Mintz v. Bell Atlantic Systems Leasing International, Inc.

LANKFORD, Presiding Judge,

dissenting in part.

I agree with the majority in all respects except one. In my view, the complaint sufficiently stated a claim for intentional infliction of emotional distress. I therefore dissent from this part of the opinion.

As alleged by the plaintiff, her employer forced her to return to work after she had been hospitalized for severe psychological problems. The employer knew at the time that plaintiffs physician had advised her against returning to work.

Plaintiff complied with the employer’s demand and returned to work on September 11,1991. The next day, she was hospitalized due to the emotional trauma. The following day, September 13, the employer hand-delivered a letter to plaintiff at the hospital, informing her that her job duties had been reassigned. Although the employer asserts on appeal that it was “obligated” to notify plaintiff of this fact, this is an appeal from a dismissal and we are thus reviewing the allegations of the complaint, not a factual record.

On review, we assume the allegations of the complaint are true and can uphold the dismissal only if the plaintiff is not entitled to any relief under the facts alleged. McAlister v. Citibank, 171 Ariz. 207, 211 , 829 P.2d 1253 (App.1992). “Motions to dismiss for failure to state a claim are not favored under Arizona law,” our supreme court has said. State ex rel. Corbin v. Pickrell, 136 Ariz. 589, 594 , 667 P.2d 1304 (1983) (quoting case). Dismissal should not be granted “unless it appears certain” that plaintiff could not succeed. Id. (quoting case; emphasis added). This Court has expressed the same view in Newman v. Maricopa County, 167 Ariz. 501, 503 , 808 P.2d 1253 (App.1991): “The motion should be denied unless ‘it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him to relief.’” (quoting 5A C. Wright & A. Miller, Federal Practice and Procedure § 1357, at 325 (1990) and Conley v. Gibson, 355 U.S. 41, 45-46 , 78 S.Ct. 99, 102 , 2 L.Ed.2d 80 (1957)) (emphasis added).

*557 Taking the allegations of the complaint as true, can we say that the defendant’s conduct was sufficiently outrageous as to be tortious? 2 I believe we can. Defendant’s conduct is much like kicking someone who is down. In this case, the plaintiff already had been traumatized by defendant’s act of forcing her to return to work. Knowing of her psychological crisis and of her vulnerability, defendant nevertheless sent a letter that it must have known would further harm the plaintiff. In light of the background that defendant knew of plaintiffs vulnerability and had caused her rehospitalization by forcing her to return prematurely to work, delivering a letter bearing bad or threatening news within a day of her hospitalization can be considered outrageous conduct. 3

In fact, it is difficult to imagine conduct more “atrocious and utterly intolerable in a civilized community” than to intentionally risk harm to a sick and hospitalized person. See Patton, 118 Ariz. at 476, 578 P.2d 152 (quoting case). Defendant’s knowledge of the plaintiffs vulnerability makes the conduct outrageous. “The extreme and outrageous character of the conduct may arise from the actor’s knowledge that the other is peculiarly susceptible to emotional distress, by reason of some physical or mental condition or peculiarity. The conduct may become heartless, flagrant, and outrageous when the actor proceeds in the face of such knowledge, where it would not be so if he did not know.” Restatement (2d) op Torts § 46, cmt. f. Accord, Lucchesi v. Stimmell, 149 Ariz. 76, 79, 716 P.2d 1013 (1986). In fact, the Restatement provides an illustration similar to this case. The plaintiff is hospitalized with a heart condition and is under doctor’s orders to rest. The defendant comes to the hospital and insistently and boisterously attempts to settle an insurance claim. The defendant is liable for the harm caused if he knew of the plaintiff’s condition. Restatement, supra at , illus. 12.

The majority criticizes the use of this illustration. The outrageousness of the illustration lies in the insistent and boisterous manner of the communication, the majority says, and there was none of that here.

This argument both misses the thrust of the Restatement and overlooks important aspects of defendant’s conduct. First, illustration 12 accompanies Restatement Section 46, which states that otherwise non-tortious conduct can become outrageous and tortious if defendant knows of the plaintiffs vulnerability due to emotional distress or mental or physical condition. What makes the illustration pertinent, then, is the fact of the plaintiffs vulnerability, not that the communication was rough or ill-mannered.

Second, the majority’s focus on the maimer of delivery overlooks other aspects of defendant’s conduct which heighten the outrage. The letter was sent for no apparent reason: We .know of no need to inform plaintiff of action taken adverse to her while she lay hospitalized a mere day after her crisis began. Moreover, unlike the attempt to settle a claim in the illustration, the communication here was adverse, threatening and frightening. All that we know of the letter suggests that it was likely to be perceived as a threat to plaintiff’s job security, and that defendant knew it would be interpreted as such.

In addition, the fact that defendant behaved so badly to one of its employees is a fact which contributes to the outrageousness. That plaintiff was the employee of defendant makes the conduct more outrageous: “The extreme and outrageous character of the conduct may arise from an abuse by the actor of a position, or a relation with the other, which gives him actual or apparent authority over the other, or power to affect his interests.” Restatement, supra at cmt. 3(e). See also Lucchesi v. Stimmell, 149 Ariz. at 79 , 716 *558 P.2d 1013 (position occupied by defendant is a factor).

The employer relies on Burger v. Health Ins. Plan of Greater New York, 684 F.Supp. 46 (S.D.N.Y.1988) for its argument that its conduct was not outrageous. In Burger , the employee alleged that the employer’s harassment and discrimination necessitated sick leave. Two months after the sick leave began, the employer sent a letter asking for clarification of the employee’s return date, noting that if no clarification were received the employee could be terminated for lack of availability, but also stating that the employee could be rehired even if terminated if she subsequently became available for work.

Burger is distinguishable for several reasons. First, the employee was not hospitalized at the time, as plaintiff was here. Second, the letter apparently was mailed, not hand-delivered to the plaintiffs hospital bed as in this case. Third, the letter was delivered two months after sick leave began, not the day after a psychological crisis, as here. Fourth, the contents of the letter are different. The letter in Burger was primarily a request for information, with the threat of possible termination tempered by the possibility of rehiring. The letter here conveyed information rather than requested it, and the information was wholly threatening in stating that plaintiffs job duties were being reassigned.

The employer also argues that its conduct was privileged. It is indeed privileged conduct to insist upon one’s legal rights “in a permissible way.” Restatement, supra at cmt. g. However, this does not justify the employer’s conduct. While it may have been permissible to reassign a worker’s duties, this does not immunize the employer’s act of hand-delivering a letter to the hospital notifying plaintiff of that fact, knowing that plaintiff was in psychological crisis and vulnerable to emotional harm. Crump v. P & C Food Markets, Inc., 154 Vt. 284 , 576 A.2d 441, 448 (1990) commented on an analogous argument:

We agree with defendant that the mere termination of employment will not support a claim for intentional infliction of emotional distress. However, if the manner of termination evinces circumstances of oppressive conduct and abuse of a position of authority vis-a-vis plaintiff, it may provide grounds for the tort action.

In this case, the question is whether the complaint pleads a claim which is sufficient to go to a jury. I believe it does. Therefore, I must respectfully dissent.

. See Patton v. First Fed. Sav. & Loan Ass'n, 118 Ariz. 473 , 476, 578 P.2d 152 (1978) ("It is the duty of the court as society’s conscience to determine whether the acts complained of can be considered sufficiently extreme and outrageous to state a claim for relief.”).

. Although we do not know the exact contents of the letter or the details of the manner of its delivery, this lack of factual detail is to be expected because this case was resolved on a motion to dismiss the complaint for failure to state a claim. Indeed, the absence of such evidentiary details merely illustrates why deciding on a motion to dismiss ends the case prematurely.