Hall v. May Dept. Stores Co.

• Decision Date: 12 January 1982
• Citation: 292 Or. 131,637 P.2d 126
• Parties: Katherine Ann HALL, Petitioner on Review, v. The MAY DEPARTMENT STORES CO., a New York corporation, dba Meier & Frank Co., and George Rummell, Respondents on Review. TC A7708-11282; CA 16335; SC 27501.
• Court: Oregon Supreme Court

Page 126

637 P.2d 126

292 Or. 131

Katherine Ann HALL, Petitioner on Review, v. The MAY DEPARTMENT STORES CO., a New York corporation, dba Meier & Frank Co., and George Rummell, Respondents on Review.

TC A7708-11282; CA 16335; SC 27501.

Supreme Court of Oregon.

Argued and Submitted May 4, 1981.

Decided Dec. 9, 1981.

Rehearing Denied Jan. 12, 1982.

Frank M. Ierulli, Portland, argued the cause and filed briefs for petitioner on review.

Jeffrey M. Batchelor, Portland, argued the cause for respondents on review. With him on the brief were Spears, Lubersky, Campbell & Bledsoe, James H. Clarke and David B. Markowitz, Portland.

Before DENECKE, C. J., and TONGUE, LENT, LINDE, PETERSON and TANZER, JJ.

LINDE, Justice.

Plaintiff, a former saleswoman in the cosmetics department of a Meier & Frank department store, brought an action for damages for defamation and for intentional infliction of emotional distress allegedly suffered after she was questioned by store security personnel about shortages in a cash register. The jury returned verdicts for the defendants on the defamation claim and for compensatory and punitive damages on plaintiff's claim of intentional infliction of emotional distress. The circuit court allowed defendants' motion for judgment notwithstanding the verdict, and the Court of Appeals affirmed without opinion. Having allowed review to consider whether the trial judge applied a mistaken standard or erred in finding the evidence insufficient as a matter of law, we reverse the decision as to the verdict for compensatory damages.

I. The Facts

The course of events giving rise to this litigation may be briefly summarized as follows. Plaintiff, then 19 years old, was employed in the cosmetics department of Meier & Frank's Washington Square store. She was considered a competent employee with a promising future and was on good terms with her supervisors and other employees. Different lines of merchandise in the department were assigned to the several saleswomen, whose compensation and future assignments depended in part on their success in handling their lines.

The Meier & Frank stores experienced substantial annual losses from theft as well as mistakes. The company attempted to control these losses by means of store security programs, which were conducted by personnel separate from the management of the individual stores. At the time of these events, the programs had for 12 years been directed by defendant George Rummell. In the investigation of cash register shortages, Rummell employed a system of charts which showed the days when a register was short more than $10 and matched these days with the days when individual salespeople were working at a station using the register. A substantial divergence between the charted days of cash register shortages and days at which particular employees worked would tend to eliminate suspicion of those employees; employees whose days of work showed high correlation with days of shortages would remain potentially responsible for these shortages.

On the basis of one such chart, Rummell on April 1, 1977, sent a woman assistant to bring plaintiff to the security office of the Washington Square store, where he questioned her concerning a run of shortages in the cash register at plaintiff's work station. Plaintiff denied any knowledge of the shortages or their possible cause. At the end of the interrogation, she reported it to her immediate supervisor and subsequently to the manager and assistant manager of the store, who were sympathetic and expressed confidence in her innocence. Plaintiff was given the rest of the day off with pay. She was not thereafter accused of or questioned about the shortages.

Sometime after the events of April 1, plaintiff, through counsel, demanded an apology from defendants. Her career in the cosmetics department gradually took a turn for the worse. Her supervisor assigned to other saleswomen lines of merchandise that plaintiff previously had been assigned or been encouraged to expect, which reduced her sales and income. Eventually, she gave up her employment at Meier & Frank's.

This much is essentially undisputed. There is substantial dispute about Rummell's manner of questioning plaintiff, to which we return after reviewing the relevant legal issues.

II. The Tort

Plaintiff's claim rests on a tort theory which Professor William Prosser synthesized from scattered cases allowing recovery for mental distress in a variety of factual settings. Prosser, Intentional Infliction of Mental Suffering: A New Tort, 37 Mich.L.Rev. 874 (1939); see White, Tort Law in America 102-106 (1980). In such an effort to describe divergent factual patterns as instances of a single tort, it is not easy to define the elements of the tort so as to fit all cases. As appears from the title given it in Prosser's article, however, and later embraced in the Restatement of Torts § 46, "Conduct Intended to Cause Emotional Distress Only," (1948 Supp. 612-616), the theory of plaintiff's claim belongs among the intentional torts. Like most torts, it is marked by the elements of a defendant's state of mind, the character of the defendant's act that causes the plaintiff's injury, the nature of plaintiff's injury, and under some circumstances the relationship between plaintiff and defendant. See Brewer v. Erwin, 287 Or. 435, 454-458, 600 P.2d 398 (1979).

In the cases, the element of defendant's "intent" ranges from a calculated purpose to inflict mental or emotional distress because of personal hostility, or for some impersonal purpose like the debt collection methods in Turman v. Central Billing Bureau, Inc., 279 Or. 443, 568 P.2d 1382 (1977), through the mindless "amusement" of practical jokes, as in the leading case of Wilkinson v. Downton, (1897) 2 Q.B. 57, to encompass also the intent to do the painful act with knowledge that it will cause grave distress, when the defendant's position in relation to the plaintiff involves some responsibility aside from the tort itself, as this court found in the case of a physician who turned away accident victims seeking his help. Rockhill v. Pollard, 259 Or. 54, 485 P.2d 28 (1971). Lack of foresight, indifference to possible distress, even gross negligence is not enough to support this theory of recovery.

Apart from intent, defendant's act must in fact cause plaintiff mental or emotional distress of a severe and serious kind; the tort does not provide recovery for the kind of temporary annoyance or injured feelings that can result from friction and rudeness among people in day-to-day life even when the intentional conduct causing plaintiff's distress otherwise qualifies for liability. Similarly, insults, harsh or intimidating words, or rude behavior ordinarily do not result in liability for damages even when intended to cause distress. Contemporary standards of civility hardly allow turning every case of justified indignation into an action for financial recompense. See Brewer v. Erwin, supra, 287 Or. at 457, 600 P.2d 398 (1979), Pakos v. Clark, 253 Or. 113, 132, 453 P.2d 682 (1969). The tort requires some extraordinary transgression of the bounds of socially tolerable conduct.

In attempting to articulate what separates actionable conduct from the ordinary run of crudely aggressive, overbearing, or ill-tempered behavior, Prosser and the Restatement turned to adjectives like "outrageous" and "extreme." These are not words of art; other words or phrases could serve as well. All are designed only to express the outer end of some gradation or scale of impropriety and social disapproval. No more can be conveyed by defining one epithet by another. As the court said in Rockhill v. Pollard, supra, 259 Or. at 60, 485 P.2d 28, for the purpose of informing a trial court's exercise of its own responsibility, as in this case, the facts of the decided cases probably convey more than any battery of verbal formulas.

As already stated, Rockhill sustained a recovery when a physician, called to his office on a December evening to meet injured accident victims including an unconscious infant, rudely refused to administer proper medical examinations or emergency treatment. The conclusion rested substantially on the physician's professional obligations toward patients. ¹ A preceding decision, the first in this state to discuss the Restatement formulation, sustained a nonsuit against a plaintiff who claimed that deputy sheriffs upset and frustrated him when he went to the sheriff's office to inquire about a charge made against him. The court held that even if the officers' conduct was annoying or insulting, "an indignity to plaintiff and conduct unbecoming peace officers," a jury could not reasonably find it "so extreme and outrageous as to permit recovery." Pakos v. Clark, 253 Or. 113, 132, 453 P.2d 682 (1969). A third decision, Turman v. Central Billing Bureau, Inc., supra, affirmed the liability of a debt collection agency which pursued plaintiff with abusive and threatening telephone calls even after learning that plaintiff had made arrangements with the creditor to settle the debt. Most recently, in Brewer v. Erwin, supra, we described Turman as falling within "a well recognized line of cases involving personally abusive business tactics ... against inexperienced and vulnerable individuals." 287 Or. at 457, 600 P.2d 398. In Brewer itself, a landlord began to demolish a building from which he had attempted to evict the plaintiff, after previous encounters in which defendants threatened and used physical force against plaintiff or her friends, and the court held it a jury question whether this was done deliberately to intimidate plaintiff into giving up her apartment, and if so, whether defendants' choice of means "went beyond the outer limits of what a reasonable person in plaintiff's position should be expected to tolerate in an arm's-length dispute." 287 Or. at 458, 600 P.2d 398.

These cases show that there are at least three...