Curtis v. Firth

• Decision Date: 23 March 1993
• Docket Number: No. 18871,18871
• Citation: 850 P.2d 749,123 Idaho 598
• Parties: Carl CURTIS, Plaintiff-Counterdefendant, Appellant-Cross-Respondent, v. Sandra FIRTH, Defendant-Counterclaimant, Respondent-Cross-Appellant. Boise, April 1992 Term
• Court: Idaho Supreme Court

Page 749

850 P.2d 749

123 Idaho 598

Carl CURTIS, Plaintiff-Counterdefendant, Appellant-Cross-Respondent, v. Sandra FIRTH, Defendant-Counterclaimant, Respondent-Cross-Appellant.

No. 18871.

Supreme Court of Idaho,

Boise, April 1992 Term.

March 23, 1993.

[123 Idaho 600] E. Lee Schlender, Hailey, for appellant.

Givens, Pursley, Webb & Huntley, Boise, for respondent. Robert E. Huntley, Jr. argued.

TROUT, Justice.

I. BACKGROUND AND PRIOR PROCEEDINGS

This appeal arose from a district court action for personal injury and a cross action for collection of a promissory note, which was the culmination of ongoing litigation between a man and a woman who had shared a home and intimate relations over a period of ten years. Appellant Carl Curtis and respondent Sandra Firth (hereinafter referred to only by their surnames), began living together in Curtis' home in May of 1978. While the relationship began as a very loving one, the periods of happiness became less prevalent over time and were replaced by antagonism and violence. The couple's behavior was characterized by cycles of violence which commenced with Curtis becoming irritated and angry; then turning to verbal and sometimes physical abuse; and finally ending with him becoming loving again. Throughout much of this time, both Curtis and Firth turned to alcohol and drugs for entertainment or solace. Although the parties participated in counseling in an attempt to resolve their problems, the relationship continued to deteriorate. In 1988, while Firth was vacationing in California, Curtis evicted her from his home.

In the initial phase of this litigation, Firth sought to establish a common law marriage, and brought an action for divorce and the division of all marital property.

[123 Idaho 601] After a trial on the merits, the trial court determined that no common law marriage had been established because the parties had not held themselves out in the community as husband and wife. Although the court denied Firth an interest in Curtis' personal and real property, Curtis was ordered to pay significant financial support for rehabilitative purposes as well as Firth's attorney fees.

In a subsequent phase of the litigation, Firth brought a personal injury action seeking damages for battery and intentional infliction of emotional distress. She also sought punitive damages. At trial, she presented extensive expert testimony regarding Battered Wife Syndrome and Post Traumatic Stress Disorder. The jury returned a verdict in favor of Firth, awarding her $50,000 in compensatory damages for battery, $225,000 for intentional infliction of emotional distress, and $725,000 in punitive damages. Curtis appealed.

Because of the number of issues asserted on appeal, this Court will address them either as issues related to the trial, or as issues encompassed in the post-trial motions. Finally, issues presented by a cross-appeal brought by Curtis will be addressed.

II.

TRIAL ISSUES

Intentional Infliction of Emotional Distress

Curtis contends that Firth's claim for intentional infliction of emotional distress must fail because there was an insufficient showing of an accompanying physical injury or manifestation.

Unlike a claim for negligent infliction of emotional distress which requires a showing of physical injury or manifestation, see Evans v. Twin Falls County, 118 Idaho 210, 796 P.2d 87 (1990), a claim for intentional infliction of emotional distress has no such requirement. As we noted in Evans:

The four elements which a plaintiff must show to be able to recover for intentional infliction of emotional distress are: 1) the conduct must be intentional or reckless; 2) the conduct must be extreme and outrageous; 3) there must be a causal connection between the wrongful conduct and the emotional distress; and 4) the emotional distress must be severe.

118 Idaho at 220, 796 P.2d at 97 (citations omitted).

Although evidence of physical harm may bear on the severity of emotional harm, Hatfield v. Max Rouse & Sons Northwest, 100 Idaho 840, 606 P.2d 944 (1980); Davis v. Gage, 106 Idaho 735, 682 P.2d 1282 (Ct.App.1984), it is clear that evidence of physical injury or manifestation is not a required element for the claim of intentional infliction of emotional distress. A review of the pleadings in this case indicate that only intentional infliction of emotional distress was pled or submitted to the jury; accordingly, Curtis' argument in this regard is without merit.

Statute of Limitations

Curtis asserts that much of Firth's claim for intentional infliction of emotional distress was barred by the statute of limitations, and that the trial court's failure to instruct the jury on the defense was reversible error. It is well established that a party asserting the affirmative defense of statute of limitations has the burden of establishing the applicability of the statute. E.g., Hawley v. Green, 117 Idaho 498, 788 P.2d 1321 (1990).

Regarding Curtis' claim, the trial court remarked in its memorandum decision:

With respect to the court's decision to omit the statute of limitations instruction, the court notes at the outset that the proposed instruction was not even submitted by the [appellant]. Prior to the instruction conference, the court ruled that the tort of intentional or reckless infliction of emotional distress is a continuing tort. On that basis, the instruction was refused. The court is still of the opinion that refusal of the instruction was proper and as a result sees no basis for a new trial.

Unfortunately there is nothing in the transcript of the proceedings or the record to give this Court any indication of when the trial court made its ruling on the "continuing tort," the basis for that ruling or if We have held that a trial court is under a duty to instruct the jury on every reasonable theory of the litigants which presents a basis for a claim of relief or a defense, where such theory finds support in the pleadings and the evidence. State v. Eastman, 122 Idaho 87, 831 P.2d 555 (1992); Hodge v. Borden, 91 Idaho 125, 417 P.2d 75 (1966). The trial court has an affirmative responsibility to assure that the jury is correctly instructed:

[123 Idaho 602] there were any objections to that ruling at the time. The only indication of any discussion about the statute of limitations instruction appears in the clerk's handwritten court minutes which state: "Mr. Crist objection to not given instruc [sic] re: statute of limitation."

While the requested instructions perhaps did not adequately define contributory negligence and perhaps did not show adequate application of that doctrine to the case at bar, nevertheless since the request for such instruction was made, it became the duty of the trial court to give proper instructions thereon.

Hodge, 91 Idaho at 136, 417 P.2d at 86 (citations omitted). Clearly the trial court has a responsibility to instruct the jury, even if the correct instruction is not proposed, so long as the request is made. The question then becomes whether an instruction on the statute of limitations should have been given.

According to the memorandum decision, the trial court based its denial of the statute of limitations instruction on a "continuing tort" theory. The Court has previously had occasion to discuss this concept, although admittedly in different contexts. Farber v. State, 102 Idaho 398, 630 P.2d 685 (1981), involved a tort claim filed by landowners against the state for the negligent design, construction and planning of a road project. The issue involved whether plaintiffs had timely filed their notice of tort claim. The Court acknowledged that this was a different question than when the statute of limitations would run, although cases interpreting the statute of limitations might be instructive. In permitting the landowners to wait until the project was completed before filing their notice of tort claim under I.C. § 6-905, the Court applied a continuing tort analysis. While it was acknowledged that the damages were ongoing throughout the project, the Court held that for the purposes of the tort claims notice provision, notice need not be given until the acts were completed so that the state would be in a position to investigate and assess the claim for damages. In so doing the Court distinguished the facts of Farber, where the wrongful acts were of a continuing nature, with those in Ralphs v. City of Spirit Lake, 98 Idaho 225, 560 P.2d 1315 (1977):

In Ralphs, a single act caused the damage for which compensation was claimed. While the damages alleged were continuing, and their full extent unknown, the act complained of was completed, and some damages had apparently occurred, long before the notice of claim was filed. Here, the act complained of is in the nature of a continuing tort. While the damages complained of have occurred over a period of time, as in Ralphs, we feel that it is better policy to focus upon the act complained of, rather than the damages, in determining when the 120 day notice requirement of the ITCA is triggered. Thus the holding in Ralphs that "[w]here there is a coincidence of a negligent act and the occurrence of damages a 'wrongful act' has been committed" is not determinative of whether a "negligent act" should be defined as the first step in a continuing project, or as the project as a completed whole.

102 Idaho at 401, 630 P.2d at 688. Even though this case arose in the context of a notice of tort claims, the Court acknowledged that a tort should be analyzed for the purposes of time limitations according to whether it is simply one complete act with ensuing damages, or whether it consists of a series of continuous activities.

Woodland v. Lyon, 78 Idaho 79, 298 P.2d 380 (1956), discussed a continuing tort in the context of a water right. In that case defendant obstructed a stream bed which prevented water from flowing onto plaintiffs' property for four consecutive years. Plaintiffs then brought suit and ultimately The tort...