Todd v. Byrd

• Decision Date: 01 December 2006
• Docket Number: No. A06A1436.,A06A1436.
• Citation: 640 S.E.2d 652
• Parties: TODD et al. v. BYRD.
• Court: Georgia Court of Appeals

640 S.E.2d 652

TODD et al. v. BYRD.

No. A06A1436.

Court of Appeals of Georgia.

December 1, 2006.

Reconsideration Denied December 15, 2006.

Bouhan, Williams & Levy, Peter Muller, Savannah, for appellants.

Sapp & Moore, Joseph E. Sapp, Toccoa, Joseph C. Nelson III, for appellee.

BARNES, Judge.

Fred's Stores of Tennessee and its employees Joyce Todd and Phyllis Purcell (collectively "the Fred's Store defendants") appeal the trial court's denial of their motion for summary judgment on the claims of the plaintiff, Sylvia Byrd, as next friend of her nine-year-old daughter Tynesha, arising from Tynesha's visit to Fred's Store. For the reasons that follow, we affirm in part and reverse in part the trial court's order denying summary judgment to the defendant.

1. Byrd's brief "specifically incorporates, and adopts as if set out verbatim herein," arguments contained in certain briefs filed in the trial court. Although preparing an appellee's brief in this manner may have been convenient for Byrd's attorney, this practice is not approved by this Court and we decline to look in the record for matters which should have been set forth in the brief. Moreover, if we were to permit this practice a party could evade entirely the page limitations on briefs established in our Rules. See Court of Appeals Rule 24(f). Accordingly, we have limited our review of Byrd's arguments to those actually made in her appellate brief.

2. Summary judgment

is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56(c). To obtain summary judgment, a defendant need not produce any evidence, but must only point to an absence of evidence supporting at least one essential element of the plaintiff's claim. Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991). We apply a de novo standard of review to an appeal from a grant [or denial] of summary judgment and view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Citation omitted.) Ponder v. Brooks, 256 Ga.App. 596, 597, 569 S.E.2d 267 (2002).

Viewed in the light most favorable to Byrd, as the nonmovant, the record shows that Byrd and her daughter Tynesha were shopping at a Goodwill store around 5:00 p.m. when Tynesha needed to use a bathroom. Because the Goodwill store's bathroom was out of service, Byrd told her daughter to go next door to Fred's, where Purcell and Todd were working, and use its bathroom. Tynesha went into Fred's for the sole purpose of using its bathroom, which Purcell had cleaned earlier in the day, and which Todd (the manager) had checked at noon. Tynesha testified that they only planned to shop at Goodwill.

Tynesha testified that when she entered the bathroom, she noticed feces on the toilet seat and saw blood, bloody underwear, and an empty underwear package in the trash can. Purcell, who was working next to the bathroom, noticed a strong smell of feces coming from it, even though its door was shut. When Tynesha left the bathroom, Purcell saw her, and concluded that she had been in the bathroom throughout the time during which Purcell had smelled the foul odor.

When Purcell checked the bathroom, she found fresh feces on the wall, toilet seat, and floor as well as bloody underwear and an empty underwear wrapper in the trash can. Because Fred's carried that brand of underwear, Purcell formed the suspicion that Tynesha might have taken some new underwear into the bathroom and then discarded both her own soiled underwear and the underwear wrapper in its trash can.

Purcell found Tynesha just outside the store, accused her of stealing underwear, and asked her to return to the store to speak to Todd. In a manner that Tynesha agreed was motherly, Purcell took her hand and led her back into the store. Tynesha felt that she had to hold Purcell's hand. Todd joined them, and the two women led Tynesha by the hand back to the bathroom and showed her the filthy scene. Purcell told Todd that Tynesha had stolen some underwear and pads, and Purcell asked her if she was on her period before she pulled the used underwear from the trash and showed it to her. At the time, the child did not understand what "pads" were and had not yet begun to have her period.

Todd then asked Tynesha if she could see her underwear. When the girl said nothing, Todd lifted her shirt and said she saw that she was wearing a brand matching the discarded package. Tynesha, however, claims that Purcell said the brands were not the same. Todd then told Tynesha to leave the store and not to return without an adult. Tynesha left and began crying outside the store.

Byrd soon entered the store with her daughter and began yelling, cursing, and throwing merchandise. Byrd testified that Tynesha was crying outside the store, fainted in the car afterward, has woken up crying about the incident, and has had nightmares. Tynesha confirmed she had dreamed of being at Fred's when "bad people" came after her, and it now "bothers her" to go into a store or a different part of the store by herself for fear of a similar incident.

Byrd brought suit on her daughter's behalf alleging torts of tortious misconduct, invasion of privacy, intentional infliction of emotional distress, false imprisonment, and false arrest.¹ Although the Fred's Store defendants argue that the trial court erred by denying their motion for summary judgment on Byrd's claim for damages for battery, no such count is contained in the complaint.

The complaint sought general and exemplary damages and expenses of litigation and attorneys fees. The Fred's Store defendants answered denying liability and after discovery, they filed motions for summary judgment. Byrd responded to the motion, and the trial court denied the defendants' motion for partial or entire summary judgment without explaining its reasoning.² After our grant of an interlocutory appeal, this appeal followed.

3. The Fred's Store defendants first argue that the trial court should have granted them summary judgment on Byrd's tortious misconduct claim because Tynesha was not an invitee. A claim for tortious misconduct "arises when a customer-invitee on the premises of the invitor for the purpose of transacting business is subjected to abusive, opprobrious, insulting, or slanderous language by an agent of the invitor." (Citations omitted.) Carter v. Willowrun Condo. Assn., 179 Ga.App. 257, 259(3), 345 S.E.2d 924 (1986). Thus Byrd can maintain a tortious misconduct claim only if her status was that of an invitee.

The general test as to whether a person is an invitee or a licensee is whether the injured person at the time of the injury had present business relations with the owner of the premises which would render his presence of mutual aid to both, or whether his presence on the premises was for his own convenience, or on business with others than the owner of the premises. In the absence of some relation which inures to the benefit of the two, or to that of the owner, no invitation may be implied, and the injured person must be regarded as a licensee.

(Citations and punctuation omitted; emphasis supplied.) Higginbotham v. Winborn, 135 Ga.App. 753, 755(1), 218 S.E.2d 917 (1975); see also OCGA § 51-3-2(a)(3) (defining licensee as someone "permitted, expressly or impliedly, to go on the premises merely for his own interests, convenience, or gratification").

Although Byrd contends that Tynesha met the legal definition of an invitee under OCGA § 51-3-1 because Fred's Store was in the business of selling goods to all comers, the evidence is uncontroverted that Tynesha had no intention of shopping at Fred's Store, and that her only purpose in entering was to use the bathroom. Thus a claim for tortious misconduct is not available to Byrd on behalf of her daughter. Carter, supra, 179 Ga.App. at 259(3), 345 S.E.2d 924 (affirming grant of summary judgment when plaintiff asserting tortious misconduct claim was not an invitee of defendants).

Accordingly, the trial court erred by denying the Fred's Store defendants' motion for summary judgment on Byrd's claim of tortious misconduct, and therefore, the trial court's judgment is reversed and the case remanded with direction to enter summary judgment in favor of Todd, Purcell, and Fred's Stores of Tennessee on this claim.

4. The Fred's Store defendants also assert that the trial court erred by denying their motion for summary judgment on Byrd's claim for intentional infliction of emotional distress. They argue that their conduct did not rise to the level of outrageousness and egregiousness required to maintain an action for this tort, and whether that standard is met is a question of law for the court. See Mableton Parkway CVS v. Salter, 273 Ga.App. 477, 482(2)(c), 615 S.E.2d 558 (2005).

The elements of a cause of action for intentional infliction of emotional distress are: (1) intentional or reckless conduct; (2) that is extreme and outrageous; (3) a causal connection between the wrongful conduct and the emotional distress; and (4) severe emotional distress. Bridges v. Winn-Dixie Atlanta, 176 Ga.App. 227, 230(1), 335 S.E.2d 445 (1985). Further,

[l]iability for this tort has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, "Outrageous!"

(Citations and punctuation omitted.) Yarbrough v. SAS Systems, 204 Ga.App. 428, 429(3), 419 S.E.2d 507 (1992).

"If a reasonable person might find the conduct extreme and outrageous, causing severe emotional distress, the jury then must find the facts and make its own determination." (Citations omitted.) Mableton Parkway CVS v....