# FILED
June 16, 1998 Cecil W. Crowson Appellate Cou rt Clerk BILLY RAY LONG and VI CKY LONG, ) ) Davidson Circuit Plaintiffs/Appellants

, ) No. 96C-363

) VS. ) ) Appeal No. LANDMARK TELEVISIO N OF TENNESSEE, ) 01A01-9709-CV-00483 INC., and JAMES E. NORTON, Individually, ) ) Defendants/Appellee

s, )
IN THE COURT OF AP PEALS OF TENNESSEE MIDDLE SECTION AT NASH VILLE APPEAL FROM THE DAVIDSON COUNTY CIRCUIT COURT

AT NASHVILLE, TENNESSEE HONORABLE WALTE R C. KURTZ, JUDGE
James L. Harris, #14173 2400 Crestmoor Road Nashville, Tennessee 37215 ATTORNEY FOR PLAINTIF FS/APPELLANTS Leilani Boulware, #15656 HARWELL, H

OWARD, HYNE, GAB BART & MANNER, P. C. 1800 First American Center 315 Deaderick Street Nashville, Tennessee 37238 ATTORNEY FOR DEFENDANTS/APPELLEES



### AFFIRMED AND REMAND ED

HENRY F. TODD PRESIDING JUDGE, MIDDL E SECTION

CONCURS: BEN H. CANTRELL, JUDGE WILLIA M B. CAIN, JUDGE-2-

BILLY RAY LONG and VI CKY LONG, ) ) Davidson Circuit Plaintiffs/Appellants

, ) No. 96C-363

) VS. ) ) Appeal No. LANDMARK TELEVISIO N OF TENNESSEE, ) 01A01-9709-CV-00483 INC., and JAMES E. NORTON, Individually, ) ) Defendants/Appellee

s, ) 

## O P I N I O N
The captioned plaintiffs have appea led from a summary di

smissal of their join

t suit against the employer of Mr. Long and his superior f or alleged emotional injury resulting from verbal and physical harassment of Mr. Long by said supervisor.
The complaint, fil

ed on January

29, 1996, allege

s in pertinent par

t: 5. That

from 1988 until on or about July 21, 1995 Plaintiff did endure verbal and physical harassment from Defendant

James E. Norton, his Sup ervis or. That James E. Norton, as agent of Defendant Company , was a cting in the course and scope of his em

ployme nt when these acts were committed upon Plain tiff. Specifically, the acts committed upon Plaintiff by Defendant’s agent, James E. Norton, were that Mr. Norton would continuously grab the Plaint if f on certain areas o f h is body with the intention of abusin

g him because of his obesity. T

hat thes e acts would take place in front of fellow employeesand caused Plaintiff to have severe embarrassment , hu miliation, and emotional distress. That Pl aintiff complained to Management Officials about Defendant

James E. Norton’s be

havior, but s

uch be havior continued. 6. That

as a result of this continuing verbal and physical harassment Plaintiff had to take medical leave of absence from work. 7. As a

direct result of t

he Defendant’s

actions in mal ici ous ly, wil ful ly, w ant onl y an d total disregard of Plaintiff’s rights, Plaintiff has suffered, and will in the future for an indefinite period of time, or permanent ly, co ntinue to suffer from having endured the Defendant, James E. Norton’s actions.8. The above mentioned act s of Defend ant, Jame s E. Norton, are a direct and proximate cause of injuri e s sustained by Plaintiff.

- - - --3- 10. As a direct and proximate result of the intentional acts of Defendants, Plai nt iff Vicky Long has sustainedemotional stress and suffering caused by seeing he r husband, Billy Ray Long , suffer serious pain and suffering du e to the injuries he received as a direct result of the intentional acts of

Defendant’s ag

ent. 11. As a direct and proximate result of the intentional acts of De f

endants, Plaintiff Vicky Long lost for a period of time the s ervices, companionship, consortium, and society of Billy Ray Long to which she is entitled as his Wife, thus Defendants are

liable to the Plaintiff, Vicky Long for the aforesaid loss.

- - - - 13. Plaint iff

further charges that the intentional acts of defendants in v erbally an d physically harassing Plaintiff amounted to negl

igent infli

ct ion of emotional distre ss. That Defendant, Landmark Television of Tennessee, Inc. had a du ty to s upervise and con trol the actions of

its employee, James E. Norton, and that by failing to super

vise or control Defendant James E. Norton did breach that duty of care causing

Plaintiff’s injurie

s and losses.
The joint answer of the

defendants asse

rts that the compla

int fail s to state a claim for which relief ca

n be granted an

d that the claim is ba

rred by the

statute of limitatio

ns.

The defendants’ joint motion for summa ry judgmen

t states: The re are no genuine issues of material fact wi t h regard to the plaintiffs’ soleclaim, that intentional verbal and physical harassment of

plaintiff Billy Ray

Long amounte

d to negligent infl iction of emotional

distress. Plaintiff

s’ claims are time-barre d beca use, by plaintiffs’ own admission, the alleged harassment o

f p laintiff Billy Ray L

ong terminated more than a year

befo re plaintiffs file

d the present cla

im. Regardless,

Tennessee’s work

ers compensation statute bars plaintiffs’ claim

s.
The record cont

ains the affidav

it of Mr. Long

which states: Although the physical touching st opped in August 1994, the mental harassmen t con tinued well into July and August 1995.

- - - - That --- until July or

August 1995 Norton continu

es to comment about my hair and weight in front of o ther employeescausing me extreme embarrassment and humiliation.-4- T.C.A. § 28 -3- 104 lim its act ion s fo r injur y to t he p ers ons to o ne yea r aft er t he i nju ry. In view of the sworn admissionof Mr. Long that the last touching of his body occur red more than one year

before his suit wa

s filed, plaintiff

s’ claims for bodil

y injury require no further discussion.
This leaves only their claim for emotional distress and “loss of services.”

Laxton v. Orkin Extermin ating Co ., T enn. 19 82, 639 S.W.2d 431, affirmed a jury verdict and judgment in favor of homeowners because of fears for safety of themselves and children after drinking water which was negligently contaminated by defendant, although no physical damage was sustained.

In Medlin v. Allied I

nv. Co ., 217 Tenn. 469, 398 S.W.2d 270 (1966), it

was held that whererecovery is sought for mental or emotional disturbance alone, unconnected with any other actionable tort o

r ascertainabl

e injury, the

conduct of the de

fendant must be out

rageous, and mus t pr odu ce se rio us m ent al i nju ry.

In Swallows v. Wes

tern Electric Co ., Tenn. 1976, 543 S.W.2d 581, it was held that “outrageous conduct” must be so extreme in degree, as to be beyond the pale of decency, and to be regarded as atrociousand utterly intolerable in

civilized society

, and the conduct m

ust
res ult in s eri ous inj ury.

In Dunbar v. Strimas , Tenn. App. 1981, 632 S.W.2d 558, the complaint stated that
an acting co unty medical examiner was inf ormed that the pla

intiff was suffe

ring from a
ne rvous breakdown, nevertheless reported to plaintiff that the body of her 1 9 month ol d infant child bore eviden

ce of sexual abuse

andsuffocation, and that “everybody would have to be questioned.” It was held that a case of “intentional or reckless infliction of severe emotional distress

” was stated by

the complaint.-5- In Johnson v. Woman’s Hospital , Tenn. App. 1975, 527 S.W.2d 133, the hospital and doctor were sued for breach of contract and outrageous conduct by delivering a premature bab y, certifying a live birth and a subsequent death and therea fter displaying the body in a jar of formaldehyde. This Court affirmed a jury verdict and judgment against the ho spital for compensato ry and punitiv e damages for o utrageous co nduct, cit ing Medlin, supra., but reversed both r ecove ries a gains t the d octor . It was also held that punitive damages may not be awarded for

breach of contr

act.

In Knoxville Traction Co. v. Lane , 103 Tenn. 376, 535 S.W. 557, 46 LRA 549 (1899),
an award of dama

ges to a pa ssenger on a street car who was insulted by the opera tor was affirmed on the grounds of the obligation of the defendant as a common carrier.

In Colsher v. Tenn. Ele

ctric Power Co ., 19 Tenn. App. 166, 84 S.W.2d 117 (1935),
a directed verdict for the defendan ts was affirmed where representatives of the power company were accused of “breaking into” a latticed back porch to examine the electric meter as permitted by

utility reg

ulations, and the on

ly injury alleged was me

ntal and emotional
.

From all of the foregoing, this Court concludes that neither the defendant employer
nor its supervisor were liable to either of the plaintiffs for physical harm because of the bar of the statute of limitations, thatthe relationship of employer and employee is contra ctual and does not inclu de the r ight to sue for tortious misconduct, that the Workers Compensation Lawprovides the only remedy for tortious misconduct involving employ ment, andthat the undisputed facts o f thi s case negativ e any reme

dy for “outr

ageous conduc

t.” The relations

hip of employer and em

ployee is one of contract, and the behavior of the supervisor does not qualify as “outrageous.” The

rights of the wife of the

employee in this case depend upon the rights of her husband and cannot prevail where the husba nd does not prevail. Tuggle v. Allrite Parking Systems, Inc ., Tenn. 1996, 922 S.W.2d 105.-6- The judgment of t

he Trial Court is af

firmed. Costs of this

appeal are taxed

against the plaintiffs. Th

e cause is reman

ded to the Trial Cou

rt for necessar

y further p

roceedings.



### AFFIRMED AND REMAND ED

___________________________________ HENRY F. TODD PRESIDING JUDGE, MIDDL E SECTION

CONCURS:

______________________________ BEN H. CANTRELL, JUDGE

______________________________ WILLIA M B. CAIN, JUDGE