Deitsch v. Tillery
| Citation | 309 Ark. 401,833 S.W.2d 760 |
| Decision Date | 26 May 1992 |
| Docket Number | No. 91-297,91-297 |
| Parties | , 61 USLW 2032, 76 Ed. Law Rep. 876 Joseph DEITSCH, et al., Appellants, v. Frank TILLERY, et al., Appellees. |
| Court | Supreme Court of Arkansas |
Steven Napper, Little Rock, for appellants.
David R. Matthews, Rogers, for appellees.
This appeal raises questions concerning tort liability, the scope of immunity from such liability under Arkansas' immunity statutes, and liability under 42 U.S.C. § 1983, as applied to school districts and their employees and local school board members.
The appellants, a group of named plaintiffs consisting of parents of children who attend Westside Elementary School, which is located in Rogers School District # 30, and one employee of the school, filed suit against the defendants/appellees, school employees, past and present school board members, and the Rogers School District # 30, alleging the appellees knew or should have known of the presence of friable asbestos in Westside Elementary School and failed and refused to correct the condition and to protect the students and staff from the dangers of exposure. The complaint specifies that during "spring break" in March 1990, 30,000 square feet of ceiling tile, containing asbestos, was improperly and negligently removed and, further, that for many years prior to the March exposure, the asbestos was agitated, causing loosening of the material and daily incidents of exposure. Three separate counts were alleged: 1) the tort of outrage; 2) negligence; and 3) liability under 42 U.S.C. § 1983.
The appellees responded to the appellants' complaint with a motion to dismiss based on Ark.R.Civ.P. 12(b)(6), failure to state a claim upon which relief could be granted.
Following a hearing, the trial court entered an order of dismissal as to all three causes of action. The court determined that the allegations in the complaint fell short of stating that the conduct complained of amounted to a tort of outrage as defined by Arkansas law. The negligence claim was dismissed pursuant to the statutory immunity afforded in Ark.Code Ann. § 21-9-301 (1987), and the § 1983 claim was dismissed upon a finding that the complaint did not sufficiently allege a custom or policy by the Rogers School District. The trial court also dismissed the appellants' claim for punitive damages since there was no substantive claim to which it could attach. The appellants now appeal.
We reverse the trial court's dismissal of the appellants' cause of action for the tort of outrage and negligence and affirm the dismissal of the appellants' § 1983 claim.
In considering a motion to dismiss under Rule 12(b)(6), the facts alleged in the complaint are treated as true and viewed in the light most favorable to the party seeking relief. See Battle v. Harris, 298 Ark. 241, 766 S.W.2d 431 (1989); McKinney v. City of El Dorado, 308 Ark. 284, 824 S.W.2d 826 (1992). It is improper for the trial court to look beyond the complaint to decide a motion to dismiss, unless it is treating the motion as one for summary judgment. Battle v. Harris, supra. There is no mention by the trial court, here, that it considered the motion to dismiss as a motion for summary judgment, and it does not appear the trial court considered anything beyond the pleadings. Pleadings are to be liberally construed and are sufficient if they advise a defendant of his obligations and allege a breach of them. Rabalaias v. Barnett, 284 Ark. 527, 683 S.W.2d 919 (1985). With these general principles in mind, we proceed to the appellants' challenges concerning the trial court's order of dismissal.
The appellants first argue that immunity from tort liability under Ark.Code Ann. § 21-9-301 (1987 and Supp.1991), which provides that "[no] tort action shall lie against [school districts] because of the acts of their agents and employees," would not extend to intentional acts. It was alleged the appellees were aware of the nature of the asbestos material present in the school, and the regulations required in removing such material, but that they intentionally violated these regulations. This argument encompasses the first count of the appellants' complaint, which is that the acts of the appellees rose to the level of conduct actionable under the tort of outrage.
The trial court, in its letter opinion and in its decree, did not reach the issue of liability or immunity as to intentional torts as it held that the acts articulated in the complaint fell "woefully short" of stating a cause of action for the tort of outrage because the conduct was "not so extreme in degree as to go beyond all possible bounds of decency and to be regarded as atrocious and utter[ly] intolerable in a civilized society." We disagree.
The language cited by the trial court was first enunciated in Counce v. M.B.M. Co., Inc., 266 Ark. 1064, 597 S.W.2d 92 (1980), and is now the accepted definition for outrage. Four elements are needed to establish liability. It must be shown: (1) the actor 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," was "beyond all possible bounds of decency" and was "utterly intolerable in a civilized community"; (3) the actions of the defendant were the cause of the plaintiff's distress; and (4) the emotional distress sustained by the plaintiff was so severe that no reasonable man could be expected to endure it. Id.
In their complaint, the appellants allege the appellees knew of the presence of specific rules and regulations for the removal of asbestos and "failed and refused" to follow such procedures. The complaint states the appellees "knowingly misrepresented and/or concealed the dangerous asbestos condition ... in order to induce the school employees and students to attend and work at the school." It is further alleged the appellees had such knowledge of the proper procedures (or by the exercise of reasonable care and compliance with state and federal laws, should have known) at least by May 27, 1983, and that the appellees did have such knowledge by October 1988, following inspection of the school for asbestos. The alleged proper standards, comprising both federal and state regulations, were set out at length in the complaint. The appellants allege they have sustained, and continue to sustain, damages for emotional distress and fear, physical injury, and increased risk of serious injury in the future. Appellant, Delores Bartizal is alleged to have contracted throat cancer, proximately caused by exposure to the asbestos.
The wording of the complaint recited more than mere conclusory allegations, as it was required to do. See McKinney v. City of El Dorado, supra. The appellants do not allege simply that the appellees' conduct was "outrageous" or "willful and wanton," but that the appellees purposefully deceived the appellants, as to the condition of the asbestos, in order not to disrupt school routine.
Although we have traditionally taken a narrow view of claims for the tort of outrage, Ross v. Patterson, 307 Ark. 68, 817 S.W.2d 418 (1991), and we do not comment upon the merits of such an action here; taking the facts alleged in the complaint as true, and in the light most favorable to the appellants, we hold sufficient facts were at least alleged to state a cause of action for the tort of outrage.
By definition, the tort of outrage, also known as the intentional infliction of emotional distress (see Ross v. Patterson, supra), is an intentional tort. Appellants are correct that Section 21-9-301 does not provide immunity for the intentional acts of school districts and their employees, only their negligent acts. Waire v. Joseph, 308 Ark. 528, 825 S.W.2d 594 (1992). In addition, Ark.Code Ann. § 16-120-103(a) (Supp.1991), which applies to school board members, states that immunity will not extend to intentional torts committed by such members.
Accordingly, the trial court erred in dismissing the appellants' claim of tort of outrage.
The appellants next argue that despite the immunity afforded by Section 21-9-301 for acts of negligence, Ark.Code Ann. § 6-17-1113 (1987 and Supp.1991) requires the Department of Education to procure insurance for such acts, thereby creating an exception to the grant of immunity. The appellants also cite Bly v. Young, 293 Ark. 36, 732 S.W.2d 157 (1987) for the proposition that a state employee can be liable for tortious acts committed in the course of his or her duty, to the extent the employee is already covered by liability insurance.
As an initial matter, the appellees argue that because the appellants did not raise the issue of insurance in their original complaint, the argument is waived on appeal. We disagree.
The issue of insurance was first raised at the hearing before the trial court. The court noted the complaint did not plead the issue and indicated this should be done and that it would allow the appellants the opportunity to do so. Five months later, the trial court filed its opinion letter in which it noted that although the insurance issue had been raised at the hearing, since there were no such allegations in the complaint, under Ark.R.Civ.P. 12(b)(6), it could not consider the matter. Thereafter the appellants filed an amended complaint, fully pleading the issue, shortly before the trial court filed its final decree. The final order did not address the matter and simply dismissed the negligence claim based on the immunity granted under Section 21-9-301.
Ark.R.Civ.P. 15(a) allows a party to amend its pleadings at any time without leave of the court. The rule provides, however, that upon motion by the opposing party, the trial court may strike the amendment or grant a continuance of the proceeding where the amendment would result in prejudice or undue delay. Here, the appellees did move to dismiss the amended and substituted complaint, but...
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...negligence of a political subdivision, or for its employees' negligent performance of their official duties, Deitsch v. Tillery, 309 Ark. 401, 407, 833 S.W.2d 760, 762 (1992); Waire v. Joseph, 308 Ark. 528, 531, 825 S.W.2d 594, 597 (1992); Cousins v. Dennis, supra, 298 Ark. at 312, 767 S.W.......
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