Bartlett v. Daniel Drake Mem. Hosp.

• Decision Date: 07 August 1991
• Docket Number: No. C-900506,C-900506
• Citation: 599 N.E.2d 403,75 Ohio App.3d 334
• Parties: BARTLETT et al., Appellants, v. DANIEL DRAKE MEMORIAL HOSPITAL et al., Appellees; Hamilton County Board of Commissioners, Defendant.
• Court: Ohio Court of Appeals

Page 334

75 Ohio App.3d 334

599 N.E.2d 403

BARTLETT et al., Appellants, v. DANIEL DRAKE MEMORIAL HOSPITAL et al., Appellees; Hamilton County Board of Commissioners, Defendant.

No. C-900506.

Court of Appeals of Ohio, First District, Hamilton County.

Decided Aug. 7, 1991.

Jerald E. Condit, Cincinnati, for appellants.

Dinsmore & Shohl, Michael W. Hawkins and Kathleen Kernan Bedree, Cincinnati, for appellees.

PER CURIAM.

The appellants, Gwen and Charles Bartlett, were both employed at defendant-appellee Daniel Drake Memorial Hospital ("Drake Hospital") when the incident giving rise to the lawsuit under review in this appeal occurred.

On March 13, 1986, Gwen was working at Drake Hospital as a nursing technician. As Gwen attempted to move a patient with a mechanical device known as a "Hoyer lift," the patient dropped to the floor and sustained serious head injuries. According to Drake Hospital policy, operation of the lift required two persons. Gwen, however, had used the device without assistance.

As a result of this incident, Gwen was suspended from employment without pay. A predisciplinary conference was conducted, and based upon the testimony adduced, the hearing officer recommended suspending Gwen for five days and transferring her to a department where she would not be in direct contact with patients. The hospital's chief executive officer adopted the recommendation and transferred Gwen to a housekeeping position. ¹ Pursuant to hospital policy Gwen appealed to arbitration and the appeal was ultimately denied. ²

In August 1986, appellants filed a fourteen-count complaint against the named defendants, alleging, inter alia, defamation, breach of contract, intentional and negligent infliction of emotional distress, and loss of companionship. In November 1986 Gwen resigned from employment at Drake Hospital, and in April 1987, appellants added a fifteenth claim against the defendants, which alleged that Gwen was constructively discharged from employment at Drake Hospital due to intolerable working conditions. Defendants Drake Hospital, Jan C. Taylor, Delores McCary, Robert Tamm and the Board of Trustees of Drake Hospital successfully moved for summary judgment on all fifteen claims. Because the allegations of liability against the remaining defendants, the members of the Board of Hamilton County Commissioners, were derivative in nature, judgment was likewise rendered in their favor. Appellants now present four assignments of error for our review.

The first assignment contends that the trial court should not have granted summary judgment to the appellees on the claim alleging breach of contract by constructive discharge. Appellants maintain that Drake Hospital's personnel manual constituted an implied employment contract which created certain "termination rights." Appellants further contend that the alleged contract was breached when Drake Hospital "applied techniques of harassment for purposes of coercing [Gwen] into an involuntary resignation." This assignment is not well taken.

It is undisputed that Gwen was classified as an employee at will where, unless otherwise agreed, either party may terminate the employment relationship for any reason not contrary to law. Fawcett v. C.G. Murphy & Co. (1976), 46 Ohio St.2d 245, 75 O.O.2d 291, 348 N.E.2d 144. In Mers v. Dispatch Printing Co. (1985), 19 Ohio St.3d 100, 19 OBR 261, 483 N.E.2d 150, the Ohio Supreme Court established two narrow exceptions to an employer's ability to discharge employees freely under employment-at-will contracts. These two exceptions involve the doctrine of promissory estoppel and the creation of an implied contract. Undisturbed by the holding in Mers is the generally accepted conclusion that items such as employer handbooks, company policy or oral representations do not create employee rights which alter the "termination for any reason" terms for discharge under the at-will situation unless the parties have a "meeting of the minds" indicating that such items are to be considered valid contracts altering the terms for discharge. Turner v. SPS Technologies, Inc. (June 4, 1987), Cuyahoga App. No. 51945, unreported, 1987 WL 11967. While personnel manuals may be important in establishing the terms and conditions of employment, absent the necessary mutual assent or meeting of the minds by the employer and employee to establish employment-termination rights, handbooks or other supplementary manuals or materials merely constitute unilateral statements of company rules and regulations. Turner v. SPS Technologies Inc., supra; Isgro v. Deaconness Hosp. (Oct. 30, 1980), Cuyahoga App. No. 41966, unreported.

In the case sub judice, we conclude that no contractual intent existed between the parties to modify the original at-will contract of employment. Appellants' reliance on Drake Hospital's "Employee Discipline" and "Predisciplinary Conference and Appeal Procedure" materials is misplaced. These policies are but mere unilateral statements of the hospital's procedure for the invocation of disciplinary action against an employee, and do not create an implied employment agreement between the parties. Therefore, appellants did not possess a cause of action against the appellees for breach of contract predicated upon the provisions of Drake Hospital's personnel manual. Consequently, there was no breach of contract or constructive discharge as alleged by appellants, and the trial court properly granted summary judgment to appellees on this claim.

The second assignment of error attacks the trial court's grant of summary judgment to appellees on appellants' claims of intentional and negligent infliction of serious emotional distress.

Appellants' claim of negligent infliction of emotional distress must fail. A claim arising under this tort assumes that a bystander or witness to a sudden, negligently caused event is traumatized by its emotionally distressing occurrence. Paugh v. Hanks (1983), 6 Ohio St.3d 72, 6 OBR 114, 451 N.E.2d 759; Schultz v. Barberton Glass Co. (1983), 4 Ohio St.3d 131, 4 Ohio St.3d 131, 447 N.E.2d 109. Appellants were not traumatized bystanders or witnesses to a sudden, negligently caused occurrence and therefore have no factual basis to assert a claim for negligent infliction of emotional distress. See Mason v. United States Fidelity and Guaranty Co. (1990), 69 Ohio App.3d 309, 590 N.E.2d 799.

Appellants' claim of intentional infliction of emotional distress is likewise groundless. In Yeager v. Local Union 20, Teamsters (1983)...