Roell v. Am. Senior Communities, LLP

• Decision Date: 03 July 2012
• Docket Number: No. 20A03–1111–CT–524.,20A03–1111–CT–524.
• Court: Indiana Appellate Court
• Parties: Paul ROELL, Appellant–Plaintiff, v. AMERICAN SENIOR COMMUNITIES, LLP d/b/a East Lake Nursing & Rehabilitation Center, and Harry Scribner, Appellees–Defendants.

970 N.E.2d 270

Paul ROELL, Appellant–Plaintiff,
v.
AMERICAN SENIOR COMMUNITIES, LLP d/b/a East Lake Nursing & Rehabilitation Center, and Harry Scribner, Appellees–Defendants.

No. 20A03–1111–CT–524.

Court of Appeals of Indiana.

July 3, 2012.

Appeal from the Elkhart Superior Court; The Honorable Charles C. Wicks, Judge; Cause No. 20D05–1001–CT–1.
Patrick F. O'leary, Goshen, IN, Attorney for Appellant.

Scott S. Morrisson, Krieg DeVault LLP, Carmel, IN, John H. Lloyd, Krieg DeVault LLP, Mishawaka, IN, Libby Y. Goodnight, Krieg DeVault LLP, Indianapolis, IN, Attorneys for Appellee.

MEMORANDUM DECISION—NOT FOR PUBLICATION
BAKER, Judge.

Appellant-plaintiff Paul Roell appeals the judgment in favor of appellees-defendants East Lake Nursing & Rehabilitation Center (East Lake), and Harry Scribner (collectively, the defendants), regarding his claims for assault and intentional infliction of emotional distress against the defendants. Specifically, Roell argues that the trial court erred in dismissing the assault count against East Lake for lack of subject matter jurisdiction, and improperly refused to instruct the jury on the issue of punitive damages, thus essentially granting a directed verdict in East Lake's favor and concluding that it was not liable for punitive damages.

East Lake cross appeals, arguing that the jury's verdict in favor of Roell on his claim for intentional infliction of emotional distress should be vacated because the trial court erred in denying its motion for summary judgment on that count. East Lake claims that the designated evidence established as a matter of law that the tort of intentional infliction of emotional distress was not committed.

Concluding that the trial court properly dismissed Roell's assault claim and finding no other error, we affirm the judgment of the trial court.

FACTS

East Lake is a nursing home facility with 151 rooms in Elkhart, and Roell was East Lake's maintenance director. Roell was hired in June 2002. Christopher Gill arrived at the facility in May 2008, and served as executive director at East Lake. Gill was in charge of East Lake's day-to-day operations. Roell and Gill had worked together with no incident or issues.

In the summer of 2008, Roell took temporary leave under the FMLA from East Lake because of a heart condition. Roell underwent triple coronary bypass and aortic valve replacement surgeries. About the same time that Roell went on leave, East Lake's other maintenance employee moved away, leaving no one to perform the facility's maintenance work. As a result, Gill began looking for someone to fill East Lake's maintenance needs until Roell returned. The search for a maintenance employee was more difficult than anticipated, because someone had to be found who was willing to work full-time on a temporary basis.

Harry Scribner knew Gill from church and socially through their spouses. Scribner heard through others at church about East Lake's need for a maintenance employee and offered to work there. Gill understood Scribner to have good maintenance skills and experience.

Although Gill knew that Scribner had “a troubled past,” he did not know, initially, that Scribner had a prior felony conviction for forgery. Scribner had served two years in prison following his conviction for that offense. Tr. p. 176, 218–19. Gill personally contacted Scribner's references, and all of the responses were positive. As a result, Gill hired Scribner as East Lake's maintenance employee. Gill received a background report on Scribner sometime after July 14, and learned about the forgery conviction. Gill placed his initials at the bottom of the report.

On August 9, three weeks after Gill learned of Scribner's forgery conviction, Scribner completed an employment application and stated that he would be available for work beginning August 18. In response to the question as to whether he had ever been convicted of a criminal offense, Scribner wrote “no” on the application form. Ex. 23.

Roell fully recovered from his heart condition and returned to work at East Lake on September 15, 2008. Roell believed that he had no restrictions and described his physical and mental health as “excellent” and “fantastic.” Tr. p. 80–81, Ex. 16. When Roell returned, Gill sent him a memo, stating, “Welcome Back Paul! We're glad you're back to work and ready to roll.” Id. at 73–76, 225–28, Ex. 12. The memo outlined instructions on several long-term maintenance projects for East Lake.

Roell met with Scribner when he returned to work. When Roell told Scribner that he would go back to being the full-time maintenance director and that Scribner would become a part-time employee, Scribner became upset and angry. In essence, Scribner's attitude changed after learning that he would no longer be employed as East Lake's full-time maintenance employee.

On September 16, 2008, Roell and Scribner engaged in a heated argument. The conversation began in the mailroom and proceeded down the hallway and into a 30 x 40 foot maintenance room. The room is locked, but only from the outside. From the inside, one simply needs to twist the door knob to leave. Outside the maintenance room are several rooms for East Lake's residents. Aides, nurses, and other individuals are constantly going in and out of the rooms, and the hall outside the maintenance room is seldom empty.

When the incident occurred, Roell and Scribner remained at their respective desks during part of the argument, which were some distance from each other. At other times, Scribner walked around the maintenance room, but Roell never left his seat from behind the desk. Although Roell and Scribner never got “face to face” during the incident, they came within approximately one foot of each other.

Roell tape recorded the argument. Also, Roell never walked out of the maintenance room during the argument because he believed that he was the person in charge and should continue working. There were moments of silence during the argument, but Roell would start talking to Scribner again, discussing work-related matters such as furniture in the maintenance room and bills that needed to be paid. On several occasions, Roell asked Scribner, “Do you hear [me]?” Tr. p. 84–85, 91–92; Ex. 13. Scribner berated Roell several times during this incident, accusing him of lacking the proper organizational skills in the past and for trying to undue the progress that Scribner had achieved in cleaning and organizing the work space. The encounter lasted approximately eighteen minutes.

After this confrontation, Roell reported to Gill that he was having problems with Scribner and that Scribner was “out of hand.” Tr. p. 19, 44, 229. Roell said nothing to Gill about a tape recorder. Gill had a difficult time understanding why Roell and Scribner were having such difficulties getting along after just two days of working together. Gill told Roell that he thought the two should be able to get along and that he would discuss the matter with Scribner. However, Gill had a separate conversation with Scribner, indicating that East Lake desired to “get rid of Roell.” Scribner Dep. P. 34, 35.

The next day, on September 17, 2008, Gill spoke to Scribner about the situation. Gill conferred with both Roell and Scribner and encouraged both of them to “get along.” Id. at 230, 285. Gill told both men that he believed that the two men complemented each other. Apparently, East Lake had offered Roell a severance package. But Gill never told Scribner of such a plan. However, Scribner believed that Gill had implied to him that they should “get rid of Roell” because he could not handle the physical demands of the job in light of his health problems. Appellant's Br. p. 5.

The next day, a second heated argument occurred between Roell and Scribner. Roell also recorded this conversation. Id. at 20, 284–85. At some point, Scribner noticed a blinking red light in Roell's shirt pocket and deduced that Roell had a tape recorder. When Scribner asked Roell whether he was taping their conversation, Roell erroneously stated that he had turned off the tape recorder.

The September 18 argument between Roell and Scribner took place in the maintenance room and lasted nearly twenty minutes. Again, there was no physical contact between Roell and Scribner, and Roell would interject various comments after moments of silence. During the encounter, Scribner called Roell a “piece of sh*t,” explaining later that it is just “a phrase.” Id. at 280; Ex. 13. Scribner also called Roell a “liar,” and a “cockroach,” a term that he uses when referring to other work supervisors. Id. at 268–69, 280–81, 283; Ex. 13. The confrontation in the maintenance room ended when Roell stood up and walked away. At some point, Roell believed that Scribner was going to hit him and put him back in the hospital.

Roell reported the incident to Gill the next day. Gill and the Regional Director of Operations, Kim Hughes, listened to a portion of Roell's tape recordings of the two arguments with Scribner.

After the second encounter with Scribner on September 18, Roell felt:

very poorly physically and mentally. Physically, I felt tired. I had tightness in my arms and in my chest in the area around my heart. I had shortness of breath. My face felt flushed. I was concerned that I suffered an exacerbation of my heart condition. I decided to request medical attention from Mr. Gill.

Appellant's App. p. 122, 137.

Following the second confrontation with Scribner, Roell went home on an intermittent basis and stopped working. Roell claimed that he was suffering emotional distress, anxiety, and humiliation and needed care for his nerves, which prevented him from working.

On September 20, 2008, Gill memorialized his thoughts regarding the situation involving Roell and Scribner in a written memorandum. Gill's memo stated as follows:

1. I do not like the thought that my maintenance director is carrying around a tape recorder, taping private conversations. I personally don't feel that I can...