McSwain v. Shei

• Decision Date: 04 April 1990
• Docket Number: No. 23354,23354
• Citation: 304 S.C. 25,402 S.E.2d 890
• Court: South Carolina Supreme Court
• Parties: , 6 IER Cases 543 Marie H. McSWAIN, Respondent, v. Shink SHEI, Individually, and as President of Go Sport, Inc., and Go Sport, Inc., a Corporation, Appellants. . Heard

Page 890

402 S.E.2d 890

304 S.C. 25, 6 IER Cases 543

Marie H. McSWAIN, Respondent, v. Shink SHEI, Individually, and as President of Go Sport Inc., and Go Sport, Inc., a Corporation, Appellants.

No. 23354.

Supreme Court of South Carolina.

Heard April 4, 1990.

Decided Feb. 25, 1991.

Wade E. Ballard and Kevin Sturm, both of Edwards, Ballard, Bishop, Sturm and Clark, P.A., Spartanburg, for appellants.

Franklin S. Henson, Spartanburg, for respondent.

TOAL, Justice:

The dispositive issue in this case is whether an employee may maintain a common law action for intentional infliction of emotional distress against her employer. We conclude that when an employee alleges sufficient facts to support a cause of action for an intentional infliction of emotional distress, the action is not barred by the exclusivity provision of the Workers' Compensation laws and therefore affirm.

FACTS

Marie McSwain filed this action against her employer, Shink Shei and Go Sport, Inc. ("Go Sport") alleging that she had been required to perform exercises which aggravated a bladder problem causing her to lose control of her bladder. In her Complaint, she alleges that Go Sport's actions constitute intentional infliction of emotional distress and that such actions caused McSwain emotional distress and further aggravated her physical condition.

Specifically, McSwain alleges that she became ill in November 1987 and that she informed Shink Shei of the extent of her illness. On December 7, she was informed by her doctor that she needed to have bladder surgery. When she informed Mr. Shei of her need for surgery, she was told by him that her surgery would have to be postponed and she would have to work the last three weeks of December or be fired. McSwain was also told by Shink Shei that she would have to participate in daily exercises or she would be fired. Performance of the group exercises and delay of her bladder surgery caused McSwain to lose control of her bladder. McSwain alleges that Shink Shei forced her to continue the exercises repeatedly even though he knew of the problems it caused her and that her physician had advised against the performance of such exercises.

Go Sport answered and counterclaimed. Go Sport also moved for summary judgment on the grounds that the trial court did not have subject matter jurisdiction because McSwain's claims are governed exclusively by South Carolina workers' compensation laws.

The trial judge denied the motion for summary judgment on the grounds that McSwain had alleged a cause of action for intentional infliction of emotional distress which would remove the action from the exclusive jurisdiction of the Workers' Compensation Commission.

Go Sport filed this appeal challenging the denial of summary judgment. We affirm the lower court.

DISCUSSION

Exclusive jurisdiction over disputes between employees and employers for injuries occurring during and in the course of employment lies within the Workers' Compensation Commission. Section 42-1-540 bars all common law actions against an employer where an employee's personal injury comes within the Act. Section 42-1-160 defines "injury" and "personal injury" as an "... injury by accident arising out of and in the course of employment...." Therefore, to be compensable, the injury must (1) be an accident; (2) arise out of employment and (3) arise in the course of employment. If the injury is compensable, the Act provides the exclusive remedy.

The dispute in this case revolves around whether the injury was the result of an "accident."

The right to bring an action against the employer for an injury resulting from an intentional tort rather than an accident was recognized by this Court in Stewart v. McLellan's Stores Co., 194 S.C. 50, 9 S.E.2d 35 (1940). In Stewart, this Court held that an intentional assault and battery by an employer on an employee, where no physical disability had been suffered is not an "accident" within the terms of the Workers' Compensation Act so as to preclude recovery at common law.

Here, McSwain alleged that her injury resulted from the intentional infliction of emotional distress by her employer. The trial court found that McSwain had alleged sufficient facts to prove the four elements of this tort as set forth in Ford v. Hutson, 276 S.C. 157, 276 S.E.2d 776 (1981):

(1) the defendant intentionally or recklessly inflicted severe emotional distress or was certain or substantially certain that such distress would result from his conduct;

(2) the conduct was so "extreme and outrageous" as to exceed "all possible bounds of decency" and must be regarded as "atrocious, and utterly intolerable in a civilized community";

(3) the actions of defendant caused the plaintiff's emotional distress; and

(4) the emotional distress suffered by the plaintiff was "severe" so that "no reasonable man could be expected to endure it."

The facts, viewed in the light most favorable to the plaintiff, show that the defendants, with knowledge of the plaintiff's pre-existing bladder problems, intentionally and repeatedly forced her to participate in daily exercises against the advice of her physician. This was observed by others who participated in the exercises, as well as bystanders. These mandated exercises caused her great embarrassment because of various symptoms that were demonstrated, such as bladder incontinence. The jury could find that this conduct, even in the work-place environment, is...