Hackney v. Woodring

TAMILIA, Judge,

dissenting.

I respectfully dissent to the Opinion of the majority which reverses the trial court decision granting judgment n.o.v. and remands the case for reinstatement of the verdict in favor of the plaintiff, Renee Y. Hackney.

This is an appeal from' the November 21, 1991 Order granting defendants’ motion for judgment notwithstanding the verdict in which it was averred appellant had failed to present competent medical evidence to establish her claim of intentional infliction of emotional distress. Appellant, then an 18-year employee at Woodring’s day care center, alleged appellee’s repeated improper behavior toward her, which included sexual innuendos and unwanted touching, caused her, inter alia, to become emotionally and physically distraught resulting in a loss of self-esteem, reputation and plummeting college grades. Nevertheless, during this indeterminate time period, appellant did not seek medical attention. A jury found in favor of defendant on Hackney’s claims of assault and battery and false imprisonment but in favor of appellant on the claim of intentional infliction of emotional distress and awarded her $15,000 in damages. The trial court, however, reversed the verdict and granted appellee’s motion for judgment n.o.v.’, relying on the Supreme Court case of Kazatsky v. King David Memorial Park Inc., 515 Pa. 183, 527 A.2d 988 (1987), which held the plaintiffs’ failure to establish the existence of alleged emotional distress by competent medical evidence barred their claim. Id. Plaintiff has brought this appeal arguing expert medical testimony is unnecessary to establish intentional infliction of emotional distress provided she has proven defendant’s outrageous conduct toward her, as defined in Comment d. of section 46 of Restatement (Second) of Torts.

The grant of judgment n.o.v. may be entered only in a clear case where the facts are such that no two persons could fail to agree the verdict is improper and should not be entered where evidence is conflicting upon a material fact. Kearns v. Phila. Life Ins. Co., 401 Pa.Super. 292, 585 A.2d 53 (1991). On an appeal from the Order of a trial court granting judgment n.o.v., the Superior Court is required to consider the evidence and all reasonable inferences therefrom in the light most favorable to the verdict winner. Lowry v. State Farm Ins. Co., 392 Pa.Super. 77, 572 A.2d 700 (1990). For the reasons which follow, I would affirm the trial court’s Order denying relief to the appellant.

Before addressing the crux of the issue before this Court, I am constrained to disagree with the majority which holds intentional infliction of emotional distress is an actionable tort in Pennsylvania. See Kazatsky, supra; see also Baker v. Morjon Inc., 393 Pa.Super. 409, 574 A.2d 676 (1990) (cause of action for intentional infliction of emotional distress is denied because plaintiff failed to comply with the standards in Kazatsky, that is, neither the requisite degree of the defendant’s outrageousness or the nature and extent of the emotional injuries alleged justified a finding of liability); Ford v. Isdaner, 374 Pa.Super. 40, 44, 542 A.2d 137, 139 (1988) (“Kazatsky makes clear that the tort of intentional infliction of emotional distress is not recognized in Pennsylvania”). Until such time as our Supreme Court rules otherwise, this Court is obliged to follow the findings and reasoning of Kazatsky and its progenies.

Assuming, however, for the sake of argument, Pennsylvania has recognized this tort, I turn now to the issue before this Court: whether expert medical testimony is required to substantiate a claim for intentional infliction of emotional distress. In Kazatsky, the most recent Supreme Court case to address the viability of the tort of intentional infliction of emotional distress, the parents of twins who died shortly after birth brought an action in equity seeking, among other claims, damages for the emotional distress caused by cemetery caretaker’s allegedly outrageous conduct of using threats to coerce the plaintiffs into purchasing a perpetual care contract for the children’s gravesites. Because a compulsory nonsuit was entered, the jury was not required to determine whether the defendant’s conduct reached the level of outrageousness that would support a claim for damages as contemplated under Comment d of section 46 of the Restatement (Second) of Torts, which sets forth the standard for what constitutes extreme and outrageous conduct. The Kazatsky Court did provide, however, for our guidance, an in-depth discussion of Pennsylvania law addressing recovery for psychic injury:

It is basic to tort law that an injury is an element to be proven. Given the advanced state of medical science, it is unwise and unnecessary to permit recovery to be predicated on an inference based on the defendant’s “outrageousness” without expert medical confirmation that the plaintiff actually suffered the claimed distress. Moreover, the requirement of some objective proof of severe emotional distress will not present an unsurmountable obstacle to recovery. Those truly damaged should have little difficulty in procuring reliable testimony as to the nature and extent of their injuries. We therefore conclude that if section h6 of the Restatement is to be accepted in this Commonwealth, at the very least, existence of the alleged emotional distress must be supported by competent medical evidence.

Kazatsky, supra, 515 Pa. at 197, 527 A.2d at 995 (emphasis added). This excerpt from the Supreme Court’s opinion indubitably declares expert medical testimony is a necessary element of any possible successful cause of action for intentional infliction of emotional distress. The majority’s unconvincing attempt to distinguish Kazatsky from the case before us because the former action emanates from a contractual dispute while the latter stems from alleged sexual harassment is illogical. Surely the emotional distress suffered by parents of the deceased twins in Kazatsky, despite the fact the premise on which they based their claim sounded in contract as opposed to tort, was no less than that suffered by the plaintiff herein. Additionally, I am unable to fathom how the nature of the underlying lawsuit alters the prerequisites to establish a legitimate cause of action for the tort under consideration. Contrary to the majority’s Opinion, this is a case in which expert testimony is crucial. Although, if true, I find appellee’s behavior as described in detail by the majority to be abominable, and I most certainly have no reason to doubt the sincerity of appellant’s distress, the fact remains she has offered no tangible proof of the mental and physical anguish she has allegedly endured. Unfortunately for the appellant and all those who suffer at the hands of an emotionally abusive individual, mental anguish endured and its lingering aftermath are not readily identifiable or easily recognizable by a lay individual and, therefore, the need for expert testimony to establish the same is paramount. See Taylor v. Celotex Corp., 393 Pa.Super. 566, 574 A.2d 1084 (1990).

Because appellant failed to present expert testimony to substantiate the existence of the emotional distress allegedly suffered by her as a direct result of appellee’s actions, I would affirm the November 21, 1991 Order granting judgment n.o.v. in favor of the defendants.