denying writ of prohibition to preclude court from asserting jurisdiction over county board members and finding lower court correctly recognized “the intentional actions by board members are not protected by statutory immunity.”
How later courts described this case
- denying writ of prohibition to preclude court from asserting jurisdiction over county board members and finding lower court correctly recognized “the intentional actions by board members are not protected by statutory immunity.”
Written by the judges who cited it.
The opinion
Steele Hays, Justice, concurring. The gist of the complaint filed by Kathy Smith and Tommy Smith against the petitioners is that by failing or refusing to follow proper guidelines in hiring Roger Patterson as a school bus driver, petitioners breached a statutory and common law duty owed to their daughter. The complaint asserts causes of action based on gross negligence, intentional tort and outrage. To the extent that the petitioners may have liability insurance coverage applicable to this case, I agree the trial court is not without jurisdiction. I write simply to express my view that the complaint fails to state a cause of action for an intentional tort or for the tort of outrage and was subject to dismissal under ARCP 12(b)(6).
We have held that for a complaint to assert an intentional tort it must be based on an allegation that the intentional or deliberate act was performed with a desire to bring about the consequences of the act. Miller v. Ensco, Inc., 286 Ark. 458 , 692 S.W.2d 615 (1988); Finch v. Swingly, 42 A.D.2d 1035 , 348 N.Y.2d 266 (1973).
As to outrage, we addressed the identical issue in Rabalaias v. Barnett, 284 Ark. 527 , 683 S.W.2d 919 (1985), and noted that no facts were alleged entitling the plaintiffs to relief by the tort of outrage:
Rule 12(b)(6) provides for dismissal of a complaint for “failure to state facts upon which relief can be granted.” The two rules [Rule 12(b)(6) and Rule 8] must be read together in testing the sufficiency of a complaint; facts, not mere conclusions must be alleged. Harvey v. Eastman Kodak Co., 271 Ark. 783 , 610 S.W.2d 582 (1981). Since no facts were alleged regarding the tort, the trial court was right to dismiss the claim.
Reduced to its elements, this complaint charges the defendants (petitioners) with hiring an individual who should not have been hired, and, had the petitioners followed the proper procedures, the alleged abuses might not have occurred. But no facts are pled which render that conduct outrageous, or from which we can infer there was any desire to bring about such consequences.