FILED

June 16, 1998

Cecil W. Crowson

Appellate Court Clerk

BILLY RAY LONG and VICKY LONG, )

) Davidson Circuit

Plaintiffs/Appellants, ) No. 96C-363

)

VS. )

) Appeal No.

LANDMARK TELEVISION OF TENNESSEE, ) 01A01-9709-CV-00483

INC., and JAMES E. NORTON, Individually, )

)

Defendants/Appellees, )

IN THE COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

APPEAL FROM THE DAVIDSON COUNTY CIRCUIT COURT

AT NASHVILLE, TENNESSEE

HONORABLE WALTER C. KURTZ, JUDGE

James L. Harris, #14173

2400 Crestmoor Road

Nashville, Tennessee 37215

ATTORNEY FOR PLAINTIFFS/APPELLANTS

Leilani Boulware, #15656

HARWELL, HOWARD, HYNE, GABBART & MANNER, P.C.

1800 First American Center

315 Deaderick Street

Nashville, Tennessee 37238

ATTORNEY FOR DEFENDANTS/APPELLEES

AFFIRMED AND REMANDED

HENRY F. TODD

PRESIDING JUDGE, MIDDLE SECTION

CONCURS:

BEN H. CANTRELL, JUDGE

WILLIAM B. CAIN, JUDGE
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BILLY RAY LONG and VICKY LONG, )

) Davidson Circuit

Plaintiffs/Appellants, ) No. 96C-363

)

VS. )

) Appeal No.

LANDMARK TELEVISION OF TENNESSEE, ) 01A01-9709-CV-00483

INC., and JAMES E. NORTON, Individually, )

)

Defendants/Appellees, )

O P I N I O N

The captioned plaintiffs have appealed from a summary dismissal of their joint suit

against the employer of Mr. Long and his superior for alleged emotional injury resulting from

verbal and physical harassment of Mr. Long by said supervisor.

The complaint, filed on January 29, 1996, alleges in pertinent part:

5. That from 1988 until on or about July 21, 1995

Plaintiff did endure verbal and physical harassment from

Defendant James E. Norton, his Supervisor. That James E.

Norton, as agent of Defendant Company, was acting in the

course and scope of his employment when these acts were

committed upon Plaintiff. Specifically, the acts committed

upon Plaintiff by Defendant’s agent, James E. Norton, were

that Mr. Norton would continuously grab the Plaintiff on

certain areas of his body with the intention of abusing him

because of his obesity. That these acts would take place in

front of fellow employees and caused Plaintiff to have severe

embarrassment, humiliation, and emotional distress. That

Plaintiff complained to Management Officials about

Defendant James E. Norton’s behavior, but such behavior

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 the Defendant’s actions in

maliciously, wilfully, wantonly and total disregard of

Plaintiff’s rights, Plaintiff has suffered, and will in the future

for an indefinite period of time, or permanently, continue to

suffer from having endured the Defendant, James E. Norton’s

actions.

8. The abovementioned acts of Defendant,James

E. Norton, are a direct and proximate cause of injuries

sustained by Plaintiff.

- - - -
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10. As a direct and proximate result of the

intentional acts of Defendants, Plaintiff Vicky Long has

sustained emotional stress and suffering caused by seeing her

husband, Billy Ray Long, suffer serious pain and suffering

due to the injuries he received as a direct result of the

intentional acts of Defendant’s agent.

11. As a direct and proximate result of the

intentional acts of Defendants, Plaintiff Vicky Long lost for

a period of time the services, 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. Plaintiff further charges that the intentional

acts of defendants in verbally and physically harassing

Plaintiff amounted to negligent infliction of emotional

distress. That Defendant, Landmark Television of Tennessee,

Inc. had a duty to supervise and control the actions of its

employee, James E. Norton, and that by failing to supervise

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

care causing Plaintiff’s injuries and losses.

The joint answer of the defendants asserts that the complaint fails to state a claim for

which relief can be granted and that the claim is barred by the statute of limitations.

The defendants’ joint motion for summary judgment states:

There are no genuine issues of material fact with

regard to the plaintiffs’ sole claim, that intentional verbal and

physical harassment of plaintiff Billy Ray Long amounted to

negligent infliction of emotional distress. Plaintiffs’ claims

are time-barred because, by plaintiffs’ own admission, the

alleged harassment of plaintiff Billy Ray Long terminated

more than a year before plaintiffs filed the present claim.

Regardless, Tennessee’s workers compensation statute bars

plaintiffs’ claims.

The record contains the affidavit of Mr. Long which states:

Although the physical touching stopped in August

1994, the mental harassment continued well into July and

August 1995.

- - - -

That --- until July or August 1995 Norton continues to

comment about my hair and weight in front of other

employees causing me extreme embarrassment and

humiliation.
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T.C.A. § 28-3-104 limits actions for injury to the persons to one year after the injury.

In view of the sworn admission of Mr. Long that the last touching of his body occurred more

than one year before his suit was filed, plaintiffs’ claims for bodily injury require no further

discussion.

This leaves only their claim for emotional distress and “loss of services.” 

Laxton v. Orkin Exterminating Co., Tenn. 1982, 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 Inv. Co., 217 Tenn. 469, 398 S.W.2d 270 (1966), it was held that

where recovery is sought for mental or emotional disturbance alone, unconnected with any

other actionable tort or ascertainable injury, the conduct of the defendant must be outrageous,

and must produce serious mental injury.

In Swallows v. Western 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 atrocious and utterly intolerable in civilized society, and the conduct must

result in serious injury.

In Dunbar v. Strimas, Tenn. App. 1981, 632 S.W.2d 558, the complaint stated that

an acting county medical examiner was informed that the plaintiff was suffering from a

nervous breakdown, nevertheless reported to plaintiff that the body of her 19 month old

infant child bore evidence of sexual abuse and suffocation, 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.
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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

baby, certifying a live birth and a subsequent death and thereafter displaying the body in a

jar of formaldehyde. This Court affirmed a jury verdict and judgment against the hospital

for compensatory and punitive damages for outrageous conduct, citing Medlin, supra., but

reversed both recoveries against the doctor. It was also held that punitive damages may not

be awarded for breach of contract.

InKnoxville Traction Co. v. Lane, 103 Tenn. 376, 535 S.W. 557, 46 LRA 549 (1899),

an award of damages to a passenger on a street car who was insulted by the operator was

affirmed on the grounds of the obligation of the defendant as a common carrier.

In Colsher v. Tenn. Electric Power Co., 19 Tenn. App. 166, 84 S.W.2d 117 (1935),

a directed verdict for the defendants 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 regulations, and the only injury alleged was mental 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, that the relationship of employer and employee is contractual and

does not include the right to sue for tortious misconduct, that the Workers Compensation

Law provides the only remedy for tortious misconduct involving employment, and that the

undisputed facts ofthis case negative any remedy for “outrageous conduct.” The relationship

of employer and employee 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 husband does not prevail. Tuggle v.

Allrite Parking Systems, Inc., Tenn. 1996, 922 S.W.2d 105.
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The judgment of the Trial Court is affirmed. Costs of this appeal are taxed against

the plaintiffs. The cause is remanded to the Trial Court for necessary further proceedings.

AFFIRMED AND REMANDED

___________________________________

HENRY F. TODD

PRESIDING JUDGE, MIDDLE SECTION

CONCURS:

______________________________

BEN H. CANTRELL, JUDGE

______________________________

WILLIAM B. CAIN, JUDGE