MacCrone v. Edwards Center, Inc.

• Decision Date: 28 April 1999
• Parties: , 14 IER Cases 1804 Jennifer MacCRONE, Appellant--Cross-Respondent, v. EDWARDS CENTER, INC., an active Oregon non-profit corporation, Respondent--Cross-Appellant. (9509-06509; CA A95658)
• Court: Oregon Court of Appeals

Page 1156

980 P.2d 1156

160 Or.App. 91, 14 IER Cases 1804

Jennifer MacCRONE, Appellant--Cross-Respondent, v. EDWARDS CENTER, INC., an active Oregon non-profit

corporation, Respondent--Cross-Appellant.

(9509-06509; CA A95658)

Court of Appeals of Oregon, In Banc.

Argued and Submitted Sept. 28, 1998.

Resubmitted En Banc March 3, 1999.

Decided April 28, 1999.

Gregory Kafoury and Mark McDougal, West Linn, argued the cause and filed the briefs for appellant--cross-respondent.

I. Franklin Hunsaker, Portland, argued the cause for respondent--cross-appellant. With him on the briefs was Bullivant, Houser, Bailey, Pendergrass & Hoffman.

Before DEITS, Chief Judge, and EDMONDS, De MUNIZ, LANDAU, HASELTON, ARMSTRONG, LINDER, WOLLHEIM, KISTLER, and BREWER, Judges.

EDMONDS, J.

Plaintiff was awarded judgment against defendant ¹ for intentional infliction of emotional distress and appeals the trial court's remittitur of the jury's punitive damage award. Defendant cross-appeals and assigns error to: (1) the trial court's denial of a directed verdict on the issue of liability; (2) the trial court's refusal to instruct the jury that defendant was not liable for the consequences of a third-party's attack on plaintiff; (3) the trial court's denial of defendant's motion for a directed verdict on the issue of punitive damages; and (4) the denial of several other post-trial motions. We reverse on plaintiff's appeal and remand with instructions to reinstate the jury's punitive damage award and affirm on defendant's cross-appeal.

We state the facts in the light most favorable to plaintiff. See Brown v. J.C. Penney Co., 297 Or. 695, 705, 688 P.2d 811 (1984). After moving to Portland, plaintiff obtained a position as a caregiver at a residential facility for the developmentally disabled that defendant operated. The position required that plaintiff stay overnight with the facility's clients. She had had prior experience working with the developmentally disabled. Before she began work, defendant provided plaintiff with 18 hours of training, which included 10 hours of classroom instruction. According to plaintiff, her training included reading and signing various documents and being informed about blood-borne pathogens and the dispensing of medication. In addition, she observed the operation of the residential home to which she had been assigned to work. She also spoke to the facility's manager about each of the five clients who lived at the home. According to plaintiff, the manager indicated that one client, Michelle, merely liked to act tough. No one told her that Michelle was prone to having violent outbursts.

When plaintiff arrived for her first day of work on May 12, 1994, she believed that the manager would remain at the facility until she dispensed medication to the clients after dinner. However, the manager told plaintiff that he was involved with the Special Olympics and had to make a trip to California the next day. He assured plaintiff that everything would be fine, gave plaintiff his home and cellular telephone numbers and instructed her to call if anything happened.

Later in the day, plaintiff was confronted with a dispute between Michelle and another client, Lori. Michelle was dissatisfied with plaintiff's resolution of the conflict and punched Lori. According to plaintiff, Lori "flopped like a rag doll" onto the couch, and Michelle continued to assault her. Plaintiff pleaded with Michelle to stop punching Lori, but she refused. She then tried unsuccessfully to restrain Michelle. At that point, Michelle grabbed plaintiff, shook her, threw her to the ground and then climbed on top of her. When plaintiff tried to push Michelle off, Michelle grabbed plaintiff's hands and forced them across plaintiff's throat. Michelle alternated between squeezing plaintiff's wrists until her hands turned blue from lack of circulation and leaning on plaintiff's wrists, which cut off her air supply. Plaintiff tried to be passive and to reason with Michelle. Plaintiff indicated that she "had to sort of balance the two because [she] would start running out of air, and [she] would [have to] sort of save enough air that [she] could ask [Michelle] to let go of [her] neck." After 10 to 15 minutes, another client, Brian, asked Michelle if she wanted to watch a television show. According to plaintiff, Michelle laughed, released plaintiff's wrists, helped plaintiff stand up and indicated that she wanted to be friends with plaintiff.

Plaintiff immediately telephoned the manager and spoke with him for approximately 10 to 15 minutes. She testified that she had difficulty breathing during the call because she was crying. Eventually, she was able to explain to the manager that Michelle had tried to strangle her. After plaintiff requested that the manager return to the facility, he inquired as to whether Michelle was hurting anyone at that time and whether plaintiff's behavior had caused the outburst. He indicated that it would be better for plaintiff to remain there alone because he thought that his return to the facility would reinforce Michelle's behavior. He also told plaintiff that Michelle had engaged in those sorts of outbursts in the past and that it was unlikely that there would be another problem that night. Ultimately, he refused to come to the facility, despite plaintiff's plea.

When the manager refused to come to the facility, plaintiff telephoned her husband. After they conversed, plaintiff agreed to call him every 30 minutes. Plaintiff made dinner for the clients, dispensed their medication and allowed Lori and Brian to remain with her in the office. Michelle and the two other clients went to bed. Later, while plaintiff was on the phone with her husband, Michelle appeared in the doorway to the office. She blocked the entrance and indicated that she was "just watching" plaintiff. Plaintiff shut and locked the door in Michelle's face. Again, she called the manager and insisted on leaving the facility. Eventually, the manager instructed plaintiff to call the on-call coordinator to obtain approval for him to return to the facility, and plaintiff left.

On cross-examination, when asked whether the manager intended to cause her emotional distress, plaintiff stated:

"I don't see how he could have avoided intending me to be upset. He knew how upset I was. I communicated that very clearly to him. He was well aware of my situation and he chose not to come. I have a hard time believing that he did not intend for me to suffer more. He certainly knew that I would.

" * * * * *

"He knew that I would suffer because [Michelle] had tried to strangle me and kill me and then he knew that I would suffer because he knew that she had a really long history of attacking people before, that this was commonplace for her. I have a hard time believing that he didn't know that it was likely."

Plaintiff did not return to work after the events of May 12, 1994.

Thereafter, plaintiff began experiencing panic attacks, developed phobias, was easily startled and became overly vigilant for danger. Her psychologist diagnosed her as having post-traumatic stress disorder, which he defined as "a very complex reaction to an identified traumatic event," such as a sudden event involving physical injury or in which the person perceives that he or she is going to die. According to the psychologist, individuals with post-traumatic stress disorder experience nightmares and flashbacks and relive the event that caused the disorder. He indicated that such individuals suffer from an overwhelming anxiety that causes them to "shut down" and "avoid things they normally enjoy because there's no pleasure." According to the psychologist, these individuals often experience a "shattering of assumptions" including the individuals' thoughts about themselves, the world, other people and the concept of fairness. He testified that individuals with post-traumatic stress disorder avoid situations that remind them of the traumatic event, and, if they accidentally encounter a similar situation, they respond with panic attacks or tremendous fear. He also testified that individuals with post-traumatic stress disorder "remain vulnerable and find it [easier] to get anxious or develop new fears." He concluded that there is a measure of permanence in plaintiff's condition and that, in his opinion, if the manager had supported plaintiff by coming to the facility in response to the first call, the post-traumatic stress disorder would not have developed.

Eventually, plaintiff filed a complaint against defendant for intentional infliction of emotional distress. The complaint alleges:

"The above statements by the house manager which blamed plaintiff for the violent incident, minimized the continuing threat which she faced, and indicated that plaintiff was incompetent in her performance of their duties, all coupled with the house manager's refusal to come to her aid when he knew that she was hysterical and in reasonable fear for her life, were actions beyond the limits of social toleration and were made for the deliberate purpose of inflicting great distress, fear, guilt, and feelings of incompetence in the plaintiff, and they did in fact cause plaintiff severe emotional distress. As a result thereof, plaintiff has developed post traumatic stress disorder, resulting in physical injury and illness, and has been and is plagued with feelings of fear, incompetence, inferiority, and helplessness, and will permanently suffer from such conditions and feelings, all to her non-economic damage in the amount of $500,000."

Plaintiff also sought $2,000,000 in punitive damages.

Defendant moved for a directed verdict on the grounds that plaintiff had not proven the requisite intent to inflict emotional distress and that the manager's conduct did not rise to the level of an extraordinary transgression of the bounds of socially tolerable conduct. Defendant also moved for a directed verdict on the ground that plaint...