Bodewig v. K-Mart, Inc.

• Jurisdiction: Oregon
• Court: Oregon Court of Appeals
• Writing for the Court: Before BUTTLER, P. J., JOSEPH, C. J., and WARREN; BUTTLER
• Citation: Bodewig v. K-Mart, Inc., 54 Or.App. 480, 635 P.2d 657 (Or. App. 1981)
• Decision Date: 03 December 1981
• Docket Number: K-MAR,INC,No. 11,793,11,793
• Parties: Linda BODEWIG, Appellant, v., a corporation, and Alice Golden, Respondents. ; CA 18959.

Page 657

635 P.2d 657

54 Or.App. 480

Linda BODEWIG, Appellant, v. K-MART, INC., a corporation, and Alice Golden, Respondents.

No. 11,793; CA 18959.

Court of Appeals of Oregon.

Argued and Submitted July 17, 1981.

Decided Nov. 2, 1981.

Reconsideration Denied Dec. 3, 1981.

W. Eugene Hallman, Pendleton, argued the cause for appellant. With him on the briefs was Mautz & Hallman, Pendleton.

Samuel E. Tucker, Pendleton, argued the cause for respondent K-Mart, Inc. With him on the brief were John H. Kottkamp, and Kottkamp & O'Rourke, Pendleton.

Robert W. Collins, Pendleton, argued the cause for respondent Alice Golden. With him on the brief was Collins & Collins, Pendleton.

Before BUTTLER, P. J., JOSEPH, C. J., and WARREN, J.

BUTTLER, Presiding Judge.

In this tort action for outrageous conduct, plaintiff seeks damages against her former employer, K-Mart, and a K-Mart customer, Mrs. Golden. Both defendants moved for summary judgment, which the trial court granted. Plaintiff appeals from the resulting final judgments entered. We reverse and remand.

Our review of the pleadings, depositions and affidavits is in the light most favorable to the party against whom the motion is filed. Stanfield v. Laccoarce, 288 Or. 659, 665, 607 P.2d 177 (1980); Jones v. Oberg, 52 Or.App. 601, 603, 628 P.2d 773 (1981). On the evening of March 29, 1979, plaintiff was working as a part-time checker at K-Mart. Defendant Golden entered plaintiff's checkout lane and plaintiff began to ring up Golden's purchases on the cash register. When plaintiff called out the price on a package of curtains, Golden told plaintiff the price was incorrect because the curtains were on sale. Plaintiff called a domestics department clerk for a price check. That clerk told plaintiff the curtains in question were not on sale. Upon hearing this, Golden left her merchandise on plaintiff's counter and returned with the clerk to the domestics department to find the "sale" curtains.

After Golden left, plaintiff moved Golden's merchandise to the service counter, voided the register slip containing the partial listing of Golden's items and began to check out other customers. Three to ten minutes later, Golden returned to plaintiff's checkstand, where another customer was being served. Golden "looked around" that customer and asked what plaintiff had done with her money. When plaintiff replied, "What money?", Golden said that she had left four five-dollar bills on top of the merchandise she was purchasing before she left with the domestics clerk. Plaintiff told Golden she had not seen any money. Golden continued in a loud, abrupt voice to demand her money from plaintiff and caused a general commotion. Customers and store personnel in the area began to look on curiously.

The K-Mart manager, who had been observing the incident from a nearby service desk, walked over to plaintiff's counter. After a short discussion with Golden, he walked up to plaintiff, pulled out her jacket pockets, looked inside and found nothing. Then he, plaintiff and two or three other store employees conducted a general search of the area for the money. When this effort proved fruitless, the manager explained there was nothing more he could do except check out plaintiff's register. Golden said, "Well, do it." The manager and an assistant manager locked plaintiff's register and took the till and the register receipt to the cash cage. While the register was being checked, Golden continued to glare at plaintiff while plaintiff checked out customers at another register. The register balanced perfectly. When the manager so advised Golden, Golden replied that she still believed plaintiff took her money and continued to "cause commotion" and glare at plaintiff. A further general search of the surrounding area was conducted without success. Golden still would not leave; another employee was trying to calm her down.

The manager then told ¹ plaintiff to accompany a female assistant manager into the women's public restroom for the purpose of disrobing in order to prove to Golden that she did not have the money. As plaintiff and the assistant manager walked to the restroom, the manager asked Golden if she wanted to watch the search; Golden replied: "You had better believe I do, it is my money." In the restroom, plaintiff took off all her clothes except her underwear while Golden and the assistant manager watched closely. When plaintiff asked Golden if she needed to take off more, Golden replied that it was not necessary because she could see through plaintiff's underwear anyway.

Plaintiff put on her clothes and started to leave the restroom when the assistant manager asked Golden how much money she had in her purse. Golden replied that she did not know the exact amount, but thought she had between five and six hundred dollars. ² She did not attempt to count it at that time.

Plaintiff then returned to her checkstand. Golden followed plaintiff to the counter and continued to glare at her as she worked. Finally, the manager told Golden nothing more could be done for her, and after more loud protestations, Golden left the store.

Upon arriving home, Golden counted the money in her purse. She had $560. She called plaintiff's mother, whom she knew casually, and related the entire incident to her, stating that she had told K-Mart that plaintiff had taken her money. She described the strip search to plaintiff's mother and stated that when she was asked if she wanted to watch the strip, she responded, "Damn right." The mother expressed concern that plaintiff would lose her job; Golden said she would call the store and ask them not to let her go. Golden did make that call. After the conversation with Golden, plaintiff's mother, father and sister went to K-Mart to see if plaintiff was all right and to take her home.

Plaintiff returned to work the next day and was told that the keys to the cash register were lost and she was to work on a register with another employee. That procedure is known as "piggy-backing," and plaintiff had been told three months earlier that the store would no longer "piggy-back" checkers. Plaintiff believed the store was monitoring her by the "piggy-back" procedure; she quit at the end of her scheduled shift that day.

Each defendant, as the party moving for summary judgment, has the burden of showing that there is no genuine issue of material fact and that each of them is entitled to judgment as a matter of law. ORCP 47(C); Stanfield v. Laccoarce, supra, 288 Or. at 665, 607 P.2d 177; Seeborg v. General Motors Corporation, 284 Or. 695, 699, 588 P.2d 1100 (1978). Because the questions relating to each defendant differ, we consider the trial court's ruling as to each of them separately.

K-MART

K-Mart contends that the trial court properly granted its motion, because the facts presented do not constitute outrageous conduct as a matter of law. Its principal argument is that plaintiff consented to the strip search, either expressly as its manager stated, or tacitly by not expressly objecting. Plaintiff stated, variously, that she was told or asked by the manager to disrobe, but, whether asked or told, she did not consider that she had a choice. She thought she would lose her job if she refused, and she needed the job. The issue of lack of consent to that search is an issue of fact, but whether it is an issue of material fact depends upon whether, assuming plaintiff's version to be true, the facts are sufficient to submit the case to the jury on the outrageous conduct theory.

The relatively short history and development of the tort of outrageous conduct, at least in Oregon, is summarized by the court in Brewer v. Erwin, 287 Or. 435, 454-58, 600 P.2d 398 (1979). As the court pointed out, the exact elements of the tort are still in process of clarification. There are at least two versions of the tort. One is represented by Turman v. Central Billing Bureau, 279 Or. 443, 568 P.2d 1382 (1977), and involves intentional conduct, the very purpose of which is to inflict psychological and emotional distress on the plaintiff. The other is represented by Rockhill v. Pollard, 259 Or. 54, 485 P.2d 28 (1971), where the wrongful purpose was lacking, but "the tortious element can be found in the breach of some obligation, statutory or otherwise, that attaches to defendant's relationship to plaintiff * * *." 287 Or. 435, at 457, 600 P.2d 398. The court concluded its discussion as follows:

" * * * This court has not had occasion to consider whether in the absence of such a relationship a recovery for solely emotional distress can be based on a defendant's conduct, not otherwise tortious, that a jury may find to be beyond the limits of social toleration, though the conduct is not deliberately aimed at causing such distress but only reckless of the predictable effect. Cf. Douglas v. Humble Oil, 251 Or. 310, 317, 445 P.2d 590 (1968); compare Melton v. Allen, 282 Or. 731, 736, 580 P.2d 1019 (1978)." 287 Or. at 457-58, 600 P.2d 398.

In Brewer, the court did not consider the question posed in the foregoing quote, because it found the defendant's conduct was intentional. Here, we are faced with the issue, unless there was the type of special relationship between plaintiff and K-Mart justifying recovery for emotional distress based on that defendant's conduct, which was not deliberately aimed at such distress but was reckless of the predictable effect of that conduct.

Neither the Supreme Court nor this court has been presented with the question of whether the employer-employee relationship falls into that special category. ³ This court, however, has treated the landlord-tenant relationship as a "prime consideration" in evaluating the defendant's conduct. Fitzpatrick v. Robbins, 51 Or.App. 597, 626 P.2d 910, rev. den. 291 Or. 151 (1981). We reached that conclusion because landlords were in a position of authority with respect to tenants and could affect the tenants' interest in the quiet enjoyment of...