Geeslin Ex Rel. the Estate of Geeslin v. Bryant

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0881n.06
FILED
No. 10-5820
Dec 22, 2011
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
BETTY GEESLIN, As Personal Representative of the
Estate of Bill Geeslin, Deceased,
Plaintiff-Appellant,
v. On Appeal from the United
States District Court for the
KOBE BRYANT, Western District of Tennessee
at Memphis
Defendant-Appellee.
/
Before: MARTIN, GUY, and GRIFFIN, Circuit Judges.
PER CURIAM. This is a diversity case in which the plaintiff, Bill Geeslin,
brought Tennessee state law tort claims of assault, battery, and intentional infliction of
emotional distress against professional basketball player Kobe Bryant. Finding no evidence
of the requisite intent for the assault claim; that Geeslin consented to contact between the
parties by virtue of his courtside seat at the game; and that the defendant’s conduct did not
support a claim for intentional infliction of emotional distress, the district court entered
summary judgment for Bryant. We affirm in part and reverse in part.
I.
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Geeslin and a friend attended a professional basketball game at the FedEx Forum in
Memphis, Tennessee on November 14, 2005. The Memphis Grizzlies were playing the Los
Angeles Lakers, the team of basketball star Kobe Bryant. Geeslin had received skybox
tickets to the game from a casino. Once Geeslin and his friend arrived at the skybox, their
host offered them courtside tickets. Geeslin and his friend then moved down to folding
chairs on the floor, located just to the side of one of the baskets in the front row.
While Geeslin and his friend were seated in their courtside seats, a Lakers player
recovered a ball at the Grizzlies’ end of the floor. That player attempted a pass to Bryant.
In attempting to get control of the ball, Bryant came into contact with a Grizzlies player and
careened out of bounds, into or onto the plaintiff. Geeslin spilled his beer, and was pushed
backwards in the folding chair.
Geeslin alleges that Bryant, in getting himself up and back into the game, pushed his
forearm into Geeslin’s chest in an unnecessary and forceful manner, causing him injury.
Geeslin also alleges that Bryant “glared” at him as he moved away and did not apologize.
In asserting that Bryant used more force than necessary, Geeslin suggests that Bryant may
have been frustrated by the Lakers’ losing score and the referee’s refusal to call a foul on the
player allegedly responsible for Bryant’s fall.
After the contact between Geeslin and Bryant, Geeslin and his friend returned to the
skybox for a period of time and then went home. Two days later, Geeslin sought medical
attention for pain in his chest. He was diagnosed with a bruised lung cavity, and received
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ibuprofen, another medicine, and a breathing machine. Geeslin’s physical symptoms
dissipated after two weeks, but he alleges he also suffered from continued anxiety stemming
from the incident, for which he received prescriptions for Xanax and Ambien from his
primary care physician.
Geeslin filed suit against Bryant shortly after the game.1 The Amended Complaint,
filed after Geeslin’s death, alleges claims of assault, battery, and intentional infliction of
emotional distress, asserting that the incident between Geeslin and Bryant “contributed as a
proximate cause to [Geeslin’s] death on June 17, 2008.” The district court granted Bryant’s
motion for summary judgment, and this appeal followed.
II.
We review the district court’s summary judgment determination de novo. Sigler v.
Am. Honda Motor Co., 532 F.3d 469, 482 (6th Cir. 2008). Under the Federal Rules of Civil
Procedure, the entry of summary judgment is proper if “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” F ED. R. C IV. P. 56(a). There is no dispute that Tennessee law applies in this diversity
case. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).
A. Assault and Battery
The tort of battery requires an intentional act that causes bodily contact that is
unpermitted, harmful, or offensive. Cary v. Arrowsmith, 777 S.W.2d 8, 21 (Tenn. Ct. App.
1
Bill Geeslin died in June 2008. His mother and personal representative Betty Geeslin filed a notice
of suggestion of death and was substituted for plaintiff in November 2009.
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1989). When a plaintiff has given consent for the contact, or a defendant has a just cause or
excuse for the contact, there is no battery. See Kline v. Jordan, 685 S.W.2d 295, 296 (Tenn.
Ct. App. 1984) (consent); Kite v. Hamblen, 241 S.W.2d 601, 603 (Tenn. 1951) (excuse).
Similarly, assault has recently been described by the Supreme Court of Tennessee as the
intentional creation of “an apprehension of harm in the plaintiff.” See Hughes v. Metro.
Gov’t of Nashville and Davidson Cnty., 340 S.W.3d 352, 371 (Tenn. 2011).
There is no dispute about the fact that Bryant’s initial contact with Geeslin was
involuntary. Geeslin’s claim is that as Bryant got up, he, “without provocation, violently
struck Mr. Geeslin with [his] elbow, causing the injuries and damages.” Geeslin’s support
for this claim is his deposition testimony that (a) it was “obvious” that Bryant intended to
harm him, and (b) as Bryant left the scene of contact, he “kind of pushed his arm towards me
and glared at me and walked away.” Geeslin has presented no evidence distinguishing injury
caused by his initial contact with Bryant from any injury caused by what Geeslin has
described as Bryant’s “intentional forearm” following the initial collision. However, as
outlined above, Geeslin presented his description of the events, including offensive contact
by Bryant which he claims caused him injury. Bryant, on the other hand, offered neither
deposition testimony nor an affidavit in opposition to the motion.
Although the district court found that Geeslin had “assumed the risk or consented to
the entire contact between he and the Defendant,” by virtue of taking the courtside seat, we
find that analysis applies only to the initial contact between Geeslin and Bryant and not the
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secondary, offensive contact described by Geeslin. In viewing the evidence in the light most
favorable to Geeslin, as we must, we find that a material question of fact remains on his
assault and battery claims. For this reason, the district court’s entry of summary judgment
for Bryant on these claims was improper.
B. Intentional Infliction of Emotional Distress
A claim for intentional infliction of emotional distress or outrageous conduct in
Tennessee requires a showing by the plaintiff of (1) intentional or reckless conduct; (2)
conduct so outrageous it is not tolerated by civilized society; and (3) a serious mental injury
to plaintiff resulting from the conduct. Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997)
(citing Medlin v. Allied Inv. Co., 398 S.W.2d 270, 274 (Tenn. 1966)); Johnson v. Woman’s
Hosp., 527 S.W.2d 133, 138-39 (Tenn. Ct. App. 1975)). As the Tennessee Court of Appeals
has described it, a successful claim for intentional infliction of emotional distress “is limited
to mental injury which is so severe that no reasonable [person] would be expected to endure
it.” Arnett v. Domino’s Pizza I, L.L.C., 124 S.W.3d 529, 540 (Tenn. Ct. App. 2003)
(alteration in original) (internal quotation marks and citation omitted).
While Geeslin generally described symptoms including anxiety and sleeplessness
following the incident, we find this is not evidence of a “severe mental injury,” which is
required for this claim to survive summary judgment.2 See Miller v. Willbanks, 8 S.W.3d
2Although Geeslin asserts he was diagnosed with “anxiety, insomnia, and post-traumatic stress,
among other maladies,” we note that what Geeslin points to for this “diagnosis” are notes from the
emergency room visit he made on November 17, 2005, just three days after the incident.
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607, 615 n.4 (Tenn. 1999). We also note that Geeslin’s description of the rough push by
Bryant in leaving the scene of the collision does not reach the level of “outrageous” behavior
sufficient to support such a claim. Summary judgment for Bryant was appropriate here.
For these reasons, we AFFIRM IN PART AND REVERSE IN PART (reversing
only the district court’s disposition of Geeslin’s assault and battery claims) and remand for
further proceedings consistent with this opinion.