Foster v. Trentham's Inc., Civ. No. 3-78-127.
| Decision Date | 17 August 1978 |
| Docket Number | Civ. No. 3-78-127. |
| Citation | 458 F. Supp. 1382 |
| Parties | Frank FOSTER and wife, Gerrie Foster v. TRENTHAM'S INC. |
| Court | U.S. District Court — Eastern District of Tennessee |
L. Anderson Galyon, III, Knoxville, Tenn., Ronald E. Sharp, Sevierville, Tenn., for plaintiffs.
Frank Q. Vettori, Knoxville, Tenn., for defendant.
Plaintiffs Gerrie Foster and her husband brought this diversity action charging the defendant with malicious prosecution and "outrageous conduct causing severe emotional distress". The defendant has moved to dismiss the claim of Gerrie Foster on the ground that she can recover in this action only under the tort of outrageous conduct and that the complaint fails to state a cause of action under that tort.
The plaintiffs do not dispute the defendant's claim that Gerrie Foster can recover, if at all, only for the tort of outrageous conduct. Furthermore, the Court agrees with the defendant that under Tennessee law a complaint alleging outrageous conduct must specify the conduct deemed to be outrageous and that the Court must assess the sufficiency of the allegations as a matter of law. See Swallows v. Western Electric Co., Inc., 543 S.W.2d 581 (Tenn. 1976). However, while expressing no view on the likelihood of plaintiffs' success on the merits, the Court does conclude that the complaint is sufficient to survive a motion to dismiss at this stage of the proceedings.
Swallows v. Western Electric Co., Inc., supra, at 582 (citations omitted). Plaintiffs have alleged that the defendant maliciously instituted criminal proceedings against Frank Foster thereby causing him to be arrested, incarcerated and extradicted, while knowing that such criminal proceedings were invalid and could not result in conviction. This alleged conduct appears to be at least as outrageous as that stated by the Tennessee Supreme Court to justify recovery in Medlin v. Allied Investment Co., 217 Tenn. 469, 398 S.W.2d 270 (1966). In Medlin, the Court specifically agreed that a cause of action had been stated in Urban v. Hartford Gas Co., 139 Conn. 301, 93 A.2d 292 (1952). In Urban, because the defendant mistakenly believed that the plaintiffs had not paid installments due on a water heater, the defendant repossessed the appliance. At the time of the repossession, employees stated to several persons that the plaintiffs did...
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...member of the third person's immediate family, and the third person witnessed the outrageous conduct. 4 See, e.g., Foster v. Trentham's Inc., 458 F.Supp. 1382 (E.D.Tenn.1978) (applying Tennessee law); Croft v. Wicker, 737 P.2d 789 (Alaska 1987); Rogers v. Williard, 144 Ark. 587, 223 S.W. 15......
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...v. Hossle, 381 N.W.2d 641 (Iowa 1986); and Nancy P. v. D'Amato, 401 Mass. 516, 517 N.E.2d 824, 827-28 (1988). In Foster v. Trentham's Inc., 458 F.Supp. 1382 (E.D.Tenn.1978), the court refused to dismiss the wife's complaint for intentional infliction of emotional distress under § 46(2) even......
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...does not apply to this case. See id. at 832, 167 Cal.Rptr. 831,616 P.2d 813. The final case cited by Defendant is Foster v. Trentham's Inc., 458 F.Supp. 1382 (E.D.Tenn.1978), where the plaintiff brought an action for intentional infliction of emotional distress based on the malicious prosec......
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