McQuay v. Guntharp, 96-1523

• Decision Date: 19 February 1998
• Docket Number: No. 96-1523,96-1523
• Parties: Cathy McQUAY, Sam McQuay, Sue Beebe, Sharion Cantrell, Rachel Keech, Charman Rowe, Dennis Rowe, and Randy Thatch, Appellants, v. Randall GUNTHARP, M.D., and Northeast Arkansas Internal Medicine Clinic, d/b/a Pocahontas Family Clinic, Appellees.
• Court: Arkansas Supreme Court

Page 583

963 S.W.2d 583

331 Ark. 466

Cathy McQUAY, Sam McQuay, Sue Beebe, Sharion Cantrell Rachel Keech, Charman Rowe, Dennis Rowe, and Randy Thatch, Appellants, v. Randall GUNTHARP, M.D., and Northeast Arkansas Internal Medicine Clinic, d/b/a Pocahontas Family Clinic, Appellees.

No. 96-1523.

Supreme Court of Arkansas.

Feb. 19, 1998.

Opinion Supplementing Decision on

Denial of Rehearing April 16, 1998.

George R. Wise, Jr., Bryant, for Appellants.

Lucinda McDaniel, Jonesboro, for Appellees.

CORBIN, Justice.

Appellants Cathy and Sam McQuay, Sue Beebe, Sharion Cantrell, Rachel Keech, Charman and Dennis Rowe, and Randy Thatch, appeal the judgment of the Randolph County Circuit Court dismissing with prejudice their claim against Appellees Dr. Randall Guntharp and Northeast Arkansas Internal Medicine Clinic. Our jurisdiction of this appeal is pursuant to Ark. Sup.Ct. R. 1-2(a)(15), as it presents a question concerning the law of torts. Appellants raise one point for reversal. We reverse.

Dr. Guntharp is a licensed physician with a medical practice in Pocahontas, employed by the Northeast Arkansas Internal Medicine Clinic, d/b/a Pocahontas Family Clinic. It is undisputed that he last saw Appellants in his office on the following dates: Rachel Keech on November 30, 1993; Charman Rowe on February 4, 1994; Sharion Cantrell on March 11, 1994; Randy Thatch on April 4, 1994; Sue Beebe on October 25, 1994; and Cathy McQuay on January 30,1995. On February 28, 1996, Appellants filed a complaint for the tort of outrage, alleging that Dr. Guntharp had "improperly touched, examined, and otherwise fondled" their breasts during their physical examinations. In an amended complaint filed on April 25, 1996, Appellants Sam McQuay and Dennis Rowe alleged a loss of consortium of their wives based upon Dr. Guntharp's outrageous conduct.

Appellees filed a motion to dismiss the complaint on April 3, 1996, stating that the allegations of wrongful touching constituted a battery, and were thus barred by the one-year statute of limitations, as provided in Ark.Code Ann. § 16-56-104 (Supp.1995). Attached to the motion as Exhibit 2 was Dr. Guntharp's affidavit, which merely set out the last dates on which he had seen each of the Appellants in his office. Appellees alternatively moved to dismiss the complaint on their theory that the allegations of distress arising from Dr. Guntharp's professional services constituted a medical injury, which therefore barred the claims of Rachel Keech and Charman Rowe through the two-year statute of limitations. See Ark.Code Ann. § 16-114-203 (Supp.1997).

The trial court dismissed the complaint with prejudice, holding that Appellants' claims constituted a battery and was therefore barred by the one-year statute of limitations applicable to such action. At the dismissal hearing, the trial court stated that the facts pleaded in the case did not rise to the level of outrage and added, "it's got to be terrible in order for outrage to occur." On appeal, Appellants do not dispute that the initial complaint was filed more than one year after Dr. Guntharp had any contact with each of them. Instead, they argue that the trial court erred by finding that the complaint described claims for battery instead of outrage.

Ordinarily, when matters outside the pleadings are presented and not excluded by the trial court in connection with a motion to dismiss under ARCP Rule 12(b)(6), we treat the motion as one for summary judgment under ARCP Rule 56. Clark v. Ridgeway, 323 Ark. 378, 914 S.W.2d 745 (1996). The matters to be considered in summary judgment proceedings are limited to affidavits, depositions, admissions, and answers to interrogatories. Id. Here, the trial court considered Dr. Guntharp's affidavit in support of Appellees' assertion that the claim was barred by the one-year statute of limitations for battery or, alternatively, the two-year statute of limitations for medical injuries.

The circumstances of this case are somewhat unusual in that the trial court's dismissal of the case was based solely upon its characterization of the nature of the claim, which resulted in a ruling that the action was barred by the statute of limitations. Accordingly, we must decide whether the trial court erred in characterizing the claim as a battery, as opposed to outrage, and thus ruling that the action was barred by the one-year statute of limitations pertaining to battery. In making this determination, we must look to the complaint itself. O'Bryant v. Horn, 297 Ark. 617, 764 S.W.2d 445 (1989); Dunlap v. McCarty, 284 Ark. 5, 678 S.W.2d 361 (1984). See also Goldsby v. Fairley, 309 Ark. 380, 831 S.W.2d 142 (1992) (holding that in making the determination on the application of the statute of limitations, this court looks to the complaint itself, despite the fact that the trial court had actually granted summary judgment). Where two or more statutes of limitations apply to a cause of action, we generally apply the statute with the longest limitations. O'Bryant, 297 Ark. 617, 764 S.W.2d 445; Jefferson v. Nero, 225 Ark. 302, 280 S.W.2d 884 (1955). Although the complaint states that the action is one for outrage, we must look to the facts alleged, as Arkansas does not recognize "notice pleadings," only "facts pleadings." Dunlap, 284 Ark. at 7, 678 S.W.2d at 363. We look to the gist of the action in making such a determination. O'Bryant, 297 Ark. 617, 764 S.W.2d 445; Andrews v. McDougal, 292 Ark. 590, 731 S.W.2d 779 (1987).

To establish an outrage claim, a plaintiff must demonstrate the following elements: (1) the actor intended to inflict emotional distress or knew or should have known that emotional distress was the likely result of his conduct; (2) the conduct was "extreme and outrageous," was "beyond all possible bounds of decency," and was "utterly intolerable in a civilized community"; (3) the actions of the defendant were the cause of the plaintiff's distress; and (4) the emotional distress sustained by the plaintiff was so severe that no reasonable person could be expected to endure it. Angle v. Alexander, 328 Ark. 714, 945 S.W.2d 933 (1997). The type of conduct that meets the standard for outrage must be determined on a case-by-case basis. Hollomon v. Keadle, 326 Ark. 168, 931 S.W.2d 413 (1996). This court gives a narrow view to the tort of outrage, and requires clear-cut proof to establish the elements in outrage cases. Croom v. Younts, 323 Ark. 95, 913 S.W.2d 283 (1996). Merely describing the conduct as outrageous does not make it so. Renfro v. Adkins, 323 Ark. 288, 914 S.W.2d 306 (1996). Clear-cut proof, however, does not mean proof greater than a preponderance of the evidence. Croom, 323 Ark. 95, 913 S.W.2d 283.

In M.B.M. Co., Inc. v. Counce, 268 Ark. 269, 596 S.W.2d 681 (1980), this court officially recognized the separate tort of outrage, relying in part on the teachings of Professor Prosser:

[Professor Prosser] theorized that there was no necessity that a tort have a name. According to him, the new tort consisted of intentional, outrageous infliction of mental suffering in the extreme form and that it resembled assault. He pointed out that, in spite of the fact that mental anguish had been recognized in early assault cases, the law had been reluctant to accept interest in peace of mind as entitled to independent legal protection. He described the matter dealt with in this new tort as outrageous conduct of a kind especially calculated to cause serious mental and emotional disturbance. Prof. Prosser pointed out that in many cases in which recovery for mental suffering was permitted as parasitic damage, that element was the only substantial damage actually sustained. Our cases are certainly illustrative of this statement.

Id. at 278, 596 S.W.2d at 686 (citing William L. Prosser, Intentional Infliction of Mental Suffering: A New Tort, 37 Mich. L.Rev. 874 (1939)). This court stated further:

[W]e can and do now recognize that one who by extreme and outrageous conduct wilfully or wantonly causes severe emotional distress to another is subject to liability for such emotional distress and for bodily harm resulting from the distress.

It is of little consequence that different terms are used in describing the element of compensable damages involved as mental suffering, mental anguish, emotional distress, etc. Prof. Prosser sees the term mental anguish comprehensive enough to cover everything from nervous shock to emotional upset, and agrees that the words emotional distress may well be used. In his view they include all highly unpleasant mental reactions, such as fright, horror, grief, shame, humiliation, anger, embarrassment, chagrin, disappointment, worry and nausea. The emotional distress for which damages may be sought must be so severe that no reasonable person could be expected to endure it. It must be reasonable and justified under the circumstances. Liability arises only when the distress is extreme.

By extreme and outrageous conduct, we mean conduct that is 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 society.

Id. at 280, 596 S.W.2d at 687 (citations omitted) (emphasis added). Additionally, in M.B.M. Co., this court cited with approval Professor Prosser's theory that the relationship between the plaintiff and the defendant may give rise to the extreme and outrageous nature of the conduct:

Prof. Prosser states that there are cases in which the extreme and outrageous nature of the conduct arises not so much from what is done as from the abuse by the defendant of a relationship with the plaintiff which gives him power to damage the plaintiff's interests.

Id. at 281, 596 S.W.2d at 681, 596 S.W.2d at 688 (emphasis added) (citing William L. Prosser, Insult & Outrage, 44 Cal. L.Rev. 40 (1956)). Similarly, in Croom, 323 Ark. 95, 913 S.W.2d 283, wherein the plaintiff asserted a claim...