Vetter v. Morgan

• Decision Date: 05 May 1995
• Docket Number: No. 71621,71621
• Citation: 22 Kan.App.2d 1,913 P.2d 1200
• Parties: Laura VETTER, Appellant, v. Chad MORGAN and Dana Gaither, Appellees. 1
• Court: Kansas Court of Appeals

Page 1200

913 P.2d 1200

22 Kan.App.2d 1

Laura VETTER, Appellant, v. Chad MORGAN and Dana Gaither, Appellees.

No. 71621. ¹

Court of Appeals of Kansas.

May 5, 1995.

Syllabus by the Court

1. The standards for summary judgment are stated and applied.

2. To establish liability for the tort of outrage, a plaintiff must show that the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery, and that the plaintiff suffered such extreme emotional distress that the law must intervene because no reasonable person should be expected to endure it.

3. Assault is defined as an intentional threat or attempt, coupled with apparent ability, to do bodily harm to another, resulting in immediate apprehension of bodily harm.

4. A negligence claim may be based upon intentional actions which affect the conduct of another in a manner that creates an unreasonable risk of harm to another.

5. The rules regarding cause in fact and proximate cause are stated and applied.

6. One tortfeasor may be liable for the tortious conduct of another when they act in concert.

7. Under the facts of this case, the trial court did not err in granting summary judgment in favor of a defendant on plaintiff's tort of outrage claim, but did err in granting summary judgment in favor of a defendant on plaintiff's assault and negligence claims.

Appeal from Riley District Court; Paul E. Miller, Judge.

Robert L. Pottroff, of Myers, Pottroff & Ball, of Manhattan, for the appellant.

J. Roger Hendrix, of Hendrix & Wright, of Topeka, for the appellees.

Before BRISCOE, C.J., and ELLIOTT and PIERRON, JJ.

BRISCOE, Chief Judge:

Laura Vetter appeals the summary judgment dismissal of her intentional infliction of emotional distress, assault, and negligence claims against Chad Morgan for injuries sustained in an automobile accident. We affirm the summary judgment in favor of Morgan on the tort of outrage claim, and reverse and remand for further proceedings on the balance of Vetter's claims against Morgan.

Vetter was injured when her van ran off the road after an encounter with a car owned by Morgan's father and driven by Dana Gaither. Morgan and Jerrod Faulkner were passengers in the car. Vetter was alone at 1:30 or 1:45 a.m. when she stopped her van in the right-hand westbound lane of an intersection at a stoplight. Morgan and Gaither drove up beside Vetter. Morgan began screaming vile and threatening obscenities at Vetter, shaking his fist, and making obscene gestures in a violent manner. According to Vetter, Gaither revved the engine of the car and moved the car back and forth while Morgan was threatening Vetter. Vetter testified that Morgan threatened to remove her from her van and spat on her van door when the traffic light turned green. Vetter stated she was very frightened and thought Morgan was under the influence of drugs or alcohol. She was able to write down the license tag number of the car. Morgan stated he did not intend to scare, upset, or harm Vetter, but "didn't really care" how she felt. He was trying to amuse his friends, who were laughing at his antics.

When the traffic light changed to green, both vehicles drove forward. According to Vetter, after they had driven approximately 10 feet, the car driven by Gaither veered suddenly into her lane, and she reacted by steering her van sharply to the right. Vetter's van struck the curb, causing her head to hit the steering wheel and snap back against the seat, after which she fell to the floor of the van. Morgan and Gaither denied that the car veered into Vetter's lane, stating they drove straight away from the intersection and did not see Vetter's collision with the curb.

Vetter filed this action against Morgan and Gaither, alleging their negligent or intentional actions had caused her injuries. The trial court granted summary judgment in favor of Morgan, ruling Vetter could not raise a negligence claim against Morgan for unintended results of his intentional acts. The court concluded that Morgan could not be liable for Gaither's actions because Morgan did not participate in driving the car. The court also concluded Morgan's actions did not constitute assault or outrageous conduct and dismissed all claims against Morgan. Gaither settled with Vetter, and the trial court approved the settlement.

The standard of review for a summary judgment is set out in Kerns v. G.A.C., Inc., 255 Kan. 264, 268, 875 P.2d 949 (1994):

"The burden on the party seeking summary judgment is a strict one. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal we apply the same rule, and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied."

I. Tort of outrage.

Vetter contends the trial court erred in concluding as a matter of law that Morgan's actions did not constitute outrageous conduct. There are two threshold issues that must be decided before liability may be imposed for intentional infliction of emotional distress: whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery, and whether the emotional distress suffered by the plaintiff is in such extreme degree that the law must intervene because no reasonable person should be expected to endure it. Taiwo v. Vu, 249 Kan. 585, 592, 822 P.2d 1024 (1991).

There was no evidence that Vetter suffered extreme emotional distress sufficient to support her claim. Her testimony that she was "very, very frightened" during the incident does not establish the kind of extreme emotional distress required for liability. See Roberts v. Saylor, 230 Kan. 289, 296, 637 P.2d 1175 (1981). Although Vetter testified that she later became very depressed and was given a prescription for Prozac for a short time, this testimony was given when she was describing her physical injuries and medical treatment for them rather than her emotional reaction to Morgan's actions.

II. Assault.

Vetter argues the trial court erred in dismissing her assault claim against Morgan. Assault is defined as "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." Taiwo, 249 Kan. at 596, 822 P.2d 1024 (quoting PIK Civ.2d 14.01).

The trial court concluded there was no evidence that Morgan threatened or attempted to harm Vetter, that he had no apparent ability to harm her because her van was locked and the windows were rolled up, and there was no claim of immediate apprehension of bodily harm. Vetter contends all of these conclusions involved questions of fact that should have been resolved by a jury.

There was evidence of a threat. Vetter testified in her deposition that Morgan verbally threatened to take her from her van. Ordinarily, words alone cannot be an assault. However, words can constitute assault if "together with other acts or circumstances they put the other in reasonable apprehension of imminent harmful or offensive contact with his person." Restatement (Second) of Torts § 31 (1964). See Gomez v. Hug, 7 Kan.App.2d 603, 606, 645 P.2d 916, rev. denied 231 Kan. 800 (1982).

The record is sufficient to support an inference that Morgan's threat and the acts and circumstances surrounding it could reasonably put someone in Vetter's position in apprehension of imminent or immediate bodily harm. Morgan's behavior was so extreme that Vetter could reasonably have believed he would immediately try to carry out his threat. It is not necessary that the victim be placed in apprehension of instantaneous harm. It is sufficient if it appears there will be no significant delay. See Restatement (Second) of Torts § 29(1), comment b (1964).

The record also supports an inference that Morgan had the apparent ability to harm Vetter. Although Vetter's van was locked and the windows rolled up, the windows could be broken. The two vehicles were only six feet apart, and Morgan was accompanied by two other males. It was late at night, so witnesses and potential rescuers were unlikely. Although Vetter may have had the ability to flee by turning right, backing up, or running the red light, her ability to prevent the threatened harm by flight or self-defense does not preclude an assault. It is enough that Vetter believed that Morgan was capable of immediately inflicting the contact unless prevented by self-defense, flight, or intervention by others. See Lesser v. Neosho County Community College, 741 F.Supp. 854, 865-66 (D.Kan.1990); Restatement (Second) of Torts § 24, comment b (1964).

The trial court erred in concluding there was no evidence that Vetter was placed in apprehension of bodily harm. Whether Morgan's actions constituted an assault was a question of fact for the jury.

III. Negligence--unintended results of intentional acts.

Vetter next contends the trial court erred in concluding as a matter of law that she could raise no negligence claim against Morgan because it was uncontroverted that Morgan's acts were intentional. Vetter argues she can raise a negligence claim based on the unintended results of Morgan's intentional acts, a theory specifically rejected by the trial court.

A negligence claim may be based on intentional rude pranks and horseplay that cause...