Hines v. Hills Dept. Stores, Inc.

• Decision Date: 31 January 1995
• Docket Number: No. 22093,22093
• Citation: 454 S.E.2d 385,193 W.Va. 91
• Court: West Virginia Supreme Court
• Parties: Misty HINES, Diane Cline, Eleanor McQuain, and Betty Boord, Plaintiffs Below, Appellees, v. HILLS DEPARTMENT STORES, INC., and Brian Park, Defendants Below, Appellants.

Page 385

454 S.E.2d 385

193 W.Va. 91

Misty HINES, Diane Cline, Eleanor McQuain, and Betty Boord Plaintiffs Below, Appellees, v. HILLS DEPARTMENT STORES, INC., and Brian Park, Defendants Below, Appellants.

No. 22093.

Supreme Court of Appeals of West Virginia.

Submitted Oct. 4, 1994.

Decided Dec. 15, 1994.

Concurring Opinion of Justice Cleckley Jan. 31, 1995.

Syllabus by the Court

1. "One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm." Syllabus point 6, Harless v. First National Bank in Fairmont, 169 W.Va. 673, 289 S.E.2d 692 (1982).

2. "The prevailing rule in distinguishing a wrongful discharge claim from an outrage claim is this: when the employee's distress results from the fact of his discharge--e.g., the embarrassment and financial loss stemming from the plaintiff's firing--rather than from any improper conduct on the part of the employer in effecting the discharge, then no claim for intentional infliction of emotional distress can attach. When, however, the employee's distress results from the outrageous manner by which the employer effected the discharge, the employee may recover under the tort of outrage. In other words, the wrongful discharge action depends solely on the validity of the employer's motivation or reason for the discharge. Therefore, any other conduct that surrounds the dismissal must be weighed to determine whether the employer's manner of effecting the discharge was outrageous." Syllabus point 2, Dzinglski v. Weirton Steel Corp., 191 W.Va. 278, 445 S.E.2d 219 (1994).

3. " 'In an action for malicious prosecution, plaintiff must show: (1) that the prosecution was set on foot and conducted to its termination, resulting in plaintiff's discharge; (2) that it was caused or procured by defendant; (3) that it was without probable cause; and (4) that it was malicious. If plaintiff fails to prove any of these, he can not recover.' Radochio v. Katzen, 92 W.Va. 340, Pt. 1 Syl. ." Syllabus point 3, Truman v. Fidelity & Casualty Co. of New York, 146 W.Va. 707, 123 S.E.2d 59 (1961).

4. " ' "When the plaintiff's evidence, considered in the light most favorable to him, fails to establish a prima facie right of recovery, the trial court should direct a verdict in favor of the defendant." Point 3, Syllabus, Roberts v. Gale, 149 W.Va. 166 (1964).' Syl. pt. 3, Hinkle v. Martin, 163 W.Va. 482, 256 S.E.2d 768 (1979)." Syllabus point 3, Williamson v. Sharvest Management Co., 187 W.Va. 30, 415 S.E.2d 271 (1992).

George R. Higinbotham, Higinbotham & Higinbotham, Roger D. Curry, McLaughlin & Curry, and Gary J. Martino, Fairmont, for appellees.

Charles M. Surber, Jr., Stephen M. LaCagnin, Julia M. Chico, Jackson & Kelly, Morgantown, for appellants.

PER CURIAM:

The appellants, Hills Department Store, Inc., and Brian Park, defendants below, file this appeal from the April 1, 1993, order of the Circuit Court of Marion County, West Virginia, which denied the appellants' motion for summary judgment and motion for a directed verdict at trial, and from the June 22, 1993, order which denied the appellants' motion for judgment notwithstanding the verdict and, alternatively, a new trial. The appellants also appeal from the April 14, 1993, jury verdict and judgment order against Brian Park, individually, and Hills Department Store, Inc.

The appellees, Eleanor McQuain, Misty Hines, Diane Cline, and Betty Boord, were employees of Hills Department Store in Fairmont, West Virginia. They worked as part-time cashiers during the evening shift. Eleanor McQuain held the position of part-time head cashier and had the most seniority of all of the appellees.

In 1991, a new general manager, Timothy Eckhardt, was employed by the Fairmont Hills store. The record shows that there was a good deal of friction between Mr. Eckhardt and Ms. McQuain because under the previous general manager, Ms. McQuain basically did as she wished. Mr. Eckhardt on the other hand, spent a lot of time on the floor and was an active manager.

In November, 1991, Mr. Eckhardt introduced a new streamlined scanning technique to accelerate the checkout process, which required the cashiers to simply pass a scanning gun over an item's bar code and immediately place the item in a shopping bag. The checker was not required to compare the item's ticketed price to the price displayed on the register screen. Ms. McQuain objected to the new procedure, claiming it would cause scanning errors to be overlooked. Mr. Eckhardt instructed the cashiers to correct errors that the customers brought to their attention just as they had always done. However, no additional checking would be performed, with Mr. Eckhardt claiming that the computer pricing auditors and other safeguards would help prevent scanning errors before the merchandise reached the checkout counter.

During the evening shift on December 7, 1991, Ms. McQuain discovered that a Roadmaster tricycle with a ticket price of $19.97 was scanning at the incorrect price of $3.00 because of a computer error. Shortly thereafter, Ms. McQuain and the other appellees purchased five tricycles at the $3.00 price less their 10% employee discount. They claimed that they purchased the tricycles in order to prove to Mr. Eckhardt that the new system did not work. The appellees, however, did not advise Mr. Eckhardt of this error. Their actions were not discovered until the next day, when Brian Park, the officer in charge of loss prevention, received a tip from another employee. After investigation and interviews with the appellees, each appellee prepared and signed a statement summarizing her involvement with the tricycle purchase. Ms. Cline voluntarily resigned, and the other appellees were discharged.

Pursuant to Hills' policy to prosecute crime against the company, and at the request of Hills' management, Mr. Park brought the matter to magistrate court to determine if the facts were sufficient to initiate prosecution. The magistrate found probable cause and charged McQuain, Hines, Cline, and Boord with the misdemeanor of obtaining goods under false pretenses. At the hearing, the presiding magistrate granted the appellees' motion to dismiss without giving the State the opportunity to cross-examine the appellees. The appellees then filed a civil action against Hills and Brian Park, alleging malicious prosecution, intentional infliction of emotional distress, false arrest, defamation, wrongful discharge, breach of employment contract, and violation of W.Va.Code § 21-5-4 (1975), which requires prompt payment of wages to employees who quit or are fired. They also requested injunctive relief for reinstatement and, on behalf of the State of West Virginia, reimbursement for legal expenses expended by the State to prosecute the appellees in magistrate court. Judge Merrifield dismissed the majority of the allegations and instructed the jury only on the malicious prosecution and intentional infliction of emotional distress claims. ¹

The jury rejected the malicious prosecution claim, but returned a verdict against both Brian Park and Hills on the intentional infliction of emotional distress claims. It awarded each of the appellees $15,000.00 in compensatory and $15,000.00 in punitive damages, except Ms. McQuain, who was awarded $5,000.00 in compensatory and $15,000.00 in punitive damages. It is from this final ruling that Hills Department Store and Brian Park file this appeal.

The appellants' primary argument is that the trial court erred in denying their motions because the evidence was insufficient as a matter of law to prove the essential elements of extreme and outrageous conduct and severe emotional distress. The appellants also argue that since the jury rejected the malicious prosecution claim, then there could be no evidence of conduct sufficient to make a claim of outrageous conduct or severe emotional distress. Thus, the verdict must have been in error. We agree that the jury's verdict in awarding damages for intentional infliction of emotional distress/outrageous conduct was improper, and, for the reasons stated below, reverse the April 14, 1993, jury verdict and judgment order from the Circuit Court of Marion County.

We have recognized that damages can be recovered for the "tort of outrageous conduct," or the intentional infliction of emotional distress, without a finding of physical injury. ² In Harless v. First National Bank in Fairmont, 169 W.Va. 673, 289 S.E.2d 692 (1982), we defined the intentional infliction of emotional distress:

One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.

Id. at syl. pt. 6. This definition was reached by examining § 46 of the Restatement (Second) of Torts.

As comment (d) to Section 46 of the Restatement suggests, the conduct must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community."

Id. 289 S.E.2d at 704-05.

In Yoho v. Triangle PWC, Inc., 175 W.Va. 556, 336 S.E.2d 204 (1985), an employee of Triangle alleged that her employer's conduct was outrageous when it terminated her employment after she had been off work for over a year receiving workers' compensation benefits. We disagreed, holding that the trial court was correct in finding the claim groundless. Similarly, we did not find any outrageous conduct in Wayne County Bank v. Hodges, 175 W.Va. 723, 338 S.E.2d 202 (1985). Hodges involved a claim that the bank's conduct was outrageous when it obtained an attachment on Hodges' property based upon a false allegation. In Kanawha Valley Power Co. v. Justice, 181 W.Va. 509, 383 S.E.2d...