Sutton v. Tacoma Sch. Dist. No. 10, Individually

• Citation: 324 P.3d 763,180 Wash.App. 859
• Decision Date: 29 April 2014
• Docket Number: No. 43962–0–II.,43962–0–II.
• Court: Washington Court of Appeals
• Parties: Rose SUTTON, as limited guardian ad litem for N.Y.Y., a Minor, Appellant, v. TACOMA SCHOOL DISTRICT No. 10, Individually; Jeffrey Frederick; individually, and together with “Jane Doe” Frederick and the marital community composed thereof; Respondents.

180 Wash.App. 859

324 P.3d 763

Rose SUTTON, as limited guardian ad litem for N.Y.Y., a Minor, Appellant,

v.TACOMA SCHOOL DISTRICT No. 10, Individually; Jeffrey Frederick; individually, and together with “Jane Doe” Frederick and the marital community composed thereof; Respondents.

No. 43962–0–II.

Court of Appeals of Washington, Division 2.

April 29, 2014.

David H. Black Jr., Law Office of David H. Black, P.C., Gig Harbor, WA, Thaddeus Phillip Martin IV, Attorney at Law, Lakewood, WA, for Appellant.

Emma O. Gillespie, Preg O'Donnell & Gillett, PLLC, Seattle, WA, for Respondents.

MAXA, J.

¶ 1 Rose Sutton appeals an order granting summary judgment to Tacoma School District No. 10 and Jeffrey Frederick (collectively, School District) on her claims for assault, battery, and outrage arising from Frederick's alleged conduct toward Sutton's granddaughter, NYY. Sutton argues that questions of fact exist regarding these claims where Frederick, NYY's first grade teacher, allegedly berated NYY in a loud voice while towering over her and physically bumping her until she was pinned against a wall. We reverse the trial court's grant of summary judgment on the battery and assault claims because questions of fact exist as to whether Frederick's alleged conduct was intended to cause both offensive contact with NYY and NYY's apprehension of such contact. But we affirm the trial court's grant of summary judgment on the outrage claim because although there was evidence of outrageous conduct and intent to cause emotional distress, Sutton failed to present evidence creating a question of fact as to whether NYY actually suffered severe emotional distress as a result of Frederick's alleged conduct. We remand for further proceedings.

FACTS

¶ 2 Frederick was the instructor in the Therapeutic Learning Center (TLC) at Stanley Elementary School. NYY was a first grade special education student in the TLC. Linda Brieger, a paraprofessional instructional assistant, worked in the TLC with Frederick.

¶ 3 On January 14, 2011, Brieger told Frederick that she needed help with NYY, who had tipped over her desk and poured milk into it. While Frederick was responding to the situation, Sutton happened to walk into the classroom and observe his interaction with NYY. Sutton described the scene in her deposition:

So now I stepped in the door and I'm looking. And I look in the back, in the dark, and he was back there in front of [NYY], over her with his chest practically on her, hollering and swinging his arms, telling her how he's tired of her, he's getting—she's getting on his dang—gone nerves well, his damn nerves.

And I panicked and I said, Why are you talking to her like that? Why are you hollering? ...

And he was so intense in talking to her that he didn't even realize I was in the room....

....

[He] was just swinging his arms all around her and his chest was bumping up against her. How do you—he was powered over her. She's a little girl.

[He] bumped her with his chest, because he towered over her. And he was right up on her. He was bumping her and throwing his arms up.

Clerk's Papers (CP) at 59–60. Sutton stated that Frederick was “up in [NYY's] face.” CP at 60.

¶ 4 In her subsequent declaration Sutton elaborated that Frederick had NYY “pinned against the wall” and was physically keeping her in the corner as his body was bumping against her. CP at 184. And Sutton could hear Frederick yelling down the hall even before she reached the classroom. Some of the things he yelled were “You make me sick” and “Why are you so stupid?” CP at 207, 183. Sutton claimed that after the incident NYY's face was covered with spit.

¶ 5 Sutton sued the School District on behalf of NYY based on multiple claims for relief, eventually pursuing just three claims: assault, battery, and outrage. Sutton alleged in the complaint that Frederick physically assaulted NYY, screamed and cursed at her, pushed her into a corner while yelling at the top of his voice, and yelled at her so closely that her face was covered with his saliva. The complaint alleged that Frederick later apologized, stating that he had just broken up two fights and had taken his frustration out on NYY.

¶ 6 The School District filed a motion for summary judgment, attaching statements from Frederick and Brieger with an account of the incident radically different than Sutton's. It also pointed out that Sutton's descriptions of the incident became progressively worse over time. In response, Sutton filed the declaration described above. Sutton presented no declaration from NYY and no witness declarations other than her own.

¶ 7 The trial court granted the School District's summary judgment motion, ruling that Sutton failed to present evidence showing that Frederick's conduct was intentional. The trial court also denied Sutton's motion for reconsideration.

ANALYSIS

A. Standard of Review

¶ 8 We review a trial court's order granting summary judgment de novo. Loeffelholz v. Univ. of Wash., 175 Wash.2d 264, 271, 285 P.3d 854 (2012). “We review the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor.” Lakey v. Puget Sound Energy, Inc., 176 Wash.2d 909, 922, 296 P.3d 860 (2013). Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Loeffelholz, 175 Wash.2d at 271, 285 P.3d 854. “A genuine issue of material fact exists where reasonable minds could differ on the facts controlling the outcome of the litigation.” Ranger Ins. Co. v. Pierce County, 164 Wash.2d 545, 552, 192 P.3d 886 (2008). If reasonable minds can reach only one conclusion on an issue of fact, that issue may be determined on summary judgment. M.A. Mortenson Co. v. Timberline Software Corp., 140 Wash.2d 568, 579, 998 P.2d 305 (2000).

B. Battery and Assault

¶ 9 Sutton argues that summary judgment was inappropriate on her battery and assault claims because her deposition testimony and declaration created questions of fact regarding Frederick's conduct and intent. We agree, and hold that summary judgment was not appropriate on whether Frederick committed battery and assault. We do not address whether Sutton can prove that NYY suffered damages as a result of Frederick's alleged conduct because the existence of actual damages is not an element of the battery and assault causes of action that must be addressed on summary judgment.

1. Battery

¶ 10 A battery is the intentional infliction of harmful or offensive bodily contact with the plaintiff. Morinaga v. Vue, 85 Wash.App. 822, 834, 935 P.2d 637 (1997). More specifically, a battery is “ ‘[a] harmful or offensive contact with a person, resulting from an act intended to cause the plaintiff or a third person to suffer such contact.’ ” McKinney v. City of Tukwila, 103 Wash.App. 391, 408, 13 P.3d 631 (2000) (alteration in original) (quoting W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 9, at 39 (5th ed. 1984)). “A bodily contact is offensive if it offends a reasonable sense of personal dignity.” Restatement (Second) of Torts § 19 (1965). For there to be intent to cause harmful or offensive contact, “ ‘the act must be done for the purpose of causing the contact ... or with knowledge on the part of the actor that such contact ... is substantially certain to be produced.’ ” Garratt v. Dailey, 46 Wash.2d 197, 201–02, 279 P.2d 1091 (1955) (quoting Restatement of Torts § 13, cmt. d (1934)). Significantly, the requisite intent for battery is the intent to cause the contact, not the intent to cause injury. Garratt, 46 Wash.2d at 201–02, 279 P.2d 1091.

¶ 11 In her deposition, Sutton testified that she observed Frederick bumping his chest against NYY as he hollered at her. In her subsequent declaration, Sutton elaborated that Frederick had NYY “pinned against the wall” and was physically keeping her in the corner as his body was bumping against her. CP at 184. If these statements are true, a reasonable jury could find that Frederick made bodily contact with NYY and that the contact was offensive.

¶ 12 The School District argues that Sutton's statements cannot create genuine issues of fact that a battery occurred for two reasons. First, the School District argues that Sutton cannot rely solely on her self-serving declaration to avoid summary judgment. The School District claims that a nonmoving party cannot rely on having its statements taken at face value, citing Heath v. Uraga, 106 Wash.App. 506, 513, 24 P.3d 413 (2001). We disagree. Although there are circumstances where a party's declaration will not be enough to create a question of fact, here Sutton was an eyewitness and her deposition testimony and declaration were based on her personal observations of Frederick's contact. On summary judgment, we must treat that testimony as true even if it is self serving.

¶ 13 Second, the School District argues that Sutton's version of the events evolved over time and that there were inconsistencies among what she said on the day of the incident, in her deposition, and in her declaration. However, in both her deposition and her declaration—her two sworn statements—Sutton consistently stated that Frederick was bumping NYY as he yelled at her. And in reviewing a summary judgment order, we do not weigh the credibility of seemingly inconsistent statements. See Barker v. Advanced Silicon Materials, LLC, 131 Wash.App. 616, 624, 128 P.3d 633 (2006). Whether Sutton's earlier or later statements are more accurate is an issue that must be resolved at trial.

¶ 14 The School District also argues that even if an offensive touching occurred, summary judgment was appropriate because Sutton provided no evidence regarding Frederick's intent. However, as noted above Sutton was required to create a question of fact as to whether Frederick intended an offensive touching, not that he intended to harm NYY in some way. Garratt, 46 Wash.2d at 201–02, 279 P.2d 1091. And we must...