Gattison v. South Carolina State College

Decision Date03 November 1994
Docket NumberNo. 2315,2315
Citation318 S.C. 148,456 S.E.2d 414
CourtSouth Carolina Court of Appeals
Parties99 Ed. Law Rep. 627 J. Leonard GATTISON, Respondent, v. S.C. STATE COLLEGE, Albert E. Smith, Orlando White, Mool S. Shekhawat and Jimmy Ruff, Defendants, of whom S.C. State University, Albert E. Smith, Orlando White and Jimmy Ruff are Appellants. . Heard

Charles T. Speth, II, and Leigh Mullikin Nason, of Haynsworth, Baldwin, Johnson & Greaves, Columbia, and Gwendolyn L. Fuller, of S.C. State University, Orangeburg, for appellants.

J. Lewis Cromer and Craig L. Berman, of Cromer & Mabry, Columbia, for respondent.

CONNOR, Judge:

Leonard Gattison sued S.C. State University 1 under the Whistleblower Act and sued the named individual defendants under the common law tort of outrage. The jury returned a verdict of $75,000 actual damages in his favor on the whistleblower cause of action. The jury also returned verdicts for Gattison against Albert Smith, Orlando White, and Jimmy Ruff on the outrage claims. The school and individuals appeal on several grounds. We affirm the whistleblower verdict against the university, but reverse the outrage verdict against the named individuals.

APPEAL OF S.C. STATE UNIVERSITY

S.C. State University seeks a new trial on the whistleblower cause of action based solely on two alleged procedural errors. We find no error and affirm the judgment.

I. Deposition Issue

The university asserts the trial court erred in granting Gattison's motion for a protective order which terminated his pre-trial deposition.

When Gattison moved to terminate his deposition, the university and individual defendants had questioned him for four days for a total of thirty and one-half hours. The deposition had generated over two thousand pages of testimony and two hundred exhibits. The judge granted Gattison's motion.

The university and individual defendants thoroughly cross-examined Gattison at trial, never claiming the termination of pre-trial deposition hindered their efforts. The rules of civil procedure allow the trial judge broad latitude in limiting the scope of discovery when the discovery process threatens to become abusive. Hamm v. S.C. Public Serv. Comm'n, --- S.C. ----, 439 S.E.2d 852 (1994). We find no abuse of discretion by the court in this instance.

II. Sequestration

The university next contends the court erred in allowing two witnesses who had not been sequestered to testify in reply. Again, we find no error.

At the beginning of the trial, the court ordered sequestration of all witnesses except the parties. During its case in chief, the university called a member of the Board of Trustees of the school as a witness. Among other things, the witness testified Gattison sent him letters complaining about the school. He also described Gattison's conduct at a board meeting.

Gattison later called two reply witnesses, who had not been sequestered, to dispute these portions of the board member's testimony.

Whether a witness should be exempted from a sequestration order is within the trial court's discretion. Constant v. Spartanburg Steel Prods. Inc., --- S.C. ----, 447 S.E.2d 194 (1994). Given the limited nature of the reply testimony on these collateral matters, the court did not abuse its discretion by allowing these unsequestered witnesses to testify.

APPEAL OF SMITH, WHITE, AND RUFF

As previously noted, the jury returned verdicts for Gattison for actual and punitive damages against Smith, White, and Ruff on the common law outrage cause of action. 2 They appeal: (1) the court's denial of several trial motions, and (2) the court's refusal to admit testimony of their net worth. We conclude the trial court should have directed a verdict for the individual defendants because the conduct Gattison alleged did not rise to the level required for outrage.

To establish the tort of intentional infliction of emotional distress, or outrage, the plaintiff must establish the following: (1) the defendant intentionally or recklessly inflicted severe emotional distress, or knew that distress would probably result from his conduct; (2) the defendant's conduct was so extreme and outrageous that it exceeded all possible bounds of decency and was furthermore atrocious, and utterly intolerable in a civilized community; (3) the actions of the defendant caused the plaintiff's emotional distress; and (4) the emotional distress suffered by the plaintiff was so severe that no reasonable person could be expected to endure it. Initially, the trial court determines whether the defendant's conduct was extreme and outrageous enough to permit recovery; the judge should submit the issue to the jury only where reasonable persons might differ on this issue. Shupe v. Settle, --- S.C. ----, 445 S.E.2d 651 (Ct.App.1994) (citing Holtzscheiter v. Thomson Newspapers, Inc., 306 S.C. 297, 411 S.E.2d 664 (1991)).

Since the Supreme Court first recognized outrage in Ford v. Hutson, 276 S.C. 157, 276 S.E.2d 776 (1981), a number of cases have discussed what conduct is extreme enough to permit recovery under that cause of action. In Ford, the Supreme Court found the conduct sufficiently severe to reach the level required for outrage or intentional infliction of emotion distress. There a home buyer subjected the plaintiff, a realtor, to repeated public browbeatings, obscenities, and threats over a two-year period. In fact, he even entered her home without permission and verbally attacked her in front of guests.

In Corder v. Champion Road Machinery International Corporation, 283 S.C. 520, 324 S.E.2d 79 (Ct.App.1984), we held that mere retaliatory discharge for filing a workers' compensation claim, absent claims of verbal assaults or hostile, abusive encounters, did not rise to the level required for the tort of outrage. Moreover, later that same year, we ruled that a lawyer's act of overlooking an easement in a title search, though negligent, was not outrageous conduct as a matter of law. Caddel v. Gates, 284 S.C. 481, 327 S.E.2d 351 (Ct.App.1984).

The following year we expressed our reluctance to permit the tort of outrage to become a "panacea for wounded feelings rather than reprehensible conduct" in Todd v. South Carolina Farm Bureau Mutual Insurance Company, 283 S.C. 155, 171, 321 S.E.2d 602, 611 (Ct.App.1984) rev'd on other grounds, 287 S.C. 190, 336 S.E.2d 472 (1985). We held the fact that an independent contractor retained by Todd's employers to conduct an investigation lied and also asked Todd to take an illegal voice stress analysis test was not sufficient to establish outrageous conduct as a matter of law.

Justice Ness, in Bell v. Dixie Furniture Company, 285 S.C. 263, 329 S.E.2d 431 (1985), found there were sufficient questions of fact to preclude summary judgment where a furniture seller refused to accept the amount of money the purchaser had been ordered by a magistrate to pay. Two months after that opinion we held the conduct of converting a promissory note and then maliciously bringing an action based on the note did not "exceed all possible bounds of human decency." Save Charleston Foundation v. Murray, 286 S.C. 170, 333 S.E.2d 60 (Ct.App.1985). We noted "there is some conduct involving personal interaction and causing emotional distress, that, as a matter of law is beyond the embrace of the new tort [of outrage]." Id. at 180, 333 S.E.2d at 66.

We next ruled on what conduct rises to the level of outrage in Folkens v. Hunt, 290 S.C. 194, 348 S.E.2d 839 (Ct.App.1986). There we held Hunt's conduct, consisting of verbally abusive accusations that plaintiff owed hundreds of thousands of dollars in taxes and filed fraudulent tax returns, did not rise to the standard of outrageousness the law required. We noted that "not all conduct ... causing emotional distress in a business setting may serve as a basis for an action alleging outrage." Id. at 203, 348 S.E.2d at 845.

In 1987 we held the act of plaintiff's ex-husband and the parties' children involuntarily committing plaintiff to the state hospital did not reach the standard required for outrage where the defendants acted in good faith and in a reasonable manner. Manley v. Manley, 291 S.C. 325, 353 S.E.2d 312 (Ct.App.1987). Approximately two months later we ruled, in an employment setting, that the trial judge properly granted summary judgment to a corporation. We held management's alleged acts of continually denying plaintiff's medical excuses and of willfully engaging him in verbal arguments over his absences, knowing of his inability to talk because of vocal chord surgery, did not reach the extreme and atrocious level required for outrage. Butts v. AVX Corp., 292 S.C. 256, 355 S.E.2d 876 (Ct.App.1987).

Once again, in Andrews v. Piedmont Air Lines, 297 S.C. 367, 377 S.E.2d 127 (Ct.App.1989), we found the conduct about which the plaintiff complained did not rise to the level required for outrage. There, Andrews, who was in a wheelchair, alleged Piedmont had removed him from the departure gate at the airport because he was not able to travel, and placed him in a baggage area near the ticket counter. The evidence was undisputed, however, that Piedmont employees called the hospital to come get Andrews, offered him something to drink, and occasionally checked on him.

Wright v. Sparrow, 298 S.C. 469, 381 S.E.2d 503 (Ct.App.1989), is most similar to the case at hand. Wright alleged Sparrow plotted to build a case to justify firing her by loading her with responsibility while stripping her of authority, and by changing the way she should perform her duties and then accusing her of not following directions. We held, absent hostile or abusive encounters, or coercive or oppressive conduct, Sparrow's actions were not so extreme and outrageous as to exceed all bounds of decency.

The Supreme Court deviated from the string of cases finding conduct not outrageous in McSwain v. Shei, 304 S.C. 25, 402 S.E.2d 890 (1...

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