Ledsinger v. Burmeister

• Citation: 318 N.W.2d 558,114 Mich.App. 12
• Decision Date: 04 May 1982
• Docket Number: Docket No. 57147
• Parties: Harold E. LEDSINGER, and Shirley A. Ledsinger, Plaintiffs-Appellants, v. Clarence BURMEISTER, d/b/a Van Stuff by Burmeister, Defendant-Appellee. 114 Mich.App. 12, 318 N.W.2d 558
• Court: Court of Appeal of Michigan — District of US

Page 558

318 N.W.2d 558

Harold E. LEDSINGER, and Shirley A. Ledsinger Plaintiffs-Appellants, v. Clarence BURMEISTER, d/b/a Van Stuff by Burmeister Defendant-Appellee.

Docket No. 57147.

114 Mich.App. 12, 318 N.W.2d 558

Court of Appeals of Michigan.

Submitted Dec. 16, 1981.

Decided March 3, 1982.

Released for Publication May 4, 1982.

[114 MICHAPP 15] Walter A. Lucken, Jr., Detroit, for plaintiffs-appellants.

Fulkerson, Hudson, Moore, Bileti, Pierce & Tennent, P. C., Troy, for defendant-appellee.

Before KAUFMAN, P. J., and BASHARA and COOPER ^*, JJ.

KAUFMAN, Presiding Judge.

Plaintiffs, Harold and Shirley Ledsinger, appeal as of right from the dismissal of their cause of action by way of summary judgment under GCR 1963, 117.2(1).

The facts as alleged in plaintiffs' second amended complaint are not complex. Harold and Shirley Ledsinger are a black husband and wife residing in Pontiac. Defendant is a retail merchant doing business in Troy. On April 25, 1980, at defendant's place of business, Harold Ledsinger entered into an agreement with defendant to purchase certain auto parts. At that time, Mr. Ledsinger made a down payment of $100. When Ledsinger returned to defendant's business on May 19, [114 MICHAPP 16] 1980, to pay the balance owed on the parts he was told that the price had been increased above that in the written contract. It is alleged that in front of and within the hearing of third parties, defendant called Harold Ledsinger a "nigger" and told him that he should get his "black ass" out of the store. In addition, it is alleged that defendant stated that he "did not want or need nigger business". Plaintiffs further claim that defendant's conduct caused Mr. Ledsinger public humiliation, embarrassment from being thrown out of a public place, mental anguish, anxiety and mortification resulting in physical revulsion, increased blood pressure, nervousness, the inability to sleep, an altered physical state that took days to leave, as well as other physical injury to his nerves, emotional well-being, psyche, feelings, mental state and digestion. Plaintiffs allege that as a result of the injuries suffered by Mr. Ledsinger, Mrs. Ledsinger has been deprived of the society, services and prior conjugal happiness she shared with her husband. The various counts of plaintiffs' second amended complaint allege liability for: 1) intentional infliction of emotional distress; 2) slander; 3) violation of the Elliott-Larsen Civil Rights Act, M.C.L. Sec. 37.2101 et seq.; M.S.A. Sec. 3.548(101) et seq.; 4) invasion of privacy; 5) violation of the public accommodations law, M.C.L. Sec. 750.146; M.S.A. Sec. 28.343; 6) violation of the Federal Civil Rights Act, 42 U.S.C. Sec. 1983 et seq.; and 7) loss of consortium on the part of Mrs. Ledsinger.

I

In Partrich v. Muscat, 84 Mich.App. 724, 729-730, 270 N.W.2d 506 (1978), this Court reiterated the test employed in reviewing summary judgments under subrule GCR 1963, 117.2(1):

[114 MICHAPP 17] "The standard governing this Court's review of a grant or denial of a motion for summary judgment based on GCR 1963, 117.2(1) is well settled. The motion is to be tested by the pleadings alone. Todd v Biglow, 51 Mich App 346; 214 N W 2d 733 (1974), lv den, 391 Mich 816 (1974). The motion tests the legal basis of the complaint, not whether it can be factually supported. Borman's, Inc v Lake State Development Co, 60 Mich App 175; 230 N W 2d 363 (1975). The factual allegations of the complaint are taken as true, along with any inferences or conclusions which may fairly be drawn from the facts alleged. Unless the claim is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recover, the motion under this subrule should be denied. Crowther v Ross Chemical & Manufacturing Co, 42 Mich App 426; 202 N W 2d 577 (1972)."

Pursuant to this standard we consider each of the theories of liability set forth in plaintiffs' second amended complaint, taking as true the factual allegations contained therein along with those inferences and conclusions which may fairly be drawn.

II

The first count of plaintiffs' second amended complaint puts forth an intentional infliction of emotional distress theory of liability. Michigan law clearly recognizes this tort as a distinct and separate cause of action. Campos v. General Motors Corp., 71 Mich.App. 23, 25, 246 N.W.2d 352 (1976); Warren v. June's Mobile Home Village & Sales, Inc., 66 Mich.App. 386, 239 N.W.2d 380 (1976); Frishett v. State Farm Mutual Automobile Ins. Co., 3 Mich.App. 688, 143 N.W.2d 612 (1966). This Court has adopted those standards enunciated in 1 Restatement Torts, 2d, Sec. 46, pp 71-72:

"(1) One who by extreme and outrageous conduct [114 MICHAPP 18] 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.

"(2) Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress

"(a) to a member of such person's immediate family who is present at the time, whether or not such distress results in bodily harm, or

"(b) to any other person who is present at the time, if such distress results in bodily harm." Warren v. June's Mobile Home Village & Sales, Inc., supra, 66 Mich.App. at 390, 239 N.W.2d 380.

With regard to the requirement that the defendant's conduct be "extreme and outrageous", Sec. 46, comment d, p. 73 of the Restatement states:

"It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by 'malice', or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has 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. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, 'Outrageous! '

"The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities." Id., 390-391, 239 N.W.2d 380.

The critical issue in this case is whether the defendant's conduct can be characterized as extreme and outrageous or whether, as defendant contends, the actions merely rose to the level of insult, indignity, threat, annoyance, petty oppression[114 MICHAPP 19] or triviality. As noted in Part I, above, we must take plaintiffs' factual allegations as true, along with those inferences and conclusions that may be fairly drawn, and determine whether defendant's conduct must, as a matter of law, be classified not extreme and outrageous so as to make plaintiffs' claim clearly unenforceable. It is essential in making this assessment to look to the context in which the remarks were made. Although the Restatement acknowledges that the law in this area is in a stage of development, ¹ it points toward a contextual approach. For example, the extreme and outrageous character of the conduct may arise from the position of the actor, his relation to the distressed party, or from his knowledge of peculiar susceptibilities of the distressed party. Moreover, where the actor does no more than insist upon his own legal rights, liability will not be imposed. 1 Restatement Torts, 2d, Sec. 46, comments e-g, pp. 74-76.

In certain contexts, a racial or ethnic slur may not be extreme and outrageous. ² In a rough-edged society, we are "expected and required to be hardened to a certain amount of rough language, and to occasional acts that are inconsiderate and unkind". 1 Restatement Torts, 2d, supra, p. 73. A racial slur may, at times, merely be such "rough language". In other circumstances, the same slur may be viewed beyond the bounds of decency, atrocious and utterly intolerable in a civilized [114 MICHAPP 20] community. Consider the national cabinet official who, when asked why his political party was comprised of so few blacks, remarked in grossly sexual and scatological language that members of the minority group simply had other interests. When the comments were reported by the mass media they were universally condemned and the official was forced to resign, despite the fact that the statement did not reflect his true feelings. ³ The strong public outcry that resulted is evidence of the condemnation given in this society to blatant expressions of racial inferiority, there made in the context of discussing minority political participation.

We believe the racial slurs in the instant case, taken in the context in which they were made, could be considered by a trier of fact to be extreme and outrageous. Defendant called Mr. Ledsinger a "nigger" while in the process of throwing Ledsinger out of his place of business, ostensibly a public establishment. His remarks that he "did not want or need nigger business" implied that, irrespective of their contractual dispute, Ledsinger would not be dealt with further because of the color of his skin. Therefore, this case presents not merely that name-calling that one might be expected to endure, but slurs in the course of a discriminatory act. See e.g., Agarwal v. Johnson, 25 Cal.3d 932, 603 P.2d 58, 160 Cal.Rptr. 141 (1979); Alcorn v. Anbro Engineering, Inc., 2 Cal.3d 493, 468 P.2d 216, 86 Cal.Rptr. 88 (1970); see generally 40 A.L.R.3d 1290. Critical to this case and to defendant's ability to inflict distress is the relation between the parties, that of a public merchant to his customer. Defendant's position permitted him [114 MICHAPP 21] to accept or reject Mr. Ledsinger's business. The inference to be drawn from plai...