Brown v. Fountain Hill School District et al
Decision Date | 06 October 1999 |
Docket Number | 99-98 |
Citation | 1 S.W.3d 27 |
Parties | John BROWN, Hughey D. Brown, and Teresa Brown v. FOUNTAIN HILL SCHOOL DISTRICT, Superintendent Opal Crow, Hal Gibson, and Elmer Sparks CA 99-98 ___ S.W.2d ___ Opinion delivered |
Court | Arkansas Court of Appeals |
Appeal from Ashley Circuit Court; Sam Pope, Judge; affirmed.
1. Appeal & error -- appellate review -- failure to preserve points for. --Where arguments were not presented to the trial court, they were not preserved for appellate review.
2. Judgment -- summary judgment -- when granted. -- Summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the moving party is entitled to judgment as a matter of law; once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact.
3. Judgment -- summary judgment -- standard of review. -- On review, the appellate court determines if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered; the appellate court views the evidence in the light most favorable to the party against whom the motion wasfiled, resolving all doubts and inferences against the moving party.
4. Torts -- outrage -- elements of. -- To succeed on a tort-of-outrage claim, the plaintiff must prove that (1) the defendant intended to inflict emotional distress or knew or should have known that emotional distress was the likely result of his conduct; (2) the conduct was extreme and outrageous and utterly intolerable in a civilized community; (3) the defendant's conduct was the cause of the plaintiff's distress; and (4) emotional distress sustained by the plaintiff was so severe that no reasonable person could be expected to endure it.
5. Schools & school districts -- tort liability -- statutory immunity barred suit. -- Where appellants' complaint merely concluded that appellees' conduct was outrageous but failed to support those allegations with facts, the appellate court concluded that, at best, appellants' claim was based upon the theory of negligence and that the statutory immunity afforded appellees barred a suit brought on that basis [Ark. Code Ann. § 21-9-301 (1987)].
6. Judgment -- summary judgment -- dismissal of appellants' claim was with prejudice. -- Where it was clear that the trial court decided to grant appellees' summary-judgment request because they were entitled to judgment as a matter of law, the facts having shown that appellees' alleged conduct amounted to negligence; and where, given the fact that Arkansas Code Annotated section 21-9-301 provides immunity from suit for the negligent acts of school districts or its employees, it was clear that the dismissal of appellants' claim was with prejudice, the appellate court affirmed the circuit court's decision.
The Cortinez Law Firm, P.L.L.C., by: Robert R. Cortinez, II, for appellants.
W. Paul Blume, for appellees.
On September 30, 1993, John Brown was a student at Fountain Hill High School, when he amputated the fingers on his right hand while operating a table saw in the school's vocational-agriculture shop class. John's parents, Hughey and Teresa Brown, filed a negligence action against the individual appellees, because of the removal of the table saw's blade safetyguard by appellee Hal Gibson. An action was brought against the school district based upon the theory of respondeat superior. Appellees filed a motion to dismiss appellants' complaint based upon the statutory immunity afforded school districts and their employees in negligence actions by Ark. Code Ann. section 21-9-301 (1987). Appellants subsequently filed an amended and substituted complaint, in which they added the insurance exception to the statutory-immunity defense, and pled in the alternative that appellees' actions amounted to the tort of outrage. Appellees filed a motion under Ark. R. Civ. P. 12 (b) (6) that was not ruled upon. After discovery was completed, appellees filed a motion for summary judgment.
In a hearing held on May 26, 1998, the trial court granted partial summary judgment to appellees based upon its finding that Ark. Code Ann. section 21-9-301 barred appellants' claim for damages caused by appellees' negligence. The trial court allowed appellants to proceed with their claim based upon the tort of outrage.
On September 11, 1998, a subsequent hearing was held and at that time, the trial court granted summary judgment to appellees on appellants' claim for outrage. In granting summary judgment, the trial court found that appellants had not pled sufficient facts to succeed on a claim for damages based upon the tort of outrage. This appeal followed.
On appeal, appellants argue three points: (1) the appellees' motion for summary judgment was defective because it failed to address the appellants' tort of outrage claim in the amended and substituted complaint; (2) the trial court erred when it considered matters in appellees' supplemental brief in violation of Ark. R. Civ. P. 56 (c), when making its September 11, 1998, order; and (3) the trial court erred in dismissing appellants' amended and substituted complaint that adequately pled the tort of outrage.
Appellants' first two points on appeal were not presented to the trial court, and as a consequence, are not preserved for appellate review. See Helms v. University of Missouri-Kansas City, 65 Ark. App. 155, 986 S.W.2d 419 (1999).
Appellants' remaining point is that the trial court erred in dismissing the remaining portion of their complaint that adequately pled the tort of outrage. The law is well settled that summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the moving party is entitled to judgment as a matter of law. Pugh v. Griggs, 327 Ark. 577, 940 S.W.2d 445 (1997). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On review, the appellate court determines if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. Tyson Foods, Inc. v. Adams, 326 Ark. 300, 930 S.W.2d 374 (1996). This court views the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id.
To succeed on a tort-of-outrage claim, the plaintiff must prove that (1) the defendant intended to inflict emotional distress or knew or should have known that emotional distress was the likely result of his conduct; (2) the conduct was extreme and outrageous and utterly intolerable in a civilized community; (3) the defendant's conduct was the cause of the plaintiff's distress; and (4) emotional distress sustained by the plaintiff was so severe that no reasonable person could be expected to endure it. Holloman v. Keadle, 326 Ark. 168, 931 S.W.2d 413 (1996).
In their amended complaint, appellants alleged:
Defendant Hal Gibson was in charge of Ashley County's school children and had the ultimate responsibility for their safety and his behavior in removing the safety guard which greatly enhances said saw's potential to mutilate, deform and mangle children coming in contact with said equipment was beyond all possible bounds of decency and utterly intolerable.
Defendant Hal Gibson purposely, knowingly, willfully and intentionally removed the safety guard of the Delta International table saw that was installed to...
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