Laughinghouse v. Risser

• Court: U.S. District Court — District of Kansas
• Writing for the Court: ROGERS
• Citation: Laughinghouse v. Risser, 786 F.Supp. 920 (D. Kan. 1992)
• Decision Date: 14 February 1992
• Docket Number: No. 87-4257-R.,87-4257-R.
• Parties: Glenda M. LAUGHINGHOUSE, Plaintiff, v. Jerry RISSER, et al., Defendants.

786 F. Supp. 920

Glenda M. LAUGHINGHOUSE, Plaintiff, v. Jerry RISSER, et al., Defendants.

No. 87-4257-R.

United States District Court, D. Kansas.

February 14, 1992.

Brock R. Snyder, Law Office of Brock R. Snyder, Brian S. Frost, Florez & Frost, P.A., Topeka, Kan., for plaintiff.

William G. Haynes, Frieden, Haynes & Forbes, Topeka, Kan., for defendants.

MEMORANDUM AND ORDER

ROGERS, District Judge.

This case has been tried before a jury and to the court. It is now before the court upon defendants' motion for new trial, for alteration or amendment of the judgment and/or for judgment notwithstanding the verdict. The motion is addressed entirely toward the jury verdict in this case.

Defendants have objected to a response brief plaintiff filed after defendants' reply brief. Plaintiff did not ask for leave to file the brief, and the brief technically violates the rules of this court. So, the court shall direct the Clerk to strike the brief (Doc. # 216).

Plaintiff brought this case against two defendants, Jerry Risser and American General Finance, Inc. ("AGF"). Plaintiff and Mr. Risser were employees of a company, "Credithrift", which later became part of AGF. Credithrift was a consumer loan company. Mr. Risser was plaintiff's supervisor while plaintiff worked as a branch manager of a Credithrift office in Topeka, Kansas. Plaintiff asserted that Mr. Risser's conduct as her supervisor constituted the tort of outrage. Plaintiff further asserted that Mr. Risser's conduct occurred within the scope of his employment with Credithrift. Finally, plaintiff alleged that Credithrift was negligent in retaining Mr. Risser as an employee. The jury found in favor of plaintiff on all of her claims. Plaintiff was awarded $100,000.00 in actual damages. The jury also assessed punitive damages against Mr. Risser in the sum of $10,000.00 and against AGF in the amount of $600,000.00.

The standard for granting judgment notwithstanding the verdict is precisely the same as the standard for directing a verdict. Hurd v. American Hoist and Derrick Co., 734 F.2d 495, 499 (10th Cir.1984). A directed verdict is proper only when a party has presented such evidence that, without weighing the credibility of the witnesses, the only reasonable conclusion is in his favor. Giandonato v. Sybron Corp., 804 F.2d 120, 123 (10th Cir.1986). The standards applicable to a motion for a new trial were set out in Commons v. Montgomery Ward & Co., 614 F.Supp. 443, 449 (D.Kan.1985):

In ruling on a motion for a new trial, the trial judge has broad discretion. Scholz Homes, Inc. v. Wallace, 590 F.2d 860 (10th Cir.1979). He has the obligation or duty to ensure that justice is done, and, when justice so requires, he has the authority to set aside the jury's verdict. Seven Provinces Ins. Co., Ltd. v. Commerce & Industry Ins. Co., 65 F.R.D. 674 (W.D.Mo.1975). He may do so when he believes the verdict to be against the weight of the evidence or when prejudicial error has entered the record. Holmes v. Wack, 464 F.2d 86 (10th Cir.1972). In considering a motion for new trial, the court is permitted to weigh the evidence and it may order a new trial even if there is evidence to support the jury's verdict. 11 Wright & Miller, FEDERAL PRACTICE AND PROCEDURE § 2806.

As was stated in another case from this district:

the court may evaluate the evidence and consider the credibility of witnesses in determining whether the verdict is contrary to the weight of the evidence such that a miscarriage of justice has resulted. However, the discretion of the court "should be exercised with caution, and the power to grant a new trial on this ground should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict."

U.S. v. Suntar Roofing, Inc., 709 F.Supp. 1526, 1529 (D.Kan.1989) quoting, 3 C. Wright, FEDERAL PRACTICE AND PROCEDURE: CRIMINAL Section 553 (2d ed. 1982); see also, U.S. v. Lopez, 576 F.2d 840, 845 n. 1 (10th Cir.1978) (when considering a motion for a new trial, a trial judge considers the credibility of witnesses and weighs the evidence); Heyen v. U.S., 731 F.Supp. 1488, 1489 (D.Kan.1990) (new trial motion should be granted when the court believes the verdict is against the weight of the evidence, prejudicial error has occurred, or substantial justice has not been done).

Defendants' first argument in support of their motion is that the court erred by failing to give a requested instruction referring to peculiar susceptibility to emotional distress. Specifically, defendants assert: there was evidence from Dr. Elizabeth Pennick, a psychologist, that plaintiff was peculiarly susceptible to emotional distress; defendants were unaware of this trait; and the jury should have been instructed that defendants should not be liable for emotional distress which was the result of plaintiff's peculiar tendency toward emotional anguish. Defendants contend that "without the benefit of the proper instruction, the jury was led to believe that they were to find Defendant Risser liable for the tort of outrage since the plaintiff clearly suffered severe emotional distress even though the defendants had no knowledge that she was peculiarly susceptible to emotional distress."

Defendants cite Roberts v. Saylor, 230 Kan. 289, 294, 637 P.2d 1175 (1981) in support of their argument. This case states:

Proof of four elements is required to establish the cause of action of outrage: (1) The conduct of defendant must be intentional or in reckless disregard of plaintiff; (2) the conduct must be extreme and outrageous; (3) there must be a causal connection between defendant's conduct and plaintiff's mental distress; and (4) plaintiff's mental distress must be extreme and severe.

....

The extreme distress required must be reasonable and justified under the circumstances, and there can be no liability where the plaintiff has appeared to suffer exaggerated and unreasonable emotional distress, unless it results from a peculiar susceptibility to such distress of which the actor had knowledge. Dawson v. Associates Financial Services Co., 215 Kan. 814 at 820, 529 P.2d 104; Restatement (Second) of Torts § 46(1), comment f. The emotional distress must in fact exist, and it must be severe. Prosser, Law of Torts (4th ed.1971) at 59.

637 P.2d at 1179-1180.

Comment f of the Restatement (Second) of Torts § 46 further explains:

The extreme and outrageous character of the conduct may arise from the actor's knowledge that the other is peculiarly susceptible to emotional distress, by reason of some physical or mental condition or peculiarity. The conduct may become heartless, flagrant, and outrageous when the actor proceeds in the face of such knowledge, where it would not be so if he did not know. It must be emphasized again, however, that major outrage is essential to the tort; and the mere fact that the actor knows that the other will regard the conduct as insulting, or will have his feelings hurt, is not enough.

The Restatement listed the following as illustrations of persons with a peculiar susceptibility to emotional distress: an eccentric and mentally deficient old maid who has a delusion of a pot of gold in her back yard; an extremely superstitious farmer who believes in witchcraft; a pregnant woman who witnesses her pet dog being shot and suffers a miscarriage; and a hospital patient under orders to have complete rest and quiet.¹ The Kansas Supreme Court suggested that a person with multiple sclerosis might be particularly susceptible to emotional distress. Dawson v. Associates Financial Services Co., 215 Kan. 814, 529 P.2d 104, 113 (1974).

We read these comments as requiring a plaintiff to demonstrate that the severe emotional distress she suffered was a reasonable and foreseeable result of defendant's extreme and outrageous conduct.

The court's instructions in this case stated:

In considering whether defendant Risser or defendant American General Finance, Inc. is liable to plaintiff because of extreme and outrageous conduct, you should determine if the conduct of defendant Risser:

1. Was extreme and outrageous;

2. Was intentionally or recklessly inflicted upon the plaintiff; and

3. Caused severe emotional distress to the plaintiff.

To be extreme and outrageous, the conduct complained of must have been 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. If a recitation of the facts to an average member of the community would arouse his resentment against defendant Risser and would lead him to exclaim, "outrageous," then the conduct of the defendant would be deemed to have been extreme and outrageous.

Liability for outrage does not arise from mere insults, indignities, threats, annoyances, petty expressions, or other trivialities. Members of the public are necessarily expected and required to be hardened to a certain amount of criticism, rough language, and to occasional acts and words that are definitely inconsiderate and unkind. Freedom remains to express an unflattering opinion and to blow off relatively harmless steam which comes from an uncontrollable temper.

Reckless conduct means a disregard or an indifference to the consequence of that conduct under circumstances involving danger to life or safety of others, although no harm was intended. A person who is reckless must know or have reason to know of facts which create a high degree of risk of harm to another, and then, indifferent to what harm may result, proceeds to act.

Intent to cause severe emotional distress exists when one engages in conduct with a desire to cause this distress in another person, or when the actor knows his conduct will cause that result. Instruction No. 5.

In other words, the jury was instructed to decide as reasonable people, whether defendants' conduct was extreme and outrageous and whether defendants intended to cause severe emotional distress...