 N.W.2d 458, 461 (S.D.1988), we recently stated:

Summary judgment is properly awarded only when the moving party clearly shows that he is entitled to judgment as a matter of law because there is no genuine issue as to any material fact. "The evidence must be viewed most favorably to the nonmoving party and reasonable doubts should be resolved against the moving party.” Summary judgment is an extreme remedy and is not intended as a substitute for a trial. A belief that the nonmoving party will not prevail at trial is an inappropriate basis for granting summary judgment on issues not shown to be sham, frivolous, or so unsubstantial as to obviate the futility of their litigation. If reasonable persons, upon examining the evidence, might reach different conclusions, a motion for summary judgment should be denied and the case tried on the merits. (Citations omitted).

. SDCL 20-10-2 provides:

A deceit within the meaning of SDCL § 20-10-1 is either:
(1) The suggestion, as a fact, of that which is not true, by one who does not believe it to be true;
(2) The assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true;
(3) The suppression of a fact by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of communication of that fact; or
(4) A promise made without any intention of performing.

. To show "reckless” infliction of emotional distress, a plaintiff must show the defendant recklessly caused severe emotional distress in a manner evincing or tantamount to an intent to inflict injury. Restatement (Second) of Torts § 46, comment (⅛) at 77 (1965) (emphasis supplied). “Recklessness” is acting in a manner which is “in deliberate disregard of a high degree of probability that the emotional distress will follow." Restatement (Second) of Torts § 46, comment (/) at 77 (1965); Restatement (Second) of Torts § 500 at 587 (1965). There are two types of reckless conduct. In one, the actor knows or has reason to know of facts *292which create a high degree of risk to another and deliberately acts or fails to act in conscious disregard of that risk. In the other, the actor knows or has reason to know of the facts which create the risk but does not in fact realize the high risk involved, although a reasonable man in his position would do so. Restatement (Second) of Torts § 500 at 587-88 (1965); 4 S. Speiser, C. Krause & A. Gans, The American Law of Torts § 16.13 at 1018-19 (1987). "While an act to be reckless must be intended by the actor, the actor does not intend to cause the harm which results from it. It is enough that he realizes or, from facts which he knows, should realize that there is a strong probability that harm may result, even though he hopes or even expects that his conduct will prove harmless.” Restatement (Second) of Torts § 500, comment (/) at 590 (1965).