Thornburg v. Fed. Express Corp.

• Decision Date: 31 July 2001
• Docket Number: WD59118
• Citation: Thornburg v. Fed. Express Corp., 62 S.W.3d 421 (Mo. App. 2001)
• Parties: Keith Thornburg, Appellant v. Federal Express Corporation, et al., Joe Hardin, Trevor Talley, Respondents. WD59118 Missouri Court of Appeals Western District 0
• Court: Missouri Court of Appeals

Keith Thornburg, Appellant v Federal Express Corporation, et al., Joe Hardin, Trevor Talley, Respondents

WD59118

Missouri Court of Appeals Western District

07/31/2001

Appeal From: Circuit Court of Cole County, Hon. Thomas Joseph Brown, III

Counsel for Appellant: Christopher Schappe

Counsel for Respondent: Stephen Robert Clark

Opinion Summary:

Keith Thornburg appeals the trial court's judgment granting the motion to dismiss for failure to state a cause of action filed by Federal Express Corporation, Trevor Tally, and Joe Hardin [hereinafter "defendants"]. On appeal, Mr. Thornburg argues that he sufficiently stated his claims for alienation of affection, intentional infliction of emotional distress and negligent infliction of emotional distress, and the trial court, therefore, erred in dismissing his petition.

Division Three holds: (1) Where Mr. Thornburg failed to make any allegation that the defendants' conduct was wrongful, and the conduct of the defendants cannot be deemed wrongful by law because the natural and probable consequence of the defendants' conduct was not to alienate the affections of Ms. Thornburg, Mr. Thornburg failed to assert an action for alienation of affection.

(2) Where Mr. Thornburg failed to specifically allege that the defendants owed Mr. Thornburg any legally recognized duty, and such a duty cannot be inferred because no foreseeable likelihood existed that the defendants' conduct would result in harm to Mr. Thornburg, the petition fails to state a claim for negligent infliction of emotional distress.

(3) Where the conduct alleged in Mr. Thornburg's petition is not so outrageous in character, and extreme in degree, as to go beyond all possible bounds of decency and be utterly intolerable in a civilized society, the petition fails to state a claim for intentional infliction of emotional distress.

(4) Where Mr. Thornburg failed to allege any actionable tort by any employee of Federal Express, Federal Express cannot be liable under the doctrine of respondeat superior because under that doctrine, the liability of Federal Express can be no greater than the liability of its employees.

Lowenstein, J., and Kennedy, S.J., concur.

Robert G. Ulrich, Judge

Keith Thornburg appeals the trial court's judgment granting the motion to dismiss for failure to state a cause of action filed by Federal Express Corporation, Trevor Tally, and Joe Hardin [hereinafter "defendants"]. On appeal, Mr. Thornburg argues that he sufficiently stated his claims for alienation of affections, intentional infliction of emotional distress and negligent infliction of emotional distress, and the trial court, therefore, erred in dismissing his petition. The judgment of the trial court is affirmed. I. Facts

The facts, as derived from Mr. Thornburg's first amended petition, are that Keith and Roberta Thornburg were married on November 8, 1986. Two children were born of the marriage. The marriage was dissolved of October 6, 1998.

During the marriage, Ms. Thornburg was an employee of Federal Express. Wade Hunt was a manager for Federal Express and Ms. Thornburg's supervisor. Ms. Thornburg and Mr. Hunt began an extra-marital affair in September 1997. At about the time the affair began, Ms. Thornburg was promoted to a full-time position with a desirable work schedule.

Mr. Thornburg learned of the affair and confronted Mr. Hunt. As a result of the confrontation, Mr. Hunt ended the affair. The Thornburgs then reconciled their marriage in early 1998. Around this same time, one or more employees of Federal Express filed grievances concerning Mr. Hunt's alleged sexual misconduct in the workplace and alleged unlawful discrimination in the workplace as a result of this conduct. The grievances led to an internal investigation by Federal Express. The investigation and resultant workplace disclosure of the affair between Ms. Thornburg and Mr. Hunt caused distress to Ms. Thornburg. This distress caused Ms. Thornburg to become unable to safely or efficiently perform her current job duties and, thus, she was placed on light-duty assignments.

Federal Express encouraged Ms. Thornburg to find other employment outside of Federal Express and provided her assistance to do so. This attempt to find alternative employment was unsuccessful. Around April 1998, Federal Express offered Ms. Thornburg a lateral transfer to Savannah, Georgia. Hoping that Mr. Thornburg would agree to relocate his family to Georgia, Ms. Thornburg discussed this job offer with him. Mr. Thornburg decided he did not want to relocate himself or his family for various reasons. Mr. Thornburg told Ms. Thornburg that her accepting the transfer would be a choice to abandon the marriage.

Ms. Thornburg ultimately accepted the job transfer and moved with her children to Savannah, Georgia on May 6, 1998, without Mr. Thornburg's knowledge. The physical move took place while Mr. Thornburg was out of town on a business trip. Federal Express provided Ms. Thornburg assistance to facilitate the move.

Upon returning from his business trip and discovering that Ms. Thornburg had moved out of the family home, Mr. Thornburg visited the Federal Express offices where Ms. Thornburg had previously been working and demanded to be told the new address and phone number of Ms. Thornburg in Savannah, Georgia. Federal Express refused to provide Mr. Thornburg with any information regarding Ms. Thornburg's whereabouts.

Mr. Thornburg thereafter filed a petition in the Circuit Court of Cole County alleging three separate counts against the defendants including: 1) alienation of affections, 2) negligent infliction of emotional distress, and 3) intentional infliction of emotional distress. The defendants filed a motion to dismiss Mr. Thornburg's claims. The trial court sustained the defendants' motion and dismissed each count in Mr. Thornburg's petition for failing to state a claim. This appeal followed.II. Standard of Review

In reviewing the trial court's dismissal of a petition for failure to state a claim upon which relief may be granted, the appellate court is required to determine whether the facts pleaded and the inferences reasonably drawn therefrom state any ground for relief. Veling v. City of Kansas City, 901 S.W.2d 119, 121 (Mo. App. W.D. 1995). In making such determination, no attempt is made to weigh any facts alleged to conclude whether they are credible or persuasive. Id. Instead, the facts and their reasonable inferences are viewed in the light most favorable to the plaintiffs in determining if the facts alleged meet the elements of a recognized cause of action. Nazeri v. Missouri Valley Coll., 860 S.W.2d 303, 306 (Mo. banc 1993). III. Points on Appeal

Mr. Thornburg raises a total of seven points on appeal, each stating separate arguments averring reasons why the trial court's dismissal of Mr. Thornburg's petition for failing to state a claim was erroneous. The first four points relate to the trial court's dismissal of Mr. Thornburg's claim against the defendants for alienation of affection. Mr. Thornburg's fifth point argues that he sufficiently stated a claim against the defendants for negligent infliction of emotional distress. Similarly, Mr. Thornburg contends in his sixth point on appeal that his petition adequately stated a claim against the defendants for intentional infliction of emotional distress. Finally, in his last point on appeal, Mr. Thornburg contends that the trial court erred in dismissing the petition on the basis that an employer cannot be held liable under the doctrine of respondeat superior for the adulterous affairs of its employees because his claims were not based on the occurrence of the adulterous affair.

A. Alienation of Affection

An action for alienation of affection is based on inherently wrongful acts of the defendant intentionally done, which have the natural and probable consequence of alienating the affections of the spouse of the plaintiff, and which in the particular case had that result. Gibson v. Frowein, 400 S.W.2d 418, 421 (Mo. banc 1966). To sufficiently state a claim for the intentional tort of alienation of affections a plaintiff must allege that 1) the defendant engaged in wrongful conduct, 2) the plaintiff lost the affections or consortium of his or her spouse; and 3) there was a causal connection between the defendant's conduct and the plaintiff's loss. Id. To withstand a motion to dismiss for failure to state a claim for alienation of affection, the petition must contain allegations of fact in support of each of these essential elements of the tort. Kennedy v. Missouri Attorney General, 922 S.W.2d 68, 70 (Mo. App. W.D. 1996). Thus, where a petition fails to make allegations in support of any element of this cause of action, a motion to dismiss is properly granted.

The trial court found that Mr. Thornburg failed to state a claim for alienation of affection because he failed to make allegations of fact supporting the elements that 1) the defendants engaged in wrongful conduct and 2) a causal connection between the defendants' conduct and Mr. Thornburg's loss existed. The trial court also found that based on Missouri's narrow interpretation of the tort and the Missouri Supreme Court's abolition of the related tort of criminal conversation, the tort of alienation of affection does not encompass liability for co-workers and employers.

In his first point on appeal, Mr. Thornburg argues that he need not allege the wrongfulness of defendants' conduct because intentional acts and conduct of a third party that interfere in a marriage are deemed wrongful by law. This premise, however, is not absolute. Only acts that have the natural and probable consequence of alienating the affections of the plaintiff's spouse are deemed wrongful by law. Gibson, 400 S.W.2d at 421.

The natural and probable consequence of the defendants' alleged actions in this case was not to alienate the affections of Ms. Thornburg toward her husband but rather...