Dawson v. Zayre Department Stores
499 A.2d 648
Pa.
1985
Check Treatment

*1 imрosition or burdens.” of benefits unequal distribution Moreover, Amendment omitted) “the Fourteenth (citations different classes to treat power to states deny not does 75, Reed, 71, 404 U.S. Reed v. ways.” in different people (1971), therein. 253, and cases cited 404 U.S. 92 S.Ct. was con- Legislature our enacting Pa.C.S.A. § re- crimes violent curbing proliferation cerned with exemplified by This is use of firearms. sulting from the supra, Larsen Wright, of Justice concurring opinion legislation’s pur- of the synopsis provides cogent which intimidating use dangerous and “to deter the pose: Wright, of crimes.” perpetration felons firearms appellant 363. —, 494 A.2d at Because 508 Pa. at supra, (i.e., alienage), class” race or belong “suspect not to a does 1848, 29 365, 91 Richardson, 403 U.S. S.Ct. v. see Grahаm involved, (1971), a fundamental interest nor is L.Ed.2d Illinois, 92 S.Ct. 405 U.S. v. Stanley see the traditional only apply need L.Ed.2d 551 we legislation. Sing- to test this See standard “rational basis” (1975). 387, 346 A.2d 897 See 464 Pa. Sheppard, er v. Law, 991- Tribe, L. American Constitutional generally, so, legisla- find the instant Doing clearly we achieving legitimate means tion to be a reasonable “rational test. satisfying the basis” purpose, thus legislаtive is affirmed. of sentence Accordingly, judgment 499 A.2d 648 DAWSON, Appellant, Roseann DEPARTMENT STORES. ZAYRE Pennsylvania. Superior Court of Argued June 18, 1985. Filed Oct. *2 Chester, Joseph J. Pittsburgh, appellant. Klym, Pittsburgh,

Edward D. for appellee. ROWLEY, SOLE, Before OLSZEWSKI DEL JJ. SOLE, Judge: DEL appel- order granting from an appeals

Roseann Dawson in the nature of a demurrer preliminary objections lee’s complaint. dismissing Zayre’s Depаrtment entered Appellant April up a item. She became intending pick lay-away

Store employee lay- a store over dispute with involved called the During argument, employee away ticket. filed a tres- Appellant Appellant “nigger”. emotional distress as she suffered severe pass alleging that humiliation; feelings; of this incident: wounded a result gain and was unable to harm; and that she cried physical 12, 1984 the trial for one-half hour. On June composure her in the na- preliminary objections granted Appellee’s affirm. ture of a demurrer. We holding the lower court erred Appellant argues that *3 a cause of action. The that her failed to establish did not rise to the Appellee’s court held that actions lower ‍‌​‌‌‌​​‌‌​​‌‌‌​​‌​​‌‌‌​‌‌‌​​‌‌​​‌‌​‌‌​‌​​‌​​​​​​‍required to sound outrageous of extreme and conduct level in tort. infliction of emotional dis for intentional

Liability in the conduct com cases which tress is limited to those outrageous. and Jones v. Nissen is extreme plained Seidner, 244 Pa.Super. 368 A.2d baum, and Rudolph determine, in the (1976). Further, to it is for the court instance, defendant’s conduct can reason first the whеther as to outrageous and so regarded be as so extreme ably (Second) Torts, com Restatement permit recovery. § (h) (1965). ment is requisites liability does not meet the

Conduct which (Second) (d) of the Restatement described comment Torts 46: § insults, to mere does not extend liability clearly

The threats, oppressions, or oth- annoyances, petty indignities, edges sоciety of our are still rough er trivilaties. down, meantime deal of and good filing need of a expected required be plaintiffs necessarily must be rough hardened to a certain amount of and to language, definitely occasional acts that are inconsiderate and un- no occasion for the law to kind. There is intervene some are There every feelings case where one’s hurt. express unflattering opinion, must still be freedom to through and some valve must be left which irasci- safety off steam. tempers may relatively ble blow harmless in Appel We would find that the conduct outlined does not Complaint possess degree severity lant’s Although that is to establish a cause of action. necessary condone the and offensive by derogatory we no means Appellee’s employee, used and while under language we resentment, rightful we believe that this Appellant’s stand insulting constitutes from merely namecalling had. The cites the recovery may which no Restatement following example: telephone get

4. A makes a call but is unable to his course of an аltercation with the tele- number. woman, A calls her a God damned a God phone operator, liar, that if he were there he say damned would break B dis- her damned neck. suffers severe emotional God tress, incident, and is sleep, broods over unable conduct, is not so out- although insulting, made ill. A’s A B. rageous or extreme as to make liable to Torts, (d) (Second) suрra, comment Restatement § case, Complaint alleges in this Similarly illustration to a ticket. In the dispute regard layaway that a arose with called dispute Appellee’s employee Appellant course of the *4 abusive, Although insulting a this word is “nigger”. type in this context it does not amount to the taken gives conduct which rise to a cause outrageous еxtreme and to redress all Clearly of action. the law cannot serve An Illinois court has held under similar circum- indignities. failed to state a cause of action for plaintiff stances that the distress. In Irving intentional infliction of emotional v. J.L. Inc., 162, 4 N.E.2d 983 Marsh, Ill.App.3d Ill.Dec. (1977) and to plaintiff sought the to return merchandise a refund. An of the retail store employee obtain wrote on slip plaintiff: the refund which he handed to the “arrogant nigger exchange/says product”. refused he doesn’t like The court that employee’s found conduct was insuffi- cient to a valid support cause action. The dismissal of a count in a to state attempted which a cause action for intentional infliction of emotional distress was Laboratories, Inc., also affirmed v. Roux Lay Fla.App., case, So.2d 451 that of Roux employee responsible Laboratories who was for administering policing for the parking spaces company’s called employees plaintiff “nigger” argument a when an arose a concerning held parking space. that the employee’s did outrageousness not rеach such level of and atrocious- ness as to serve as a predicate independent tort of Likewise, intentional infliction of emotional distress. Court of Appeals Kan.App.2d Bradshaw v. Swagerty, 563 P.2d 511 upheld refusing a decision recognize during a cause of action when a heated argument over a debt collection the defendant called the a plaintiff “bastard”, “nigger”, a boy”. and “knot-headed The court noted fully trial court was justified regarding the epithets complained of as mere insults. involving

This is not a case continuous malicious actions. Lis, See: 332 Pa.Super. Bartanus v. 480 A.2d 1178 (1984). Nor, is this a case where there a special was (Sec- relationship parties. between the See: Restatement ond) Torts, supra, 48. Likewise the situation described § herein is not one in which actor knew of the other’s distress, susceptibility emotional reason of some phys- ical or mental peculiarity. condition or Restatement See: ‍‌​‌‌‌​​‌‌​​‌‌‌​​‌​​‌‌‌​‌‌‌​​‌‌​​‌‌​‌‌​‌​​‌​​​​​​‍(Second) Torts, (f); supra, comment Zalnis v. § — Co., —, Thoroughbred Colo.App. Datsun Car 645 P.2d (1982). Rather, this a party during case involves who disagreement the coursе of a characterized another with an offensive term. The does law not invoke liability where, circumstances, situation aggravating without other *5 362 during at the course of a epithet hurls an another

one disagreement. on a cited the dissent is based

None of the cases to the one found the instant case. situation similar dealing a suit with Although three of the cited cases involve words, in each spoken naturе of of those cases the offensive accompanied circumstances the insults. aggravating other alleged by Appel- circumstances were aggravating No such complaint. lant in her 86 Cal. v. Anbro Cal.3d Engineering, Alcorn (1970), plaintiff alleged

Rptr. 468 P.2d or relation of “standing position defendants who where particular susceptibili- aware his authority plaintiff, ovеr plain- humiliated intentionally to emotional distress ... ty status, tiff, race, his union and termi- ignored insulted his provoca- cause of employment, just nated all without his 90, 91, at at 468 P.2d 219. Cal.Rptr. tion.” 86 “Although stated: it of California Alcorn Supreme Court more, ordi- insulting language, mere without may be that outrage, not constitute extreme narily aggrava- would seem to alleged by plaintiff sufficient ted circumstances defendant’s de- against general his uphold P.2d at (emphasis at Cal.Rptr. murrer.” added). circumstances can also be found Aggravated Bertolotti, 37 Misc.2d 236 N.Y.S.2d case of Ruiz v. de- (1962). Therein, complaint asserted that plaintiffs’ persons” moving his at “colored expressed anger fendant harm to the bodily into the and threatened neighborhood, builder, children if the рlaintiffs, plaintiffs’ home and to Plaintiffs further sale of the house was consummated. and that of their alleged personal safety that fear of their the contract of sale. Sim- children caused them to rescind Hotel, Inc., (Tex.) 424 Motor ilarly, Fisher v. Carrousel loud offensive words S.W.2d 627 defendant’s found conduct which accompanied by were that the specifically The сourt held battery. constitute damages for suffer- entitled to actual “plaintiff was 424 S.W.2d at ing battery”. due to the willful The remaining cases cited by the dissent do not involve a situation where one party refers to another with an offen- *6 sive term. These cases all deal with plaintiffs who were refused service or admittance in defendant’s establishments because of their rаce. These cases can be further distin- guished based on their individual In holdings. Odom v. East Corp., Avenue 178 Misc. (1942) 34 N.Y.S.2d 312 recovery was based on the defendant’s special duty as an innkeeper. (Second) Torts, See: Restatement supra § (a). comment In Inc., Amos v. Prom 115 F.Supp. 127 (N.D.Iowa 1953); it was held that a jury permitted would be to award exemplary damages; however, the court therein specifically relied on alleged defendant’s illegal conduct in violating the Iowa Rights Civil Statute. Violation of the public statute, accommodation 9.91.010(2), RWC was alleged Browning Slenderella Systems Seattle, 54 Wash.2d 440, 341 (1959). P.2d 859 The Browning court held that the plaintiff had a cause of action under public accommoda- tion law to recover damages for injuries to her feelings, even though the statute was criminal in form. The court also found that the evidence failed to plaintiff establish that suffered severe emotional distress since defendant’s dis- criminatory conduct did not occur in presence of others.

Unlike the cases, above cited the circumstances alleged here merely involve one party who during the coursе of a dispute speaks to another in an “opprobrious, insulting and abusive manner”. case, this speaker apparently lost her temper and resorted to namecalling. However unfortu- been, nate it may have conduct such as that engaged in by Appellee’s employee is not so extreme and outrageous as to give rise to a causе of action for intentional infliction of emotional distress.

Appellant argues also that the court improper below ly dismissed her complaint under a theory of special liability of owners ‍‌​‌‌‌​​‌‌​​‌‌‌​​‌​​‌‌‌​‌‌‌​​‌‌​​‌‌​‌‌​‌​​‌​​​​​​‍of public places, (SECOND) RESTATEMENT TORTS, agree We with the § trial court that not under Section 48 has been extended

special liability invitee. affecting ordinary business Appellee’s preliminary we conclude that Accordingly, Appellant since failed properly sustained objections were infliction of emotional state a cause of action intentional distress.

Order affirmed.

OLSZEWSKI, J., dissents. Judge, dissenting:

OLSZEWSKI, opinion majority In my I dissent. respectfully *7 I and would allow this position an anachronistic adopted trial. proceed case to in the nature of a objections

In considering preliminary averred, whether, demurrer, on the facts must consider we recovery possible. no is certainty the law with says 1178, 48, 52, 480 A.2d 1180 Lis, Pa.Super. 332 Bartanus v. J.) well-pleaded A admits all (1984) (per demurrer Rowley, as as all complaint, forth in the well material facts set Id. A demurr- deducible therefrom. reasonably inferences free a case is from doubt. only еr where may sustained in allegations true all factual Accepting well-pleaded Id. as sustain action for it is sufficient to complaint, the instant distress. infliction of emotional the intentional dis- infliction of emotional An action the intentional for See v. Pennsylvania. Papieves recognized tress been (1970); Lawrence, 373, 118 v. Pa. 263 A.2d Bartanus 48, (1984); Lis, 480 A.2d 1178 Jones Pa.Super. 377, Seidner, Nissenbаum, Pa.Super. Rudolph, (1976); also v. Johns-Manville 368 A.2d 770 see Wisniewski (3d Cir.1985). In Su- Papieves, our F.2d 271 Corp., 759 46 of RESTATE- Court, part on Section relying preme that an (SECOND) TORTS, held individual MENT OF caused from distress directly protection entitled outrageous wanton and 378, conduct. 437 Pa. at A.2d at 121. Comment d to Section 46 explains:

Liability has been only found where the conduct has been so outrageous character, and so extreme in degree, as to go beyond possible all bounds of decency, and to be regarded atrocious, and utterly intolerable in a civi- lized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his against resentment the ac- tor, and exclaim, lead him to “Outragеous!” Other jurisdictions have allowed a cause of action to go forward involving situations epithets. racial In Alcorn v. Anbro Inc., Engineering, Cal.3d 86 Cal.Rptr. P.2d 216 Supreme California, banc, Court of en permitted recovery the intentional infliction of emotional against distress an employer whose superintendant directed racial slurs against a Black employеe. The Court stated:

Although the slang epithet “nigger” once may have been in common usage, along with such other racial character- izations as “chink,” “wop,” “bohunk,” “jap,” or “shanty ‍‌​‌‌‌​​‌‌​​‌‌‌​​‌​​‌‌‌​‌‌‌​​‌‌​​‌‌​‌‌​‌​​‌​​​​​​‍Irish,” the former expression has become particularly abusive and insulting in light recent developments in rights civil movement as pertains it to the American Negro.

88 Cal.Rptr. at n. 468 P.2d at n. 4. *8 The majority distinguish would Alcorn on the basis that the plaintiff was protected accorded a by status virtue of his relationship as an employee of the defendant. inYet the case sub judice, appellant was a business invitee of Zayre’s Department Store, owed a heightened standard of care the by store. Treadway Co., v. Ebert Motor Pa.Super. (1982)(business 436 A.2d invitee may rely on duty of оwner to keep premises safe and to warn of potential hidden perils).

In Papieves, our Supreme Court recognized that the intentional infliction of emotional distress is an evolving tort However, scope yet its has not been defined. clearly if compel cited the conclusion that principles

the above in appellant’s the conduct described appellee engage did could held for emotional and men- complaint, they be liable particular This appellant. tal distress suffered racial ripe meaning: its use in epithet years with hundreds to social repugnant contemporary contexts is values. certain inhumanity is an reminder of man’s to Simply put, ugly it man. Supreme Court wrote:

Our legal to recognize liability that extension of acts any We prob- distress is not without its cause emotional which We also that the law cannot serve to recognize lems. mind; men’s as the late peace Judge all guarantee large remarked, “Against part a MAGRUDER clashing of temperaments frictions and irritations and life, community to a certain participatiоn incident protection hide than toughening of is a better (Magruder, “Mental Emo- the law could ever be.” Torts”, Law of 49 Harv.L.R. tional Disturbance (1936)). can be But this case is not in that There little category. brought that mental or on by doubt emotional disorders at bar may such as that set forth real, every every debilitating bit as bit as ailments For obviously have more causes. this physical which reason, the proof, and inherent difficulties of the obvious disproof, of emotional distress and measurement or cause, damages adequate standing for such are not injury alone, to deny recovery ... recover, plaintiff

It without that order goes saying prove asserting such a cause of action must be able all standards. by proper evidentiary the elements of his case no in its other is incorrect statement majority action for the inten- jurisdiction recognized cause of context of infliction of emotional in the racial tional distress

367 Prom, Inc., Amos v. generally See slurs. 115 127 F.Supp. (N.D.Iowa 1953) (black excluded from ballroom for racial reasons —cause of action for intentional infliction of emo- v. Mo- proceed); tion distress allowed to Fisher Carrousel Hotel, Inc., (Tex.), tor (1963) 424 627 (damages S.W.2d Bertolotti, v. permitted for Ruiz suffering); 37 (threats 236 (1962) against Misc.2d N.Y.S.2d “col- for people”- damages shock); ored distress and emotional — Browning Seattle, v. Systems Slenderella 54 Wash.2d (1959) 341 P.2d 859 (damages for hurt feelings embarrassment); Odom East Corp., Avenue 178 Misc. (1942) (mental 34 N.Y.S.2d 312 suffering due to restau- rant’s patrons).1 Further, refusal serve black contrary to Alcorn makes no suggestion that ‍‌​‌‌‌​​‌‌​​‌‌‌​​‌​​‌‌‌​‌‌‌​​‌‌​​‌‌​‌‌​‌​​‌​​​​​​‍the opinion, the majority’s not might have allowed a cause action to progress in a non-employer-employee context.

The development of the tort of the intentional infliction emotional distress in Pennsylvania appel- convinces me that lant’s claim should proceed to trial jury peers. her In this, Circuit, a case similar to the Third applying Pennsyl- law, vania allowed recovery emotional party’s distress upon an accusation of theft by a store officer. security Bros., Inc., Kahle v. Glosser (3d Cir.1972). F.2d not the Should in this jury case permitted be to consider being whether publicly called a “nigger” out- equally rageous conduct? Pennsylvania long recognized humil- iation Co., compensible Connor v. Yellow Cab harm. (E.D.Pa.1947); F.Supp. 442 Little v. York County Earned Bureau, Tax Income Pa.Super. A.2d 1194 short, In I am unable conclude a jury would not find appellee’s outrageous, utterly atrocious and intolerable civilized case society. should re- manded for trial on the merits. Denenberg See v. Ameri- Family Corp., can 566 F.Supp. (E.D.Pa.1983). regard distress, susceptibility 1. to the of blacks to severe emotional Colley, Damages see Civil Arising Actions for Out of Violations of Civil (1965-66) Rights 17 Hast.LJ.