# McQuay v. Guntharp/Dissent Newbern

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Newbern
​ DAVID NEWBERN, Justice, dissenting. To establish the tort of outrage or intentional infliction of emotional distress, a plaintiff must prove (1) the defendant intended to inflict emotional distress or knew or should have known that emotional distress was the likely result of his conduct, (2) the conduct was extreme and out.rageous and was utterly intolerable in a civilized community, (3) the defendant's conduct was the cause of the plaintiff's distress, and (4) the emotional distress sustained by the plaintiff was so severe that no reasonable person could be expected to endure it. Angle v. Alexander, 328 Ark. 714, 945 S.W.2d 933 (1997); Milam v. Bank of Cabot, 327 Ark. 256, 937 S.W.2d 653 (1997). The Trial Court correctly concluded that the complaint in this case, while stating a claim for battery, failed to state a claim for the tort of outrage.
Each of the women who are the appellants in this case alleges the improper touching by the doctor. Presumably it occurred on ​only one occasion with each of them. Nothing is alleged to suggest it occurred more than once as to any of them. The cases in which we have dealt with sexual improprieties amounting to outrage have concerned protracted sexual misconduct with or harassment of the plaintiff. More important, they have been cases in which there were allegations of the kind of devastating emotional injury described in the fourth element of the tort stated above. The allegations in the complaint now before us do not measure up.
Since recognizing the tort of outrage in M.B.M. Co. v. Counce, 268 Ark. 269, 569 S.W.2d 681 (1980), we have addressed outrage in a cautious manner, Dillard Dep't Stores, Inc. v. Adams, 315 Ark. 303, 867 S.W.2d 442 (1993), and have stated that we take a strict approach and give a narrow view to the tort of outrage. Croom v. Younts, 323 Ark. 95, 913 S.W.2d 283 (1996). As the majority opinion states, when analyzing an outrage claim where no physical injury or harm is evident, the courts tend to look for more in the way of extreme outrage as an assurance that the mental disturbance claim is not fictitious. In this case, there is no allegation of physical injury or harm; therefore, we must look for more in the way of emotional distress.
In reaching its conclusion, the majority has ignored aspects of prior cases in which we have considered allegations of sexual harassment and misconduct. See Croom v. Younts, supra. See also Hale v. Ladd, 308 Ark. 567, 826 S.W.2d 244 (1992). In the Croom case, we held that evidence of the tort of outrage was sufficient when a 51-year-old male began having sexual relations with his 15-year-old cousin after giving her alcohol and medication. Following the first episode, the two engaged in sexual relations on ten to fifteen additional occasions. Subsequently, the young girl made two attempts to commit suicide.
In the Hale case, where we held there was a clear preponderance of evidence supporting the claim of outrage, the evidence included frequent suggestive remarks and unwanted physical contact directed toward an employee by her employer over a two-month period resulting in her having a spastic colon.
​In both of those cases, the conduct giving rise to the claim of outrage allegedly occurred on numerous occasions over an extended period of time. The duration of the conduct is a factor in determining whether the conduct rises to the level of outrage. See Dillard Dep't Stores, Inc. v. Adams, 315 Ark. 303, 867 S.W.2d 442 (1993) (noting the appellee testified that the incident lasted less than an hour as an apparent factor in the determination that the trial court erred in denying appellant's motion for a directed verdict); see also Smith v. American Greetings Corp., 304 Ark. 596, 804 S.W.2d 683 (1991) (citing Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380 (1988)) (stating "[t]he fact that an employer continues unjustifiable conduct over a long period of time can be an important factor weighing in favor of a finding that the employer's conduct towards an employee was outrageous"); Sterling Drug, Inc. v. Oxford, supra,) (noting the length of time that the conduct occurred and stating that in the Hess case, we based our decision in part on the fact that Hess' actions continued over a two year time span); Hess v. Treece, 286 Ark. 434, 693 S.W.2d 792 (1985) (noting that the conduct continued over a period of two years or more in determining that there was substantial evidence to support a finding that the tort of outrage occurred).
Although the majority opinion cites no authority in support of its conclusion that the special relationship between a physician and patient is significant in the context of determining whether the physician's conduct constitutes the tort of outrage, it is a con.clusion to which I could subscribe in a proper case. It has been discussed in obiter dicta elsewhere and said to be a factor making the outrage standard "less stringent." Sharrow v. Bailey, 910 F.Supp. 187, 194 (M.D. Pa. 1995). See also Angie M. v. Superior Court (Hiemstra), 44 Cal. Rptr. 2d 197 (Cal. App. 4 Dist. 1995). Again, the main problem with the complaint here is that it does not state facts showing the claimants suffered emotional distress of the sort that no person could be expected to endure.
Here are the relevant excerpts from the abstract of the complaint:
   The trauma of having a doctor whom each of the Plaintiffs trusted fondle their breasts in a sexually suggestive manner has caused all of the Plaintiffs to become less trusting of physicians in general.
   . . . [E]ach of the plaintiff's missed time from work. . . .
   . . . [T]he plaintiffs have sustained medical expenses in the past and may sustain future medical expense. . . .
These allegations, apparently made in an attempt to satisfy the requirement that facts be stated to show that the plaintiffs have suffered emotional distress "so severe that no reasonable person could be expected to endure it," are largely conclusory. They hardly rise to the level of those in the Croom case where there was an attempted suicide by the minor who had been violated or the allegation of protracted sexual harassment resulting in a specific medical condition as in the Hale case.
In Turner v. Baptist Medical Center, 275 Ark. 424, 631 S.W.2d 275 (1982), we held that an allegation of intentional infliction of emotional distress against a psychiatrist who allegedly caused false imprisonment of the plaintiff in a psychiatric treatment facility was insufficient. The majority opinion attempts to distinguish that case on the basis that it contained no allegation of violation of a trusted relationship. That misses the point of the opinion which was, "No facts were alleged that would make the assertion of mental and emotional distress anything more than an element of damage flowing from the imprisonment and mistreatment." 275 Ark. at 426, 631 S.W.2d at 277 (emphasis supplied). The focus there was not on the act that caused the alleged injury, but on the "assertion of mental and emotional distress" that was found to be inadequate. The same is true in this instance.
No doubt the conduct alleged in this case was an unpermitted touching or battery, but if the allegation of mental or emotional distress amounts to anything more than an indication of appropriate anger resulting from such conduct, it is not sufficient to rise to the level of the tort of outrage.
We should honor the Trial Court's dismissal of the complaint of outrage on the ground that it failed to state facts sufficient to allege that tort.
I respectfully dissent.
IMBER, J., joins in this dissent.