Hogan v. Forsyth Country Club Co.

• Decision Date: 04 March 1986
• Docket Number: No. 8521SC292,8521SC292
• Citation: 340 S.E.2d 116,79 N.C.App. 483
• Parties: , 1 IER Cases 1026 Marlene HOGAN, April Cornatzer, and Sonya Mitchell v. FORSYTH COUNTRY CLUB COMPANY.
• Court: North Carolina Court of Appeals

Page 116

340 S.E.2d 116

79 N.C.App. 483, 1 IER Cases 1026

Marlene HOGAN, April Cornatzer, and Sonya Mitchell v. FORSYTH COUNTRY CLUB COMPANY.

No. 8521SC292.

Court of Appeals of North Carolina.

March 4, 1986.

Kennedy, Kennedy, Kennedy and Kennedy by Harvey L. Kennedy and Harold L. Kennedy, III, Winston-Salem, for plaintiffs-appellants.

Womble, Carlyle, Sandridge & Rice by W. Andrew Copenhaver and M. Ann Anderson, Winston-Salem, for defendant-appellee.

MARTIN, Judge.

Plaintiffs assert error with respect to the entry of summary judgment dismissing each of their multiple claims. For the reasons which follow, we conclude that April Cornatzer is entitled to a trial upon two of the three claims which she asserts. However, with respect to her claim for wrongful discharge from employment and to each of the claims of Marlene Hogan and Sonya Mitchell, we affirm the judgment of the trial court.

I

It is well settled that in ruling on a motion for summary judgment, a court does not resolve questions of fact but determines whether there exists any genuine issue of material fact. Zimmerman v. Hogg & Allen, 286 N.C. 24, 209 S.E.2d 795 (1974). In determining whether a genuine issue of material fact exists, the court must view all material furnished in support of and in opposition to the motion for summary judgment in the light most favorable to the party opposing the motion. Bradshaw v. McElroy, 62 N.C.App. 515, 302 S.E.2d 908 (1983). Considering the facts in the light most favorable to the plaintiff, "a defending party is entitled to summary judgment if he can show that claimant cannot prove the existence of an essential element of his claim." Dickens v. Puryear, 302 N.C. 437, 453, 276 S.E.2d 325, 335 (1981), citing Best v. Perry, 41 N.C.App. 107, 254 S.E.2d 281 (1979). Where the pleadings and forecast of evidence demonstrate that no claim exists, as a matter of law, summary judgment is appropriate. Kessing v. National Mortgage Corp., 278 N.C. 523, 180 S.E.2d 823 (1971).

II

The first issue raised by each of the plaintiffs involves the entry of summary judgment dismissing her claim for intentional infliction of emotional distress. Each plaintiff contends that her forecast of evidence is sufficient to raise genuine issues of material fact with respect to her claim sufficient to survive summary judgment.

The tort of intentional infliction of mental or emotional distress was formally recognized in North Carolina by the decision of our Supreme Court in Stanback v. Stanback, 297 N.C. 181, 254 S.E.2d 611 (1979). The claim exists "when a defendant's 'conduct exceeds all bounds usually tolerated by decent society' and the conduct 'causes mental distress of a very serious kind.' " Id. at 196, 254 S.E.2d at 622, quoting Prosser, The Law of Torts, § 12, p. 56 (4th Ed. 1971). The elements of the tort consist of: (1) extreme and outrageous conduct, (2) which is intended to cause and does cause (3) severe emotional distress. Dickens v. Puryear, supra.

The tort may also exist where defendant's actions indicate a reckless indifference to the likelihood that they will cause severe emotional distress. Recovery may be had for the emotional distress so caused and for any other bodily harm which proximately results from the distress itself.

Id. 302 N.C. at 452-53, 276 S.E.2d at 335.

Defendant contends that we should not reach the issue of whether the plaintiffs have successfully forecast evidence of a viable claim under the rules set forth in Dickens. It argues that even if the claims exist, they are barred by the exclusivity of remedies provision of the North Carolina Workers' Compensation Act, G.S. 97-10.1. This issue is one of first impression in this State; there is no case law dealing with the tort of intentional infliction of emotional distress in the context of an employer-employee relationship. We conclude that the Act does not bar plaintiffs' claims.

The Act defines injury as "injury by accident arising out of an in the course of the employment." G.S. 97-2(6). Our courts have applied this definition to cases involving assaultive conduct in an employer-employee relationship and have held that an employee is not barred by the Act from bringing a common law action against a co-employee for intentional conduct even though the reverse is true for negligent conduct on the part of the co-employee. Andrews v. Peters, 55 N.C.App. 124, 284 S.E.2d 748 (1981), disc. rev. denied, 305 N.C. 395, 290 S.E.2d 364 (1982). This Court has also held that the Act bars any common law action by an employee against his employer for the intentional conduct of a co-employee, unless the co-employee was acting as the alter ego of the employer. Id.; Daniels v. Swofford, 55 N.C.App. 555, 286 S.E.2d 582 (1982). But the Act does not bar a common law action by an employee against his employer for the intentional conduct of the employer.

The intentional conduct involved in Andrews and Daniels was assaultive conduct for which damages were sought for physical injuries. In the present case, plaintiffs allege severe emotional distress; they do not allege any physical or mental illness nor do they allege employment disability or loss of earning capacity resulting from their emotional distress. Therefore, we do not consider the holdings in Andrews and Daniels to be dispositive of our decision in this case.

The purpose of the Workers' Compensation Act is to furnish compensation for loss of earning capacity. Wilhite v. Veneer Co., 47 N.C.App. 434, 267 S.E.2d 566 (1980), rev'd on other grounds, 303 N.C. 281, 278 S.E.2d 234 (1981). The Act defines disability as "incapacity because of injury to earn the wages which the employee was receiving at the time of injury or in the same or any other employment." G.S. 97-2(9). In reference to the Act, this court has consistently held that "entitlement to compensation under the Workers' Compensation Act is rooted in and must be measured by plaintiff's capacity or incapacity to earn wages." Mills v. J.P. Stevens & Co., 53 N.C.App. 341, 343, 280 S.E.2d 802, 803, disc. rev. denied, 304 N.C. 196, 285 S.E.2d 100 (1981). Therefore, in the present case, plaintiffs apparently have suffered damages which would be recoverable in a civil action but which are not compensable under the Act.

Plaintiffs' claims do not involve an isolated physical injury not compensable under the Act, rather they allege an entire class of civil wrongs which are outside the scope of the Act. With reference to non-physical injury torts, one commentator has stated that

[w]hen no compensation is available, these tort actions fall squarely within the broad class of cases, ... which do not come within the fundamental coverage pattern of the Act at all, as when certain occupational diseases which were excluded from the Act, or when the incident did not arise out of and in the course of employment.

2A Larson, The Law of Workmen's Compensation § 68.30 (1983). Larson further noted that

[i]f the essence of the tort, in law, is non-physical, and if the injuries are of the usual non-physical sort, with physical injury being at most added to the list of injuries as a makeweight, the suit should not be barred. But if the essence of the action is recovery for physical injury or death, the action should be barred even if it can be cast in the form of a normally non-physical tort.

Id. at § 68.34(a). The essence of the tort of intentional infliction of emotional distress is non-physical; the injuries alleged by plaintiffs do not involve physical injuries resulting in disability. Therefore, we conclude that plaintiffs' actions for intentional infliction of mental and emotional distress are not barred by G.S. 97-10.1.

III

Having decided that the plaintiffs' actions are not barred by the provisions of the Workers' Compensation Act, we turn to an examination of the evidentiary materials submitted to the trial court. Because the forecast of evidence as to the factual basis of each plaintiff's claim is unique, each claim must be decided on its own merits.

A

The evidence with respect to April Cornatzer's claim for intentional infliction of emotional distress, taken in the light most favorable to her, tends to show that in September 1982, Hans Pfeiffer began making sexual advances toward her. At her deposition, and in an affidavit, Cornatzer maintained that Pfeiffer made sexually suggestive remarks to her while she was working, coaxing her to have sex with him and telling her that he wanted to "take" her. He would brush up against her, rub his penis against her buttocks and touch her buttocks with his hands. When she refused his advances, he screamed profane names at her, threatened her with bodily injury, and on one occasion, advanced toward her with a knife and slammed it down on a table in front of her. As a result of Pfeiffer's actions toward her, Cornatzer maintains that she became very nervous, anxious, humiliated and depressed, to the extent that she was required to seek medical treatment for ulcers.

Defendant contends that, as a matter of law, the conduct directed toward Cornatzer by Pfeiffer was insufficiently outrageous to meet the requirement of Dickens. We disagree. It is a question of law for the court to determine, from the materials before it, whether the conduct complained of may reasonably be found to be sufficiently outrageous as to permit recovery. Restatement (Second) of Torts, § 46 comment (h) (1965). However, once conduct is shown which may be reasonably regarded as extreme and outrageous, it is for the jury to determine, upon proper instructions, whether the conduct complained of is, in fact, sufficiently extreme and outrageous to result in liability. Id.

That Cornatzer's forecast of evidence shows sufficiently outrageous conduct directed toward her by Pfeiffer to entitle her to go to the jury strikes us as irrefutable. No person should have to be subjected to non-consensual sexual touchings, constant suggestive remarks and on-going sexual...