Food Lion, Inc. v. Clifford

• Decision Date: 12 November 1993
• Docket Number: No. 93-813,93-813
• Citation: 629 So.2d 201
• Parties: 8 Indiv.Empl.Rts.Cas. (BNA) 1831, 18 Fla. L. Weekly D2403 FOOD LION, INC. and Richard Walker, Appellants, v. Joseph P. CLIFFORD and Kristie Clifford, Appellees.
• Court: Florida District Court of Appeals

Page 201

629 So.2d 201

8 Indiv.Empl.Rts.Cas. (BNA) 1831, 18 Fla. L.

Weekly D2403

FOOD LION, INC. and Richard Walker, Appellants, v. Joseph P. CLIFFORD and Kristie Clifford, Appellees.

No. 93-813.

District Court of Appeal of Florida Fifth District.

Nov. 12, 1993.

Rehearing Denied Dec. 28, 1993.

Carol M. Bishop and Dennis R. Schutt of Coker, Myers, Schickel, Cooper & Sorenson, P.A., Jacksonville, for appellants.

William L. Townsend, Jr. and Robert L. McLeod, II of Walton, Townsend & McLeod, Palatka, for appellees.

COBB, Judge.

The issue on this appeal is whether the plaintiffs below (hereinafter Clifford) established a prima facie case based upon intentional infliction of mental distress, sometimes called the tort of outrage. We find that they did not.

Joseph Clifford, a deli employee of Food Lion, was observed consuming food products from the deli by the assistant store manager. A few days later, Food Lion's loss prevention agent, Richard Walker, arrived at the store to investigate the stealing of deli goods by employees. During interviews, Clifford generally admitted taking the food, which was valued at $10.00, without paying for it. The loss prevention agent concluded that Clifford had engaged in theft and presented him with three options. First, the loss prevention agent could report the incident to local authorities; second, the store could take disciplinary action up to and including termination; and third, Clifford was told he could execute a "loss prevention citation" which required reimbursement for the goods taken plus an additional $200.00 which purportedly was a form of civil restitution pursuant to section 772.11, Florida Statutes (1991).

Clifford subsequently agreed to pay $10.00 but refused to execute the citation because of the $200.00. The loss prevention agent then contacted the sheriff's office and reported the theft. Clifford was subsequently issued a notice to appear. He continued to work for Food Lion until January 5, 1991, when he was terminated. On February 25, 1991, the state filed an information charging Clifford with petit theft which the state later decided to nolle prosequi.

Clifford then filed a complaint for damages against Food Lion and the loss prevention agent for malicious prosecution and intentional infliction of emotional distress including a claim for punitive damages. At trial, all attempts by the appellants to obtain a directed verdict were rejected by the court. Ultimately, the jury rejected Clifford's claim of malicious prosecution, but found in his favor as to intentional infliction of emotional distress. Clifford was awarded compensatory damages and the jury found that the loss prevention agent's conduct did not warrant punitive damages, but that Food Lion's conduct, which consisted of directing the actions of Walker, did warrant punitive damages.

The appellants argue that the trial court erred in denying their motion for directed verdict because the conduct which was presented at trial did not rise to the level of outrageousness necessary to sustain an action for intentional infliction of emotional distress. We agree and reverse. We have long recognized that a cause of action for intentional infliction of emotional distress or outrage essentially involves the deliberate or reckless infliction of mental suffering on another. The elements of this cause of action are: (1) the wrongdoer's conduct was intentional or reckless; that is, he intended his behavior when he knew or should have known that emotional distress would likely result; (2) the conduct was outrageous; that is, as to go beyond all bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized community; (3) the conduct caused emotional distress; and (4) the emotional distress was severe. Williams v. City of Minneola, 619 So.2d 983, 986 (Fla. 5th DCA 1993).

In Food Fair, Inc. v. Anderson, 382 So.2d 150 (Fla. 5th DCA 1980), we embraced Comment (d) to section 46, Restatement (Second) of Torts (1965):

It has not been enough that the defendant has acted with an intention which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by "malice," or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the...