King v. Burris, Civ. A. No. 82-K-2073.

• Decision Date: 14 June 1984
• Docket Number: Civ. A. No. 82-K-2073.
• Parties: Dick KING, Plaintiff, v. James H. BURRIS, a/k/a Jim Burris, et al., Defendants.
• Court: U.S. District Court — District of Colorado

588 F. Supp. 1152

Dick KING, Plaintiff, v. James H. BURRIS, a/k/a Jim Burris, et al., Defendants.

Civ. A. No. 82-K-2073.

United States District Court, D. Colorado.

June 14, 1984.

Alan H. Bucholtz, Denver, Colo., for plaintiff.

William L. Senter, Denver, Colo., for defendants.

MEMORANDUM OPINION AND ORDER

KANE, District Judge.

If I were capable of complete judicial restraint, I would begin this opinion by stating that this is an action for damages based upon allegations of intentional infliction of severe emotional distress and defamation. Then I would say that the matter is before me on the defendants' motion for summary judgment. I would summarize the doctrines governing summary judgment and make due obeisance to the unshakeable precept that to grant summary judgment there may not exist any genuine issue of material fact. Then, to show I know where it is I am about, I would recount that I must resolve all doubts in favor of the nonmoving party before deciding whether an actionable claim is set forth.

But this is not just a case about damages; this case is about baseball! Even the Supreme Court of the United States cannot restrain itself when confronted with mankind's noblest achievements on "Hoboken's Elysian Fields."¹ I think it too much to expect a mere tyro on the district bench to cleave to the issues in the face of that august example.

For almost a century, baseball has been America's national pastime. From Babe Ruth's "called shot" to Carlton Fisk's twelfth inning home run to win the sixth game of the 1975 World Series, baseball has sparked the imaginations of generations of Americans. Though changes have occurred which make grown men cry, its essence remains unchanged.² Baseball is uniquely unconstrained by clocks and timekeepers.³ Perhaps as a result, baseball's memories are the most vivid, and many of our fondest recollections are of afternoons and evenings at the ballpark.

Baseball mirrors our foibles and fallibilities. The game has survived the Black Sox scandal of 1919, striking umpires, striking players, drug and alcohol problems, and even perhaps George Steinbrenner.

The matter before the court stems from one of the less memorable events in the history of the game — an argument at the 1981 winter meetings of the American Association of Professional Baseball Clubs. Plaintiff Dick King and defendant Jim Burris attended the meetings in their capacities as president and general manager of the Wichita Aeros and the Denver Bears, respectively. King and Burris did not agree on several issues, including league expansion and scheduling for the upcoming season. At one point in the December 5 session, Burris lost his temper and hurled a barrage of verbal beanballs at King. The parties agree that the epithets included: "damn fat fag," "fatso," "liar," "I ought to hit you in the mouth," and "why don't you do the game of baseball a favor and resign." According to King, Burris then swore at him and threatened him with a Sprite bottle.⁴

King alleges that as a direct result of Burris' actions, he resigned from his position and was forced to seek medical consultation and counseling. He gave up a salary of $40,000 per year plus 25% of the Aero's profits. He is suing Burris, the Denver Bears, and Gerald and Allan Phipps, general partners of the Denver Bears, for defamation and negligent and intentional infliction of severe emotional distress. He asks for $2,000,000 compensatory damages and $5,000,000 punitive damages.

INTENTIONAL INFLICTION OF SEVERE EMOTIONAL DISTRESS

The parties have agreed and I find that Florida law applies. The Florida Supreme Court has yet to award damages for emotional or mental injuries standing alone. It has recognized, however, that a cause of action for negligent or intentional infliction of severe emotional distress may exist:

There may be circumstances under which one may recover for emotional or mental injuries, as where there has been a physical impact or when they are produced as a result of a deliberate and calculated act performed with the intention of producing such an injury by one knowing that such acts would probably — and most likely produce such an injury, but those are not the facts in this case.

Gilliam v. Stewart, 291 So.2d 593, 595 (Fla.1974). In Gilliam, a housewife sued the driver of a car involved in an accident in front of her house. The impact of the collision caused one car to hit a tree in her yard, and the other to hit her house. The impact of the car on the house knocked the plaintiff out of bed. She was then hospitalized for almost a month and treated for injuries including myocardial infarction and a cerebral embolus. Stewart v. Gilliam, 271 So.2d 466, 468 (Fla.App. 4th Dist.1973). The Florida Supreme Court held that since the car hit the plaintiff's house, rather than the plaintiff, the physical impact was only indirect. The plaintiff could not recover for her mental injuries, as she could prove neither direct physical impact nor a deliberate act performed with the intent of producing her injury.

King makes no allegation of direct physical impact, so I must dismiss his charge of negligent infliction of severe emotional distress. I turn now to the charge of intentional infliction of severe emotional distress. The Florida Supreme Court has not considered the charge since Gilliam. In an earlier case, Slocum v. Food Fair Stores of Florida, 100 So.2d 396 (Fla.1950), the court affirmed the dismissal of a complaint by a customer who sued a store after a clerk told her "If you want to know the price, you'll have to find out the best way you can ... you stink to me." Id. at 396-97.

Florida courts have been slow to allow recovery for emotional distress. The five Florida District Courts of Appeal are split on whether an independent tort of intentional infliction of severe emotional distress exists.⁵ The courts allow recovery only in extraordinary circumstances. They are generally stringent in their damage awards. In light of Florida's case law, I must decide whether defendant's conduct, reading all disputed facts against him, was extreme enough to state a claim beyond the defamation charges and any charges that plaintiff could bring for assault.

The First District adopted the language of the Restatement (Second) of Torts § 46 (1965)⁶ and allowed recovery for the intentional infliction of severe emotional distress in Ford Motor Credit Co. v. Sheehan, 373 So.2d 956 (Fla.App. 1st Dist.1979). In Sheehan, a credit company employee was unable to find plaintiff, so he called plaintiff's mother and identified himself as an employee of a San Francisco hospital. The employee said that plaintiff's children had been involved in a serious automobile accident. After giving plaintiff's address and phone number to the credit agent, plaintiff's mother called the plaintiff, who spent seven hours calling various hospitals and police departments in a futile effort to find his children. The First District upheld a jury verdict awarding $4,000 actual damages and $11,000 punitive damages, writing that recovery is possible only where the defendant's conduct is "so outrageous in character, and so extreme in degree, as to go beyond all bounds of decency," 373 So.2d at 960. The court added that "there is liability only for conduct exceeding all bounds which could be tolerated by society, of a nature especially calculated to cause mental damage of a very serious kind." Id., quoting Prosser, Intentional Infliction of Mental Suffering: A New Tort, 37 Mich.L.Rev. 874, 889 (1939).

The First District applied the same standard in Dowling v. Blue Cross of Florida, Inc., 338 So.2d 88 (Fla.App. 1st Dist.1976), to dismiss a complaint by two women that their employer fired them, without investigation, based on a false accusation that they had sexual relations with one another in the ladies' lounge of the employer's building. The court held that even if all plaintiffs' charges were true, the employer's acts were not outrageous enough to predicate a suit for severe emotional distress.

The Fourth District also recognizes the tort of intentional infliction of severe emotional distress. In Metropolitan Life Ins. Co. v. McCarson, 429 So.2d 1287 (Fla.App. 4th Dist.1983), a court had ordered Metropolitan to reimburse a victim of Alzheimer's disease for her in-home nursing care. Metropolitan knew the victim had no other source of income, yet it continued to withhold the benefits. Without the benefits, the victim was forced to enter a nursing home, where her condition deteriorated rapidly and she died. The court found that the jury reasonably could have concluded that Metropolitan's actions were based on "bad blood" between the parties, and that "although fully aware of the serious condition of Mrs. McCarson and of its obligations to her, Metropolitan discontinued the nursing services to `spite' the McCarsons notwithstanding the potentially devastating consequences to her." Id. at 1291.

The Fifth District recognizes the tort, but has yet to find a case serious enough to allow a claim. In Food Fair, Inc. v. Anderson, 382 So.2d 150 (Fla.App. 5th Dist. 1980), the Fifth District dismissed a cashier's claim for intentional infliction of severe emotional distress against her employer. The employer, suffering from theft problems, hired a private investigator who interrogated the plaintiff and gave her a polygraph test. The investigator told the cashier that anyone who had been with the company for as long as she had must have stolen something, and that the company had a new policy requiring employees to confess to theft or be fired for lying. Protesting her innocence, but faced with the alternative of termination, the cashier confessed to stealing $150. The next day the investigator said that $150 wasn't enough, and that she would have to confess to stealing $500 to keep her job. She signed a confession, and was fired for theft. A jury awarded the cashier $40,000 compensatory and $360,000 punitive...