UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SHAHIN HAGIAN GOLESORKHI; MAHIN

HAGIHA MOSHARI,

Plaintiffs-Appellants,

No. 96-2211

v.

LUFTHANSA GERMAN AIRLINES,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Claude M. Hilton, District Judge.

(CA-95-1723-A, CA-96-666-A)

Submitted: August 5, 1997

Decided: September 10, 1997

Before NIEMEYER and LUTTIG, Circuit Judges, and BUTZNER,

Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Stephen R. Palmer, LAW OFFICES OF STEPHEN R. PALMER,

Alexandria, Virginia; Christopher Patusky, MAHON & PATUSKY,

Washington, D.C., for Appellant. Thomas J. Whalen, Timothy J.

Lynes, Evelyn D. Sahr, CONDON & FORSYTH, Washington, D.C.,

for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

This appeal arises from events that occurred during Shahin Golesorkhi's and Mahin Moshari's (the Appellants) flight from Dulles

International Airport to Frankfurt, Germany, and a connecting flight

to Tehran, Iran, aboard Lufthansa German Airlines (Lufthansa) in

December 1994. The Appellants claim that they were so traumatized

by their experiences traveling on Lufthansa that they were hospitalized for severe physical and mental injuries, and continue to suffer

physiological and emotional problems. Seeking compensatory and

punitive damages in excess of two million dollars, the Appellants

filed a five-count complaint alleging: 1) assault; 2) battery; 3) intentional infliction of emotional distress; 4) breach of contract; and 5)

breach of fiduciary duty. Before the case was submitted to the jury the

Appellants dropped their fiduciary duty claims, and the court granted

summary judgment on the breach of contact claims, and directed a

verdict pursuant to FED. R. CIV. P. 50(a) on the claims of assault,

intentional infliction of emotional distress, and Moshari's battery

claim. Thus, only Golesorkhi's battery claim was submitted to the

jury, and the jury quickly returned a verdict in favor of Lufthansa.

Finding no reversible error, we affirm the district court's final judgment.

On appeal, the Appellants challenge the district court's decision to

exclude evidence related to the Frankfurt to Tehran segment of their

flight and two letters written by Golesorkhi that recounted the events

of the trip. The Appellants contend that they should have been

allowed to present the evidence in order to provide the jury with a

complete picture of Lufthansa's conduct. We review the district

court's evidentiary rulings for an abuse of discretion.1

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1 See Superior Form Builders, Inc. v. Dan Chase Taxidermy Supply Co.

Inc., 74 F.3d 488, 495 (4th Cir. 1996).

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The district court did not abuse its discretion in finding the Frankfurt to Tehran flight unrelated and nonprobative to the claims associated with the Dulles to Frankfurt flight because the two flight

segments were separated by over ten hours and involved completely

different flight crews. Further, the letters the Appellants sought to

admit into evidence merely recounted the Appellants' versions of the

facts. Given that both Appellants testified to what allegedly occurred,

the letters were cumulative and properly excluded. Additionally, the

reference by Lufthansa to a line in one of the letters during crossexamination did not concern factual allegations, but was intended to

show Golesorkhi's propensity to cause disputes. Exclusion of the

entire letter was proper because Golesorkhi was allowed to explain

her statement in the letter that she was not merely causing another

quarrel; however, she was not allowed to corroborate her testimony

concerning the events on the plane with hearsay evidence created in

anticipation of litigation. We find no abuse of discretion in the exclusion of evidence.

Next, the Appellants assert that the district court erred in granting

a directed verdict for Lufthansa on both Appellants' claims of assault

and intention infliction of emotional distress, and Moshari's battery

claim. The Appellants' claims are without merit because they failed

to provide a sufficient evidentiary basis for a reasonable jury to find

under Virginia law that an assault, battery, or intentional infliction of

emotional distress occurred.2 This Court reviews the district court's

decision to grant a directed verdict de novo.3

In Virginia, an assault is an unlawful attempt or threat to do bodily

harm to another by force which creates a well-founded fear of imminent peril.4 It is insufficient for the Appellants to claim that they were

terrified by the Lufthansa flight crew; they must establish that the fear

was well-founded.5 The Appellants' allegation that Lufthansa person-

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2 See FED. R. CIV. P. 50(a).

3 See Malone v. Microdyne Corp. , 26 F.3d 471, 475 (4th Cir. 1994).

4 See Harper v. Commonwealth, 196 Va. 723, 733, 85 S.E.2d 249, 255

(1955); Merritt v. Commonwealth, 164 Va. 653, 658, 180 S.E. 395, 397

(1935).

5 See McReynolds v. Commonwealth , 177 Va. 933, 943, 15 S.E.2d 70,

74 (1941).

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nel yelled at them, told them to "shut-up," and forced them to watch

Lufthansa employees blow cigarette smoke into each other's face,

does not rise to the level of assault. Words alone, no matter how

grievous or insulting, are not sufficient to constitute an assault,6 and

merely observing cigarette smoke blown into a sibling's face does not

create or threaten harm to the observer. The alleged action must indicate a present intent and ability to do bodily harm to the aggrieved

party. Therefore, the district court did not err in directing a verdict for

Lufthansa on the assault claims.

Further, the Appellants failed to present any evidence that Lufthansa's actions were willful and so outrageous that they exceeded all possible bounds of decency and were intolerable in a civilized society.7

Liability arises only when the emotional distress is extreme and only

where the distress inflicted is so severe that no reasonable person

could be expected to endure it.8 At best, the Appellants alleged conduct by Lufthansa employees that was rude and a poor business practice, but it was not so outrageous as to be actionable under Virginia

law.

Finally, Moshari's claim that a flight attendant's blowing of smoke

in her face constituted a battery is without merit. A battery does not

exist under Virginia law unless a plaintiff alleges that a physical

touching occurred and that damages resulted from the touching.9

Moreover, a review of Virginia cases does not reveal one decision

where second-hand smoke constituted a battery. Thus, the district

court did not err in finding that Moshari failed to state a battery under

Virginia law.

Furthermore, the Appellants' assertion that the jury should have

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6 See Harper, 196 Va. at 733, 85 S.E.2d at 252.

7 See Russo v. White, 241 Va. 23, 27, 400 S.E.2d 160, 163 (1991).

8 See Russo, 241 Va. at 27, 400 S.E.2d at 163; see also Ruth v.

Fletcher, 237 Va. 366, 368, 377 S.E.2d 412, 413 (1989) (liability exists

only where conduct is outrageous and intolerable in that it offends

against generally accepted standards of decency and morality).

9 See Seegars v. Commonwealth, 18 Va. App. 641, 644, 445 S.E.2d

720, 722 (1994).

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been allowed to decide the issue of punitive damages is without merit.

The Appellants presented absolutely no evidence that Lufthansa

authorized or ratified the aircrew's alleged tortious actions, and in

Virginia, a corporation must authorize or ratify the acts of its employees before punitive damages can be imposed upon it. 10

Accordingly, we affirm the district court's orders to exclude evidence and to grant a directed verdict to Lufthansa on the Appellants'

claims for assault, intentional infliction of emotional distress, punitive

damages, and Moshari's battery claim. Additionally, we affirm the

jury's verdict on Golesorkhi's battery claim. We dispense with oral

argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the

decisional process.

AFFIRMED

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10 See Freeman v. Sproles, 204 Va. 353, 358, 131 S.E.2d 410, 414

(1963).

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