Taiwo v. Vu

• Decision Date: 06 December 1991
• Docket Number: No. 64714,64714
• Citation: 822 P.2d 1024,249 Kan. 585
• Parties: Sherry TAIWO and Obafemi Taiwo, Appellees, v. Kim Phan Thi VU, Appellant.
• Court: Kansas Supreme Court

Page 1024

822 P.2d 1024

249 Kan. 585

Sherry TAIWO and Obafemi Taiwo, Appellees, v. Kim Phan Thi VU, Appellant.

No. 64714.

Supreme Court of Kansas.

Dec. 6, 1991.

Syllabus by the Court

1. In ruling on a motion for a directed verdict, the court is required to resolve all facts and inferences, reasonably to be drawn from the evidence, in favor of the party against whom the ruling is sought, and if the evidence is such that reasonable minds could reach different conclusions thereon, the motion must be denied and the matter submitted to the jury.

2. Whenever a motion for a directed verdict made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion.

3. In a tort of outrage case, it is for the court to determine, in the first instance, whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery, or whether it is necessarily so, and if reasonable persons may differ, the question is for the jury to determine.

4. The tort of outrage has two threshold requirements that must be met and that 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 of such extreme degree the law must intervene because the distress inflicted is so severe that no reasonable person should be expected to endure it.

5. In a tort of outrage case, if a trial court takes a motion for a directed verdict, pursuant to K.S.A.1990 Supp. 60-250(c), under advisement, the court is deemed to have submitted the tort of outrage claim to the jury, subject to the trial court ruling at a later date on any legal question raised by the motion, including the two threshold requirements that must be met and that the trial court is required to determine prior to submitting a tort of outrage case to a jury.

6. The law concerning the tort of outrage is reviewed and applied.

7. An assault is an intentional threat or attempt, coupled with apparent ability, to do bodily harm to another, resulting in immediate apprehension of bodily harm. No bodily contact is necessary.

8. In a tort of outrage case it is held that the trial court did not err (1) in denying the defendant's motion for a directed verdict on the tort of outrage issue, and (2) in denying the defendant's motion for a directed verdict on the tort of assault. It is also held that the damages awarded in this case are not excessive.

Roger L. Sherman, Overland Park, argued the cause and was on the brief for appellant.

Neil B. Foth of Foth & Reynolds, Overland Park, argued the cause and was on the brief for appellees.

ABBOTT, Justice:

Sherry and Obafemi Taiwo filed a civil suit against Kim Phan Thi Vu alleging assault, battery, false imprisonment, and intentional infliction of emotional distress (the tort of outrage). The jury awarded $20,000 to the Taiwos, and the trial judge assessed $3,000 in punitive damages. Ms. Vu appealed to the Court of Appeals. The Court of Appeals set aside the judgment and remanded for a new trial in an unpublished decision filed October 12, 1990, 799 P.2d 532. We granted the Taiwos' petition for review.

The underlying facts, when viewed in a light most favorable to the party who prevailed at the trial court level, are as follows.

In August 1988, Ms. Vu hired Sherry Taiwo, a certified schoolteacher, to bring Ms. Vu's day-care center, Peppermint Patty's Daycare Center in Overland Park, Kansas, into compliance with state laws. Mrs. Taiwo soon resigned because Ms. Vu would not agree to follow state laws.

About three o'clock in the afternoon on August 31, 1988, Mrs. Taiwo and her husband, a Nigerian national, went to Peppermint Patty's to pick up Mrs. Taiwo's final paycheck. Ms. Vu repeatedly refused to give the check to either Mrs. Taiwo or Mr. Taiwo. A disagreement ensued, and Ms. Vu called the police. Ms. Vu told Officer Dennis R. Baldwin that Mrs. Taiwo's check would not be ready until around 6 p.m. Mrs. Taiwo agreed to come back later.

When the Taiwos returned to the day-care center at the appointed hour and Mrs. Taiwo went inside to pick up her check, Ms. Vu initially refused to give Mrs. Taiwo her paycheck. Ms. Vu eventually prepared a check; however, the rate of pay had been reduced from $4.50 to $3.35 an hour, and the number of hours had been cut. Mrs. Taiwo and Ms. Vu argued about the check. Then, Ms. Vu shoved Mrs. Taiwo in the chest and told her to take the check or leave it. Mrs. Taiwo asked, "Why are you doing this?" Ms. Vu replied, "Because you quit I'm going to inconvenience you." Ms. Vu then left the building, locking Mrs. Taiwo inside the day-care center. After Mrs. Taiwo discovered she was locked inside, she attempted unsuccessfully to attract her husband's attention through a window. As she was looking through the window, Mrs. Taiwo saw Ms. Vu walk behind the Taiwos' car and write something down. Ms. Vu then came back inside the day-care center, called the police, and reported that "a black man [is] sitting out in my parking lot vandalizing my car."

Officer Baldwin arrived 10 to 20 minutes later and talked with the Taiwos outside of the day-care center. Mrs. Taiwo explained the problem with the check. Baldwin suggested to the Taiwos that they contact an attorney because the difference in Mrs. Taiwo's pay was not subject to criminal law. After the Taiwos accepted the check and left, Ms. Vu then came outside to talk with the officer. Ms. Vu reported that Mr. Taiwo broke the rear window of her van. Baldwin regularly patrolled the parking lot. He previously had noticed the same damage to the rear window while on routine patrol and thus knew the accusation was false.

The next morning Ms. Vu went to the Overland Park Police Department. Ms. Vu reported that Sally Matthies, who worked at the Town and Country Store (which is across the street from Peppermint Patty's), had seen a black male damaging Ms. Vu's Cadillac (a different vehicle than the van) and had taken down the suspect's license plate number. Ms. Vu told the police she thought a former employee had done the damage. Ms. Vu then signed a police report. The following affirmation immediately preceded her signature:

"I am aware of the fact that it is unlawful to make a false report to a police officer. I affirm the above information is true and I wish to assist in the prosecution of any persons responsible for the above-described offense. I understand this data may be computerized in local, state, and national files."

A check on the license plate number referred the police to the Taiwos. Detective Jesse Rollwagen sent Mr. Taiwo a letter, stating that a vandalism report had been filed with the Overland Park Police and that Mr. Taiwo's license plate number had been given as belonging to the suspect.

Upon receipt of the letter, the Taiwos immediately called Rollwagen and repeatedly asserted their innocence. The Taiwos agreed to and did take polygraph tests on September 17, 1988.

Sally Matthies, the alleged eyewitness, first told police she had witnessed the Taiwos vandalizing the Cadillac. After the police received the results of the polygraph tests, Rollwagen again contacted Sally Matthies. She quickly recanted her story. She told Rollwagen she did not work at Town & Country, but was actually employed by Ms. Vu and Ms. Vu had instructed her to lie to the police.

Rollwagen contacted Ms. Vu again. After she reiterated the same story, Rollwagen told her Sally Matthies had recanted her story and he knew Sally was one of Ms. Vu's employees. In response, Ms. Vu claimed the name of the witness was Sally Matty, then Sally Martin, and finally Mary Ann Martin. Ms. Vu challenged the detective to prove the Taiwos had not damaged her vehicle.

Rollwagen informed the Taiwos they would not be prosecuted. A complaint was filed against Ms. Vu for filing a false police report. The charge, however, was dropped because Sally Matthies failed to appear at two court dates to testify.

When the Taiwos filed this action against Ms. Vu, Ms. Vu filed a counterclaim. She alleged Mrs. Taiwo breached an oral employment contract because Mrs. Taiwo failed to appear for work on August 18 and 19, 1988, and did not give notice. Ms. Vu also claimed Mr. Taiwo assaulted her. Prior to trial, the trial court granted, with prejudice, Ms. Vu's motion to dismiss her counterclaim.

The case was tried in the District Court of Johnson County, Kansas, on December 11 and 12, 1989. After the Taiwos rested their case, Ms. Vu moved for a directed verdict on all counts. The trial court took the matter under advisement. Ms. Vu presented no evidence on her behalf, and the case was submitted to the jury. The jury found for the Taiwos, awarding $20,000 in damages. A general verdict form was used. The jury also found that the trial court should be permitted to impose punitive damages. After a hearing pursuant to K.S.A.1990 Supp. 60-3702, the court assessed $3,000 in punitive damages against Ms. Vu. Additionally, the trial court denied Ms. Vu's motion for directed verdict on all counts.

Ms. Vu timely appealed to the Court of Appeals and raised three issues. She argued that the trial court erred in not granting her motion for directed verdict on the tort of outrage because her behavior did not constitute outrageous conduct, that the trial court erred in not granting her motion for directed verdict on the tort of assault because the evidence was insufficient to prove assault, and that the jury awarded excessive damages.

The Court of Appeals panel ultimately held that the trial court took Ms. Vu's motion for a directed verdict under advisement and did not rule on it until after the jury had returned its verdict. The court found that Roberts v. Saylor, 230 Kan. 289, 637 P.2d...