Ellison v. Burger King Corp.

• Decision Date: 13 November 2008
• Docket Number: No. A08A1656.,A08A1656.
• Parties: ELLISON v. BURGER KING CORPORATION et al.
• Court: Georgia Court of Appeals

670 S.E.2d 469

294 Ga. App. 814

ELLISON v. BURGER KING CORPORATION et al.

No. A08A1656.

Court of Appeals of Georgia.

November 13, 2008.

Reconsideration Denied by November 25, 2008.

Sharon B. Ellison, pro se.

Glover & Blount, Percy J. Blount, Augusta, for appellees.

BLACKBURN, Presiding Judge.

In a tort suit based on allegedly violent behavior by a manager at a Burger King restaurant, Sharon Ellison, pro se, appeals the grant of summary judgment to Burger King Corporation (BKC), Janet Peterson (the restaurant manager), Southern Restaurant Hospitality, LLC (SRH), and SRH president Carl Payton, contending that material issues of fact precluded summary judgment. Because Ellison's verified complaint and deposition testimony created genuine issues of material fact as to the potential liability of the manager and SRH, summary judgment as to those defendants was not proper on all claims. With respect to Payton and BKC, the trial court correctly granted summary judgment. Accordingly, we affirm in part and reverse in part.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56(c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

Matjoulis v. Integon Gen. Ins. Corp.¹

So viewed, the record shows that in January 2007, Ellison entered a neighborhood Burger King restaurant and waited by a cash register to order. After a period of time passed without her order being taken, Ellison said, "Hi, is anybody going to welcome me to Burger King? Somebody going to please take my order?" An employee turned and explained that the staff was busy with other customers' orders and offered to take her order. According to Ellison's deposition and verified complaint, the manager on duty then walked out from behind the counter and asked, "Why is it every time you come into the restaurant, you have to make a noise?" Ellison averred that the manager "put her hands around my neck in a semi head lock position . . . and start[ed] shaking like three times or whatever. Then [the manager] turned loose and said, `Are you all right now?'" The employees asked if Ellison was ready to order, and Ellison uneventfully ordered a grilled chicken salad, which she was served.

Based on this exchange, Ellison filed a verified complaint against BKC (the franchisor), SRH (the franchisee and restaurant operator), Carl Payton (SRH president), and the manager, seeking damages for battery and intentional infliction of emotional distress. These defendants successfully moved for summary judgment on various grounds, giving rise to this appeal.

1. We note at the outset that Ellison's appellate brief purports to incorporate by reference arguments she made in certain briefs filed with the trial court.

[T]his practice is not approved by this Court and we decline to look in the record for matters which should have been set forth in the brief. Moreover, if we were to permit this practice a party could evade entirely the page limitations on briefs established in our Rules. See Court of Appeals Rule 24(f). Accordingly, we have limited our review of [Ellison's] arguments to those actually made in her appellate brief.

Todd v. Byrd.²

2. Summary judgment as to the restaurant manager. Ellison's complaint essentially makes claims against the manager for battery and intentional infliction of emotional distress. In a generic order, the trial court granted summary judgment to the manager. However, as Ellison has presented evidence supporting her allegation of battery, and as the manager has not shown why she should prevail as a matter of law, we must reverse the trial court's judgment as to the battery claim against the manager. With respect to the claim for intentional infliction of emotional distress, we conclude that the trial court correctly granted summary judgment.

(a) Battery. Ellison's verified complaint and deposition testimony allege that the manager "placed [Ellison] in a semi head lock position[,] and began shaking . . . while still locked around the neck and head area approx[imately] [t]hree times while asking, `Is everything ok now?'" As this case arises on appeal from a grant of summary judgment, we must view this evidence and all reasonable inferences and conclusions drawn from it in the light most favorable to the nonmovant, Ellison. See Matjoulis v. Integon Gen. Ins. Corp., supra, 226 Ga.App. at 459(1), 486 S.E.2d 684. Ellison "is to be given the benefit of all reasonable doubts in determining whether a genuine issue exists. The evidence must be construed most favorably to [her], and the trial court must give [her] the benefit of all favorable inferences that may be drawn from the evidence." Smith v. Sandersville Production Credit Assn.³ Further, our role as an appellate court prohibits us from evaluating the credibility of factual allegations contained in Ellison's verified complaint and deposition testimony, even in light of an affidavit by the manager which directly contradicts Ellison's account. See Miller v. Douglas⁴ ("[i]n motions for summary judgment, this court cannot consider the credibility of witnesses or their affidavits and a jury must resolve the question and the conflicts in the evidence which it produces").

When properly viewed in this light, Ellison's allegations give rise to a genuine issue as to whether the manager committed a battery.

In the interest of one's right of inviolability of one's person, any unlawful touching is a physical injury to the person and is actionable. Generally speaking, an "unlawful" touching is one which is "offensive," and an "offensive" touching is one which proceeds from anger, rudeness, or lust. The test . . . is what would be offensive to an ordinary person not unduly sensitive as to his dignity.

(Citations and punctuation omitted.) Newsome v. Cooper-Wiss, Inc.⁵ "A cause of action for . . . battery can be supported by even minimal touching." Darnell v. Houston County Bd. of Ed.⁶

"This Court has repeatedly held in battery cases that the unwanted touching itself constitutes the injury to the plaintiff." Vasquez v. Smith.⁷ Given the relatively low threshold required to prove battery, we must conclude that Ellison has created a factual issue as to whether a battery occurred. To hold otherwise here would run contrary to this precedent and to our mandate to view all evidence in the light most favorable to Ellison as the nonmoving party. Accordingly, the trial court erred in granting summary judgment to the manager.

(b) Intentional infliction of emotional distress. With respect to Ellison's claim for intentional infliction of emotional distress, we conclude that the trial court correctly granted summary judgment, because Ellison failed to demonstrate that she suffered severe emotional distress.

To prove her claim of intentional infliction of emotional distress, Ellison "must show that: (1) the defendant's conduct was intentional or reckless; (2) the conduct was extreme and outrageous; (3) there was a causal connection between the wrongful conduct and the emotional distress; and (4) the emotional distress was severe." (Punctuation omitted.) Cook v. Covington Credit of Ga.⁸

Whether a claim rises to the requisite level of outrageousness and egregiousness to sustain a claim for intentional infliction of emotional distress is a question of law. If the evidence shows that reasonable persons might find the presence of extreme and outrageous conduct and resultingly severe emotional distress, the jury then must find the facts and make its own determination.

(Citation omitted.) Yarbray v. Southern Bell, etc.⁹ See Pierce v. Wise.¹⁰ Such legal determinations are subject to de novo review on appeal in the summary judgment context. See Lockhart v. Marine Mfg. Corp.¹¹

With respect to the severity of the emotional distress, "[t]he conduct must inflict emotional distress so severe that no reasonable person could be expected to endure it." (Citation and punctuation omitted.) Udoinyion v. Re/Max of Atlanta.¹² This Court has noted that

[e]motional distress inflicted by another is not an uncommon condition; emotional distress includes all highly unpleasant mental reactions such as fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry, and nausea. It is only where it is extreme that liability arises. The law intervenes only where the distress inflicted is so severe that no reasonable [person] could be expected to endure it.

(Citation and punctuation omitted; emphasis supplied and omitted.) Peoples v. Guthrie.¹³

Here, Ellison admitted in her deposition that the entirety of her distress amounted to the fact that she was "very embarrassed," and that she worried she would be viewed as a "troublemaker." She did not complain of physical manifestations of the distress, and she did not seek medical attention as a result of the encounter. Although embarrassment and worry are distressful, plaintiffs are "expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. There is no occasion for the law to intervene in every case where someone's feelings are hurt." (Punctuation omitted.) Miraliakbari v. Pennicooke.¹⁴ Accordingly, we conclude that Ellison failed to present evidence demonstrating that her emotional distress, i.e., embarrassment and worry, was "so severe that no reasonable [person] could be expected to endure it." See Bridges v. Winn-Dixie Atlanta¹⁵ ("[i]t is for the court to determine whether on the evidence severe emotional distress can be found") (punctuation omitted). Therefore, Ellison failed to meet her burden to demonstrate her claim for intentional infliction of emotional distress, and the trial court did not err in granting...