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View Case Details
 
MECHANICS LUMBER COMPANY and Fred Myers Company Inc.
vs.
Mark SMITH
 
Case:
No. 87-358
 
Location:
Supreme Court of Arkansas
 
Date:
July 18 1988 Opinion delivered
 
Headnotes:
1. Torts -- Outrage. -- The tort of outrage is defined as conduct that is so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized society; the type of conduct must be decided on a case by case basis.
2. Torts -- Outrage -- Conduct not Otherwise Outrageous can Become So under Certain Circumstances. -- Conduct not otherwise outrageous and extreme can be elevated to satisfy the test if the employer knows of an employee's inability to deal with emotional stress.
3. Appeal & Error -- Correctness of Action on Directed Verdict. - In determining on appeal the correctness of the trial court's action concerning a motion for a directed verdict by either party the appellate court views the evidence that is most favorable to the party against whom the verdict is sought and gives it the highest probative value taking into account all reasonable inferences deducible from it.
4. Trial -- when Directed Verdict should be Granted. -- The motion for directed verdict should be granted only if the evidence so viewed would be so insubstantial as to require a jury verdict for the party to be set aside.
5. Torts -- Outrage -- no Evidence of Outrageous Conduct. -- Where appellee testified the polygraph exam did not result in an exacerbation of his disease there was no evidence that appellants knew or should have known that appellee's disease could worsen by taking the polygraph and merely scheduling a second exam did not constitute outrageous conduct by appellants there was no evidence which would raise the level of appellants' conduct to the standard required for the tort of outrage and the appellate court reversed the denial of appellants' motion for directed verdict.
6. Torts -- Consent -- when Valid. -- For the consent to be valid it must be executed freely with full knowledge and free of duress.
7. Torts -- Negligent Infliction of Emotional Distress not Recognized. - A claim of negligent infliction of emotional distress is not recognized in Arkansas.
8. Torts -- Interference with Prospective Advantage -- Intentional Conduct Required. -- Intentional conduct is required to support a claim for interference with prospective advantage.
9. Torts -- Defamation -- Establishing Absolute Privilege. -- To establish an absolute privilege the consent form must be valid.
10. Torts -- Defamation -- Establishing a Qualified Privilege. -- To establish a qualified privilege the reasonableness of appellant's actions must be established.
11. Appeal & Error -- Case Remanded -- Summary Judgment Precluded Development of Facts. -- If either type of privilege were to exist the summary judgment precluded development of the facts so the appellate court reversed and remanded.
 
Attorneys:
Eichenbaum Scott Miller Liles & Heister by: Randel K. Miller; and Anderson & Kilpatrick by: Overton S. Anderson for appellant Mechanics Lumber Company.
Huckabay Munson Rowlett and Tilley P.A. by: Beverly A. Rowlett for appellant/cross-appellee Fred Myers Company Inc.
Lavey Harmon & Burnett by: John L. Burnett for appellee/cross-appellant.
 
Court:
Meredith P. Catlett Special Chief Justice. Holt C.J. Newbern and Purtle JJ. not participating. Special Associate Justice Al Graves Jr. joins in the opinion.
 
Author:
The Hon. Justice Catlett
 

This case involves a polygraph examination administered to Appellee Mark Smith for his employer Appellant Mechanics Lumber Company by Appellant Fred Myers Company Inc. Smith sued on three bases: outrage negligence in administering the polygraph and defamation. The trial court denied Appellants' motions for a directed verdict on the claim of outrage and the jury awarded a verdict against Mechanics and Myers on this claim. The trial court granted summary judgment for Appellants on the other claims. These rulings have been appealed.

Due to losses of merchandise Mechanics scheduled polygraph examinations for several employees including Appellee. Mechanics was aware that Appellee suffered from Multiple Sclerosis but was not aware that Appellee's disease was in an aggravated stage. Immediately before taking the exam Appellee signed a form consenting to the test and releasing Mechanics and Myers from all claims but he alleges he believed his job would be terminated if he did not sign the form and take the polygraph.

Appellee informed the polygraph administrator Myers' employee that he had Multiple Sclerosis and was taking the drug Prednisone. The administrator said he would later determine whether the medicine could affect the polygraph. Appellee did not object to undergoing the examination. He testified that the experience of taking the exam did not exacerbate his disease but that he became worse after he learned of the results.

Myers reported to Mechanics that the polygraph revealed that Appellee had been deceptive during the examination. Mechanics informed Appellee of the results but told him the results were questioned because of the uncertain effect of his illness and medication. Another exam was scheduled for the next day. Mechanics contacted Appellee's physician to determine whether Appellee was physically fit for another polygraph. Based on the physician's advice that Appellee should not take the test at that time Mechanics canceled the exam.

After the test was canceled Appellee left work early and did not return for two weeks due to an aggravated stage of his disease. After returning to work for a month Mechanics told Appellee he was being discharged because he was physically unfit for his duties. Mechanics also told Appellee that his physician told Mechanics that Appellee was unable to perform his job functions but the physician denied so advising Mechanics.

The first issue is whether the evidence is sufficient to support the tort of outrage. The trial court denied Appellants' motions for a directed verdict holding the evidence was sufficient. This claim went to the jury which awarded damages to Appellee against Mechanics and Myers.

[1] In M.B.M. Co. v. Counce 268 Ark. 269 596 S.W.2d 681 (1980) this court first recognized the tort and held there must be conduct that "is so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized society." Counce supra at 687. While this court has recognized the type of conduct must be decided on a case by case basis the strict standard of Counce has remained. Ingram v. Pirelli Cable Corp. 295 Ark. 154 747 S.W.2d 103 (1988).

[2] Conduct not otherwise outrageous and extreme can be elevated to satisfy the test if the employer knows of an employee's inability to deal with emotional stress. Tandy Corp. v. Bone 283 Ark. 399 678 S.W.2d 312 (1984) and Ingram supra. There is no evidence in the instant case that Appellants knew or should have known that Appellee's disease could worsen by taking the polygraph. In fact Appellee testified the exam did not result in an exacerbation of his disease. Merely scheduling a second exam did not constitute outrageous conduct by Mechanics.

[3-5] In determining on appeal the correctness of the trial court's action concerning a motion for a directed verdict by either party we view the evidence that is most favorable to the party against whom the verdict is sought and give it the highest probative value taking into account all reasonable inferences deducible from it. The motion should be granted only if the evidence so viewed would be so insubstantial as to require a jury verdict for the party to be set aside. Green v. Gowan 279 Ark. 382 652 S.W.2d 624 (1983); Pritchard v. Times Southwest Broadcasting Inc. 277 Ark. 458 642 S.W.2d 877 (1982). This court finds no evidence which would raise the level of Mechanics' or Myers' conduct to the standard required for the tort of outrage. Therefore we reverse the denial of Appellants' motions for directed verdict.

Appellee sought damages alleging negligence by Myers in administering and reporting the polygraph. The trial court granted summary judgment for Myers based on the release contained in the consent form Appellee signed.

[6] We agree with Appellee that the validity of the consent form presented a fact question for the jury. For the consent to be valid it must be executed freely with full knowledge and free of duress. Interstate Fire Ins. Co. v. Ford 234 Ark. 104 350 S.W.2d 687 (1961); Perkins Oil Co. of Delaware v. Fitzgerald 197 Ark. 14 121 S.W.2d 877 (1938).

[7 8] Myers is right that a claim of negligent infliction of emotional distress is not recognized in Arkansas Dalrymple v. Fields 276 Ark. 185 633 S.W.2d 362 (1982) and that intentional conduct is required to support a claim for interference with prospective advantage. Scholtes v. Signal Delivery Service 548 F. Supp. 487 (W.D. Ark. 1982). But there is more to Appellee's negligence claim requiring a decision about the validity of the consent form. Therefore we reverse the summary judgment on this claim and remand.

The trial court granted a summary judgment for Myers on Appellee's claim for defamation holding the publication of the polygraph report to Mechanics was privileged.

[9-11] We do not decide whether a privilege exists in this situation because the issues were not developed at trial. If such a privilege exists fact questions precluded a summary judgment in this case. To establish an absolute privilege the consent form must be valid. Interstate supra and Perkins supra. To establish a qualified privilege the reasonableness of Myers' actions must be established. Dunn & Bradstreet Inc. v. Robinson 233 Ark. 168 345 S.W.2d 34 (1961). Therefore if either type of privilege were to exist the summary judgment precluded development of the facts so we reverse and remand.

Reversed on appeal and reversed and remanded on cross-appeal.