Caldor, Inc. v. Bowden

ELDRIDGE, Judge,

dissenting:

I disagree with the majority’s affirmance of the circuit court’s decision to overturn the jury verdicts finding intentional infliction of emotional distress and abusive discharge. The jury could reasonably conclude that the conduct of the defendants in the case, toward the minor plaintiff and his mother, was extreme and outrageous. The egregious conduct, and its consequences, fully justified the jury’s award of damages for both intentional infliction of emotional distress and abusive discharge.

I.

As the majority indicates, in reviewing a trial court’s decision to grant a motion for judgment at the close of the evidence or a motion for judgment notwithstanding the verdict, an appellate court must view the evidence in the light most favorable to the non-moving party. Moreover, in such a case, it is not only the evidence which must be viewed most favorably to the non-moving party but, in addition, all “inferences” must be considered “in the light most favorable to the party against whom the motion is made.” Maryland Rule 2-519(b). See, e.g., Metromedia v. WCBM Maryland, 327 Md. 514, 518, 610 A.2d 791, 793 *665(1992); Allstate Ins. v. Miller, 315 Md. 182, 186, 553 A.2d 1268, 1270 (1989); Snyder v. Glusing, 307 Md. 548, 515 A.2d 767 (1986); Impala Platinum v. Impala Sales, 283 Md. 296, 327, 389 A.2d 887, 905-906 (1978); Gill v. Computer Equip. Corp., 266 Md. 170, 173, 292 A.2d 54, 55 (1972). The majority in the present case, however, chooses to draw certain inferences of its own from the evidence, whereas the jury reasonably could have drawn entirely different inferences.

Considering the evidence and legitimate inferences therefrom in a light most favorable to the plaintiff in this case, the jury was entitled to find the following. Samuel Bow-den, a sixteen year old African-American high school student, obtained a part-time .evening job with Caldor, a discount department store, as a “customer service representative.” One evening, using a pretext to get Samuel to accompany her, his supervisor took him to a small, windowless room, measuring approximately ten feet square. Two men, who were employed by Caldor as security personnel, kept Samuel imprisoned in this windowless room by blocking the door. They threatened him physically and verbally when he tried to leave. They used vulgar language and threatened him again when he tried to telephone for help. When Samuel indicated to the men that his mother would worry and try to contact him, they told Samuel that they would lie to her and tell her that Samuel was not in the store. Of course, this lie would compound her worry at not being able to reach Samuel, which further distressed him. In addition, this statement scared Samuel because it indicated that no one except Ms captors would know where he was.

The men began making a series of false accusations against Samuel, telling him that he was suspected of theft. Ignoring his denials, they falsely told him that they had a videotape of him stealing. The men forced Samuel to show them the contents of his pockets and wallet. The two security employees kept Samuel prisoner for over four hours, telling him that he would not be able to leave until he *666confessed to the “theft.” 1 Finally, after over four hours, exhausted and frightened, he signed the false confession dictated to him by the security personnel. The men told Samuel that he would have to make restitution. They told him to empty his bank account, obtain a money order payable to Caldor, and bring it back to them by 9:00 the next morning, all without involving his parents. If he failed to obey these orders, the men told Samuel, they would call the police and use his “confession” to charge him with theft.

When Samuel returned home, his mother asked him why he was so late. Earlier, she had called the store and had been told that he was not there. Samuel related the entire incident to his mother. The next day, Samuel’s mother took him back to the store to inquire about what had happened the previous evening. Mrs. Bowden spoke with Mehan and Forrester, both managers at the store. Forrester subjected Mrs. Bowden and Samuel to abusive racial epithets which implied that Samuel was being persecuted because of his skin color. Forrester stated: “You people — you nigger boys make me sick, but you’re going to burn for this, you sucker.” Mehan indicated his agreement with Forrester’s attitude.

When Samuel and Mrs. Bowden tried to leave, Mehan seized Samuel and forced him to walk through the store to the manager’s office. Mehan refused to show them the alleged videotapes. Mehan handcuffed Samuel and made him march through the store, in the handcuffs, in full public view. As the majority points out, “he remained in handcuffs in public view until the police arrived.” When the police officers arrived, they transferred Samuel from Mehan’s handcuffs to their own, and took Samuel to the police station. When Samuel arrived at the station, the police *667removed one handcuff and attached it to a table. Samuel remained handcuffed to the table for several hours.

Samuel was thereafter prosecuted in a juvenile delinquency action. He was acquitted in light of the insufficiency of the evidence against him.

The incident greatly upset Samuel. He felt “defaced.” People who had been friendly with him before the incident had seen him in handcuffs; several people refused to speak with Samuel after the incident. This, he said, “hurt a lot.” His feelings were deep; he said that the hurt “really sunk in.” After the incident, Samuel lost interest in the people and activities which he had enjoyed before. For example, according to Samuel’s statements described in a psychologist’s report, Samuel had “previously ... been socially active, into sports, including the baseball team at his high school and as having a very active life. He now stays by himself, goes to his room and shuts the door____ His life is much more involved in day dreaming rather than an actual participation____” He isolated himself from others because he was embarrassed by the incident and feared that other people would talk about him. Samuel worried that, even though he had been acquitted of any wrongdoing, he had lost some of the trust his parents had in him. He began to lose weight and had trouble sleeping. These feelings persisted for over a year. Finally, Samuel decided that he wanted to talk the situation over with a professional, to try and determine why he was still disturbed so long after-wards.

Although by the time of trial Samuel had managed to work through most of his feelings, the incident still haunted him. When applying for jobs, he had to disclose on the applications that he had been arrested. Samuel aspires to become a police officer. When he applied to a law enforcement agency for employment, he was subjected to a polygraph test because of the arrest on his record.

*668II.

The majority holds that Samuel failed to establish a cause of action for intentional infliction of emotional distress because, in the majority’s view, “there was legally insufficient evidence at trial from which a jury could properly have concluded that Bowden suffered the sort of emotional harm required____” 330 Md. at 644, 625 A.2d at 964. The majority describes his emotional distress as “uncomfortable” but states that Samuel did not have “the severely disabling emotional response that hindered his ability to carry out his daily activities____” Ibid. ■ The majority infers that Samuel was able to “continue his normal activities,” seemingly faults the plaintiff for presenting “no expert testimony as to any emotional distress,” and concludes that Samuel’s “own description of his discomfort was insufficient to establish severe emotional distress.” 330 Md. at 645, 625 A.2d at 965.

In my view, there was evidence from which the jury could reasonably conclude that Samuel suffered sufficiently severe emotional distress to establish a cause of action. Moreover, where a defendant intentionally engages in extreme and outrageous conduct, causing the plaintiff substantial emotional distress, I do not believe that the plaintiff must establish that the emotional distress disabled him or her from engaging in employment or other major daily activities.

While the majority’s inference that Samuel “continued doing the same things that he did prior to the incident” and “continued his normal activities” may be supported by certain evidence, a contrary inference could also be drawn from the evidence. Samuel specifically testified that his social activities had changed, that he did not engage in the types of social activities which he had before the Caldor incident, that he now “stayed to myself,” and that he no longer has a relationship with certain people with whom he had earlier been friendly. As previously mentioned, his involvement in high school athletics had changed.

*669The majority points out that Samuel obtained other employment soon after the Caldor incident. Nevertheless, Samuel’s mother testified that, although Samuel obtained a job at another retail department store (Montgomery Ward), his mother made him quit the new job shortly after he obtained it. She was afraid that a Caldor official might learn of his employment at Montgomery Ward and that something might happen to him there. Samuel’s mother also testified that, as a result of what happened to him at Caldor, Samuel has been nervous, worried and depressed. She testified that she keeps telling Samuel to “just try to hold yourself together. You know, just keep praying.” Her testimony continued:

“A. Before this happened, he was a very happy boy, a happy person. He was very well pleased with the Caldor job.
“Q. You have to keep your voice up, please.
“A. He was very well happy. He was very well, you know, pleased with his job and he was looking to be eventually promoted or elevated.
“Then after this happened, it made him very depressed. He was worried. He was nervous and embarrassed about different things and, you know, people who know this. He was upset.”

In light of the evidence, the jury could reasonably infer that, because of Caldor’s intentional conduct, Samuel’s ability to carry out his daily activities was hindered and that he did not continue doing the same things which he had done earlier.

The majority opinion characterizes Samuel’s emotional distress as “uncomfortable.” 330 Md. at 644, 625 A.2d at 964. I suggest that if the same thing had happened to most people, the resulting distress would have been considered more than “uncomfortable.” The testimony disclosed that Caldor’s conduct produced in Samuel very strong and debilitating negative emotions: shame, humiliation, embarrassment, nervousness, worry, distress, sadness, insecurity, dis*670trust, confusion, and inferiority. Samuel suffered from these debilitating emotions for over a year, and is still affected to some degree. Under the evidence, the jury was entitled to draw the inference that Samuel’s emotional distress was much more severe than “uncomfortable.”

The majority also relies on the facts that Samuel did not seek psychological assistance until the eve of the litigation and that he failed to present expert testimony as to any emotional distress. I am not aware that our cases involving the tort of intentional infliction of emotional distress require, as a precondition for recovery, that the victim immediately seek psychological counseling and that he present expert testimony as to the emotional distress. There are myriad reasons why a severely distressed person might not have sought psychological counseling immediately. With respect to expert testimony, it seems to me that the best evidence concerning the effects upon a victim of outrageous conduct would be the testimony of that victim and the testimony of knowledgeable family members. For the most part, in this context, the testimony of an “expert” is going to be based on what the victim told the expert. This is reflected in the psychologist’s report which was introduced in the present case.

Our prior opinions in tort cases indicate that courts should be most reluctant to take cases from the jury or overrule the jury on factual matters. In Impala Platinum v. Impala Sales, supra, 283 Md. at 327-328, 389 A.2d at 905-906, Judge Orth for the Court summarized Maryland law as follows (emphasis added):

“A party is not entitled to judgment n.o.v. unless the facts and circumstances so considered [in the light most favorable to the non-moving party] are such as to permit of only one inference with regard to the issue presented. Here, the evidence and all inferences fairly deducible therefrom were sufficient to lead to conclusions from which reasonable minds could differ, so that the issue was not one of law for the court but was one of fact for *671the jury with the weight and value of such evidence left to the jury.”
sic * sjt # * *
“As with respect to a judgment n.o.v., in considering a motion for a directed verdict the trial court assumes the truth of all credible evidence on the issue and of all inferences fairly deducible therefrom, and considers them in the light most favorable to the party against whom the motion is made____ If there is any legally relevant and competent evidence, however slight, from which a rational mind could infer a fact in issue, then a trial court would be invading the province of the jury by declaring a directed verdict.”

Turning to the case at bar, the jury was fully instructed on the law and the requirements with regard to intentional infliction of emotional distress, and neither the majority nor Caldor complains about the instructions. Applying these legal principles to the evidence, the jury found severe emotional distress. There was more than “slight” evidence supporting the jury’s finding. Simply because the circuit court or this Court might disagree with the jury does not, under our cases, authorize the Court to set aside the jury’s verdict.

Furthermore, I question the majority’s apparent view that whenever a defendant’s extreme and outrageous conduct causes the plaintiff to suffer substantial emotional distress, the emotional distress must be so severe as to disable the plaintiff from engaging in his or her principal daily activities for an indefinite period of time. Our cases simply do not support this notion.

After this Court recognized the tort of intentional infliction of emotional distress in Harris v. Jones, 281 Md. 560, 380 A.2d 611 (1977), the first case in this Court involving an asserted cause of action for intentional infliction of emotional distress was Lusby v. Lusby, 283 Md. 334, 390 A.2d 77 (1978). There, a woman sought damages from her husband and others for extreme and outrageous intentional acts of *672violence against her, claiming, among other things, intentional infliction of emotional distress. Mrs. Lusby did not allege, however, that the attack on her disabled her from performing her daily activities.2 After detailing the extreme and outrageous conduct committed upon Mrs. Lusby, and after ruling that interspousal immunity was no defense, this Court remanded the case for trial. Significantly, the Court did not say that Mrs. Lusby had to show that she was disabled from performing her daily activities in order to recover.

The most recent case in this Court involving an asserted cause of action for intentional infliction of emotional distress is Faya v. Almaraz, 329 Md. 435, 441, 620 A.2d 327, 330 (1993). In that case a surgeon, knowing himself to be HIV-positive, performed a major operation upon one of the plaintiffs. Thereafter, learning that he had developed full-blown AIDS, he performed a major operation on the other plaintiff. He did not inform either plaintiff about his condition. After the plaintiffs learned of the surgeon’s condition, they allegedly “incurred injuries in the form of exposure to HIV and risk of AIDS, physical injury and financial cost resulting from surveillance blood testing for HIV antibodies, pain, fear, anxiety, grief, nervous shock, severe emotional distress, headache and sleeplessness.” 329 Md. at 442, 620 A.2d at 330. Nevertheless, subsequent blood tests showed that the plaintiffs were “HIV negative, that is, free of the AIDS virus,” 329 Md. at 443, 620 A.2d at 331. Nothing in the factual allegations, reviewed by this Court, indicated that the plaintiffs were disabled from performing their principal daily activities. This Court, however, reversed the trial court’s dismissal of the complaint, holding that the plaintiffs could recover “for their fear and its physical manifestations which may have resulted” from the surgeon’s conduct “for the period constituting their reason*673able window of anxiety — the period between which they learned of [the surgeon’s] illness and received their HIV-negative results.” 329 Md. at 455-456, 620 A.2d at 337. While most of this Court’s discussion in Almaraz was under the plaintiffs’ negligence counts, the Court stated that, in light of the surgeon’s conduct “and because the damages claimed on all counts are essentially the same, the trial judge erred in dismissing the other counts as well [including the count for intentional infliction of emotional distress]. As we see it, after viewing the allegations of the complaints in support of these counts, dismissal was not appropriate in the circumstances.” 329 Md. at 460-461, 620 A.2d at 339.

What the majority in the present case fails to recognize about the tort of intentional infliction of emotional distress is that there is a close relationship between the severity element and the outrageousness element of the tort: if the defendants’ conduct was sufficiently extreme and outrageous, the severity of the emotional distress need not be as great. The severity of the emotional distress “must be measured in light of the outrageousness of the conduct and the other elements of the tort,” and the “nature of the conduct itself may provide evidence of the severity of the distress.” B.N. v. K.K., 312 Md. 135, 148, 538 A.2d 1175, 1182 (1988), quoted in Figueiredo-Torres v. Nickel, 321 Md. 642, 656, 584 A.2d 69, 76 (1991). See also Harris v. Jones, supra, 281 Md. at 570-571, 380 A.2d at 616, quoting Restatement (Second) of Torts § 46, comment j (1965) (“Severe distress must be proved; but in many cases the extreme and outrageous character of the defendant’s conduct is in itself important evidence that the distress has existed”). Indeed, sufficiently outrageous conduct on part of the defendant might suffice to establish severe emotional distress as a matter of fact. As we said in B.N. v. K.K., supra, 312 Md. at 148, 538 A.2d at 1182, “if ‘the acts of the defendant are so horrible, so atrocious and so barbaric that no civilized person could be expected to endure them without suffering mental distress, [a] jury may find as a matter *674of fact that “severe” emotional distress resulted’ ” See also, Reagan v. Rider, 70 Md.App. 503, 513, 521 A.2d 1246, 1251 (1987).

In determining whether there was sufficient evidence to enable a jury to decide if the tort were present, we must examine the context in which the defendants’ conduct occurred and the relationship of the defendants to the plaintiff. Our cases, including the cases most heavily relied upon by the majority, make clear that these considerations are critical. Harris v. Jones, supra, 281 Md. at 568, 380 A.2d at 615 (“In determining whether conduct is extreme and outrageous, it should not be considered in a sterile setting, detached from the surroundings in which it occurred”); Figueiredo-Torres v. Nickel, supra, 321 Md. at 654-655, 584 A.2d at 75-76 (discussing psychologist-patient relationship between the plaintiff and the defendant).

In the instant case, Caldor’s conduct occurred in the broad context of an employment relationship. We addressed the special sensitivity of the employment context in Harris v. Jones, supra, 281 Md. at 569-570, 380 A.2d at 615-616, where we stated:

“In cases where the defendant is in a peculiar position to harass the plaintiff, and cause emotional distress, his conduct will be carefully scrutinized by the courts. See F. Harper & F. James, Jr., The Law of Torts § 9.1, at 666-67 (1956); W. Prosser, Law of Torts § 12, at 56 (4th ed. 1971). Thus, in Alcorn, [v. Anbro Engineering, Inc., 2 Cal.3d 493, 86 Cal.Rptr. 88, 468 P.2d 216 (1970)], the court referred to comment e of the Restatement, supra, § 46, i.e., that the extreme and outrageous character of the defendant’s conduct may arise from his abuse of a position, or relation with another person, which gives him actual or apparent authority over him, or power to affect his interests. In that case, the Supreme Court of California said that a plaintiff’s status as an employee should entitle him to a greater degree of protection from insult and outrage than if he were a mere stranger.”

*675Additionally, the incident occurred in the emotionally delicate situation of accusing a person of committing a crime. The accused employee was a minor, inexperienced, and a member of a minority group which has historically been subject to discrimination. His accusers were significantly older, more experienced, and better educated than the accused employee. Some were also professional security personnel. All of these considerations are relevant in determining the extent to which the conduct was extreme and outrageous, and the severity of the emotional distress required.

The Alcorn case, discussed in Harris v. Jones, supra, is remarkably similar to the case at bar. We stated in Harris, 281 Md. at 569-570, 380 A.2d at 616, that in Alcorn, the Supreme Court of California

“there found an employer’s conduct toward a black employee to be extreme and outrageous, and to support an action for intentional infliction of emotional distress where the employer, ‘standing in a position or relation of authority over plaintiff, aware of his particular susceptibility to emotional distress, and for the purpose of causing plaintiff to suffer such distress, intentionally humiliated plaintiff, insulted his race [by calling him a “nigger”], ignored his union status, and terminated his employment, all without just cause or provocation.’ (footnotes omitted) 468 P.2d at 218-19.”

In the instant case, the defendants’ conduct toward the plaintiff was even more extreme and outrageous than in Alcorn. Two of Caldor’s security personnel imprisoned this teenager in a tiny room for many hours, preventing him from leaving or calling his parents. They threatened him, interrogated him and coerced a false confession from him. When he later voluntarily returned to the store with his mother to resolve the situation, other management personnel called him a “nigger” and told him that he would “burn” for a crime he did not commit, presumably because of his race. They cuffed his hands behind his back and marched him handcuffed through a public area to add to his humilia*676tion. In light of such extreme and outrageous conduct, the plaintiff was not required to make as strong a showing with regard to the severity of the emotional distress as a plaintiff might be other some other circumstances.

At any rate, however, the plaintiff was not required to demonstrate that the emotional distress was so severe as to disable him for an indefinite period from performing all of his principal daily activities. As this Court stated in B.N. v. K.K., supra, 312 Md. at 148, 538 A.2d at 1181, “[w]hile the emotional distress must be severe, it need not produce total emotional or physical disablement.” The young plaintiff in the case at bar was not required to drop out of school or drop out of the work force in order to recover for intentional infliction of emotional distress.

Finally, the majority’s requirement that, to recover for intentional infliction of emotional distress, one must have suffered a “disabling emotional response that hindered his ability to carry out his daily activities” (330 Md. at 644, 625 A.2d at 964), will likely work against many members of groups which have, unfortunately and through no fault of their own, suffered more discrimination, harassment and abuse in our society than that suffered by the majority of individuals. Many members of certain minority and socioeconomic groups, who have suffered discrimination and abuse, have developed a tougher hide than many other persons. Many of those who have more frequently been the victims of outrageous conduct have developed, from experience and necessity, the ability to continue functioning in their daily activities. While the emotional hurt may be as strong or stronger, the ability to function normally may be greater. Under the majority’s formulation of the tort, however, those persons who are able to carry on with their principal daily activities will not be able to recover damages for their severe emotional distress resulting from extreme and outrageous intentional conduct. In its application, the tort will discriminate against those who have developed a degree of resiliency because of past discrimination. This result is contrary to logic, fairness, and our prior opinions.

*677III.

The majority holds that the plaintiff, Samuel Bowden, cannot recover for abusive discharge because the evidence “does not show [that] the defendants were driven by an improper motive when they discharged Bowden. At most, the evidence indicates that Bowden was discharged because he was suspected of store theft.” 330 Md. at 647, 625 A.2d at 966. The majority goes on to state that Caldor’s “act may have been improper but, nevertheless, it is clear from the record that the reason for Bowden’s discharge was the defendants’ suspicion that Bowden stole money and merchandise.” 330 Md. at 647, 625 A.2d at 966.

Again, the majority cannot resist the temptation of drawing its own inferences from the evidence instead of deferring to those inferences which a jury could reasonably have drawn. Even if the majority’s inferences concerning the defendants’ motives are supported by some evidence, there is ample evidence which supports contrary inferences. The defendants’ alleged suspicions that Samuel had stolen anything were shown at trial to be utterly baseless. The jury could certainly have inferred from the evidence that the defendants’ “suspicions” were merely pretexts, and that the defendants’ had ulterior motives for discharging Samuel. The jury was entitled to infer from the racial slur and statement of Caldor’s manager Forrester, coupled with the other egregious conduct by Caldor’s personnel, that the defendants were motivated to discharge Samuel because of racial hostility. A discharge motivated by racial prejudice would clearly be in violation of Maryland public policy. In short, the majority pays lip service to the principle that all evidence and inferences must be viewed in a light favorable to the non-moving party, Samuel, but then does exactly the opposite; the majority here draws its own inferences in favor of the defendants.

I would instruct the Circuit Court for Baltimore City to enter judgment in favor of the plaintiff in accordance with the verdicts rendered by the jury.

*678Judge Bell has authorized me to state that he concurs with the views expressed herein.

. Caldor was unable to present evidence that there had ever been a theft, much less that Samuel was the culprit. Caldor produced “cash underage” reports from certain cash registers, which could have resulted from accounting or cashiering errors. As the majority notes, Caldor never produced the alleged videotapes.

. See record extract, as an appendix to the brief, in No. 167, September Term 1977, at 4-5. Mrs. Lusby’s asserted cause of action for intentional infliction of emotional distress was set forth as Count III of her declaration.