Newsome v. Cooper-Wiss, Inc., COOPER-WIS

• Decision Date: 19 June 1986
• Docket Number: INC,72556,COOPER-WIS,Nos. 72555,s. 72555
• Citation: 347 S.E.2d 619,179 Ga. App. 670
• Parties: NEWSOME v.et al.et al. v. NEWSOME.
• Court: Georgia Court of Appeals

Page 619

347 S.E.2d 619

179 Ga.App. 670

NEWSOME v.COOPER-WISS, INC. et al.

COOPER-WISS, INC. et al. v.NEWSOME.

Nos. 72555, 72556.

Court of Appeals of Georgia.

June 19, 1986.

Rehearing Denied July 7, 1986.

Certiorari Denied Sept. 2, 1986 in No. 72555.

M. Francis Stubbs, Reidsville, for appellant.

Curtis L. Mack, Adam J. Conti, Atlanta, for appellee.

BANKE, Chief Judge.

Katherine Newsome sued her former employer, Cooper-Wiss, Inc., and her former supervisor at that company, Byron Dickson, to recover actual and punitive damages based on Dickson's alleged sexual harassment of her during her employment there.She alleged in her complaint that Dickson had subjected her to sexual assault and battery, thereby interfering with her right to a "reasonable and safe atmosphere" in which to work, and had unlawfully procured her dismissal from the company.Her claim against Cooper-Wiss was based on allegations that the company had acted both negligently and maliciously in allowing Dickson to remain in a position of authority over her after being placed on notice of his alleged predatory sexual practices.Both defendants moved for summary judgment, and the trial court granted the company's motion while denying Dickson's.The plaintiff appeals from the former portion of the court's ruling, and the defendants cross-appeal from the latter.

The plaintiff began working for Cooper-Wiss in March of 1980.In June of that year, she became secretary to the controller, who at that time was Leonard Keiller.Keiller resigned in the summer of 1982 and was replaced by Dickson, who had previously been assigned to a Cooper-Wiss plant in another state.The plaintiff worked as Dickson's secretary for approximately eight months, until her termination on May 10, 1983, which was approximately one month after she complained to the plant's personnel manager, Mr. Herrington, that Dickson was subjecting her to sexual harassment.In a memo to the file dated the day after the plaintiff's termination, the personnel manager described the plaintiff as "a long-term employee with a good work record."The termination notice prepared by Dickson specified that the plaintiff had been fired for "negative attitude towards company--chronic complainer."

Asked in her deposition to specify the nature of the alleged sexual harassment to which she had been subjected, the plaintiff testified that Dickson had repeatedly made sexually offensive comments and suggestive propositions to her, had often looked at her in a suggestive and lewd manner and, despite her objections, had made a practice of touching her and rubbing up against her in the office.Dickson denied these allegations.

In support of her allegation that Cooper-Wiss knew or should have known of such conduct by Dickson, the plaintiff submitted the affidavit of a co-employee, Diane Schomberg, who had resigned on the same day the plaintiff had been fired.Schomberg averred that during previous temporary assignments to the plant, Dickson had been "very flirtatious with female employees," including herself, and that, after coming to work as the plant's controller, he"continuously made rude, sexually suggestive remarks to me and the other female employees, including [the plaintiff], often telling us that his wife was out of town and didn't we want to come home with him."There was evidence that before Dickson arrived at the plant to assume the position of controller, the plant manager, Richard Barnes, had told a gathering of employees that he knew the company had experienced problems with Dickson in the past but felt Dickson had matured and should be given a chance.

In a memo dated April 6, 1983, regarding the plaintiff's complaint to him of sexual harassment by Dickson, the personnel manager noted that another female employee had previously complained to him of "the same type of conduct" by Dickson.He further noted that he had spoken with five other female employees in an effort to determine the validity of these complaints and that all had made "essentially the same comments as did Kathy."Finally, he indicated that upon being confronted with these accusations, Dickson had responded that his actions and comments had been misinterpreted and had assured him that "he would address and resolve the problem."In an addendum to this memo, dated April 13, 1983, the personnel manager wrote that Dickson's subsequent "manner of conduct in the presence of office females [had] showed an immediate and marked improvement" and noted that the plaintiff had told him that she had experienced no further problems from Dickson.Held:

1."In the interest of one's right of inviolability of one's person, any unlawful touching is a physical injury to the person and is actionable."Mims v. Boland, 110 Ga.App. 477(1)(a)(4), 138 S.E.2d 902(1964).See generallyOCGA § 51-1-13.Generally speaking, an "unlawful" touching is one which is "offensive," and an "offensive" touching is one which proceeds from anger, rudeness, or lust.SeeLevy v. State, 69 Ga.App. 265, 25 S.E.2d 153(1943);Dunn v. State, 83 Ga.App. 682(2), 64 S.E.2d 478(1951).The test, according to Professor Prosser, "is what would be offensive to an ordinary person not unduly sensitive as to his dignity."Prosser, Law of Torts, § 9, p. 37(4th ed. 1971).AccordRestatement of Torts, 2d., § 19.

Although the plaintiff conceded that Dickson had never touched any "private area" of her body, such as her breasts or buttocks, we cannot conclude as a matter of law from the evidence of record that the touching to which she was allegedly subjected did not constitute a...