Waldon v. Covington, 12671.

Docket NºNo. 12671.
Citation415 A.2d 1070
Case DateMay 27, 1980
CourtCourt of Appeals of Columbia District

Page 1070

415 A.2d 1070
Chandra W. WALDON, Appellant,
Ann COVINGTON et al., Appellees.
No. 12671.
District of Columbia Court of Appeals.
Argued December 5, 1978.
Decided May 27, 1980.

Page 1071

John C. LaPrade and Jeffrey C. Tuckfelt, Washington, D. C., for appellant.

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Herbert O. Reid, Sr., Washington, D. C., for appellees Covington and Wiggins.

Leo N. Gorman, Asst. Corp. Counsel, Washington, D. C., with whom Louis P. Robbins, Acting Corp. Counsel, Washington, D. C., at the time the brief was filed and the case was argued, and Richard W. Barton, Deputy Corp. Counsel, Washington, D. C., were on the brief, for appellees Mack, Williams, Russell, the Board of Trustees of the University of the District of Columbia, and the District of Columbia. David P. Sutton, Asst. Corp. Counsel, Washington, D. C., also entered an appearance for appellees.

Before NEWMAN, Chief Judge, and KELLY and HARRIS, Associate Judges.

KELLY, Associate Judge:

Appellant Chandra W. Waldon appeals the dismissal on August 22, 1977, of her complaints against appellees Ann Covington, Eugene Wiggins, Julius Mack, Ronald Williams, Wendell Russell, and the District of Columbia Board of Higher Education (BHE), now the Trustees of the University of the District of Columbia, for libel and slander, breach of contract, tortious interference with contract, intentional infliction of emotional distress, and wrongful death. We affirm.

The record shows that Edgar F. Waldon had been a professor in the Department of Communications Sciences at Federal City College (FCC) and its successor, the University of the District of Columbia (UDC), for six years, when Ann Covington was appointed chairperson of the department in 1972. Covington was apparently dissatisfied with Waldon's instructional abilities and recommended that he not be appointed to teach during the 1974 summer session. Waldon then obtained a temporary restraining order from the Superior Court requiring that the college allow him to teach that summer.1

In late August, Waldon was notified by appellee Wendell Russell, the president of FCC, that his contract, scheduled to expire in June 1975, would not be renewed.

On July 3, 1975, Waldon notified Russell, the BHE, and the District of Columbia Corporation Counsel that he intended to seek judicial review of his employment termination.2 Consequently, on August 15, 1975, the BHE agreed, in writing, to restore Waldon to full teaching responsibilities and privileges, to reinstate his contract for two years, and to expunge all charges from the college records.3

Covington and Eugene Wiggins, the clinical coordinator of the Communications Sciences Department, balked at full compliance with the terms of the August agreement, apparently for both jurisdictional and professional reasons,4 despite repeated requests from their FCC superiors. On October

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20, 1975, Waldon filed a complaint requesting a temporary restraining order to prevent appellees from breaching the agreement, and to require them to (1) give him keys to the departmental audiology clinic; (2) notify him of department meetings; (3) assign him to departmental committees; (4) comply with the expunction provisions of the agreement; and (5) cease having students "keep an eye on [him]" and report on his activities. The complaint also sought $20,000 in compensatory and $20,000 in punitive damages for breach of contract, tortious interference with contractual rights, intentionally "injur[ing] [him] in his chosen profession," violating his Fifth Amendment rights, and "civil conspiracy . . . to . . . deprive [him] of his contractual and constitutional rights."5

A temporary restraining order was issued by Judge Penn the same day. It was initially due to expire on November 4, but was extended several times, until a partial preliminary injunction was issued by Judge Fauntleroy on December 23. However, before any hearing on the actions for damages, Waldon suffered an irreversible cardiac arrest and died on April 29, 1976.

Appellant Chandra Waldon, his widow and executrix, moved to be substituted as a party plaintiff on October 22, 1976, and filed an amended complaint requesting four million dollars in compensatory and punitive damages, captioned: "for wrongful death, tortious interference with contract, breach of contract, libel, slander and defamation of character." She alleged that her husband's "cardiac arrest and failure of his other body functions resulting in his death were the direct result of the wrongful acts of the defendants." The only specific overt acts alleged to have been committed by Covington and Wiggins, other than "conspiratorial actions," were acts of "direct and deliberate interference with [decedent's] contract rights," unspecified "physical interference with [his] rights to use [the physical facilities] . . . at [FCC],"6 "continued harassment . . . including . . . making . . . unfounded statements, . . . [and] false written and oral charges of incompetency," and "continued threats . . . to take action to terminate [his] employment." Appellant alleged that the other appellees failed to supervise and ensure Covington's and Wiggins' obedience to the terms of either the agreement or the temporary restraining order, and that Mack, Williams and Russell conspired with Covington and Wiggins.

On March 17, 1977, appellant filed a Memorandum of Law7 which added the following elements to the prior complaints: that appellees Covington's and Wiggins' acts constituted intentional interference with decedent's contract and that those acts directly caused or substantially aggravated Waldon's alleged physical injury, hypertension. An affidavit from Dr. Marcio C. Ferez was appended, stating that it was his medical opinion that decedent's hypertension was a physical injury that was "probably directly caused by the severe tension of which Dr. Waldon informed [him] on his first visit on April 6, 1976," three weeks before his fatal heart attack. Dr. Ferez' "opinion [was] that Dr. Waldon's physical condition and medical entities [sic] just prior to and at the time of his cardiac arrest were either caused by or were substantially aggravated by the pressure [he] was under at work."8

On April 21, 1977, appellant filed a response to appellees' motion to dismiss for

Page 1074

failure to state a claim upon which relief could be granted, stating that "the two intentional torts set forth in [her] original complaint [interference with contract, and libel and slander] survive under . . . Title 12-101 of the [D.C.] Code," and "are not alleged to be a part of [her] wrongful death claim." She also stated that the wrongful death claim, under D.C.Code 1973, § 16-2701, was based upon appellees' breaches of their duties to Waldon, "based upon [his] right to practice his profession and to enjoy the fruits of his contract" and "imposed upon them by the terms of their [jobs]." Appellant placed "particular reliance" on Clark v. Associated Retail Credit Men, 70 App.D.C. 183, 105 F.2d 62 (1939), and alleged that, based on Dr. Ferez' affidavit, there was a sufficient showing of physical injury to her decedent to fit within the holding of Clark.9

On August 22, 1977, after granting her motion to file a second amended complaint and considering appellant's aforementioned allegations, Judge Fauntleroy granted appellees' motions to dismiss.

The trial court concluded that (1) neither the libel and slander nor the tortious interference with contract claims survive under D.C.Code 1973, § 12-161;10 (2) the breach of contract claims fail against all the appellees except President Russell, for lack of privity; (3) absent any allegation that he knew of or personally committed a breach of contract, appellant failed to state a claim against President Russell;11 (4) the Board of Trustees of the UDC is protected by the same defense of immunity as was the BHE, for which it was substituted;12 (5) the wrongful death action is insufficient for failure to show proximate cause, physical impact, or physical injury; and (6) the respondeat superior13 claim against the District does not survive the dismissal of the underlying claims against the individual defendants.14

Since our review of the record shows no genuine issue as to any material fact that could establish appellees' liability under any of the theories of recovery argued by appellant, we affirm the trial court's dismissal on all counts. See Super.Ct.Civ.R. 56(c).15

Appellant's contention that she stated sufficient grounds for a cause of action against Covington and Wiggins16 either for wrongful death or for intentional

Page 1075

infliction of extreme emotional distress17 is the only issue meriting more that cursory discussion. Although the trial court properly granted appellees' motions to dismiss these claims, its stated grounds for doing so were analytically incorrect.18 The principal

Page 1076

reason that neither claim adequately states a cause of action is that appellant fails to establish appellees' intent to commit a tortious act.19

Unlike the action for negligent infliction of extreme emotional distress, a tort long recognized in the District of Columbia, Perry v. Capital Traction Co., 59 App.D.C. 42, 32 F.2d 938, cert. denied, 280 U.S. 577, 50 S.Ct. 31, 74 L.Ed. 627 (1929), an action for intentional infliction may be made out even in the absence of physical injury or impact.20 However, the acts giving rise to liability for intentional infliction must be both "beyond all the bounds of decency" and "without just cause or excuse." Clark v. Associated Retail Credit Men, supra 70 App.D.C. at 186, 105 F.2d at 65.

Under the Restatement (Second) of Torts § 46 (1965), liability may be imposed for "extreme and outrageous conduct intentionally or recklessly [causing] severe emotional distress to another. . ." See Prosser, supra, § 12, at 55-56. This liability "clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or...

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