Patrick v. Tyson Foods, Inc.

Cite as 2016 Ark. App. 221
ARKANSAS COURT OF APPEALS
DIVISION III
CV-15-592
No.
Opinion Delivered: APRIL 20, 2016
DANIEL PATRICK AND
MARY PATRICK APPEAL FROM THE WASHINGTON
APPELLANTS COUNTY CIRCUIT COURT
[NO. CV-14-994]
V.
HONORABLE CRISTI BEAUMONT,
JUDGE
TYSON FOODS, INC., WOODY L.
DOSS, AND GREGORY CLARK
APPELLEES AFFIRMED
KENNETH S. HIXSON, Judge
Appellant Daniel Patrick appeals the entry of summary judgment against him in his
lawsuit against appellees Tyson Foods, Inc. (“Tyson”), Woody L. Doss, and Gregory O.
Clark. 1 Appellant filed a complaint in the Circuit Court of Washington County, Arkansas,
seeking damages for alleged malicious prosecution, defamation of character, and outrage.
Appellant’s allegations arose from the following brief summary of the facts. Appellant was
a long-time employee at Tyson’s Springdale, Arkansas, plant until he was terminated after a
February 2012 ammonia leak inside the plant. An internal investigation led by Tyson’s
security department investigators, Woody Doss and Gregory Clark, led Tyson to conclude
that the ammonia leak was most likely caused by appellant and another employee tampering
1
Daniel’s wife Mary Patrick was also a plaintiff in this lawsuit. Mary’s claims in the
lawsuit were dismissed at the trial court level and are not advanced as issues on appeal.
Although Mary is listed as an appellant in the caption of this case, we need not and do not
discuss Mary as a named appellant.
Cite as 2016 Ark. App. 221
with plant equipment. Upon request, Tyson provided its investigative materials to
the Springdale Police Department. The investigative materials included a video of the
work area where and when the ammonia leak occurred and the internal investigators’
interpretation of what appellant appeared to be doing on the video. The police forwarded
the Tyson investigation materials to the Washington County prosecutor. The county
prosecutor subsequently filed charges against appellant in April 2012 for second-degree
criminal mischief and ten counts of third-degree battery committed against other Tyson
employees who were exposed to the ammonia gas. The prosecutor nolle prossed the charges
four months later in August 2012.
Appellant filed his civil complaint in June 2014. The primary accusation in
appellant’s complaint was that the Tyson investigators wrongly informed law enforcement
that the video showed him behaving in a criminal fashion when, in reality, the video only
showed that appellant was performing the routine tasks of his job. Appellees subsequently
filed a motion for summary judgment in December 2014, contending that appellant could
not establish all the elements of the alleged torts, nor could he prove any damages
proximately caused by the alleged torts. Appellees attached affidavits, deposition testimony,
the Tyson internal investigative video and report, and the Washington County criminal-
charge documents. Appellant filed a response in opposition to summary judgment. The
trial court determined that appellees were entitled to judgment as a matter of law and granted
summary judgment. This appeal followed, and appellant contends that the trial court erred
in dismissing his complaint. We disagree and affirm.
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I. Standard of Review
The standard of review in the appeal of a summary judgment is well settled.
Summary judgment is to be granted by a circuit court only when it is clear that there are
no genuine issues of material fact to be litigated and the moving party is entitled to judgment
as a matter of law. Benton Cnty. v. Overland Dev. Co., 371 Ark. 559, 268 S.W.3d 885
(2007). Once a moving party has established a prima facie entitlement to summary
judgment, the opposing party must meet proof with proof and demonstrate the existence of
a material issue of fact. Id. On appeal, we determine if summary judgment was appropriate
based on whether the evidentiary items presented by the moving party in support of its
motion leave a material fact unanswered. Id. This court views the evidence in the light
most favorable to the party against whom the motion was filed, resolving all doubts and
inferences against the moving party. Id. Our review is not limited to the pleadings, as we
also focus on the affidavits and other documents filed by the parties. Id. Conclusory
allegations are, however, insufficient to create a fact issue in a summary-judgment situation.
Sundeen v. Kroger, 355 Ark. 138, 133 S.W.3d 393 (2003). After reviewing undisputed facts,
summary judgment should be denied if, under the evidence, reasonable men might reach
different conclusions from those undisputed facts. Greenlee v. J.B. Hunt Transport Servs., Inc.,
2009 Ark. 506, 342 S.W.3d 274; Sawada v. Walmart Stores, Inc., 2015 Ark. App. 549, 473
S.W.3d 60. The object of summary judgment is not to try the issues but to determine
whether there are any issues to be tried. Flentje v. First Nat’l Bank of Wynne, 340 Ark. 563,
11 S.W.3d 531 (2000).
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II. Statement of Evidence and Facts
A more amplified recitation of the underlying facts is necessary prior to our
consideration of the arguments on appeal. In the early morning of February 6, 2012, an
ammonia leak at the Tyson plant resulted in the plant being evacuated. Several law
enforcement officers, fire department personnel, and emergency services personnel were
dispatched to the scene. Ten Tyson plant employees were taken to the hospital for
treatment of inhalation injuries. A Springdale police officer, working in conjunction with
an FBI Task Force, contacted Tyson because the Springdale fire department had concerns
about whether the ammonia release could have possibly been a terroristic act. Doss, one of
Tyson’s corporate security managers, responded to the Springdale police officer that Tyson
was of the initial opinion that the event was caused by an accidental ammonia release. The
police officer advised Doss to report to him if Tyson later determined that the leak was not
accidental.
Tyson immediately commenced an internal investigation to determine the root cause
of the ammonia release. The investigation revealed that pressure gauges indicated increased
pressure in an ammonia refrigeration line shortly before the leak. It was determined that
the ammonia release was caused by a partially open valve and a missing plug in a pipe located
on the vacuum side of the ammonia-based refrigeration system. The partially open valve
and the missing plug ultimately allowed for the ammonia to be released into the plant.
Appellant’s work station was in the same area of the plant as the open valve and
missing plug. The plant had previously installed ceiling-mounted security cameras. One of
the security cameras covered appellant’s general work area and the valve. During the
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investigation, Doss and other Tyson management personnel 2 reviewed the video and
observed a maintenance mechanic spending what they perceived as an unusual amount of
time repetitively and unnecessarily adjusting and testing plant equipment near the ammonia
line. The actual valve on the ammonia line was not quite visible on the video due to the
location and sight line of the video camera. Another employee was observed walking
behind the maintenance mechanic while carrying and opening a bottle, an item not
permitted in this area of the plant. The maintenance mechanic was then observed moving
toward the valve area, and the other employee was seen bending over the valve area. Tyson
investigative personnel concluded that the maintenance mechanic was attempting to shield
the other employee from view and acting as a lookout, while the other employee attempted
to remove ammonia from the valve. The other employee subsequently appeared startled,
stood up, and quickly walked away while putting the top back on the bottle. Tyson’s
investigators opined that due to insufficient time, there was a failure to fully close the valve,
which subsequently caused the leak. After additional investigation, Tyson identified the
maintenance mechanic in the video as the appellant, Daniel Patrick.
As previously and specifically requested by the Springdale police officer, Doss
reported to the Springdale police that the ammonia release no longer appeared to be
accidental. In subsequent affidavits submitted with the motion for summary judgment,
Clark and Doss swore that an FBI agent and a Springdale police officer came to the plant to
2
The Tyson personnel included corporate counsel Chris Mitchell, plant safety
manager David Smith, complex environmental health and safety manager Patrick Abshire,
human resource director Hector Gonzalez, assistant plant manager Matt Evans, and
refrigeration superintendent James L. Richardson.
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view the security video. According to Doss’s affidavit, the police officer who viewed the
videotape opined that this was an attempt to steal ammonia for the purpose of manufacturing
drugs. Doss and Clark interviewed appellant and the other employee seen on the video,
both of whom denied any wrongdoing.
Doss and Clark subsequently prepared a special internal investigative report on this
ammonia release, a typical practice for Tyson’s internal use. Doss and Clark relied on the
information provided by the plant management in compiling the report. Neither Doss nor
Clark knew either appellant or the other Tyson employee shown on the video prior to
interviewing them. Each page of Doss and Clark’s report was marked “TYSON
CONFIDENTIAL.”
A Springdale police detective contacted Doss and made a formal request for a copy
of the internal investigative report and other material. Doss obtained approval from the
Tyson in-house corporate counsel and delivered the investigative report to the Springdale
police. A copy of the security video was contained in the delivered material.
Tyson subsequently terminated appellant from employment on February 10, 2012,
based on Tyson’s internal investigation. Neither Doss nor Clark was involved in the
decision to terminate appellant.
On April 9, 2012, the prosecutor charged appellant in Washington County Circuit
Court with criminal mischief and battery. The affidavit for the issuance of the arrest warrant
was completed by Detective Eric Evans of the Springdale Police Department and it was
based, in part, on the material provided by Tyson. Washington County Deputy Prosecuting
Attorney Brian Lamb approved the detective’s affidavit, and District Judge Ray Reynolds
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signed the warrant finding that the affidavit demonstrated “reasonable and probable cause
for the issuance of a warrant of arrest.” The criminal information was filed the same date,
April 9, 2012. Four months later, on August 10, 2012, the deputy prosecutor moved to
nolle prosequi the criminal charges, and the circuit judge approved the dismissal of charges.
Two years later, in June 2014, appellant filed his civil complaint. The complaint
alleged that appellant had worked for Tyson for over twenty years, that the Tyson plant had
experienced multiple chemical releases over those years resulting in governmental action,
and that Tyson intentionally blamed him for the ammonia leak in order to have a scapegoat
by using falsified accounts of what the video revealed. Appellant recited seven particular
characterizations of his behavior at work that he believed were false, given a review of the
video itself. For example, appellant stated that the video did not show anyone with a
container or opening or closing one, nor did it show anyone bending over the valve or
standing up quickly from the valve. Appellant accused Tyson of malicious prosecution
based on the “false and outrageous report as to what the video showed,” which was made
“with malice and without probable cause.” Appellant’s complaint accused Tyson of
defamation of character because Tyson maliciously and knowingly gave “false oral and
written statements [that] were published broadly to superiors at Tyson Foods, Inc., to the
Springdale Police Department, to prosecution officials, and to newspaper and television
reporters and to the general public.” Appellant’s complaint also alleged the tort of outrage
based on the “false statements and misrepresentations, as well as the harsh personal treatment
visited upon [appellant] by Doss and Clark.” He contended that Tyson’s behavior caused
him damages, including costs incurred to defend against the criminal charges; loss of past
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and future wages and benefits due to wrongful discharge; extreme emotional pain, anguish,
distress, depression, embarrassment, and humiliation; and damage to his reputation in the
community. Each appellee filed separate answers, denying that their acts were anything
other than appropriate internal investigations done in good faith and stating that law
enforcement independently sought Tyson’s information and determined that criminal
charges should be pursued. Each appellee responded that appellant was an at-will employee,
that appellant suffered no compensable damages, that they were entitled to the advice-of-
counsel defense, that they had a qualified privilege to communicate about the ammonia leak
at the Tyson plant, that they acted without malice, and that their statements about appellant
were truthful.
After the civil lawsuit was filed, discovery proceeded. In December 2014, appellees
moved for summary judgment on all three causes of action. Appellees asserted that as to
malicious prosecution, appellant failed to prove the essential elements of malicious
prosecution and further, that they were entitled to the defense of advice of counsel.
Appellees asserted that as to defamation, they possessed a qualified privilege to communicate
to law enforcement officials regarding the release of ammonia gas at the plant. Appellees
asserted that as to outrage, even if every allegation made by appellant were true, the
allegations did not rise to the level necessary to sustain a lawsuit for the tort of outrage.
Appellees presented supportive documentation, including multiple affidavits from Tyson
management personnel, affidavits from Doss and Clark, termination paperwork related to
appellant, portions of appellant’s deposition, the internal investigative report and video, and
the filings related to the criminal charges. In resistance, appellant’s primary contention was
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that Tyson personnel, including Doss and Clark, mischaracterized and falsely stated to law
enforcement their interpretation of what the security video showed. Stated another way,
appellant asserted that Tyson told law enforcement that appellant was engaged in suspicious
and perhaps criminal activity when in reality appellant was merely doing his job. Appellant’s
response was accompanied by his own affidavit in which appellant listed nine
“misrepresentations of fact” that showed a variance between what Tyson’s investigative
report recited and what he perceived the video actually showed. Notably, though, appellant
attached the affidavit of the deputy prosecuting attorney. In that affidavit, the prosecuting
attorney swore that he was provided Springdale police reports, Tyson’s special investigation
report, and the security video and then witnessed the Springdale police detective sign the
affidavit for the issuance of the arrest warrant.
In granting summary judgment on malicious prosecution, the trial court found that
(1) appellees provided all the information collected during their investigation to law
enforcement, entitling appellees to the defense of advice of counsel; (2) there was no
evidence of malice; and (3) probable cause was found to exist. As to defamation, the trial
judge found that appellees, as appellant’s employer, were entitled to a qualified privilege,
that the publication was to law enforcement only, and that the disclosure was based on first-
hand knowledge. The trial judge found that the communication was exercised in a
reasonable manner and for a proper purpose and that appellant had not presented any
evidence that the privilege was abused in any fashion or was based on falsehoods. As to
outrage, the trial judge entered summary judgment on the basis that this narrowly construed
tort was particularly limited in the context of at-will-employee discharge, and further that
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appellant presented no evidence of the outrageous conduct required at law. (The trial court
also granted summary judgment on appellant’s wife’s claim of loss of consortium, a derivative
claim not relevant on appeal.) We now examine each of the three torts allegedly committed
by appellees and whether the trial court erred in granting summary judgment.
III. Analysis
A. Malicious Prosecution
To establish a claim for malicious prosecution, a plaintiff must prove five elements:
(1) a proceeding instituted or continued by the defendant against the plaintiff;
(2) termination of the proceeding in favor of the plaintiff; (3) absence of probable cause for
the proceeding; (4) malice on the part of the defendant; and (5) damages. Sundeen, 355 Ark.
at 142, 133 S.W.3d at 395. The failure of one element renders a malicious-prosecution case
defunct. Jones v. McLemore, 2014 Ark. App. 147, 432 S.W.3d 668.
The trial court’s summary-judgment order recites that probable cause was found to
exist. Probable cause for prosecution must be based on the existence of facts or credible
information that would induce the person of ordinary caution to believe the accused person
to be guilty of the crime for which he is charged. Wal-Mart Stores, Inc. v. Binns, 341 Ark.
157, 163, 15 S.W.3d 320, 324 (2000). The test for determining probable cause is an
objective one. Wal-Mart Stores, Inc. v. Yarbrough, 284 Ark. 345, 681 S.W.2d 359 (1984).
Ordinary caution is a standard of reasonableness. See McMullen v. McHughes Law Firm, 2015
Ark. 15, at 15–16, 454 S.W.3d 200, 210. In making a probable-cause determination in the
context of a malicious-prosecution suit, the court generally “concentrates on the facts before
the action commenced.” Sundeen, 355 Ark. at 145, 133 S.W.3d at 397; see also Coombs v.
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Hot Springs Village Prop. Owners Ass’n, 98 Ark. App. 226, 233, 254 S.W.3d 5, 11 (2007).
Malice has been defined as any improper or sinister motive for instituting the suit. Sundeen,
supra. Malice can be inferred from the lack of probable cause. Wal-Mart Stores, Inc. v.
Williams, 71 Ark. App. 211, 29 S.W.3d 754 (2000). When, however, probable cause exists
and there is no strong evidence of malice, a charge of malicious prosecution cannot succeed.
Sundeen, supra.
The prosecutor charged appellant with second-degree criminal mischief pursuant to
Arkansas Code Annotated section 5-38-204(a)(2). Subsection (a)(2) defines second-degree
criminal mischief as being committed when a person “purposely tampers with any property
of another person and by the tampering causes substantial inconvenience to the owner or
another person.” See Coombs, supra (discussing probable cause for second-degree criminal
mischief in the context of malicious-prosecution claim). The prosecutor also charged
appellant with third-degree battery pursuant to Arkansas Code Annotated section 5-13-
203(a)(2), which is committed when a person “recklessly causes physical injury to another
person.” A person is “reckless” under our criminal code when he “consciously disregards a
substantial and unjustifiable risk that the attendant circumstances exist or the result will
occur.” Ark. Code Ann. § 5-2-202(3)(A).
On appeal, appellant contends that Tyson misrepresented appellant’s activities in the
internal report provided to law enforcement, which fabricated the basis for finding probable
cause and shows malice on Tyson’s part. Appellant does not challenge the existence of any
particular element of the crimes for which he was charged. Appellant asserts only that the
video does not manifest a reasonable basis on which to believe that he assisted in tampering
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with the ammonia valve that undisputedly caused physical injury. Appellant, however,
concedes that there is “no contest as to the identity or accuracy of the video recording” or
that it was provided to law enforcement prior to charges being filed. The affidavit of the
deputy prosecutor attests that he was provided a copy of Tyson’s investigative report. The
affidavits provided by Doss and Clark both swore that a Springdale police officer came to
the Tyson plant and viewed the security video; this occurred prior to the preparation of the
Tyson investigative report and tender of the report and video to police. The police officer’s
viewing the video at the plant was also confirmed by the affidavits of two safety managers
employed at the Tyson plant. The police officer opined at the time he viewed the video
that it showed criminal activity.
Appellant’s contention that the video and the investigative report can be interpreted
differently does not mean that appellant showed evidence of a lack of probable cause.
Appellees internally were of the opinion, mistakenly or not, that appellant was involved in
a nonaccidental ammonia leak. Appellees did not seek out law enforcement but instead
complied with law enforcement’s initiation of contact and requests for information.
Appellees, the Springdale police, and the prosecutor could reasonably have believed that
appellant was involved with purposely tampering with plant equipment, which caused
substantial inconvenience and physical injury and that the appellant recklessly caused
physical injury to the ten Tyson employees who were treated for ammonia-gas inhalation.
This satisfied the requirement of probable cause to believe that appellant committed the
crimes for which he was charged. See Pourmedhi v. Nw. Nat’l Bank, 849 F.2d 1145 (8th
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Cir. 1988) (summary judgment proper, dismissing malicious-prosecution claim due to there
being no genuine issue of material fact on the absence of probable cause).
Furthermore, appellant presented only conclusory allegations without any evidence
or facts to support the existence of a genuine issue of material fact on the element of malice.
Without meeting proof with proof on the element of malice, appellant’s claim of malicious
prosecution fails. Compare Sundeen, supra. Given the existence of probable cause and lack
of evidence of malice, the trial court did not err in entering summary judgment on malicious
prosecution in this case. Compare Sawada v. Walmart Stores, Inc., 2015 Ark. App. 549, 473
S.W.3d 60; McWilliams v. Schmidt, 76 Ark. App. 173, 61 S.W.3d 898 (2001).
We hasten to add that as to the first element of malicious prosecution, appellant failed
to present any evidence that appellees “instituted or continued” the criminal proceedings.
It is true that when the information given to a prosecutor is known by the giver to be false,
then an intelligent exercise of the prosecutor’s discretion becomes impossible, and a
prosecution based on it is procured by the person giving the false information. Bank of
Eureka Springs v. Evans, 353 Ark. 438, 109 S.W.3d 672 (2003). Here, however, appellees
provided all the information that they possessed, and appellees presented unrebutted
evidence that they in good faith believed the information to be accurate. In contrast,
appellant relied on mere accusations that the conclusions drawn from the information by
the appellees were false. The police, the prosecutor, the trial court, and our court were all
provided the admittedly accurate video to compare against appellees’ internal investigative
report. We cannot say that the trial court erred in drawing the only reasonable conclusion
that there was a full, fair, truthful disclosure of all facts known to Tyson. This necessarily
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means that appellees did not “institute” the criminal prosecution. See 52 Am. Jur. 2d
Malicious Prosecution § 23 (noting that to charge a private person with the responsibility for
initiation of proceedings by a public official, it must appear that his desire to have the
proceedings initiated was the determining factor in the official’s decision to commence the
prosecution or that the information acted upon was known to be false by the information
provider, citing Pratt v. Kilborn Motors, Inc., 363 N.E.2d 452 (Ill. App. Ct. 1977)).
Even had appellant met proof with proof on all the elements of malicious
prosecution, we would still affirm. Acting on the advice of counsel is a defense to a charge
of malicious prosecution. Family Dollar Trucking, Inc. v. Huff, 2015 Ark. App. 574, 474
S.W.3d 100. In order to avail oneself of this defense, one must have made a full, fair, and
truthful disclosure of all facts known to him and acted in good faith on counsel’s advice. Id.
The proponent of the defense bears the burden to establish it by a preponderance of the
evidence. Eggleston v. Ellis, 291 Ark. 317, 724 S.W.2d 462 (1987). The rule that affords a
defense to an action for malicious prosecution for one who has acted on the advice of
counsel applies with greater force if the proceeding was instituted on the advice and approval
of the state’s prosecuting attorney. 52 Am. Jur. 2d Malicious Prosecution § 107. If one in
good faith fully and fairly discloses to an attorney or the prosecutor all the information he
has and is advised that a crime was committed, then he has made out a complete defense
to an action for malicious prosecution. Id. When one makes such a disclosure to the
prosecutor and follows the prosecuting attorney’s advice, the law conclusively presumes the
existence of probable cause, the lack of which is a necessary element in a suit for malicious
prosecution. See Jennings Motors v. Burchfield, 182 Ark. 1047, 34 S.W.2d 455 (1931)
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(malicious prosecution reversed where, even though Burchfield accused Jennings’s officials
of making untruthful accusations to its own attorney and the prosecutor, Jennings presented
testimony that it merely provided what evidence it had to both attorneys).
Appellant argues in his brief that appellees should not be entitled to the defense
because appellees did not provide a full, fair, and truthful account of what appellant was
observed doing on the video, contending that the police officer must not have viewed the
security video prior to seeking criminal charges. We disagree. The undisputed facts are
that the prosecutor, not Tyson, filed and pursued legal proceedings against appellant after
receiving all the information garnered by Tyson in its investigation. This information
included the security video that—according to appellant—clearly and accurately sets forth
appellant’s activities on the morning in question. Any perceived contradictions between
the internal investigative report and the security video provided by Tyson at the request of
law enforcement were for law enforcement to assess. Tyson presented affidavits swearing
that a Springdale police officer viewed the video himself prior to the report even being
prepared and ultimately tendered to law enforcement. In summary, we hold that the trial
court did not err in entering summary judgment in favor of Tyson on malicious prosecution.
Compare Sawada, supra.
B. Defamation
To recover for defamation, a plaintiff must prove six elements: (1) the defamatory
nature of the statement of fact; (2) the statement’s identification of or reference to the
plaintiff; (3) publication of the statement by the defendant; (4) the defendant’s fault in the
publication; (5) the statement’s falsity; and (6) the damages suffered by the plaintiff. See
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Superior Fed. Bank v. Mackey, 84 Ark. App. 1, 129 S.W.3d 324 (2003). A viable action for
defamation turns on whether the communication or publication tends or is reasonably
calculated to cause harm to another’s reputation. Addington v. Wal-Mart Stores, Inc., 81 Ark.
App. 441, 105 S.W.3d 369 (2003). A plaintiff must prove that defamatory statements have
been communicated to others and that the statements have detrimentally affected those
relations. Lancaster v. Red Robin Int’l, Inc., 2011 Ark. App. 706, 386 S.W.3d 662.
The law recognizes that a potentially defamatory communication may not impose
liability under the qualified-privilege doctrine. A statement may become privileged when
made in good faith and in reference to a subject matter in which the communicator has an
interest or duty and to a person having a corresponding interest or duty. See Wal-Mart
Stores, Inc. v. Lee, 348 Ark. 707, 74 S.W.3d 634 (2002). For example, negligently reporting
activity thought to be criminal is usually a privileged communication. See DeHart v. Wal-
Mart Stores, Inc., 328 Ark. 579, 946 S.W.2d 647 (1997). But even if a statement may possibly
be privileged, the speaker who steps outside the privilege, or abuses it, loses it. Navorro-
Monzo v. Hughes, 297 Ark. 444, 763 S.W.2d 635 (1989). The qualified-privilege doctrine
does not extend to published statements that have no relation to the protected interest, and
it is lost if the publication is not made for the purpose of furthering a common interest. Id.
The qualified privilege may also be lost if it is abused by excessive publication, if the
statement is made with malice, or if the statement is made with a lack of grounds for belief
in the truth of the statement. Superior Fed. Bank, supra.
Applying the law related to defamation to this appeal, we hold that the trial court
did not err in entering summary judgment on behalf of appellees. Assuming arguendo that
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all six elements of defamation were sufficiently supported by evidence in order to survive
summary judgment, the trial court did not err in finding that Tyson was protected by the
qualified privilege afforded to an employer. Tyson responded to a request by law
enforcement by delivering material that was created as a confidential internal corporate
investigative report to determine the root cause of the ammonia leak. The response to law
enforcement was factual, necessary, and not excessive. Appellees demonstrated a prima facie
case of entitlement to this qualified privilege, and appellant failed to meet proof with proof
to demonstrate that there was any basis to bar appellees from the benefit of the qualified
privilege. We affirm on this point.
C. Outrage
The tort of outrage—also known as intentional infliction of emotional distress—
opens an actor up to civil liability for committing extreme and outrageous behavior. See
McQuay v. Guntharp, 331 Ark. 466, 470, 963 S.W.2d 583, 585 (1998). Arkansas courts
have consistently taken a narrow view in recognizing claims for the tort of outrage. Family
Dollar Trucking, Inc., supra. Our supreme court has taken great care to point out that this
tort does not make actionable every insult or indignity one must endure in life. Dillard
Dep’t Stores, Inc. v. Adams, 315 Ark. 303, 867 S.W.2d 442 (1993). This tort provides a basis
for recovery only for conduct that is so outrageous in character and so extreme in degree as
to go beyond all possible bounds of decency, to be regarded as atrocious, and to be utterly
intolerable in a civilized society. M.B.M. Co. v. Counce, 268 Ark. 269, 596 S.W.2d 681
(1980). This tort is not easily established; merely describing conduct as outrageous does not
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make it so. Cordes v. Outdoor Living Ctr., Inc., 301 Ark. 26, 781 S.W.2d 31 (1989). This
tort has four elements:
(1) the actor 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 outrageous,” was “beyond all possible bounds of
decency,” and was “utterly intolerable in a civilized community;”
(3) the actions of the defendant were 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.
Faulkner v. Ark. Children’s Hosp., 347 Ark. 941, 957, 69 S.W.3d 393, 403–04 (2002).
Notably, in Cordes, our supreme court held that allegations that the defendant caused the
plaintiffs to be arrested, even if proven, did not rise to a level sufficient to support a claim
for damages for the tort of outrage.
In his appellate brief, appellant recites the four elements of outrage as set forth in
Faulkner, followed by this as his entire argument on this point:
We believe those elements have been met. Being falsely charged with crime alters
the entirety of a person’s relationships, and creates huge stress. Here we had the
mistreatment of the appellant upon original interview by these appellees. He lost his
job and income and status because of it.
We are not persuaded by this conclusory argument. Merely describing conduct as
outrageous does not make it so. Cordes, supra. We hold that appellant failed to provide any
specific allegation, much less proof, to sustain that Tyson committed acts of “outrage” in
investigating the plant’s ammonia leak and in complying with a request by law enforcement
for results of that investigation. Compare Family Dollar Trucking, Inc., supra. We affirm the
entry of summary judgment in favor of appellees on appellant’s claim of outrage.
Affirmed.
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GLADWIN, C.J., and VAUGHT, J., agree.
Erwin L. Davis, for appellant.
Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., by: Kathlyn Graves and Jeffrey
L. Spillyards, for appellees.
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