Miraliakbari v. Pennicooke, A01A1794.

• Decision Date: 08 March 2002
• Docket Number: No. A01A1794.,A01A1794.
• Citation: 254 Ga. App. 156,561 S.E.2d 483
• Parties: MIRALIAKBARI et al. v. PENNICOOKE et al.
• Court: Georgia Court of Appeals

561 S.E.2d 483

254 Ga. App. 156

MIRALIAKBARI et al. v. PENNICOOKE et al.

No. A01A1794.

Court of Appeals of Georgia.

March 8, 2002.

Maurice J. Bernard III, Chamblee, for appellants.

Zirkle & Hoffman, Charles B. Zirkle, Jr., Atlanta, Benjamin E. Pellegrini, Nancy C. Collins, Atlanta, Devon A. Petree, Lilburn, Dawn E. Carpenter, for appellees. POPE, Presiding Judge.

A Burger King manager refused to let employee Zohreh Miraliakbari leave or even use the telephone to care for her six-year-old son who suffered a broken bone at school. Miraliakbari brought claims of intentional infliction of emotional distress and false imprisonment against Burger King and the manager, Rita Pennicooke. She also brought a claim, as next friend, on behalf of her son. The trial court granted summary judgment to the defendants, holding that the mother's claim was precluded by the Workers' Compensation Act, the facts did not show outrageous conduct sufficient to sustain an emotional distress claim, none of Pennicooke's actions were directed at the son, and the facts did not support false imprisonment. Miraliakbari appeals.

On appeal from a grant of summary judgment, this Court conducts a de novo review of the record, construing the evidence and all inferences therefrom in favor of the nonmoving party. Maddox v. Southern Engineering Co., 231 Ga.App. 802, 803, 500 S.E.2d 591 (1998); Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991).

1. Miraliakbari argues that the Workers' Compensation Act does not provide the exclusive remedy for her claim of intentional infliction of emotional distress because those claims are not covered by the provisions of the Workers' Compensation Act. See OCGA § 34-9-11(a). We agree.

The only injury that Miraliakbari allegedly suffered is a nonphysical one—the emotional distress arising from Pennicooke's refusal to allow her to communicate with or care for her injured son under the threat of the loss of her job. The Workers' Compensation Act provides no remedy for a psychological injury unless "it arises naturally and unavoidably ... from some discernible physical occurrence." (Citations and punctuation omitted.) Southwire Co. v. George, 266 Ga. 739, 741, 470 S.E.2d 865 (1996). See also Betts v. MedCross Imaging Center, 246 Ga. App. 873, 875-876(1), 542 S.E.2d 611 (2000) (Act may provide remedy if psychological injury arises from fear of a future physical injury). The case of Oliver v. Wal-Mart Stores, 209 Ga.App. 703, 434 S.E.2d 500 (1993), is on point. In that case, the plaintiff's only claim was intentional infliction of emotional distress, and it did not arise out of a physical injury; therefore, a tort claim was not barred. Id. at 704, 434 S.E.2d 500. Cf. Abernathy v. City of Albany, 269 Ga. 88, 90-91 495 S.E.2d 13 (1998) (psychic trauma not preceded or accompanied by a physical injury is not compensable under the Act). Accordingly, we hold that the trial court erred in granting summary judgment on Miraliakbari's claim of intentional infliction of emotional distress based on the exclusivity provisions of the Act.

There is nothing in Potts v. UAP-GA. AG. CHEM., 270 Ga. 14, 506 S.E.2d 101 (1998), inconsistent with this holding.

2. Miraliakbari contends the trial court erred by finding that the defendants' conduct was not extreme and outrageous as a matter of law. To sustain a claim for intentional infliction of emotional distress requires proof of the following four elements: "The conduct must be intentional or reckless; (2) The conduct must be extreme and outrageous; (3) There must be a causal connection between the wrongful conduct and the emotional distress; and (4) The emotional distress must be severe." (Citations omitted.) Northside Hosp. v. Ruotanen, 246 Ga.App. 433, 435, 541 S.E.2d 66 (2000). Extreme and outrageous means exactly that:

[I]t 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 that 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.

(Citations omitted.) Id. "Evidence of a defendant's malicious purpose or of a defendant's wanton disregard of a plaintiff's rights may be considered in evaluating whether or not the objected-to behavior can reasonably be characterized as outrageous or egregious. [Cit.]" Gordon v. Frost, 193 Ga.App. 517, 521(1), 388 S.E.2d 362 (1989). But, "`major outrage in the language or conduct complained of is essential to the tort.'" Id. at 522(1), 388 S.E.2d 362, quoting Restatement (Second) of Torts, § 46(1), comment f. Finally, whether a claim rises to the requisite level of outrageousness and egregiousness to sustain a claim for intentional infliction of emotional distress is a question of law. Yarbray v. Southern Bell Tel. &c. Co., 261 Ga. 703, 706(2), 409 S.E.2d 835 (1991).

Construed in favor of Miraliakbari, the facts show that Miraliakbari, a single mother, is from Iran and does not speak English fluently. She is educated, having obtained a master's in accounting in Iran. On the day prior to the main incident, Miraliakbari had asked to leave work early to care for her sick son. The following day, six-year-old Shamin was injured at school sometime before lunch. School staff members tried unsuccessfully to call Miraliakbari at the Burger King where she worked at the drive-through window. They then left a message with a friend of Miraliakbari's, who also could not get through to Burger King. That friend called an acquaintance named Payam Jafari who worked near the Burger King, and Jafari went there to tell Miraliakbari that "something has happened to your son. You got to go to school." This occurred at about 12:00 and 12:30 during the busy lunch hour at the restaurant.

Miraliakbari asked her supervisor, Pennicooke, for 20 minutes so that she could go pick up her son. Pennicooke refused. Jafari then offered to pick up the boy, and Miraliakbari went outside to her car to give Jafari the relevant information. Pennicooke then yelled and screamed, "Where are you? What's happening?" At some point, Pennicooke told her that if she left she would be fired, and she repeated that two or three times during the whole episode.

About 20 minutes later, Miraliakbari realized that she had given Jafari an incorrect telephone number and asked Pennicooke to allow her to use the business telephone. Pennicooke refused despite hearing that Miraliakbari's son had an accident at school. When Miraliakbari attempted to use the phone anyway, Pennicooke unplugged it. She told Miraliakbari to stop crying and take orders and that if she touched the phone, she would be fired.

Miraliakbari was shaking, visibly upset, and crying until Pennicooke finally allowed her to use the phone to speak to her sister and school officials at about 2:00 p.m. She learned that her son had been injured but that he would be fine. At that time, the official asked to speak to Pennicooke, but Pennicooke refused saying, "I don't want to talk to anyone"; then she hung up on the official and told Miraliakbari to go back to work. Although she had a car, Miraliakbari did not leave because she was afraid of losing her job. She still did not know exactly what had happened to her son.

At 3:00 p.m., Miraliakbari's sister and Jafari arrived with the boy and told Miraliakbari that her son had been in a car wreck and that his arm was broken. The boy had not yet been taken to a doctor because her sister did not have information about insurance nor know where to go. At that time, Miraliakbari decided to leave and care for her son, despite the consequences.

Miraliakbari felt humiliated and ashamed and thought she was being treated like a dog or a slave. She did not suffer any physical injury and she was never physically prevented from leaving, but she alleges that she suffered nightmares, depression, and loss of sleep.

Pennicooke admitted that she did not attempt to verify that Miraliakbari had an emergency situation despite the fact that a company procedure required it. She explained that she acted the way she did because she did not believe Miraliakbari even though she knew that Miraliakbari was entitled to care for an injured child under the federal Family & Medical Leave Act. She believed that Miraliakbari's son was home sick based on the fact that he had been sick the previous day and based on a statement from a trusted employee that the child was still sick and at home. The day after the child's injury, Pennicooke received confirmation that he had indeed been injured, and she sent a message to Miraliakbari that she would not be fired. But, Miraliakbari never returned to work. Two weeks later, when she returned for her paycheck, Miraliakbari learned that she had been terminated.

Pennicooke's behavior was reckless and possibly wanton. See Hendon v. DeKalb County, 203 Ga.App. 750, 758(5), 417 S.E.2d 705 (1992) ("wanton conduct is that which is so reckless or so charged with indifference to the consequences as to justify the jury in finding a wantonness equivalent in spirit to actual intent") (citations and punctuation omitted). She failed to follow procedures requiring her to investigate the claim of emergency. However, while certainly rude, we find that Pennicooke's actions do not rise to the level of outrageousness necessary to support a claim of intentional infliction of emotional distress.

Although the existence of a special relationship in which one person has control over another, such as the employer-employee relationship, may contribute to the outrageousness of the situation, it is not dispositive. Troncalli v. Jones, 237...