concurring in part and dissenting in part.
I concur fully and completely with the majority’s holdings in Divisions 1, 2, and 3 that the trial court did not err in failing to grant summary judgment to Kirkland sua sponte or in granting summary judgment to the defendants on Kirkland’s claims of negligent infliction of emotional harm. I also agree with the result in Division 5 regarding Kirkland’s tortious misconduct claim, which he did not raise before the trial court. I disagree, however, with the conclusion in Division 4 that Kirkland’s claim for intentional infliction of emotional distress fails as a matter of law.
The necessary elements of this tort are: “(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 emotional distress; (4) The emotional distress must *825be severe.” (Citation and punctuation omitted.) Bridges v. Winn-Dixie Atlanta, 176 Ga. App. 227, 230 (1) (335 SE2d 445) (1985).
Construing the record with all reasonable inferences in the light most favorable to Kirkland, the respondent to Earth Fare’s motion for summary judgment, I cannot say as a matter of law that the defendants’ actions do not rise to the level of outrageousness necessary to form a jury question. The record shows that Kirkland entered Earth Fare and was standing in a checkout line waiting to return something when two employees accosted him. One of those employees, a male, approached him from behind “in a physically threatening manner” while the manager, defendant Gere Warrick, spoke to Kirkland. Warrick asked Kirkland to leave the premises because someone had seen him masturbating in the men’s room. The manager also said Kirkland had been sexually harassing female employees by, among other things, making remarks about “smelling a female employee’s genitals.”
In one of his affidavits, Kirkland said he was “sure that bystanders were even embarrassed and offended that such actions should have been intentionally conducted in their full view and hearing.” The defendants “in broad daylight in front of witnesses engaged in this conduct with a type of glee” in an “outlandish” tone. The defendants admitted that the manager told Kirkland she had heard reports that he had made “suggestive remarks” to a female employee, he “had engaged in other behavior toward [the] employee that made her uncomfortable,” and “there had been a report that [Kirkland] had been seen masturbating in the men’s restroom.” The employees allowed Kirkland to complete his transaction at the register before making him leave the store.
The evidence also shows that this incident left Kirkland “in physical shock” for two days, gave him a “heightened sense of danger,” caused him to remain in his house for nine days with only one trip outside, and prevented him from interacting normally with others. Kirkland’s treating psychologist testified by affidavit that Kirkland suffered from post-traumatic stress disorder, depression, and personality disorders, and that “[i]t is possible that the psychological damages described by Mr. Kirkland in his complaint are accurate.”
Regardless of whether Kirkland was allowed to complete his transaction at the cash register or to leave the property unmolested, the Earth Fare employees publicly accused him of committing a lewd criminal act — public masturbation — and of saying something to a female employee that no one in polite company would want to repeat.
Some claims as a matter of law do not rise to the requisite level of outrageousness and egregiousness. Others raise circumstances which properly put the issue before a jury. *826Once the evidence shows that reasonable persons might find the presence of extreme or outrageous conduct, the jury must find the facts and make its own characterization. This is a case of the latter class.Decided February 29, 2008 Dwain L. Kirkland, pro se. Blasingame, Burch, Garrard & Ashley, Matthew A. Moseley, for appellees.
(Citations omitted.) Gordon v. Frost, 193 Ga. App. 517, 521 (1) (388 SE2d 362) (1989) (trial court improperly granted defendant pharmacist’s motion for judgment notwithstanding the verdict on plaintiff customer’s claim for intentional infliction of emotional pain as a result of false arrest). Would a reasonable man consider it outrageous to be accused before an audience of onlookers of masturbating in public and remarking on the smell of a woman’s genitals? “The gist of the action is ... the alleged disrespectful, humiliating, and insulting treatment by [the company’s] agent, of a member of the general public, lawfully in its office on business with the company.” Dunn v. Western Union Telegraph Co., 2 Ga. App. 845, 849 (59 SE 189) (1907). While I agree that the defendants’ alleged actions were not terrifying or frightening, I cannot agree that these actions could not possibly be considered so “insulting as naturally to humiliate [or] embarrass” Kirkland as a matter of law. Greer v. Medders, 176 Ga. App. 408, 409 (336 SE2d 328) (1985). If this accusation is not sufficiently humiliating and embarrassing, I cannot imagine what would be.
Accusing a customer of masturbating in the restroom and saying such an obnoxious thing to a female employee is more than annoying and insensitive, and more than a mere insult, indignity, or annoyance. It is a humiliating accusation which any self-respecting customer would find outrageous. For these reasons I respectfully dissent to Division 4 of the majority opinion.