Roberts v. Saylor

• Decision Date: 23 October 1981
• Docket Number: No. 52288,52288
• Parties: Loretta F. ROBERTS, Appellant, v. Leslie L. SAYLOR, Appellee.
• Court: Kansas Supreme Court

Page 1175

637 P.2d 1175

230 Kan. 289

Loretta F. ROBERTS, Appellant, v. Leslie L. SAYLOR, Appellee.

No. 52288.

Supreme Court of Kansas.

Oct. 23, 1981.

Syllabus by the Court

1. One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress.

2. Liability for extreme emotional distress has two threshold requirements which must be met and which the court must, in the first instance, determine: (1) Whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery; and (2) whether the emotional distress suffered by plaintiff is in such extreme degree the law must intervene because the distress inflicted is so severe that no reasonable person should be expected to endure it.

3. If the court determines from the pleadings, stipulations, admissions, and deposition of the plaintiff that reasonable fact finders might differ as to whether defendant's conduct was sufficiently extreme and outrageous as to subject him to liability for emotional distress, and if the court further determines plaintiff's emotional distress was such that reasonable fact finders might differ as to whether plaintiff's emotional distress was genuine and so severe and extreme as to result in liability, then and only then, it must be left to the jury to determine liability based on the evidence at trial.

4. The record is examined in an action based on the tort of outrage for emotional distress and it is held, the defendant's conduct was not sufficiently extreme and outrageous as to subject him to liability and the emotional distress suffered by plaintiff was not in such extreme degree that the law should intervene.

Fred W. Phelps, Jr. of Fred W. Phelps, Chartered, Topeka, argued the cause, and Margie J. Phelps of the same firm, Topeka, and Robert D. Ochs of Fisher, Ochs & Heck, P. A., Topeka, were with him on the briefs for appellant.

Edwin D. Smith of Fisher, Patterson, Sayler & Smith, Topeka, argued the cause, and J. Steven Pigg of the same firm, Topeka, was with him on the briefs for appellee.

FROMME, Justice:

The present appeal concerns a claim against a doctor for causing plaintiff emotional distress. This type of claim is generally referred to as based on the tort of outrage. The trial court sustained a motion for summary judgment in favor of defendant based on the pleadings, stipulations, admissions, and deposition of the plaintiff. The Court of Appeals reversed the judgment and remanded the case for trial. 628 P.2d 642. The case is now before this court on an order granting defendant's Petition for Review.

The factual background necessary to understand the circumstances which gave rise to this claim spans three separate operations which the plaintiff has survived. The first operation was by a Dr. McClure, the second by Dr. Saylor, and the third by a Dr. McElroy. Dr. Saylor operated on December 27, 1974, and during this operation removed two silk sutures which had remained in plaintiff's body after the first operation performed by Dr. McClure. Dr. Saylor continued to care for Mrs. Roberts until she had recovered and her wound from the operation had healed. However, because of having the two silk sutures left in her, plaintiff filed a medical malpractice action against Dr. McClure.

Mrs. Roberts and her attorney sought testimony from Dr. Saylor to maintain this suit against Dr. McClure. Dr. Saylor did not believe the suit was justified and informed Mrs. Roberts and her attorney of this conclusion. Mrs. Roberts by deposition testified as follows:

"Well, he told me that he was sorry he ever had anything to do with me; that he despised people like me and my family for causing doctors trouble, and we was a bunch of thieves without a gun is what he said."

As a result of Dr. Saylor's refusal to cooperate with plaintiff, she filed a suit against Dr. Saylor. This suit was subsequently settled and dismissed. Three years later the incident which is the basis for the present suit occurred. This was on January 26, 1978.

At this time plaintiff was about to have surgery performed by Dr. McElroy for repair of an incisional hernia. She had been administered preoperation medication and was lying on a cart or gurney in a preoperation room at Stormont-Vail Hospital. The room was enclosed with glass doors. The doctor's lounge was close by and Dr. Saylor had been there scheduling surgery on his wrist with a Dr. Sergio Delgado. Dr. Saylor came out of the doctor's lounge and was standing in front of the glass doors of the preoperation room where the plaintiff was awaiting surgery. Up to this point there is no disagreement as to the facts. Thereafter, a sharp conflict appears between the deposition testimony of the plaintiff, Mrs. Roberts, and that of the doctor, Dr. Saylor. Mrs. Roberts testified:

"A. I seen him standing out there, and pretty soon I just turned back over and I heard the doors open. And I never thought nothing about it until I heard Dr. Saylor ask the nurse, 'Who you got there?' And she said, 'Loretta Roberts.' He says, 'Well, I told her once that I didn't like her,' and he says, 'I came here to tell her again,' he says, and then about that time I looked up at him and he says, 'I don't like you, I don't like you,' and he says, 'I wanted to tell you that before you went in there.' He was real hostile in the face when I looked back up at him from the cart."

Dr. Saylor's deposition testimony was as follows:

"A. I stopped there when the nurse from the room came to the door and opened the door, sliding glass door. And there is a hall, the patient's waiting room was over there and the sliding glass door. And there was a patient in there. And the nurse came and opened the door and asked me a question. She said, 'Do you know Loretta Roberts, Dr. Saylor?' That was the question.

....

"Q. What did you say when she asked you that?

"A. I answered her and said, 'Yes, I know Loretta Roberts. And I don't like her anymore now than I have in the past.'

"Q. You told Miss Burgland that?

"A. Yes, those were my very words.

"Q. What did Mrs. Burgland say to that, sir?

"A. She said nothing that I recall.

"Q. What did she do?

"A. I don't remember. I went on out the door. I paid no attention to anyone else. I went on my way."

In considering whether it was error for a trial court to grant summary judgment for defendant in this type of case, an appellate court must disregard the doctor's version of what occurred and accept as true the version of the plaintiff. This we will do. At this point it is sufficient to note that the plaintiff was operated successfully and recovered therefrom. It is agreed by both parties that plaintiff suffered emotional distress, and that no bodily harm resulted from the conduct of the doctor. We will return to these facts later.

Let us now consider, generally, the type of action which arises from the infliction of mental distress, the tort of outrage. The law has been slow to accept an interest in peace of mind as being entitled to independent legal protection, even as against intentional invasions. Various reasons have been advanced for this reluctance to redress purely mental injuries. One such reason is the difficulty of proof, or of measurement of the damages. It has been said that mental consequences are so intangible and vary so much with the individual that they cannot be anticipated, and therefore lie outside the boundaries of any reasonable direct connection with the act of the defendant. The most valid objection to recognizing and protecting such interest or right to freedom from emotional distress lies in the alleged difficulties in containing or restricting such actions to bona fide claims where emotional distress has been truly severe. Once the tort of outrage is recognized, the doors of the courts are opened wide, not only to fictitious claims, but to litigation in the field of trivialities and mere bad manners. Prosser, Law of Torts (4th ed. 1971) at 51.

Kansas first recognized the tort of outrage and opened the doors of our courts in 1974 when Dawson v. Associates Financial Services Co., 215 Kan. 814, 529 P.2d 104 (1974), was decided. Since Dawson was decided the following cases have reached the appellate courts of this state: Dotson v. McLaughlin, 216 Kan. 201, 531 P.2d 1 (1975); Vespa v. Safety Fed. Savings & Loan Ass'n, 219 Kan. 578, 582, 549 P.2d 878 (1976); Bradshaw v. Swagerty, 1 Kan App.2d 213, 216, 563 P.2d 511 (1977); Wiehe v. Kukal, 225 Kan. 478, 592 P.2d 860 (1979); Young v. Hecht, 3 Kan.App.2d 510, 514, 597 P.2d 682 (1979). It is apparent on reading these cases that our courts have not been flooded with fictitious claims or litigation in the field of trivialities. Restrictions on this litigation have been adequate.

Out of the foregoing cases the law has developed and a cause of action has emerged in Kansas for the intentional infliction of mental distress. No bodily harm to the plaintiff is required to support such an action. One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress. Dawson v. Associates Financial Services Co., 215 Kan. at 822, 529 P.2d 104; Dotson v. McLaughlin, 216 Kan. at 209, 531 P.2d 1. Proof of four elements is required to establish the cause of action: (1) The conduct of defendant must be intentional or in reckless disregard of plaintiff; (2) the conduct must be extreme and outrageous; (3) there must be a causal connection between defendant's conduct and plaintiff's mental distress; and (4) plaintiff's mental distress must be extreme and severe.

Liability for extreme emotional distress has two threshold requirements which must be met and which the court must, in the first instance, determine: (1) Whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery; and ...