Brower v. Ackerley
| Decision Date | 22 September 1997 |
| Docket Number | No. 38189-0-I,38189-0-I |
| Citation | 88 Wn.App. 87,943 P.2d 1141 |
| Court | Washington Court of Appeals |
| Parties | Jordan BROWER, Appellant, v. Chris ACKERLEY, and Jane Doe Ackerley, and the marital community composed thereof; Ted Ackerley and Jane Doe Two Ackerley, and the marital community thereof, Respondents, John Doe One and Jane Doe One, and the marital community composed thereof; John Doe Two and Jane Doe Two, and the marital community composed thereof; John Doe Three and Jane Doe Three, and the marital community composed thereof; John Doe Four and Jane Doe Four, and the marital community composed thereof; John Doe Five and Jane Doe Five, and the marital community composed thereof; Corporation A, a corporation; Corporation B, a corporation; Corporation C, a corporation; Corporation D, a corporation; and Corporation E, a corporation, Additional Defendants. |
Peter D. Byrnes and Paul Renwick Taylor of Byrnes & Keller, Seattle, for Respondents.
Jordan Brower, who alleges that Christopher and Theodore Ackerley made anonymous threatening telephone calls to him, appeals from a summary judgment dismissal of his claims against them. Because the threatened harm was insufficiently imminent to be actionable as civil assault, we hold the assault claim was appropriately dismissed. But we reverse and remand for trial on the tort of outrage, rejecting the argument that Brower's alleged emotional distress was not severe.
In deciding whether Brower has properly been denied the right to take his case to trial, we do not evaluate the credibility of the witnesses, nor do we decide whether Brower's allegations are true. Instead the question is whether the applicable law would permit a reasonable jury to find in his favor. Because we decide only legal issues and not factual ones, we make our determination de novo, according no particular deference to the decision of the trial court. 1 We describe the evidence in the record, and the reasonable inferences therefrom, in a light most favorable to plaintiff Brower as the non-moving party in the summary judgment proceeding. 2
The plaintiff, Jordan Brower, is a Seattle resident active in civic affairs. Christopher and Theodore Ackerley, in their early twenties at the time of the alleged telephone Within two days an anonymous male caller began what Brower describes as "a campaign of harassing telephone calls" to Brower's home that continued over a period of 20 months. The first time, the caller shouted at Brower in an aggressive, mean-spirited voice to "get a life" and other words to that effect. Brower received at least one more harassing telephone call by January of 1992.
calls, are two sons of the founder of Ackerley Communications, Inc., a company engaged in various activities in Seattle including billboard advertising. Brower perceived billboard advertising as a visual blight. Based on his own investigation, he concluded that Ackerley Communications had erected numerous billboards without obtaining permits from the City of Seattle; had not given the City an accurate accounting of its billboards; and was maintaining a number of billboards that were not on the tax rolls. In January, 1991, Brower presented his findings to the City. When the City did not respond, Brower filed suit in October of 1991 against the City and Ackerley Communications seeking enforcement of the City's billboard regulations.
When the City agreed to pursue Brower's complaints about the billboard violations, Brower dropped his suit. In April of 1992, the City made a public announcement to the effect that Ackerley Communications had erected dozens of illegal billboards. Within a day of that announcement, Brower received an angry telephone call from a caller he identified as the same caller as the first call. In a loud, menacing voice, the caller told Brower that he should find a better way to spend his time. Two days later there was another call telling Brower to "give it up".
In July of 1992, shortly after the City Council passed a moratorium on billboard activity, Brower received another angry anonymous call. The male voice swore at him and said, "You think you're pretty smart, don't you?" Brower says he seriously wondered whether he was in any danger of physical harm from the caller. Over the following months Brower continued to receive calls from an On July 19, 1993, the City Council passed a new billboard ordinance. At about 6:30 that evening an angry-voiced man telephoned Brower and said "dick" in a loud voice and hung up. At about 7:30 p.m. the same caller called and said, "I'm going to find out where you live and I'm going to kick your ass." At 9:43 p.m. Brower received another call from a voice disguised to sound, in Brower's words, "eerie and sinister". The caller said "Ooooo, Jordan, oooo, you're finished; cut you in your sleep, you sack of shit." Brower recorded the last two calls on his telephone answering machine.
unidentified male who he says "belittled me, told me what a rotten person I was, and who used offensive profanity."
Brower made a complaint to the police, reporting that he was very frightened by these calls. Because Brower had activated a call trapping feature of his telephone service after the third telephone call, the police were able to learn that the call had originated in the residence of Christopher Ackerley. When contacted by the police, Christopher Ackerley denied making the calls. He said Brower's telephone number was in his apartment, and that his brother Ted Ackerley had been in the apartment at the time and perhaps had made the calls.
The City filed no criminal charges based on the police report. Brower then brought this civil suit against Christopher and Theodore Ackerley seeking compensation for the emotional distress he suffered as the result of the telephone calls. According to Brower, he interpreted the calls of July 19 as a death threat, and felt "hunted down". He experienced feelings of panic, terror, and insecurity as well as a rising pulse, light-headedness, sweaty palms, sleeplessness, and an inability to concentrate that lasted for some time afterward: "Every day I come home, I worry that someone has burned our house down, or if my wife is late from work, whether she has been harmed."
The Ackerleys moved for summary judgment. Brower responded primarily with his own declaration describing the telephone calls and his reaction to them. The trial Damages for mental and emotional distress are generally available merely upon proof of an intentional tort such as assault. 3 In such cases, there is no requirement that emotional distress be severe or manifested by physical symptoms in order to be compensable as an element of damages. 4 Therefore, we initially examine Brower's proof to determine whether he has presented proof of an intentional tort.
court dismissed all claims. Brower appeals, arguing that his declaration raises a genuine issue of material fact as to his claims of assault, negligence, and the tort of outrage. The Ackerleys respond that the telephone calls described by Brower do not amount to civil assault, and that the distress Brower claims he suffered as a result was insufficiently severe to support his other causes of action.
The elements of civil assault have not been frequently addressed in Washington cases. The gist of the cause of action is "the victim's apprehension of imminent physical violence caused by the perpetrator's action or threat." 5 In the 1910 case of Howell v. Winters 6, the Supreme Court relied on a definition provided in Cooley, Torts (3d ed.):
An assault is an attempt, with unlawful force, to inflict bodily injuries upon another, accompanied with the apparent present ability to give effect to the attempt if not prevented. Such would be the raising of the hand in anger, with an apparent purpose to strike, and sufficiently near to enable the purpose to be carried into effect; the pointing of a loaded pistol at one who is in its range; the pointing of a pistol not loaded at one who is not aware of that fact and making an The discussion in Howell accords with the Restatement (Second) of Torts, which defines assault, in relevant part, as follows:
apparent attempt to shoot; shaking a whip or the fist in a man's face in anger; riding or running after him in threatening and hostile manner with a club or other weapon; and the like. The right that is invaded here indicates the nature of the wrong. Every person has a right to complete and perfect immunity from hostile assaults that threaten danger to his person; 'A right to live in society without being put in fear of personal harm.' 7
(1) An actor is subject to liability to another for assault if
(a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and
(b) the other is thereby put in such imminent apprehension. 8
According to section 31 of the Restatement, words alone are not enough to make an actor liable for assault "unless together with other acts or circumstances they put the other in reasonable apprehension of an imminent harmful or offensive contact with his person." 9 The comments to section 31 indicate infliction of emotional distress is a better-suited cause of action when mere words cause injury, "even though the mental discomfort caused by a threat of serious future harm on the part of one who has the apparent intention and ability to carry out his threat may be far more emotionally disturbing than many of the attempts to inflict minor bodily contacts which are actionable as assaults." 10
The Ackerleys argue that dismissal of Brower's assault Whether the repeated use of a telephone to make anonymous threats constitutes acts or circumstances sufficient to render the threats assaultive is an issue we need not resolve because we find another issue dispositive: the physical harm...
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