Opinion
Civil Action No. 3:01CV-258-S
June 26, 2003
MEMORANDUM OPINION
This matter is before the court on motion of the defendant, Ford Motor Company ("Ford") for partial judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). (DN 48) Ford alleges that the claim of plaintiff, Scott Isert ("Isert"), for intentional infliction of emotional distress should be dismissed. For the reasons set forth below, Ford's motion will be GRANTED.
Background
Isert was employed by Ford Motor Company at the Kentucky Truck Plant as a Processing Engineer. In June of 1999, he and "members of Ford management" are said to have engaged in heated discussions when Isert discovered that the paint on Ford Excursion doors was defective because the paint ovens were set at an excessive temperature.
On June 28, 1999, within a week of this "heated discussion" with Ford management, Isert alleges that he was poisoned while at work. He claims that someone spiked his iced tea with a toxic substance. Isert always brought to work a thermos containing iced tea. On June 28, he drank iced tea from the thermos several times during the day. At approximately 4:00 p.m., Isert took a drink of the tea and instantly began to experience vision problems. He took another drink, and the problems became worse. Isert visited Ford's medical office where he was treated and released by Ford's in-house physician. Attempting to drive home, he began to feel ill, and pulled over to the side of the road. He lost consciousness while parked on the side of the road and fell into a coma. Isert was later discovered to have experience a grand mal seizure. Medical records attribute Isert's seizure and resulting coma to solvent poisoning. Laboratory and toxicology reports revealed the substances ingested by Isert were benzene and paracreasol, solvents commonly found in industrial, paint-related processes.
Isert makes various claims in his lawsuit, including an ADA claim, a claim of disability discrimination under the Kentucky Civil Rights Acts, wrongful discharge, and retaliation. Mrs. Isert claims loss of consortium. At issue in this motion to dismiss is Isert's claim in Count IV of the amended complaint. Isert asserts that the chemical poisoning, and Ford's treatment of him afterwards, were willful and malicious and constituted intentional infliction of emotional distress.
Ford argues that Count IV should be dismissed because Isert's allegations support a battery claim, not an intentional infliction of emotional distress claims. The one-year statute of limitations for battery claims expired before Isert filed this lawsuit. Ford also asserts that Isert cannot recover because employers are not liable for the intentional torts of their employees.
Legal Analysis
Fed.R.Civ.P. 12(c) allows a party to move for judgment on the pleadings at any time "after the pleadings are closed but within such time as to not delay the trial." A motion for judgment on the pleadings that does not raise facts or matters outside of the pleadings is reviewed under the same standard as a motion to dismiss. Hasken v. City of Louisville, 173 F. Supp.2d 654, 658 (W.D.Ky. 2001).
In reviewing a motion for judgment on the pleadings, the court "must construe the complaint in the light most favorable to the plaintiff, accept all of the complaint's factual allegations as true, and determine whether the plaintiff undoubtedly can prove no set of facts in support of his claims that would entitle him to relief." Ziegler v. IBP Hog Mkt., 249 F.3d 509, 511-12 (6th Cir. 2001).
Isert contends that because there are factual allegations in dispute, Ford's motion must be treated as a motion for summary judgment. However, we can resolve all of the legal issues raised by Ford without reference to any of the disputed facts in this case. Accepting all of the factual allegations in Isert's complaint as true, we find that it fails to state a claim for intentional infliction of emotional distress.
First, Kentucky courts have treated intentional infliction of emotional distress as a "gap filler" tort that is only available to provide redress where traditional common law actions do not. The Kentucky Supreme Court first recognized intentional infliction of emotional distress in Craft v. Rice, 671 S.W.2d 247, 251 (Ky. 1984). The court recognized that:
the basis of the cause of action is intentional interference with the plaintiff's rights causing emotional distress, with or without personal injury in the traditional sense. If there has been physical injury with pain to the body or mind, it is incidental to the emotional distress rather than essential to the cause of action as is the case in an action for personal injury. Id. at 249.
Recovery for emotional distress caused by traditional torts such as assault or battery has always been allowable as an element of damages in an action based upon those torts. Banks v. Fritsch, 39 S.W.3d 474, 480 (Ky.App. 2001). However, until Craft, the law did not provide a remedy for emotional distress unless the plaintiff suffered physical injury. 671 S.W.2d at 249.
The Kentucky courts have made it clear that intentional infliction of emotional distress was designed to provide a remedy where other torts did not:
the tort of outrage (now intentional infliction of emotional distress) is intended as a "gap-filler," providing redress for extreme emotional distress where traditional common law actions do not. Where an actor's conduct amounts to the commission of one of the traditional torts such as assault, battery, or negligence for which recovery for emotional distress is allowed, and the conduct was not intended only to cause extreme emotional distress in the victim, the tort of outrage will not lie. Recovery for emotional distress in those instances must be had under the appropriate traditional common law action.
Banks, 39 S.W.3d at 481; Rigazio v. Archdiocese of Louisville, 853 S.W.2d 295, 299 (Ky.App. 1993); Brewer v. Hillard, 15 S.W.3d 1, 7-8 (Ky.App. 1999).
In Brewer, the Kentucky Court of Appeals recognized that there is a clearly developed paradigm for intentional infliction of emotional distress: when actions or contact is intended only to cause extreme emotional distress in the victim. 15 S.W.3d at 8.
Accepting the facts pled in Isert's complaint, he was intentionally poisoned when a fellow employee placed deadly solvents in his iced tea container. A reasonable jury could not conclude that this action was intended only to cause extreme emotional distress in Isert. Moreover, in this situation, Isert could have filed a claim for battery, and arguably recovered for any emotional injuries suffered as a result of the battery. Insert missed the statute of limitations for battery and cannot now attempt to circumvent the statute of limitations.
Second, under Kentucky law, a plaintiff cannot recover from an employer for intentional torts committed by its employees that fall outside of the scope of employment. Osborne v. Payne, 31 S.W.3d 911, 915 (Ky. 2002). For an employee's conduct to fall within the "scope of employment,"
the conduct must be of the same general nature as that authorized or incidental to the conduct authorized. A principal is not liable under the doctrine of respondeat superior unless the intentional wrongs of the agent were calculated to advance the cause of the principal or were appropriate to the normal scope of the operator's employment. Id.
There are several problems with seeking to impose liability on Ford. First, a reasonable jury could not conclude that poisoning a co-worker was within the normal scope of employment. The act is not authorized by Ford, nor is it incidental to conduct authorized by Ford. Second, Isert failed to provide any evidence that the act of poisoning him was intended to advance the cause of Ford. Inset argues that because the poisoning occurred within one week of his heated dispute with management, it was done to avoid lost production and profits, and advance Ford's position. Isert's theory is not supported by any evidence, and a reasonable jury could not conclude that poisoning Isert would advance Ford's cause.
As a matter of law, Isert has not stated a claim for intentional infliction of emotional distress against Ford. Therefore, Count IV of Isert's First Amended Verified Complaint will be DISMISSED by separate order.