Gomez v. Hug

Court of Appeals of Kansas · 1982 · Torts

TortsAssaultIntentional Infliction of Emotional DistressDefamationSection 1983Respondeat SuperiorSummary Judgmentsummary judgment

Facts

While Gomez, a fairgrounds supervisor, entered the administrator's office with his supervisor, county commissioner Hug repeatedly called him a "fucking spic" and "fucking Mexican greaser," shouted at him for five to fifteen minutes, raised and shook his fist in Gomez's face, and pounded on the desk while asking what Gomez was going to do about it. Gomez testified that he froze, was terrified, and was afraid of Hug, his job, and his family. After the incident Gomez developed serious medical problems, received treatment from multiple doctors, and evidence in the record linked those problems to the incident. Gomez later resigned from his county job.

Issue

Whether the district court erred in granting summary judgment by ruling as a matter of law that Hug's conduct did not constitute assault, intentional infliction of emotional distress, defamation, or a deprivation actionable under 42 U.S.C. § 1983, and that the Board of County Commissioners could not be liable. The appeal also presented whether reasonable persons could differ on the assault and outrage claims.

Rule

On summary judgment, the record must be viewed in the light most favorable to the nonmoving party, and judgment is proper only when there is no genuine issue of material fact and reasonable persons could reach but one conclusion. Assault is an intentional threat or attempt, coupled with apparent ability, to do bodily harm, resulting in immediate apprehension of bodily harm; words alone are insufficient unless accompanied by acts or circumstances creating reasonable apprehension. Intentional infliction of emotional distress requires extreme and outrageous conduct intentionally or recklessly causing severe emotional distress, with the court first deciding whether the conduct may reasonably be regarded as outrageous enough to permit recovery. Defamation protects reputation and requires communication to a third person; slander per quod additionally requires special damages. Verbal harassment alone does not support a § 1983 claim, and respondeat superior does not apply where an elected county commissioner acts independently rather than as the county's agent or servant.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

At a public works garage in Wichita, county road supervisor Darren Pike became enraged at mechanic Luis Herrera during a dispute over equipment logs. Darren stepped within inches of Luis, repeatedly jabbed a clenched fist toward Luis's face without touching him, slammed a wrench onto a workbench, and shouted, "Do something about it right now," for several minutes while Luis stood frozen.

Luis sues Darren for assault. Darren moves for summary judgment, arguing there was no physical contact and he only used insulting language. How should the court rule?

Explanation. Assault is an intentional threat or attempt, coupled with apparent ability, resulting in immediate apprehension of bodily harm; bodily contact is unnecessary. Words alone are insufficient, but words together with acts or circumstances may create reasonable apprehension of imminent harmful or offensive contact. Viewing the evidence favorably to Luis, Darren's fist-jabbing, close physical positioning, and bench-slamming could allow reasonable jurors to find assault, so summary judgment is improper.