Gomez v. Hug

• Decision Date: 03 June 1982
• Docket Number: No. 53111,53111
• Citation: 645 P.2d 916,7 Kan.App.2d 603
• Parties: Silvino GOMEZ, Appellant, v. Roland HUG and Board of County Commissioners of Shawnee County, Kansas, Appellees.
• Court: Kansas Court of Appeals

Page 916

645 P.2d 916

7 Kan.App.2d 603

Silvino GOMEZ, Appellant, v. Roland HUG and Board of County Commissioners of Shawnee

County, Kansas, Appellees.

No. 53111.

Court of Appeals of Kansas.

June 3, 1982.

Syllabus by the Court

1. In an appeal from summary judgment granted to the individual defendant, the record is examined and it is held : (1) The trial court erred in sustaining the motion for summary judgment on the issues of assault and outrage. (2) The trial court did not err in sustaining the motion for summary judgment on the issues of defamation and deprivation of civil rights pursuant to 42 U.S.C. § 1983, all as set forth with more particularity in the opinion.

2. County commissioners are elected officials whose powers are conferred upon them by statute. They act independently as public officers, not as agents of the commission; therefore, the county cannot be held liable under the doctrine of respondeat superior for acts of neglect or misconduct attributed to individual commissioners.

Pedro Luis Irigonegaray and Pantaleon Florez, Jr., of Hawver & Irigonegaray, P. A., Topeka, for appellant.

Terry E. Beck, of Tilton, Dillon, Beck & Crockett, Topeka, for appellee Roland Hug.

Donna Voth, Asst. County Counselor, Topeka, for appellee Bd. of County Com'rs.

Before REES, P. J., MEYER, J., and RICHARD W. WAHL, District Judge, Assigned.

RICHARD W. WAHL, District Judge, Assigned:

In keeping with the duties of a court in ruling on a motion for summary judgment, the "facts" as stated herein are gleaned from the record and are those "facts" viewed in the light most favorable to the plaintiff. They are not a recitation of facts found by the trier of fact from an evidentiary hearing, nor are they a statement of "facts" as this Court believes they should be found by the trier of facts at an evidentiary hearing.

On April 21, 1978, Silvino Gomez was employed as a supervisor at the Shawnee County fairgrounds. His immediate supervisor was the fairgrounds administrator, Robert Kanatzer. During the evening hours of April 21, 1978, Gomez and Kanatzer were engaged in preparing an area of the fairgrounds for a horse show. They learned of a waterline break and, after determining the problem, proceeded to the administrator's office to phone a piping contractor.

Appellee Roland Hug, a member of the Board of County Commissioners of Shawnee County, and a companion, Robert Corbett, were in Kanatzer's office when Gomez and Kanatzer arrived. As they entered the office, Hug asked Kanatzer, "What is that fucking spic doing in the office?" Hug then repeated the question, again referring to Gomez as a "fucking spic." Hug then ordered Gomez over to where he was, again referring to Gomez as a "fucking spic." Gomez complied with Hug's order to approach him and inquired of Hug as to what he meant by that name. Gomez testified in his deposition that the following exchange took place between him and Hug:

"A. ... 'Commissioner, you have repeatedly stated that remark throughout the day and in the past day or two. Can you give me your interpretation of a fucking spic?' He said, 'You are a fucking spic.' I said, 'What does it mean?' He said, 'A fucking Mexican greaser like you, that is all you are. You are nothing but a fucking Mexican greaser, nothing but a pile of shit.' And he repeated it over and over and he raised his fist and he said, 'Now what are you going to do about it?' He got that close to me (indicating) and said, 'What are you going to do about it?' He kept hollering it out and hollering it out. He said, 'Go ahead and do something about it, you fucking Mexican greaser. I have told you what you are. You are nothing but a fucking spic.' And he repeated it over and he kept shaking his fists in front of my eyes and pounding on the desk and he would come up to me and say, 'Are you going to do something, you coward, you greaser, you fucking spic? What are you going to do? Don't stand there like a damn fool because that is all you are is a pile of shit.'

"Q. (by Mr. Beck) These are the exact words that you are using? Are these all exact quotes of Mr. Hug that you are giving us here right now?

"A. Yes. He repeated it over and over.

"Q. You stated he was pounding the desk with his fist?

"A. Pardon?

"Q. Did you say he was pounding the desk with his fist?

"A. He caught me offguard when he said that to me because I didn't expect that to come from a Commissioner. In fact, I didn't expect it to come from anyone. But we are speaking about Roland Hug. He kept threatening me. What was I going to do about it? He kept putting his fist in front of my face and pounding on that table, 'What are you going to do about it?' and repeating it over and over that I was nothing but a fucking spic. 'Now, you said you know what the definition of a spic is. You are nothing but a fucking spic and a Mexican greaser,' and he kept repeating it over and over, and he kept shaking his fist in front of me. I was froze because I was afraid of the man. For the first time in my life, I was terrified of one man calling me that. I was afraid for my job. I was afraid for my family."

It is variously estimated that this tirade lasted from five to fifteen minutes. After the exchange between Gomez and Hug, Kanatzer escorted Gomez out of the office and took him home. Gomez appeared to be upset.

Gomez began having serious medical problems. He sought medical advice and treatment from Dr. D. J. Weber, his family physician, Dr. Vinod Patel, a neurologist, and Dr. James N. Nelson, a psychiatrist. Both Dr. Nelson and Dr. Patel stated in their reports that Gomez' medical problems were related to the complained-of incident. Gomez was hospitalized from July 5, 1978, through July 18, 1978. He was unable to work due to his health-related problems and finally resigned his job with the county in November, 1979.

Appellees moved for summary judgment and the motion was sustained and judgment entered for the appellees. Gomez appealed.

K.S.A. 60-256(c ) provides that a motion for summary judgment may be sustained only if the record before the court shows "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."

In Farmers Ins. Co. v. Schiller, 226 Kan. 155, 158, 597 P.2d 238 (1979), the Supreme Court held:

"Summary judgment may be granted when the record before the court shows conclusively there remains no genuine issue as to any material fact after the party against whom the motion was filed has failed to controvert a showing by affidavit, deposition, or otherwise that the moving party is entitled to judgment."

In ruling on a motion for summary judgment, the district court must view the record in the light most favorable to the party against whom the motion is filed.

"In considering a motion for summary judgment a trial court must give to a litigant against whom judgment is sought the benefit of all inferences that may be drawn from the admitted facts under consideration. (Timi v. Prescott State Bank, 220 Kan. 377, Syl. P 2, 553 P.2d 315 (1976).) A court should be cautious in granting a motion for summary judgment when resolution of the dispositive issue necessitates a determination of the state of mind of one or both of the parties. (Henrickson v. Drotts, 219 Kan. 435, 438, 548 P.2d 465 (1976).)" Bowen v. Westerhaus, 224 Kan. 42, 45, 578 P.2d 1102 (1978).

Another test for the trial court was stated in Pedi Bares, Inc. v. First National Bank, 223 Kan. 477, Syl. P 2, 575 P.2d 507 (1978):

"It is only when it can be said that reasonable persons could reach but one conclusion from the same evidence that an issue may be decided as one of law. Summary judgment should never be granted merely because the court may believe movant will prevail if the action is tried on the merits."

If there is a reasonable doubt as to existence of a material fact, a motion for summary judgment will not lie. Welch v. Young, 225 Kan. 189, 589 P.2d 567 (1979); Secrist v. Turley, 196 Kan. 572, 412 P.2d 976 (1966).

Did the district court err in determining, as a matter of law, that no assault occurred?

An assault is defined in PIK Civ.2d 14.01 (1977) as follows:

"An assault is an intentional threat or attempt, coupled with apparent ability, to do bodily harm to another, resulting in immediate apprehension of bodily harm. No bodily contact is necessary."

Words alone will not constitute an assault, as stated in Restatement (Second) of Torts § 31 (1965):

"Words do not make the actor liable for assault unless together with other acts or circumstances they put the other in reasonable apprehension of imminent harmful or offensive contact with his person."

Gomez' testimony contained the following statements:

"And he repeated it over and over and he raised his fist and he said, 'Now what are you going to do about it?' "

"He got that close to me (indicating) and said, 'What are you going to do about it?' "

"And he repeated it over and he kept shaking his fists in front of my eyes and pounding on the desk."

"He kept threatening me. What was I going to do about it? He kept putting his fist in front of my face and pounding on that table."

"(H)e kept repeating it over and over, and he kept shaking his fist in front of me. I was froze because I was afraid of the man."

Viewing the record in a light most favorable to Gomez, and giving him the benefit of all inferences that may be drawn from the record, this Court cannot say that reasonable persons could reach but one conclusion from this evidence. When the other acts and circumstances are considered-that Gomez and Hug had previously had problems which resulted in litigation; that Hug was Gomez' employer; that Hug was obviously very angry; that the fist-shaking, pounding of the table and the shouting of invectives lasted from five to fifteen minutes-this Court cannot say, as a matter of law, that Gomez could not have been in immediate apprehension of bodily harm.

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