Jones v. State, Department of Corrections

CARPENETI, Justice,

concurring.

I agree with today’s opinion upholding summary judgment in favor of the state on Jones’s claim of intentional infliction of emotional distress (IIED), but I disagree with the court’s reasoning in reaching this conclusion. I would affirm Judge Gleason’s opinion because it was correctly decided, and therefore would find it unnecessary to undertake a harmless error analysis.

Today’s opinion, assuming error on the part of the trial court, addresses first whether any error was harmless.1 But “[h]armless-error analysis is triggered only after the reviewing court discovers that an error has been committed.”2 For that reason, I turn first to the question whether the superior court erred in granting summary judgment to the state on Jones’s IIED claim.

We have established that in order to recover for intentional infliction of emotional distress a plaintiff has a high burden of proof. To establish a prima facie case, a plaintiff must demonstrate that “(1) the conduct is extreme and outrageous, (2) the conduct is intentional or reckless, (3) the conduct causes emotional distress, and (4) the distress is severe.”3 In commenting on the first required showing, we have stated that a court may find liability for IIED only when “ ‘the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’ ”4 As to the third and fourth requirements — that the conduct cause “severe emotional distress” — we have defined severe emotional distress as “ ‘distress of such substantial quality or enduring quantity that no reasonable person in a civilized society should be expected to endure it.’ ”5

The superior court held that Jones presented no evidence of severe distress, and the record amply shows that the court’s conclusion was not an abuse of discretion.6 Jones’s opposition to summary judgment failed to discuss any distress suffered by Jones that resulted from Ainsworth’s letter, much less claim that Jones siiffered “severe” emotional distress. The dissent cites nine pieces of evidence that it says support Jones’s IIED claim.7 However, only one— Jones’s deposition testimony8 — even goes to *352the issue whether Jones actually suffered distress.9 And that testimony does not support the conclusion that he suffered severe emotional distress. At his deposition, when he was asked whether he suffered any consequences as a result of Ainsworth’s letter, here is what Jones said about the level of his emotional distress:

I just got — yeah, basically, wouldn’t ever do the things I liked to do, cut hair. You know that’s what I like doing is cutting hair, I wasn’t able to cut hair, you know what I mean.
I feared all the time because I didn’t know what the next step was going to be because [Ainsworth] was still there. I didn’t know if, you know every time I hear the doors open or keys, it still bugs me, it bugs me today, you know because I never know what is going to happen.

This quotation is the only evidence of actual emotional distress in the entire record. This sort of vague, generalized fear or annoyance is insufficient to satisfy the threshold showing required by IIED;10 if it were otherwise, then the showing is a mere formality that will always be met. At oral argument on summary judgment in the superior court, Jones’s counsel conceded that he had not put forth an affidavit or any other independent or expert evidence supporting Jones’s distress from the Ainsworth letter. Rather, counsel alluded generally to this one quotation, and added the unavailing fact that Jones had pleaded severe emotional distress in his complaint. Because Jones did not present any evidence that, as a result of Ainsworth’s action, he had suffered the kind of severe emotional distress that no reasonable person could be expected to endure, the superior court correctly denied summary judgment on Jones’s IIED claim.

The dissent fails to discuss the trial court’s conclusion that Jones did not raise a genuine issue of material fact as to whether he suffered severe emotional distress11 — an evi-dentiary showing that our ease law demands, as noted above. Instead, the dissent looks at the defendant’s action (not its effect on the plaintiff) and relies on United States v. Balis-trieri12 for the proposition that “[t]he more inherently degrading or humiliating the defendant’s action is, the more reasonable it is to infer that a person would suffer humiliation or distress from that action.”13 But a *353plaintiff must still present some evidence of severe emotional distress, and Jones did not. Moreover, while it is true that the court in Balistrieri characterized the evidence there as “somewhat general and eonelusory” and “minimal,”14 the evidence there was much stronger than the evidence in Jones’s case. Each of several plaintiffs in Balistrieri testified to being “upset, humiliated, embarrassed or shamed.”15 Individual plaintiffs testified to being “nauseous, embarrassed, and ashamed,”16 “hurt and disappointed,”17 and damaged in their “relationship with her husband, children, and other family members;”18 indeed, one characterized it as “one of the worst things” that had happened to him.19

It is instructive to compare a later case that relied on Balistrieri, from the same Seventh Circuit, for an indication of how that court treats the requirement of a showing of actual emotional distress. In Alston v. King,20 the court found that several of the plaintiffs claims of distress — which were more serious than Jones’s claims of distress21 — were insufficient standing alone to support emotional distress damages. (It was only when the court added consideration of additional facts, including that the plaintiff was escorted to his office by a police officer and made to clean out his desk while “employees were gathered around, and some were crying, others were befuddled, and still others were mocking or laughing at him”22 that the court found a sufficient basis for emotional distress damages.) The plaintiffs distress that the Seventh Circuit found insufficient was as follows:

Alston nevertheless argues that ... he submitted sufficient evidence of damages to avoid judgment as a matter of law. The evidence relating to emotional distress that was admitted at trial was sparse. We have Alston’s bare testimony that ... he suffered “humiliation, embarrassment, stress [and] rejection” [and became] depressed, that he had-a tendency to abuse alcohol, and that it materially affected the quality of his relationship with the woman he was dating and that he was no longer engaged to her.[23]

Comparing this evidence from Alston— which the Seventh Circuit characterized as “sparse” and would have found as insufficient without more to avoid a contrary judgment as a matter of law24 — with the evidence in the present case leads to the conclusion that Judge Gleason properly granted summary judgment to the state. Jones said only that he was no longer able to cut hair, he “feared all the time,” and “it still bugs me today.” The allegations of emotional distress in Alston were substantially more serious, including humiliation, embarrassment, stress, rejection, and depression, leading to alcohol abuse and impinging on relations with others. Yet that evidence standing alone was insuffi*354cient to meet the severe injury test, even when considering the rule that racial discrimination, which was involved in Alston, is the type of action that one could reasonably expect to lead to emotional distress. Judge Gleason did not abuse her discretion in determining that Jones did not present evidence of “severe” emotional distress sufficient to avoid summary judgment.

The dissent also discusses emotional distress arising from a “rat” comment allegedly made by Officer Gilliam. The superior court refused to consider any distress resulting from this comment on procedural grounds.25 But even assuming that the “rat” comment is within the scope of Jones’s appeal, Jones has not offered any specific evidence of distress resulting from it. Jones places his reliance on the expert testimony of Ernest C. Weber, a corrections and prison consultant who never met Jones. Mr. Weber opined that being called a “rat” in prison is a serious matter and that it “could have caused him severe mental anguish.” (Emphasis added.) While this is undoubtedly true, Mr. Weber’s testimony has little bearing on whether Jones actually suffered emotional distress or produced evidence that he did. In contrast, it appears that Jones’s deposition testimony deviates from Mr. Weber’s general prediction. Jones’s testimony was that being called a “rat” was serious,

because for me if I was in a real, you know, somewhere that people didn’t know me, if I was like in a federal prison, for him to say what he said could have jeopardized my life, you know. And you can’t go calling people rats and stuff like that in a maximum security prison and that’s coming from a guard, that’s your life, in other prisons, but maybe not in Alaska, but that’s the way I look at it.
And people that knew me, know that I’m not no rat and they know I’m not that type of person. But I’m saying if I was in any other place, that could have caused my life in Seward, you know, if you would have got the right person hearing this.

(Emphases added.) His testimony went on to suggest that all people who heard the “rat” comment were his friends, and that they would never have believed the charge. In fact, Jones agreed that “[tjhey knew that this was a bunch of bullshit.” The only harm suggested by Jones was “QJust the anxiety” caused by knowing that the comment could have had negative consequences. While we do not demand that a threshold showing of severe emotional distress include concrete medical evidence,26 we do require that the allegation be supported by the record. Here, Mr. Weber’s conjecture regarding the possible consequences of the “rat” comment was contradicted by Jones’s own testimony of what actually happened.

Because the record supports the superior court’s conclusion that Jones failed to offer evidence of severe emotional distress, I would affirm the grant of summary judgment on the merits. Judge Gleason did not abuse her discretion in determining that Jones did not meet his threshold requirement of producing evidence that he had suffered severe emotional distress; accordingly, her decision to grant summary judgment to the state on the IIED claim was correct. For this reason I agree to affirm her decision.

. Slip Op. at 346-347.

. Lockhart v, Fretwell, 506 U.S. 364, 370 n. 2, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993) (emphasis in original). See also Wyatt v. State, 981 P.2d 109, 112 (Alaska 1999) ("If the trial court erred in its ruling, we then determine whether the error was harmless.” (Emphasis added.)). While we do not consistently utilize this approach, see, e.g., Cummins, Inc. v. Nelson, 115 P.3d 536, 546-47 (Alaska 2005), I believe that where the trial court clearly has not erred, such as here, we should eschew harmless error analysis.

. McGrew v. State, Dep't of Health & Soc. Servs., 106 P.3d 319, 324 (Alaska 2005) (quoting Lincoln v. Interior Reg’l Hous. Auth., 30 P.3d 582, 589 (Alaska 2001)). Regarding these elements, the trial court must make a "threshold determination whether the severity of the emotional distress and the conduct of the offending party warrant a claim.” Id. at 325 (quoting Lincoln, 30 P.3d at 589). We review these threshold findings for an abuse of discretion. Id.

. Lybrand v. Trask, 31 P.3d 801, 803 (Alaska 2001) (quoting Odom v. Fairbanks Mem'l Hosp., 999 P.2d 123, 133 (Alaska 2000)).

. Fyffe v. Wright, 93 P.3d 444, 456 (Alaska 2004) (quoting Teamsters Local 959 v. Wells, 749 P.2d 349, 359 n. 14 (Alaska 1988)). This definition of "severe emotional distress” accords with the Second Restatement. See Restatement (Second) of Torts § 46, cmt. j (1965).

. We review the superior court’s decision as to whether a plaintiff met the threshold burden of showing "severe emotional distress” under the abuse of discretion standard. Lincoln, 30 P.3d at 589.

. Dissenting Op. at 355-356.

. Id. at 355-356.

. The other pieces of evidence deal either with actions that Ainsworth allegedly took against Jones, not the effect of those actions on Jones (points 1, 2, 3, and 5), or an expert’s opinion that Ainsworth's actions "could have caused” an adverse effect on Jones (points 6, 7, 8, and 9). See below for more discussion of this expert's opinion.

. We have held that examples of severe emotional distress include " 'neuroses, psychoses, chronic depression, phobia and shock.’ However, temporary fright, disappointment or regret does not suffice under this standard.” Chizmar v. Mackie, 896 P.2d 196, 204-05 (Alaska 1995) (quoting Lejeune v. Rayne Branch Hosp., 556 So.2d 559, 570 (La.1990)).

. At the argument on summary judgment, Judge Gleason asked counsel for Jones what evidence had been produced that Jones suffered severe emotional distress. Counsel responded that Jones's deposition testimony "certainly indicated that he suffered emotional distress." When the court asked for the part of the deposition counsel was referring to, counsel was unable to locate it, but stated, "It is absolutely true that Mr. Jones did not go into detail regarding the emotional distress but he testified that it certainly disturbed him.” Judge Gleason followed with, "But nothing to indicate that he was severely emotionally distressed?” to which counsel conceded, "Well, ... the word 'severely' didn't come out of Mr. Jones’s mouth.”

In announcing her findings on whether plaintiff met his burden of producing some evidence of severe emotional distress, Judge Gleason found that "plaintiff has failed to establish that there is a genuine issue of material fact as to whether there was severe emotional distress.”

. 981 F.2d 916 (7th Cir.1992), cert. denied 510 U.S. 812, 114 S.Ct. 58, 126 L.Ed.2d 28 (1993).

. Id. at 932. On this issue — -whether the outra-geousness or maliciousness of the defendant’s action may substitute for the lack of showing of severe emotional distress on the plaintiff’s part— we have said:

It has not been enough 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 which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded *353as atrocious, and utterly intolerable in a civilized community. The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.

Finch v. Greatland Foods, Inc., 21 P.3d 1282, 1289 (Alaska 2001) (emphasis added), (quoting Rest. (Second) of Torts § 46(1) cmt. d (1965)).

. 981 F.2d at 933.

. Id. at 931.

. Id.

. Id.

. Id.

. Id.

. 231 F.3d 383 (7th Cir.2000).

. The dissent places great weight on the seriousness of the defendant's acts, arguing that Ainsworth's acts in the present case were "significantly more serious" than the defendant's acts in Alston v. King. Dissenting Op. at 357-358. But this suggests a false equivalence between the plaintiffs claims of emotional distress with the defendant’s acts that allegedly caused the distress. No doubt Ainsworth's acts may fairly be described as extreme, but Jones's actual claims of emotional distress resulting from those acts cannot accurately be so described. The law requires that the distress suffered must be extreme before the action lies.

. 231 F.3d at 389.

. Id. at 387. The court noted that on cross-examination Alston acknowledged that he was not abusing alcohol, had never sought counseling, and first became engaged to the woman in question a year after his termination. Id. at 388.

. Id. at 387.

. Officer Gilliam had been earlier dismissed from the case, and the court reasoned that it could not hold the state vicariously liable for the acts of an employee who had not first been held liable for the underlying conduct. That conclusion seems correct to me.

. See Richardson v. Fairbanlcs N. Star Borough, 705 P.2d 454, 457 n. 6 (Alaska 1985) (expert medical testimony is most effective method of demonstrating severe distress, but it is not exclusive method).