Richardson v. Hennly
| Citation | 209 Ga.App. 868,434 S.E.2d 772 |
| Decision Date | 15 July 1993 |
| Docket Number | A93A0807,Nos. A93A0680,s. A93A0680 |
| Court | Georgia Court of Appeals |
| Parties | , 63 Empl. Prac. Dec. P 42,628, 3 A.D. Cases 613, 4 NDLR P 246 RICHARDSON v. HENNLY. FIRST FEDERAL SAVINGS & LOAN ASSOCIATION OF VALDOSTA, INC. v. RICHARDSON. |
Zimring & Ellin, Jonathan A. Zimring, Atlanta, for Richardson.
Young, Clyatt, Turner, Thagard & Hoffman, Robert M. Clyatt, Valdosta, Daniel C. Hoffman, for Hennly.
Tillman, McTier, Coleman, Talley & Newbern, C. George Newbern, Edward F. Preston, Valdosta, for First Federal.
Bonnie Richardson filed suit in three counts against her former employer, First Federal Savings & Loan Association of Valdosta, Inc., alleging violation of the Georgia Equal Employment for the Handicapped Code, OCGA § 34-6A-1 et seq., battery, and intentional infliction of emotional harm. She also named as a defendant her former co-worker, J.R. Hennly, Jr., against whom she alleged claims of battery, intentional infliction of emotional distress, and interference with contractual relations. Both defendants moved for summary judgment, and their motions were heard separately by different judges. Hennly's motion was granted as to the claims of battery and intentional infliction of emotional distress and denied as to the claim of interference with contractual relations. First Federal's motion was denied. In Case No. A93A0680 Richardson appeals from the grant of partial summary judgment to Hennly. Case No. A93A0807 is First Federal's appeal from the denial of its motion, taken pursuant to our grant of its application for interlocutory review. The two cases have been consolidated in this opinion.
The record reveals that Richardson had been working as a receptionist at First Federal for a number of years when Hennly, an administrative officer, began working at her branch. Richardson's work station was in the lobby of First Federal, and Hennly worked in an office approximately 30 feet from her desk. Hennly had been a pipe smoker for a number of years, and continued to smoke his pipe at work. Richardson immediately began to have difficulty with Hennly's pipe smoke, to which she apparently had an allergic reaction that caused nausea, stomach pain, loss of appetite, loss of weight, headaches, and anxiety. She discussed this problem with her superiors, and several air cleaners were purchased, which were placed in the interior of Hennly's office and adjacent to his door. For a time Hennly switched to cigarettes, which did not bother Richardson as much, but he resumed smoking his pipe, stating that he wished to avoid becoming addicted to cigarettes. Richardson was twice hospitalized because of her adverse reactions. Shortly after Richardson returned to work from her second hospitalization her employment was terminated, primarily for excessive absenteeism.
In opposition to the motions for summary judgment Richardson presented medical evidence attributing her adverse reactions to the pipe smoke. This evidence was not rebutted. It is uncontroverted that Hennly was aware of Richardson's adverse reactions to his pipe smoke and that she was twice hospitalized. The evidence is in conflict regarding whether Hennly ever smoked anywhere at work other than in his office; whether he intentionally smoked around Richardson to annoy her; and whether he made teasing or offensive remarks regarding his smoking.
In granting partial summary judgment to Hennly the trial court did not state its reasons. Because a judgment right for any reason will be affirmed, Rowell v. Parker, 192 Ga.App. 215, 216(2), 384 S.E.2d 396 (1989), we must determine whether any basis exists for the grant of partial summary judgment to Hennly.
1. In his motion for summary judgment, Hennly asserted that Richardson's claims were covered under the Workers' Compensation Act. Since OCGA § 34-9-11 provides that the Act is the exclusive remedy for covered injuries, Hennly argued that Richardson was barred from bringing this tort action. On appeal, Richardson contends that to the extent that the trial court may have based the grant of partial summary judgment to Hennly on the bar imposed by OCGA § 34-9-11, it was error.
OCGA § 34-9-1(4) provides in pertinent part that the term "injury" as used in the Act shall not include an "injury caused by the willful act of a third person directed against an employee for reasons personal to such employee." Georgia courts have construed this to mean that when an employee is injured on the job from causes stemming from the animosity of another, the injury will nevertheless be compensable under the Act if "the animosity arose from reasons related to the employee's performance of [her] work-related duties. [Cits.] Conversely, if the animosity giving rise to the [injury] stemmed from reasons not related to the injured employee's performance of his work, then his injuries will not be considered compensable under the Act. [Cits.]" Lindsey v. Winn Dixie Stores, 186 Ga.App. 867, 868(1), 368 S.E.2d 813 (1988).
Hennly had been a pipe smoker long before he was transferred to the branch where Richardson worked. Even assuming that Richardson is able to show that Hennly intentionally smoked his pipe around her in order to harm her and that she was injured as a result of Hennly's animosity, no evidence in the record suggests that the reasons for Hennly's alleged animosity were in any way related to Richardson's job performance or that they were anything but "personal to" Richardson within the meaning of OCGA § 34-9-1(4). Consequently, we conclude that this action is not barred by OCGA § 34-9-11. Lindsey, supra.
2. Hennly moved for summary judgment as to Richardson's claim of battery on the ground that pipe smoke is an immaterial substance incapable of battering another. Richardson maintains the trial court erred by granting partial summary judgment to Hennly on this claim.
Our courts have recognized an interest in the inviolability of one's person and, along with most other jurisdictions, have followed the common law rule that any unlawful touching is actionable as a battery. Haile v. Pittman, 194 Ga.App. 105, 106(3), 389 S.E.2d 564 (1989). In Georgia, a civil battery claim may be brought pursuant to OCGA § 51-1-13 or § 51-1-14. See generally Joiner v. Lee, 197 Ga.App. 754, 756(1), 399 S.E.2d 516 (1990). Such a cause of action will lie even in the absence of direct physical contact between the actor and the injured party: ... 1 Hendricks v. Southern Bell Tel., etc., Co., 193 Ga.App. 264, 265, 387 S.E.2d 593 (1989). In Hendricks the principle is stated in the form of a quotation from Christy Bros. Circus v. Turnage, 38 Ga.App. 581(2), 144 S.E. 680 (1928), a case involving the tort of negligent infliction of emotional distress. Christy Bros. was subsequently overruled by the Supreme Court in Ob-Gyn Assoc., etc., v. Littleton, 259 Ga. 663, 666(2)(A), 386 S.E.2d 146 (1989).
The principle itself, however, has long been the common law rule as to battery. "Since the disappearance of the distinction between trespass and case, it is no longer important that the contact is not brought about by a direct application of force such as a blow, and (if other elements of the cause of action ... are satisfied) it is enough that the defendant sets a force in motion which ultimately produces the result." Prosser & Keeton, The Law of Torts § 9, p. 40 (5th ed. 1984). See also Restatement (Second) Torts § 18, comment c. We agree with Richardson, therefore, that the overruling of Christy Bros., supra, does not change the common law as to battery in this regard.
We note that Richardson has not alleged that any or all smoke with which she came into contact would constitute battery. Instead, she has alleged that Hennly, knowing it would cause her to suffer an injurious reaction, intentionally and deliberately directed his pipe smoke at her in order to injure her or with conscious disregard of the knowledge that it would do so. We decline to hold that this allegation must fail as a matter of law. We are not prepared to accept Hennly's argument that pipe smoke is a substance so immaterial that it is incapable of being used to batter indirectly. Pipe smoke is visible; it is detectable through the senses and may be ingested or inhaled. It is capable of "touching" or making contact with one's person in a number of ways. Since no other element of the tort has been conclusively negated, Hennly has not shown as a matter of law that he is entitled to judgment. Moreover, a jury question remains regarding whether Hennly actually directed his pipe smoke at Richardson. We conclude therefore, that the trial court erred in granting summary judgment in favor of Hennly on the battery claim. See generally Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991).
3. We likewise conclude that the trial court erred in granting summary judgment to Hennly on Richardson's claim for infliction of emotional harm.
When a claim for infliction of emotional harm arises from negligent conduct, recovery is allowed only where there has been some impact on the plaintiff that results in a physical injury. But if, as here, the claim alleges intentional conduct resulting in emotional harm, it is not required that the plaintiff show an impact. Ryckeley v. Callaway, 261 Ga. 828, 412 S.E.2d 826 (1992). Although the law is still developing as to the tort of emotional distress and its ultimate limits have not yet been determined, the cases thus far decided have found liability for intentional infliction of emotional harm when the defendant's conduct has been extreme and outrageous. Moses v. Prudential Ins. Co., etc., 187 Ga.App....
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