RUDY LOZANO, Judge, United States District Court.
This matter is before the Court on: (1) Plaintiff Ricardo Jimenez' Partial Motion for Summary Judgment, filed on October 13, 2015 (DE # 77); and (2) Defendants' Cross-Motion for Partial Summary Judgment, filed on November 13, 2015 (DE # 80). For the reasons set forth below, Plaintiff Ricardo Jimenez' Partial Motion for Summary Judgment (DE # 77) is
On October 7, 2013, Plaintiffs Ricardo Jimenez ("Jimenez") and Gladys Huertas ("Huertas") initiated this action in the Allen Circuit/Superior Court. The case was removed to federal court and subsequently amended. The Amended Complaint alleges nine counts against two Defendants (CRST Specialized Transportation Management, Inc. ("CRST") and Al Thompson): negligent hiring, negligent supervision, negligent retention, negligence based on failure to warn of dangerous premises, assault and battery, tortious interference with a business relationship/expectancy, tortious interference with contract relations, loss of consortium, and intentional infliction of emotional distress. Plaintiffs voluntarily dismissed all claims except the assault and battery, loss of consortium, and intentional infliction of emotional distress claims. Following the close of discovery, Jimenez filed the instant motion for partial summary judgment. Jimenez seeks summary judgment on his claims for assault and battery and intentional infliction of emotional distress only. In response, Defendants have
Summary judgment must be granted when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). A genuine dispute of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Not every dispute between the parties makes summary judgment inappropriate; "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. In determining whether summary judgment is appropriate, the deciding court must construe all facts in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. Ogden v. Atterholt, 606 F.3d 355, 358 (7th Cir. 2010). "However, our favor toward the nonmoving party does not extend to drawing inferences that are supported by only speculation or conjecture." Fitzgerald v. Santoro, 707 F.3d 725, 730 (7th Cir. 2013) (citing Harper v. C.R. Eng., Inc., 687 F.3d 297, 306 (7th Cir. 2012)).
A party opposing a properly supported summary judgment motion may not rely on allegations or denials in his own pleading, but rather must "marshal and present the court with the evidence" that he contends will prove the case. Goodman v. Nat'l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010). If the non-moving party fails to establish the existence of an essential element on which he or she bears the burden of proof at trial, summary judgment is proper. Massey v. Johnson, 457 F.3d 711, 716 (7th Cir. 2006). Where the parties file cross-motions for summary judgment, the court must consider each motion; but despite the parties' agreement that no genuine dispute of material fact exists, the court can deny all motions if the parties do not establish their rights to judgment as a matter of law. Grabach v. Evans, 196 F.Supp.2d 746, 747 (N.D. Ind. 2002).
Jimenez entered into a contract with CRST to provide over-the-road trucking services. (Jimenez Dep. at 47-48). Jimenez was required to attend a driver orientation program at CRST's facility in Fort Wayne, Indiana, from January 7, 2013, through January 11, 2013. (Id. at 51-54). Al Thomson ("Thomson")
On the fourth day of the driver orientation class, while Thomson was discussing cargo handling and showing trailers to the three drivers, an incident occurred that led to both an internal complaint and this lawsuit. (Id. at 70; Hollingsworth Dep. at 16-19). While Thomson was teaching, Hollingsworth asked Jimenez a question about an electrical connection or cord on the trailer. (Jimenez Dep. at 70; Hollingsworth Dep. at 16). Jimenez took Hollingsworth to the front of the trailer to show Hollingsworth where the electrical cord was plugged in. (Hollingsworth Dep. at 16).
According to Defendants, Thomson raised his voice to Jimenez, pointed his finger at Jimenez, and a sharp verbal exchange occurred between the two men. (Thomson Dec. ¶¶ 3-6). Thomson does not recall using profanity during this exchange. (Thomson Dec. ¶ 5; Thomson Dep. at 20). He also does not recall making any physical contact with Jimenez during the exchange. (Thomson Dec. ¶ 6; Thomson Dep. at 20). After the exchange, the class continued uneventfully. (Stewart Dep. at 64, 68; Hollingsworth Dep. at 30; Thomson Dec. ¶ 7).
Thomson claims that, at the point the incident occurred, Jimenez had already interrupted class several times that day. (Thomson Dec. ¶ 3). According to Thomson, his purpose in engaging in this exchange was to re-direct Jimenez' attention and continue with the portion of the class so they could get out of the cold. (Thomson Dec. ¶ 4, Thomson Dep. at 20). Jimenez denies that he interrupted class. (Jimenez Dep. at 111-12).
CRST's Driver Support Manager, Camille Smith, investigated this incident and determined that a physical altercation had taken place between Thomson and Jimenez. (Smith Dep. at 21-29). Defendants point out, however, that Camille Smith determined that "some type of contact" occurred, but "not to the extent that [Jimenez] was pushed or shoved." (Smith Dep. at 27).
Jimenez asserts that he has received treatment from a mental health professional since the incident. (Jimenez Dep. at 181-82).
The Indiana Supreme Court, citing the Restatement (Second) of Torts, has stated, "[a]n actor is subject to liability to another for battery if (a) he acts intending to cause a harmful or offensive contact with the other person ..., or an imminent apprehension of such contact, and (b) a harmful contact with the person of the other directly or indirectly results." Mullins v. Parkview Hosp., Inc., 865 N.E.2d 608, 610 (Ind. 2007). Moreover, "[a] touching, however slight, may constitute an assault and battery." Knight v. Ind. Ins. Co., 871 N.E.2d 357, 362 (Ind. Ct. App. 2007). Assault requires a showing that "one acts intending to cause an imminent apprehension of a harmful or offensive contact with another person." Sheehy v. Brady's This Is It, No. 2:12 CV 477, 2013 WL 3319684, *8 (N.D. Ind. 2013)(quoting Raess v. Doescher, 883 N.E.2d 790, 794 (Ind. 2008)).
Although Jimenez has sought summary judgment on this claim, Defendants have presented a version of events that is very different than that presented by Jimenez, as outlined in the preceding section. There is a question of fact regarding whether Thomson made physical contact with Jimenez. The Defendants claim
Intentional infliction of emotional distress ("IIED") under Indiana law is the intent to harm someone emotionally and requires that the defendant: (1) engage in extreme and outrageous conduct; (2) which intentionally or recklessly; (3) causes; (4) severe emotional distress to another. Curry v. Whitaker, 943 N.E.2d 354, 361 (Ind. Ct. App. 2011). The requirements to prove this tort are rigorous and it is found only when the conduct "exceeds all bounds typically tolerated by a decent society and causes mental distress of a very serious kind." Curry, 943 N.E.2d at 361. IIED as a separate tort was first recognized in Indiana in 1991. Id. at 361 (citing Cullison v. Medley, 570 N.E.2d 27 (Ind. 1991)).
Jimenez argues, based on case law pre-dating Indiana's recognition of IIED by many years, that the general rule in Indiana requires a physical injury for a claim of IIED, but that there is an exception where emotional distress is accompanied by an assault or battery. (DE # 77 at 5, citing Charlie Stuart Oldsmobile, Inc., 171 Ind.App. 315, 357 N.E.2d 247 (1976) and Golibart v. Sullivan, 30 Ind.App. 428, 66 N.E. 188 (1903)). The cases Jimenez relies upon do not address the tort of IIED and are inapplicable here.
Although Jimenez moved for summary judgment on this claim, he made almost no effort to demonstrate that he is entitled to judgment as a matter of law.
Resolution of Defendants' cross-motion for summary judgment, however, requires further analysis. Defendants argue that, even if there were no disputes of fact and Jimenez' version were accepted as true, the claim fails as a matter of law for
This Court agrees with Defendants that Thomson's conduct, even accepting Jimenez' version as true, was not "outrageous or extreme" such that his IIED claim can proceed to trial. In describing the type of behavior that is actionable as IIED, the notes to § 46 of the Restatement (Second) of Torts are informative:
Restatement (Second) of Torts § 46 at cmt. d (1965).
Jimenez argues that Bradley v. Hall, 720 N.E.2d 747 (Ind. Ct. App. 1999), supports his position that the IIED claim should survive summary judgment. In Bradley, the plaintiff's supervisor shouted at her and criticized her in front of her co-workers, made comments about her menopause, asked if her husband was impotent, suggested her position might be eliminated, and encouraged her to apply for other positions. This was not a one-time event, but an ongoing ordeal for a period of years. The court reversed the trial court's entry of summary judgment on the IIED claim, finding that reasonable persons could differ in opinion about whether this was extreme and outrageous conduct. Id. at 753. Bradley is not helpful in resolving the instant case; the brief episode Jimenez has alleged is very different from the ongoing pattern of harassment presented in Bradley.
White v. Monsanto Co., 585 So.2d 1205, 1209 (La. 1991), addressed the viability of an IIED claim in the context of a momentary flare of a supervisor's temper. In White, a supervisor learned of some idle employees, became angry, and:
Id. at 1209. The plaintiff ended up spending three days in the hospital as a result of the incident. A jury awarded her $60,000 in damages on her IIED claim, but the Louisiana Supreme Court set the award aside, finding that:
Id. at 1210-11.
Similarly, in Showalter v. Richmond, No. 1:08-CV-666-WTL-JMS, 2010 WL 746785, at *5 (S.D. Ind. Feb. 26, 2010), the court granted summary judgment on an IIED claim, noting that "yelling, cursing, slamming a book on her desk, and flinging paper in her direction — is simply not extreme and outrageous under Indiana law." Likewise, in McCreary v. Libbey-Owens-Ford Co., 132 F.3d 1159, 1167 (7th Cir. 1997), the Seventh Circuit Court of Appeals noted that, "an isolated and brief incident" of yelling and the refusal to reassign an employee is not extreme and outrageous.
In contrast to the above cases, Waldrip v. Waldrip, 976 N.E.2d 102, 117 (Ind. Ct. App. 2012), provides an example of the types of conduct that is actionable as IIED in Indiana.
Id. (finding the allegations sufficient to survive a motion to dismiss).
The behavior alleged by Jimenez is not meaningfully distinguishable from the behaviors at issue in White, Showalter or McCreary, and falls woefully short of the conduct described in Bradley and Waldrip. Even accepting Jimenez' version as true, there was only a brief flare of Thomson's temper, resolved as quickly as it began. And, while it was, according to Jimenez, accompanied by physical contact that could support a finding that a battery occurred,
Even if Jimenez had alleged facts sufficiently extreme and outrageous, there is another problem with Jimenez' IIED claim. An IIED claim requires a showing that the extreme and outrageous conduct caused severe emotional distress. In response to Defendants' cross-motion for summary judgment, Jimenez has produced no evidence that he suffered severe emotional distress. In his memorandum in opposition to Defendants' cross-motion for summary judgment, Jimenez alleges, in a conclusory fashion, only that he:
(DE # 85-1 at 3). The portion of Jimenez' deposition testimony relied upon establishes only that he has had expenses related to his alleged emotional distress; namely, medication and co-pays for visits with "Melody" — presumably a mental health professional. The fact that expenses have been incurred does not establish that his emotional distress was severe or that it was caused by the allegedly extreme and outrageous behavior of Thomson. It tells this Court nothing at all about what the experience was like for Jimenez. Drake v. Minnesota Min. & Mfg., 134 F.3d 878, 887 (7th Cir. 1998)("Rule 56 demands something more specific than the bald assertion of the general truth of a particular matter[.]"). As for the citation to a nearly 40-page section of Huertas' Deposition, it is not this Court's job to search the record for evidence supporting Jimenez' claim. Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996)("[i]t is not the function of the court to scour the record in search of evidence to defeat a motion for summary judgment; we rely on the nonmoving party to identify with reasonable particularity the evidence upon which he relies."). The reply brief cites to no fact whatsoever other than the conclusion that he "suffered severe emotional distress and sought treatment from mental health professionals since the incident." Even if support for that proposition could be found somewhere within the cited portion of Huertas' deposition, the conclusory allegation is insufficient to prevent denial of summary judgment.
Having determined that summary judgment must be granted in Defendants' favor on Jimenez' IIED claim, both because the alleged conduct is not sufficiently extreme and outrageous and because Jimenez has presented insufficient evidence that the conduct caused severe emotional distress, the Court need not consider whether there is a dispute of fact regarding Thomson's intent to cause emotional harm. Likewise, since Jimenez' IIED claim fails with regard to Thomson, the Court need not address Jimenez' argument that CRST is liable based on respondeat superior.
For the reasons set forth below, Plaintiff Ricardo Jimenez' Partial Motion for Summary Judgment (DE # 77) is
Id. at *5. Nonetheless, the facts were deemed non-actionable. Id. at *5-*6.
