Huntley JOHNSON,
v.
Pamela THIGPEN and Johnson, Vipperman, etc.
Pamela Thigpen,
v.
Huntley Johnson, Ind. and Johnson, Vipperman & White, P.A.
District Court of Appeal of Florida, First District.
*411 Donald L. O'Dell, and Robert E. Bonner, of Meier, Lengauer, Bonner, Muszynski & Doyle, P.A., Orlando, for Appellant/Cross-Appellee.
*412 Dyanne E. Feinberg, and Rosana E. Hernandez, of Gilbride, Heller & Brown, P.A., Miami, for Appellee/Cross-Appellant.
LEWIS, J.
We have before us an appeal from a jury verdict in favor of Appellee, Pamela Thigpen, against Appellant, Huntley Johnson, for the torts of assault, battery, false imprisonment and intentional infliction of emotional distress. We also have for review on cross-appeal the trial court's granting of a directed verdict and summary judgment on Cross-Appellant's, Pamela Thigpen's, various claims against Cross-Appellee, the law firm of Johnson, Vipperman & White, P.A. We affirm with an opinion addressing only the intentional infliction of emotional distress issue. We have carefully examined the record in light of the remaining arguments in this appeal and cross-appeal, and finding no error, we affirm without written opinion.
Johnson, an attorney, represented Thigpen in a matter related to her termination from the Department of Corrections. In June of 1996, Thigpen began working for Johnson. She continued to work for him until August of 1997. During her employment, Johnson engaged in conversations with Thigpen that were sexually explicit, demeaning and vulgar. For example, Johnson repeatedly told Thigpen: she just wanted to "get down on his hog and honk it"; "you want me to put my hog in your mouth"; "[c]ome in here and give me some head." He also told her, at least once, to give his client a "mercy fuck." Johnson also dictated to Thigpen while urinating in the bathroom in his office and left a nude picture of himself for Thigpen to find in his office. There was also evidence of inappropriate, unwelcomed physical contact, including repeated touching of Thigpen's breasts, running a pencil up Thigpen's thigh and an incident in which Johnson made sexually threatening remarks to Thigpen and forcibly placed her hand onto the crotch of his trousers. The trial court denied Johnson's motion for directed verdict on Thigpen's claim for intentional infliction of emotional distress finding that the pattern of Johnson's behavior was "beyond the standard required."
When determining the propriety of granting a directed verdict, an appellate court must determine whether the facts, when viewed in the light most favorable to the non-moving party, provided a prima facie case in support of its cause of action. Houghton v. Bond,
A cause of action for intentional infliction of emotional distress was recognized in Metropolitan Life Ins. Co. v. McCarson,
Liability has been found only where the conduct has been 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 community. *413 Generally, the case is one in which the recitation of facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, "Outrageous!"
McCarson,
Our Court has long recognized a cause of action for intentional infliction of emotional distress. See Ford Motor Credit Co. v. Sheehan,
The Florida Supreme Court has not ruled directly on the standard to apply for intentional infliction of emotional distress arising out of the workplace. However, in ruling that the workers' compensation statute does not bar an employee's claim for intentional infliction of emotional distress arising out of instances of sexual harassment in the workplace, the supreme court contemplated that a plaintiff might be able to proceed with such a claim based on facts similar to those in this case. See Byrd v. Richardson-Greenshields Securities, Inc.,
While Florida state courts have allowed claims for intentional infliction of emotional distress in a wide variety of situations, they thus far have been hesitant to find sufficiently outrageous conduct based solely on alleged acts of verbal abuse in the workplace. See Ponton v. Scarfone,
With these principles in mind, federal courts interpreting Florida law have allowed *414 claims for intentional infliction of emotional distress in the workplace to go forward in circumstances involving repeated verbal abuse coupled with repeated offensive physical contact. See Vernon v. Medical Mgmt. Assoc. of Margate, Inc.,
In the instant case, Johnson used language that ordinary people would find to be obscene, lascivious, uncivilized and outrageous. In addition to Johnson's persistent acts of verbal abuse, there is evidence of repeated offensive, unwelcomed physical contact. Thus, the touchstone of this case, like the federal court cases which have allowed these claims to go forward, is the persistent verbal abuse coupled with the repeated offensive, unwelcomed physical contact. Based on the facts of this case, viewed in the light most favorable to Thigpen, we conclude that Thigpen provided a prima facie case that Johnson's workplace harassment of Thigpen was "Outrageous!" Therefore, the trial court correctly applied the law to Thigpen's claim of intentional infliction of emotional distress and did not err in denying the motion for directed verdict. Accordingly, we affirm on this issue.
Regardless of whether or not there was any error in denying Johnson's motion for directed verdict, Johnson is barred from appellate relief by the "two-issue rule." The two-issue rule provides:
[W]here there is no proper objection to the use of a general verdict, reversal is improper where no error is found as to one of two issues submitted to the jury on the basis that the appellant is unable to establish that he has been prejudiced. The rule is based on the principle that reversal is improper where no error is found as to one of the issues that can independently support the jury's verdict. In Colonial Stores,[1] this Court cautioned that although it may seem that injustice might result from application of the "two-issue rule," the rule is an economical tool that limits appellate review to issues that actually affect the case and that litigants may avoid application of the rule by simply requesting a special verdict that would illuminate the jury's decision making process and the affect of any alleged error: "It should be remembered... that the remedy is always at the hand of counsel."
Barth v. Khubani,
The key to applying the two-issue rule is whether each claim has a separate measure of damages. First Interstate Dev. Corp. v. Ablanedo,
In the instant case, the general verdict form which was submitted to the jury without objection from Johnson included separate claims for intentional infliction of emotional distress, assault, battery and false imprisonment. However, the general verdict form did not have separate measures of damages for each of the four causes of action. Thus, it is not possible to determine from the general verdict form the amount of the award of damages, if any, that was attributable only to the claim for intentional infliction of emotional distress. Thigpen would have been entitled to the same measure of damages based on her three other tort claims. The claim of error raised by Johnson as to the cause of action of intentional infliction of emotional distress cannot be the basis for reversal where three additional causes of action were presented to the jury and on which the jury found in favor of the Appellee. Therefore, in the absence of an objection to the use of the general verdict form, reversal is improper because Johnson is unable to demonstrate prejudice where no error is raised on appeal as to the three other causes of action submitted to the jury. Consequently, it is appropriate to apply the two-issue rule in this instance. Thus, even if there had been error in denying Appellant's motion for directed verdict, reversal on appeal would be improper. See Barth,
AFFIRMED.
BOOTH and BENTON, JJ., Concur.
NOTES
Notes
[1] Colonial Stores, Inc. v. Scarbrough,