Opinion
C.A. No. 04C-02-121.
Submitted: December 13, 2005.
Decided: March 31, 2006.
Upon Consideration of Defendant Reverend Burton's Motion for Summary Judgment. DENIED IN PART. GRANTED IN PART.
John M. LaRosa, Esquire, Wilmington, Delaware; Keith O. Dews, Esquire, Foley Thompson Dews, LLP, Philadelphia, Pennsylvania; Attorneys for Plaintiff.
Kathleen M. Jennings, Esquire, Oberly, Jennings Rhodunda, P.A., Wilmington, Delaware; Attorney for Defendant Reverend Dr. William L. Burton, Jr.
MEMORANDUM OPINION
I. INTRODUCTION
This case arises from the alleged harassment of Plaintiff Katina Collins ("Collins") by Reverend William L. Burton, Jr. ("Burton"). Collins has sued Reverend Dr. William L. Burton, Jr., ("Burton") for intentional infliction of emotional distress, negligent infliction of emotional distress, and negligence. Presently before the Court is Reverend Burton's Motion for Summary Judgment. The Court finds that Collins has established that a genuine issue of material fact exists as to whether Burton's conduct was extreme and outrageous. Therefore, Burton's Motion for Summary Judgment is denied with respect to Collins' claim of intentional infliction of emotional distress. However, because Collins has failed to identify an expert to substantiate the physical injuries she has alleged and to link those alleged physical injuries to her emotional distress, Burton's Motion for Summary Judgment will be granted with respect to the negligent infliction of emotional distress and negligence claims.
II. BACKGROUND
Collins alleges Defendant Burton made sexually harassing, intimidating phone calls to her between the period of November 2002 until September 2003. Burton was pastor and Collins was a member and Vice Chairman of the Steward's Board at the Scott Church during the time in question. Collins states she initially went to the administration of Scott African Methodist Episcopal Zion Church ("Scott Church") to stop the harassing phone calls, but no action was taken. Collins next attempted to contact Bishop Milton A. Williams, Sr., ("Bishop Williams") who presided over the Mid-Atlantic District of the denomination and who was also a representative for International Ministers. Bishop Williams refused to listen to the tape recordings of Burton's comments to Collins and initially refused certified letters from Collins.
In September 2003, Collins filed a complaint with the Wilmington Police Department who subsequently arrested Burton. Bishop Williams then convened a committee who found Burton guilty of sexual harassment in violation of International Ministers' and The Book of Discipline of the A.M.E. Zion Church (" The Book of Discipline").
Collins states she has suffered from a stroke, slurred speech, headaches, and mental and emotional anguish as the result of the actions and failure to act of the Defendants.
III. STANDARD OF REVIEW
Summary judgment may only be granted when no genuine issues of material fact exist. The moving party bears the burden of establishing the non-existence of genuine issues of material fact. If the burden is met, the burden shifts to the non-moving party to establish the existence of genuine issues of material fact. "Where the moving party produces an affidavit or other evidence sufficient under Superior Court Civil Rule 56 in support of its motion and the burden shifts, then the non-moving party may not rest on its own pleadings, but must provide evidence showing a genuine issue of material fact for trial." Summary judgment will not be granted if the record reasonably indicates a material fact in dispute or a need to inquire more thoroughly into the facts to clarify the application of law to the circumstances. The court must view the facts in the light most favorable to the non-moving party.
Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).
Id.
Id. at 681.
Super. Ct. Civ. R. 56(3); Ramsey v. State Farm Mutual Automobile Insurance Co., 2004 WL 2240164, at *1 (Del.Super.) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)).
Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962).
Lupo v. Medical Center of Delaware, 1996 LEXIS 46, at *5 (Del.Super.).
Moreover, summary judgment is generally not appropriate for actions based on negligence. It is rare in a negligence action "because the moving party must demonstrate not only that there are no conflicts in the factual contentions of the parties but that, also, the only reasonable inferences to be drawn from the uncontested facts are adverse to the plaintiff."
Ebersole, 180 A.2d at 468.
Upshur v. Bodie's Dairy Market, 2003 WL 21999598, at *3 (Del.Super.).
IV. DISCUSSION
In Count I of the Second Amended Complaint Collins sets forth a claim of intentional infliction of emotional distress against Reverend Burton. She alleges that Burton's conduct was extreme, outrageous, intentional, malicious, willful, and reckless and that as a result of said conduct, she suffered severe emotional distress and bodily harm. Burton, however, alleges that his relationship with Collins was that of one layperson to another and did not rise to the level of extreme and outrageous conduct. Additionally, in Counts II and III Collins sets forth a claim of negligent infliction of emotional distress and negligence against Reverend Burton. Collins alleges that Burton had a duty as a pastor as set forth in the Policies Procedures Concerning Sexual Misconduct contained in The Book of Discipline and a duty as an individual to exercise due care. It is alleged that Burton's actions were not what an ordinary prudent person or pastor would have done under similar circumstances and thereby caused Collins to suffer emotional distress and depression. As a direct result of this emotional distress and depression, Collins alleges that she has suffered from a stroke, headaches and developed slurred speech. Defendant Burton argues that Collins has failed to produce any expert testimony linking her claims of physical injury to her emotional distress. Specifically, he contends that Collins has not produced medical evidence of a stroke nor has she provided medical evidence linking her headaches and slurred speech to her distress. Although Collins has designated Dr. Alvin Turner, a psychologist, as an expert, Burton alleges that this is insufficient since he is not a medical doctor.A. Collins Has Established That A Genuine Issue Of Material Fact Exists As To Whether Burton's Conduct Was Extreme And Outrageous
The tort of intentional infliction of emotional distress may form the basis of an award of damages, but a plaintiff must establish the following elements as set forth in the Restatement (Second) of Torts § 46 (1965):
. . . One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.
In Cummings v. Pinder, the Supreme Court of Delaware held that a claim for intentional infliction of emotional distress may be made even in the absence of accompanying bodily harm, if the conduct is outrageous. It is the Court's gatekeeping responsibility to determine whether Burton's conduct was so extreme and outrageous as to permit recovery. However, where reasonable people may differ, it is for the trier of fact to determine whether there has been sufficiently extreme and outrageous conduct as to result in liability. Liability has only been found to result where the conduct is so outrageous and extreme that it "exceeds the bounds of decency and is regarded as intolerable in a civilized community." It is not enough that a defendant acted with tortious or criminal intent, intended to inflict emotional distress, or even that his conduct has been characterized by malice or a degree of aggravation that would entitle the plaintiff to punitive damages under another tort.
574 A.2d 843, 845 (Del. 1990).
Id.
Farmer v. Wilson, 1992 WL 331450, at *4 (Del.Super.).
Thomas v. Harford Mutual Insurance Co., 2004 WL 1102362, at *3 (Del.Super.).
Id.
Farmer, 1992 WL 331450, at *4.
Burton relies upon Teadt v. Lutheran Church Missouri Synod, Doe v. Hartz, and Hoy v. Angelone, to support his assertion that his relationship with Collins did not rise to the level of extreme and outrageous conduct. In Teadt, the court held that a minister's conduct could not be reasonably regarded as extreme and outrageous when an adult parishioner alleged that a minister pursued her, gained her trust, and eventually engaged in a consensual sexual relationship with her, albeit that her consent was given when she was in a vulnerable position. Because the defendant's conduct could not be reasonably regarded as extreme and outrageous, plaintiff had failed to state a claim upon which relief could be granted and summary disposition was appropriate. In Hartz, the court agreed that being grabbed and kissed by a priest against one's will involved conduct that was unacceptable, but could not find that such conduct alone was extreme and outrageous. Additionally, in Hoy v. Angelone, the court found that a supervisor's conduct in sexually harassing an employee and thereby creating a sexually hostile work environment was not sufficiently outrageous to support the employee's claim for intentional infliction of emotional distress. The court stated that as a general rule, sexual harassment alone does not rise to the level of outrageousness necessary to make out a cause of action for intentional infliction of emotional distress and that "the only instances in which courts applying Pennsylvania law have found conduct outrageous in the employment context is where an employer engaged in both sexual harassment and other retaliatory behavior against an employee." However, the court in Hartz did recognize that courts have considered claims for intentional infliction of emotional distress based on sexual misconduct by a clergyman where considerably more egregious conduct was at issue. For instance, in Sanders v. Casa View Baptist Church, the court held that the evidence raised a genuine issue of material fact on plaintiff's allegations of outrageous conduct, where there was evidence that the defendant minister sexually harassed the plaintiffs at work, made graphic sexual comments and gestures, and engaged in sexual relationships with two of the plaintiffs who worked just a few feet from each other.
603 N.W.2d 816 (Mich.App. 1999).
52 F.Supp.2d 1027 (N.D. Iowa 1999).
691 A.2d 476 (Pa.Super.Ct. 1997).
Teadt, 603 N.W.2d at 824.
Id.
Hartz, 52 F.Supp.2d at 1069.
Hoy, 691 A.2d 476.
Id. at 483 (citing Cox v. Keystone Carbon, 861 F.2d 390, 395-96 (3rd Cir. 1988)).
Hartz, 52 F.Supp.2d at 1069.
898 F.Supp. 1169 (N.D.Tex. 1995).
Id. at 1177; see also Walker v. Dickerman, 993 F.Supp. 101, 102-03 (D.Conn. 1997) (finding in the plaintiff's favor and awarding punitive damages on the plaintiff's claim of intentional infliction of emotional distress, because the defendant minister had engaged the plaintiff in years of sexual abuse, including oral sex and digital penetration, while the plaintiff was a minor)); Schieffer v. Catholic Archdiocese of Omaha, 508 N.W.2d 907, 910-11 (Neb. 1993) (an adult parishioner failed to state a claim for intentional infliction of emotional distress against a priest, despite years of consensual sexual relations in the course of counseling, because there were no allegations that the defendant used force or fraud to accomplish his sexual relations or that her "vulnerability" made her incapable of consenting to what took place)); Destefano v. Grabrian, 763 P.2d 275, 286 (Colo. 1988) (allegations that a Catholic clergyman took advantage of the plaintiff's vulnerable emotional state to induce her to engage in a sexual relationship after the clergyman had held himself out to be trained and capable of conducting marital counseling and she consulted him for such counseling were sufficient to withstand the clergyman's motion to dismiss the plaintiff's claim of intentional infliction of emotional distress).
In the present case, Collins has not cited to any cases to support her assertion that Burton's conduct was extreme and outrageous. However, she has provided examples of different incidents involving the allegedly outrageous language Burton used during his telephone conversations. This evidence raises a genuine issue of material fact on Collins' allegation of outrageous conduct. Whether the facts of this case support a claim for intentional or reckless infliction of emotional distress is a matter appropriate for the jury. Thus, the Court is of the opinion that Burton's Motion for Summary Judgment should be denied with respect to Collins' intentional infliction of emotional distress claim.
Thomas, 2004 WL 1102362, at *3 (where reasonable people may differ, it is for the trier of fact to determine whether there has been sufficiently extreme and outrageous conduct as to result in liability).
B. Collins Cannot Establish Her Claim For Negligent Infliction Of Emotional Distress Because She Has Failed To Produce Expert Testimony
To recover under a theory of negligent infliction of emotional distress a plaintiff must provide evidence of a physical injury. Courts have held that where the physical phenomena accompanying emotional disturbance are transitory and non-recurring, they do not amount to the physical injury needed for recovery under a negligent infliction of emotional distress claim. In Lupo v. Medical Center of Delaware, the court found that the plaintiffs had suffered physical injury. After the death of their baby, the plaintiffs suffered from recurring episodes of sleeplessness, nightmares, headaches, clinical depression, irritability, rage, crying spells, and mental distress. Relying on the testimony of plaintiff's psychologist, the court found that the plaintiff's injuries were more substantial than transitory, non-recurring physical phenomena and that sufficient evidence of a physical injury had been produced to overcome a motion for summary judgment.
Garrison v. Medical Center of Delaware, Inc., 581 A.2d 288, 293 (Del. 1990).
Lupo, 996 LEXIS 46.
Id. at *10.
Id.
Id. at *11.
In the present case, Defendant Burton does not allege that the physical phenomena accompanying Collins' emotional disturbance are transitory and non-recurring. Rather, he alleges that sufficient evidence of a physical injury has not been produced to overcome a motion for summary judgment because Collins has failed to produce any expert testimony linking her claims of physical injury to her emotional distress. Burton contends that he has repeatedly requested disclosure of such information in Defendants' Joint Request for Production of Documents and Defendants' Joint Interrogatories Directed to Plaintiff, but to date no expert has been provided. Moreover, by Stipulation dated August 2, 2005, the parties agreed to extend the discovery deadline until September 15, 2005. However, Collins has yet to submit an expert report. Burton asserts that Collins' designation of Dr. Alvin Turner ("Dr. Turner"), a psychologist who is not a medical doctor, as an expert is insufficient to causally link Collins' alleged injuries to her emotional distress.
The Court finds that a medical expert, other than Dr. Turner, is required to link Collins' claims of physical injury to her emotional distress. Delaware Rule of Evidence 702 provides that "[i]f scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise." Where the medical question as to proximate cause is complicated and carries the fact finder into realms properly within the province of medical experts, then expert medical testimony is necessary to establish proximate cause between an act and an injury. The general rule is that expert testimony is required to establish a proximate cause of an injury when the explanation of the cause and effect are not matters normally within the knowledge of laymen. To be "competent," the expert testimony must be reliable in the circumstances of the case.
Rea v. Midway Realty Corporation, 1990 WL 35285, at *1 (Del.Super.).
Id.
See Bell Sports, Inc. v. Yarusso, 759 A.2d 582, 588 (Del. 2000).
Under the present circumstances, the Court finds that a layperson would be unable to form an intelligent judgment, without the aid of a medical expert, as to whether Burton's actions caused Collins' physical injuries. Since Collins did have a pre-existing medical condition and her alleged physical injuries could have been caused by a prior occurrence the Court finds that Collins' physical injuries are not obviously related to the actions of Burton. Therefore, a medical expert is necessary to establish the causal nexus. Specifically, Collins has a neurological disorder called Arnold-Chiari Malformation which is a condition in which the cerebellum portion of the brain protrudes into the spinal canal. Arnold-Chiari II type malformation is associated with myelomeningocele (a defect of the spine) and hydrocephalus (increased cerebrospinal fluid and pressure within the brain), which usually are apparent at birth. Myelomeningocele usually causes paralysis of the legs and, less commonly, the arms. If left untreated, hydrocephalus can cause mental impairment. Any type of Arnold-Chiari Malformation can cause symptoms of headache, vomiting, difficulty swallowing, and hoarseness. Moreover, symptoms of progressive brain impairment may include dizziness, an impaired ability to coordinate movement, double vision, and involuntary, rapid, downward eye movements. Without a medical expert, it would be impossible to determine whether Collins' headaches were caused by this neurological disorder or whether they were in fact caused by the alleged conduct of Reverend Burton. Moreover, Collins' unique background further establishes the need for a medical expert to causally link her emotional distress, depression, stroke, headaches, and slurred speech to the actions of Burton. She reported to Dr. Turner that she had been exposed to domestic violence between the ages of twelve and thirteen, her parents had gotten divorced and she was both physically and sexually abused between the ages of five and thirteen, she had been mentally abused by the father of her third child, and physically abused by the father of her first and second children. Based upon the totality of these circumstances, the Court finds it necessary to have a medical expert's opinion showing that Collins' physical complaints were in fact caused by Burton's actions and were not caused by the cumulative effect of prior physical and sexual abuse. Expert testimony is needed to buttress Collins' subjective complaints of physical injuries not readily identifiable with the alleged actions of Burton. In addition to not proving a causal link between her physical injuries and the alleged actions of Burton, Collins has not provided any medical evidence whatsoever of a stroke. Based on the facts as they now exist, Collins will not be able to establish her claim for negligent infliction of emotional distress because she does not have a medical expert listed as a witness. Therefore, with respect to the negligent infliction of emotional distress claim, Defendant's Motion for Summary Judgment is hereby granted.
National Institute of Neurological Disorders and Stroke, Chiari Malformation Information Page,http://www.ninds.nih.gov/disorders/chiari/chiari.htm (last visited February 23, 2006).
Id.
Id.
Id.
Id.
Id.
C. The Court Finds As A Matter Of Law That Expert Testimony Is Needed To Establish That Burton's Conduct Caused Collins' Physical Injuries
Collins also claims damages for emotional distress due to Defendant Burton's negligence. It is settled law in Delaware that, in a negligence action, for a claim of mental anguish to lie, an essential ingredient is present and demonstrable physical injury. As noted above, the Court finds under these circumstances that a layperson would be unable to form an intelligent judgment, without the aid of medical expert, as to whether Burton's actions caused Collins' physical injuries. The causal nexus between Collins' injuries and Burton's actions is not obvious and is not within the common knowledge of a layperson. A lay jury's finding that Burton's conduct caused Collins' injuries would be mere speculation. Therefore, this Court finds that expert testimony is needed to establish that Collins' physical injuries would not have occurred but for Burton's actions. Because Collins has not produced any expert testimony linking her physical injuries to her emotional distress, Defendant Burton's Motion for Summary Judgment is granted with respect to the negligence claim.
Garrison, 581 A.2d 288 at 293; Cooke v. Pizza Hut, Inc., 1994 WL 680051 (Del.Super.) (granting summary judgment to defendant where plaintiff sought to recover mental anxiety in negligence claim but failed to establish physical injury).
V. CONCLUSION
For the foregoing reasons, the Court determines that Collins has established that a genuine issue of material fact exists as to whether Burton's conduct was extreme and outrageous. Therefore, the Court denies Burton's Motion with respect to Collins' claim of intentional infliction of emotional distress. The Court also concludes that expert testimony is needed to establish that Burton's conduct caused Collins' physical injuries. Since Collins has failed to produce this expert testimony she cannot prove her claims of negligent infliction of emotional distress and negligence.
Accordingly, Defendant Burton's Motion for Summary Judgment is DENIED IN PART, GRANTED IN PART.