Gmuer v. Garner
| Decision Date | 15 October 1982 |
| Docket Number | No. 81-2348,81-2348 |
| Citation | 426 So.2d 972 |
| Parties | 9 Ed. Law Rep. 783 Rosanne GMUER, Appellant, v. Ambrose GARNER, individually and as President of Hillsborough Community College; The District Board of Trustees of Hillsborough Community College, Florida, a corporate body public; Colleen L. Bevis, as Chairperson of the Board of Trustees; Ron Cacciatore, E.L. Bing, Julia B. Williams, B. Lee Elam, Hillman Bowden, and Jerry Harvey, as Trustees, Appellees. |
| Court | Florida District Court of Appeals |
Stevan T. Northcutt of Levine, Freedman, Hirsch & Levinson, Tampa, for appellant.
Richard Candelora and Marvin E. Barkin, of Trenam, Simmons, Kemker, Scharf, Barkin, Frye & O'Neill, and W. Reynolds Allen of Hogg, Allen, Ryce, Norton & Blue, Tampa, for appellee Ambrose Garner.
John M. Breckenridge, Jr. and Marian P. McCulloch, of Greene, Mann, Rowe, Stanton, Mastry & Burton, Tampa, for appellee Board of Trustees of Hillsborough Community College.
We affirm the trial court's order dismissing appellant Rosanne Gmuer's third amended complaint against appellees Ambrose Garner and Hillsborough Community College with prejudice. The trial court has ably set forth its findings and followed the applicable case law in support thereof, and we adopt its order as our opinion. The Each and every count of plaintiff's Third Amended Complaint is founded upon allegations of sexually seductive invitations to plaintiff from defendant Garner. These so-called "propositions" occurred, plaintiff says, while: She was employed by Hillsborough Community College and Garner was President and at a time when the Trustees of the College should have known of Dr. Garner's alleged propensities for lusting after those of the opposite sex in positions as plaintiff, to paraphrase the gravamen of plaintiff's causes of action. None of the allegations against the principal tort reasor [sic] involve a "touching" or any form of battery. They are limited to the use of offensively suggestive and opprobrious words directed, it is alleged, to plaintiff by her superior on the job. Plaintiff's declination of the proposition or propositions is alleged to have resulted in the loss of her job. This Court is asked by plaintiff to find that plaintiff's cause of action should be sustained principally on the thesis that the defendant Garner's actions, if true, support a claim for intentional infliction of emotional distress.
pertinent portions of that order read as follows:
... [T]his Court is persuaded that the tort upon which the Third Amended Complaint is constructed is not recognized in Florida.
The tort of intentional infliction of emotional distress had its genesis in the Restatement of Torts, 2d, Sec. 46. It has been applied in Florida but the District Courts confronted with the question appear to be divided. In Ford Motor Credit Co. v. Sheehan [Fla.App.], 373 So.2d 956, the First District Court found that a debtor was warranted in suing his creditor for making a deliberately false report that the debtor's children had been in a serious automobile accident. On those facts, it was held that an independent tort for outrageous conduct of such a flagrant and indecent character could be maintained by the party in position of the debtor claiming severe emotional distress. The question was subsequently certified to the Supreme Court.
On the other hand, the Third District Court has seemingly rejected the doctrine in Gellert v. Eastern Airlines [Fla.App.], 370 So.2d 802. In Gellert, the Third District Court adhered to doctrinal law going back to Kirksey v. Jernigan, 45 So.2d 188 (Fla.1950) that intentional infliction of emotional distress is not actionable "when not incident to or connected with an independent tort."
In this case, there was no independent tort. There were words having a commonly understood meaning which were insulting to the plaintiff, and her refusal to respond to the invitations in a positive way are alleged to have brought about the non-renewal [sic] of her contract of employment.
Of course, this Court has already dismissed the count for wrongful termination of employment. That event, therefore, cannot be the basis for an independent tort. Daniel v. Magma Copper, 620 P.2d 699, 127 Ariz. 320 (1980); Novosel v. Sears Roebuck, 495 F.Supp. 344 (1980); M.B.M. Co. v. Counce 596 S.W.2d 681.
Mere words (or threats) alone do not constitute an assault, even though they may put another in apprehension of immediate injury or offensive contract [sic]. 3 Fla.Jur. Assault & Battery, Sec. 5; Gelhaus v. Eastern Airlines [5th Cir.], 194 F.2d 774.
The reasoning of the Gellert court and the earlier cases undergirding it impress this Court as expressive of the soundest and best rule. The Sheehan case does not really present a conflict on a close reading. Sheehan's cause of action was sustained on a pure application of Section 46 of the Restatement. There, the allegations of the creditor's misconduct were so patently outrageous and repugnant as to support a cause of action on essentially the same criteria applied in Gellert.
....
This Court has the burden of determining, in the first instance, whether defendant Garner's behavior would, if true, be The obnoxious and socially odious words and suggestions allegedly coming from defendant Garner, if true, were nevertheless without physical contact or threat of bodily harm to plaintiff. The declination to extend her employment contract has no legal significance as none of the defendants were legally obligated to do so. That event and the other consequences complained of are found to be insufficient as a matter of law to state grounds for relief under existing law. The remaining counts of the Third Amended Complaint also fall in view of this Court's ruling that the underpinnings of the case are vulnerable to the motion to dismiss.
reasonably regarded as so extreme and outrageous as to permit recovery even under the more liberal test approved by the Sheehan court. It is the view of this Court, however, that whether one selects the criteria of Sheehan or of Gellert, the results are the same.
Plaintiff may not be without remedy. At the Federal level, there are a spate of recent cases sustaining claims against employers on pleading and proof of sexual discrimination, including demeaning sexual propositions to female employees from superiors on the job, e.g. Barnes v. Costle [D.C.Cir.], 561 F.2d 983; Bundy v. Jackson [D.C.Cir.], 641 F.2d 934. The cases just cited involve federal employees, but other provisions of the Civil Rights Act are believed to extend the same requirements to private, non-federal [sic] employers as well.
In addition, we would specifically point out that since, as the trial court correctly explained, appellant has not stated a cause of action against Garner, see also Forde v. Royal's, Inc., 537 F.Supp. 1173 (S.D.Fla.1982) (), she has ipso facto not alleged a cause of action against Hillsborough Community College. In order to impose liability on an employer for negligent hiring or retention of an employee, the plaintiff must first establish liability on the part of the employee by virtue of the employee's wrongful act against the plaintiff. Texas Skaggs,...
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