Flowers v. Bank of America Nat. Trust and Sav. Ass'n, A8201

• Decision Date: 18 April 1984
• Docket Number: No. A8201,A8201
• Parties: Jack S. FLOWERS, Appellant, v. BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, a national banking association; Chen Holding Co., an Oregon corporation, Esther Chang and James Jan Ping Tsui, dba Uncle Chen's, Respondents. 00196; A 26738.
• Court: Oregon Court of Appeals

Page 1385

679 P.2d 1385

67 Or.App. 791

Jack S. FLOWERS, Appellant, v. BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, a national banking association; Chen Holding Co. an Oregon corporation, Esther Chang and James Jan Ping Tsui, dba Uncle Chen's, Respondents.

No. A8201 00196; A 26738.

Court of Appeals of Oregon.

Argued and Submitted Nov. 16, 1983.

Decided April 18, 1984.

Carlton W. Hodges, Portland, argued the cause and submitted the briefs for appellant.

Timothy N. Brittle, Portland, argued the cause for respondents Chen Holding Co., Esther Chang and James Ping Tsui, dba Uncle Chen's. With him on the brief were Acker, Underwood & Smith, Portland.

Jeffery M. Batchelor, Portland, argued the cause for respondent Bank of America Nat. Trust and Sav. Ass'n. With him on the brief were Spears, Lubersky, Campbell, Bledsoe, Anderson & Young, Portland.

Before RICHARDSON, P.J., and VAN HOOMISSEN and NEWMAN, JJ.

NEWMAN, Judge.

Plaintiff appeals from a judgment that dismissed his complaint for failure to state a claim. ORCP 21 A(8). He alleges that defendant Bank of America (Bank) negligently caused him emotional distress and that both Bank and the defendants doing a restaurant business as Chen's Restaurant (Chen) intentionally caused him emotional distress and invaded his privacy. We affirm.

Plaintiff alleges: Bank issued its Visa credit card to Cunico Corporation and agreed to extend credit when an authorized user presented the card to a participating merchant for payment for goods and services; plaintiff was president of Cunico and an authorized user; Chen was a participating merchant; Bank miscalculated and misinterpreted "plaintiff's" payment record and negligently notified Chen that the credit card was cancelled and should not be honored; Bank failed to take reasonable steps to insure that it would not communicate such erroneous information; plaintiff and three of his guests dined at Chen and plaintiff presented the credit card to pay for the meals; Chen, acting on the information Bank had furnished to it, refused to honor the card; and as a result plaintiff suffered severe mental and emotional distress.

Plaintiff's second claim was that both Bank's and Chen's conduct was outrageous in the extreme because they deliberately, recklessly and wantonly confiscated the card in the presence of plaintiff's guests and other patrons of the restaurant, refused his reasonable request to make further inquiry as to the card's validity, refused to discuss the matter with him, demanded and received cash payment for the meal, called the police and caused them to remove plaintiff from the restaurant. He asked for general and punitive damages. Neither claim alleges actual or threatened physical harm.

The Oregon Supreme Court has stated:

" * * * This court has recognized common law liability for psychic injury alone when defendant's conduct was either intentional or equivalently reckless of another's feelings in a responsible relationship, or when it infringed some legally protected interest apart from causing the claimed distress, even when only negligently. The court has found infringements of legal rights in an invasion of privacy, Hinish [v. Meier & Frank Co., 166 Or. 482, 113 P.2d 438 (1941) ], supra n. 4, in the negligent removal of the remains of a deceased spouse, Hovis [v. City of Burns, 243 Or. 607, 415 P.2d 29 (1966) ], supra n. 17, and in the negligent delivery of a passport that allowed plaintiff's child to be taken from this country, McEvoy [v. Helikson, 277 Or. 781, 562 P.2d 540 (1977), supra n. 17. But we have not yet extended liability for ordinary negligence to solely psychic or emotional injury not accompanying any actual or threatened physical harm or any injury to another legally protected interest." Norwest v. Presbyterian Intercommunity Hosp., 293 Or. 543, 558, 652 P.2d 318 (1982). (Footnotes omitted.)

In Meyer v. 4-D Insulation Co., Inc., 60 Or.App. 70, 652 P.2d 852 (1982), we analyzed cases of liability for mental distress in the absence of physical injury:

"These cases can be grouped into four main categories, although they cannot be said to form a definite pattern: (1) certain intentional torts, including trespass to land * * * intentional interference with contractual relations * * * racial discrimination; (2) private nuisance * * *; (3) invasion of privacy * * *; (4) miscellaneous cases: unlawful disinterment of spouse's remains * * * infringement of right to child custody resulting from attorney's failure to deliver client's passport into 'escrow' to prevent client from taking child out of the country." 60 Or.App. at 73, 652 P.2d 318.

Here, plaintiff's first claim is not for an intentional tort, a private nuisance or an invasion of privacy. The interest that Bank allegedly carelessly invaded was plaintiff's contractual right to have the credit card honored. The question is whether that careless invasion is, as a matter of policy, of sufficient importance to merit protection by an award of damages if the only result is emotional distress. We hold that it is not. See Meyer v. 4-D Insulation Co., Inc., supra, 60 Or.App. at 74, 652 P.2d 318. The court did not err in dismissing plaintiff's first claim against Bank.

Bank and Chen can be liable for intentional infliction of emotional distress or "outrageous conduct" if they (1) intended to inflict emotional distress, Hall v. The May Dept. Stores, 292 Or. 131, 135, 637 P.2d 126 (1981); (2) caused "mental or emotional distress of a severe and serious kind," Hall v. The May Dept. Stores, supra, 292 Or. at 135, 637 P.2d 126; and (3) "went beyond the outer limits of what a reasonable person in plaintiff's position should be expected to tolerate in an arm's length dispute." Brewer v. Erwin, 287 Or. 435, 458, 600 P.2d 398 (1979). We find that defendant's conduct, as pleaded, did not exceed the outer limits of what a reasonable person should be expected to tolerate, and we therefore need not decide whether plaintiff's complaint adequately alleges the other required elements.

In Hall v. The May Dept. Stores, supra, 292 Or. at 137, 637 P.2d 126, the court stated:

"To put the same point another way, the law, much as in negligence cases, calls on the factfinder, jury or judge, to decide two kinds of questions. One kind concerns what the defendant did, with what intent, and to what extent his acts caused the plaintiff severe emotional distress. These are questions of historical facts. Assuming that each factual element is shown, the other decision is whether the offensiveness of the defendant's conduct exceeds any reasonable limit of social toleration. This is a judgment of social standards rather than of specific occurrences. It is the kind of judgment for which the law does not demand the same evidentiary basis that is required for reconstructing disputed events. Despite this distinction, however, each issue is subject to judicial decision in the familiar manner when reasonable factfinders could reach only one conclusion on the evidence. As the court stated in Pakos v. Clark [253 Or. 113, 453 P.2d 682 (1969) ], supra:

" 'It was for the trial court to determine, in the first instance, whether the defendants' conduct may reasonably be regarded as so extreme and outrageous as to permit recovery. If the minds of reasonable men would not differ on the subject the court was obliged to grant an order of involuntary nonsuit, which in this case was done.' "

Words like "outrageous" and "extreme," the court said,

" * * * are not words of art; other words or phrases could serve as well. All are designed only to express the outer end of some gradation or scale of impropriety and social disapproval. No more can be conveyed by defining one epithet by another. As the court said in Rockhill v. Pollard, supra, 259 Or. [54] at 60 [485 P.2d 28 (1971) ], for the purpose of informing a trial court's exercise of its own...