Bohdan v. Alltool Mfg., Co.

Citation411 N.W.2d 902
Decision Date08 September 1987
Docket NumberNo. C8-87-416,C8-87-416
PartiesJames BOHDAN, Appellant, v. ALLTOOL MFG., CO., et al., Respondents.
CourtCourt of Appeals of Minnesota

Syllabus by the Court

The appellant alleged sufficient facts to avoid a summary judgment as to his claims of defamation and negligent infliction of emotional distress. He failed to show that material facts were in dispute as to intentional infliction of emotional distress, and invasion of privacy claims, and the trial court properly granted summary judgment for respondents as to those causes of action.

Robert F. Ihinger, Jr., Richfield, for appellant.

Robert T. Stich, Minneapolis, Stuart E. Schmitz, St. Paul, for respondents.

Considered and decided by POPOVICH, C.J., NORTON and MULALLY, JJ. * , with oral argument waived.

OPINION

EDWARD D. MULALLY, Acting Judge.

Appellant brought an action against respondents to recover damages for alleged intentional and negligent acts. Respondents moved for summary judgment; the trial court granted summary judgment and dismissed the complaint. Appellant moved to amend, and the trial court denied the motion. Appellant brings an appeal from the summary judgment.

FACTS

Appellant was employed by Alltool Manufacturing Company from February 2, 1979 through July 7, 1983 as a toolmaker. He alleged in his verified complaint that he was harassed by employees because they whistled certain tunes and patterns in his presence over 100 times a day; they sang certain songs over 50 times per day which cast aspersions on his sexual preference; they constantly repeated certain offensive slogans, including use of words which rhyme with "gay" or "queer"; certain individuals engaged in self-induced belching over 20 times a day; and they made constant references to alcohol and drinking, in an attempt to embarrass appellant as to his known alcohol problem and to force him into old and dangerous habits. He also alleged that he was defamed when certain employees slandered him by implying his sexual preference was other than heterosexual. In an affidavit submitted by appellant in opposition to the summary judgment motion, he realleged each allegation in his complaint, and asserted that the defamation took place in the work place and was published to all co-employees within earshot. Similar statements were made in his deposition.

Respondents, Alltool Manufacturing Company and officers, shareholders, and/or employees of Alltool, denied appellant's allegations of wrongdoing, and moved for summary judgment. In support of their motion, they submitted portions of depositions of appellant and appellant's psychiatrist, Dr. Patrick Curran. The depositions indicate that appellant claimed he was subject to the same type of harassment at his prior work place and subsequent work places, at Alcoholics Anonymous, the Army Reserve, the Masons and his skydivers club. Respondents submitted affidavits by all but one of the named defendants, in which each affiant asserted he never communicated or discussed any matter respecting appellant with anyone at any place of employment where appellant was employed subsequent to his employment with Alltool, the Army Reserve, Alcoholics Anonymous, the Masons, or any skydiving club.

Appellant, in his deposition, attributes the onset of the harassment to an incident involving a former co-employee at Division Stamping, where he worked prior to his employment at Alltool. Appellant intervened when his co-workers continued to whistle at a woman at the office. Appellant asserts that since that time his co-workers at several places of employment harassed him in the manner described in the complaint. Curran explained that "word had gotten around, because of the cliquishness of toolmaking * * * of the way he had intervened at this job back at Division Stamping." Curran diagnosed appellant as having paranoia, and found that "persecutorial delusions" were a hallmark of his problems, and that he was suffering from a psychosis, or a break with reality, of unknown origins. He also referred to hallucinations. Curran said that behind every delusional system is a "kernel or a core or a mountain of truth." He noted that appellant's decision to sue was an appropriate response to his perception of harassment.

Based on this record, the trial court granted the motion for summary judgment. Appellant moved to amend the order granting summary judgments, and submitted an additional affidavit. The trial court denied appellant's motion. He appeals from the judgment.

ISSUE

Did the trial court properly grant summary judgment?

ANALYSIS

The trial court granted summary judgment and dismissed the entire complaint. The parties disagree as to which causes of action were before the court. Consequently, before addressing the propriety of the summary judgment, this court must determine the causes of action which were before the trial court when it ordered summary judgment.

Appellant alleged various causes of action in his complaint, arguably including slander, invasion of privacy, wrongful termination of employment, negligence, negligent infliction of emotional distress, and intentional infliction of emotional distress. In a pretrial order, the court noted, in relevant part:

Pl. is not claiming wrongful termination of employment; but rather, intentional and negligent infliction of emotional distress.

(Emphasis in original.)

At the hearing on the summary judgment motion, respondents argued that the pretrial order stated appellant was pursuing a cause of action based upon negligent and intentional infliction of emotional distress. They argued summary judgment should be granted for the invasion of privacy and slander claims as well, although they believed the pretrial order precluded consideration of these theories of recovery. Appellant argued against granting summary judgment for infliction of emotional distress and slander.

At a pretrial conference, issues may be simplified and frivolous claims or defenses may be eliminated. Minn.R.Civ.P. 16.03(1). A pretrial order entered after the conference controls the subsequent course of the action unless modified by a subsequent order. Minn.R.Civ.P. 16.05. The order shall be modified only to prevent manifest injustice, id., and a balancing approach should be used to determine when a pretrial order should be modified. Cotroneo v. Pilney, 343 N.W.2d 645, 649 (Minn.1984). In this case, the modification of the order is not before the court; instead, the issue is whether appellant was limited to negligent and intentional infliction of emotional distress by the pretrial order. The order was silent as to the defamation and invasion of privacy claims.

Unlike the wrongful termination of employment claim, which was not explicitly stated in the complaint, the slander claim is clearly and explicitly set out. Appellant alleged specifically that at least five defendants slandered him by falsely implying and/or stating that his sexual preference was other than heterosexual, damaging his reputation and subjecting him to the ridicule and revulsion of society. He asserted in his affidavit that the defamation complained of took place in the workplace and was published to all co-employees within earshot. Appellant also explicitly set out the invasion of privacy claims. We are unwilling to exclude the defamation or invasion of privacy claims on the basis that the pretrial order eliminated them, where there was no showing that the parties stipulated that these claims would not be included. Instead, the order reflects a determination that appellant did not make a wrongful termination of employment claim.

Having determined the causes of action upon which summary judgment was granted, we must next address whether the summary judgment was properly granted. A summary judgment may be judgment was granted, we must next address whether the summary granted to either party if "there is no genuine issue as to any material fact and * * * either party is entitled to a judgment as a matter of law." Minn.R.Civ.P. 56.03. The moving party has the burden of proof, and the nonmoving party has the benefit of the view of evidence most favorable to it; all doubts and factual inferences must be resolved against the moving party. Nord v. Herreid, 305 N.W.2d 337, 339 (Minn.1981). While a trial court has considerable discretion, great care should be exercised to allow a litigant to have a right to trial if there is a reasonable doubt as to the facts. Abdallah, Inc. v. Martin, 242 Minn. 416, 424, 65 N.W.2d 641, 646 (1954).

Pleadings, depositions, answers to interrogatories, admissions on file, and affidavits may be considered. When a summary judgment motion is made and supported as provided in Rule 56, an adverse party may not sit upon mere averments or denials of his pleadings, but must present specific facts showing a genuine issue for trial. A verified pleading which includes statements relating to competency, personal knowledge, and facts pursuant to Rule 56.05 may be sufficient to show specific facts offsetting evidence submitted by the moving party. Corwine v. Crow Wing County, 309 Minn. 345, 361, 244 N.W.2d 482, 490 (1976), overruled on other grounds by Northwestern College v. City of Arden Hills, 281 N.W.2d 865, 868 (Minn.1979). If the adverse party does not meet its burden, summary judgment, if appropriate, shall be entered against it. Minn.R.Civ.P. 56.05.

Appellant asserts that his second affidavit, submitted at the time of his motion for amended findings, should be considered in determining whether the trial court erred when it granted respondents' summary judgment motion. However, the party opposing the summary judgment motion "must demonstrate at the time the motion is made that specific facts are in existence which create a genuine issue for trial." Erickson v. General United Life Insurance Co., 256 N.W.2d 255, 259 (Minn.1977) (emphasis added); see Dalco Corp. v. Dixon, 338 N.W.2d 437, 440 (Minn.1983)....

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