Plaintiffs, Harold and Shirley Ledsinger, appeal as of right from the dismissal of their cause of action by way of summary judgment under GCR 1963, 117.2(1).
The facts as alleged in plaintiffs’ second amended complaint are not complex. Harold and Shirley Ledsinger are a black husband and wife residing in Pontiac. Defendant is a retail merchant doing business in Troy. On April 25, 1980, at defendant’s place of business, Harold Ledsinger entered into an agreement with defendant to purchase certain auto parts. At that time, Mr. Led-singer made a down payment of $100. When Led-singer returned to defendant’s business on May 19, *16 1980, to pay the balance owed on the parts he was told that the price had been increased above that in the written contract. It is alleged that in front of and within the hearing of third parties, defendant called Harold Ledsinger a "nigger” and told him that he should get his "black ass” out of the store. In addition, it is alleged that defendant stated that he "did not want or need nigger business”. Plaintiffs further claim that defendant’s conduct caused Mr. Ledsinger public humiliation, embarrassment from being thrown out of a public place, mental anguish, anxiety and mortification resulting in physical revulsion, increased blood pressure, nervousness, the inability to sleep, an altered physical state that took days to leave, as well as other physical injury to his nerves, emotional well-being, psyche, feelings, mental state and digestion. Plaintiffs allege that as a result of the injuries suffered by Mr. Ledsinger, Mrs. Led-singer has been deprived of the society, services and prior conjugal happiness she shared with her husband. The various counts of plaintiffs’ second amended complaint allege liability for: 1) intentional infliction of emotional distress; 2) slander; 3) violation of the Elliott-Larsen Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq.; 4) invasion of privacy; 5) violation of the public accommodations law, MCL 750.146; MSA 28.343; 6) violation of the Federal Civil Rights Act, 42 USC 1983 et seq.; and 7) loss of consortium on the part of Mrs. Ledsinger.
I
In
Partrich v Muscat,
*17 "The standard governing this Court’s review of a grant or denial of a motion for summary judgment based on GCR 1963, 117.2(1) is well settled. The motion is to be tested by the pleadings alone. Todd v Biglow,51 Mich App 346 ;214 NW2d 733 (1974), lv den391 Mich 816 (1974). The motion tests the legal basis of the complaint, not whether it can be factually supported. Borman’s, Inc v Lake State Development Co,60 Mich App 175 ;230 NW2d 363 (1975). The factual allegations of the complaint are taken as true, along with any inferences or conclusions which may fairly be drawn from the facts alleged. Unless the claim is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recover, the motion under this subrule should be denied. Crowther v Ross Chemical & Manufacturing Co,42 Mich App 426 ;202 NW2d 577 (1972).”
Pursuant to this standard we consider each of the theories of liability set forth in plaintiffs’ second amended complaint, taking as true the factual allegations contained therein along with those inferences and conclusions which may fairly be drawn.
II
The first count of plaintiffs’ second amended complaint puts forth an intentional infliction of emotional distress theory of liability. Michigan law clearly recognizes this tort as a distinct and separate cause of action.
Campos v General Motors Corp,
"(1) One who by extreme and outrageous conduct *18 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.
"(2) Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress
"(a) to a member of such person’s immediate family who is present at the time, whether or not such distress results in bodily harm, or
"(b) to any other person who is present at the time, if such distress results in bodily harm.” Warren v June’s Mobile Home Village & Sales, Inc, supra, 390.
With regard to the requirement that the defendant’s conduct be "extreme and outrageous”, § 46, comment d, p 73 of the Restatement states:
"It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by 'malice’, or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. 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. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, 'Outrageous!’
"The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” Id., 390-391.
The critical issue in this case is whether the defendant’s conduct can be characterized as extreme and outrageous or whether, as defendant contends, the actions merely rose to the level of insult, indignity, threat, annoyance, petty oppres *19 sion or triviality. As noted in Part I, above, we must take plaintiffs’ factual allegations as true, along with those inferences and conclusions that may be fairly drawn, and determine whether defendant’s conduct must, as a matter of law, be classified not extreme and outrageous so as to make plaintiffs’ claim clearly unenforceable. It is essential in making this assessment to look to the context in which the remarks were made. Although the Restatement acknowledges that the law in this area is in a stage of development, 1 it points toward a contextual approach. For example, the extreme and outrageous character of the conduct may arise from the position of the actor, his relation to the distressed party, or from his knowledge of peculiar susceptibilities of the distressed party. Moreover, where the actor does no more than insist upon his own legal rights, liability will not be imposed. 1 Restatement Torts, 2d, §46, comments e-g, pp 74-76.
In certain contexts, a racial or ethnic slur may not be extreme and outrageous. 2 In a rough-edged society, we are "expected and required to be hardened to a certain amount of rough language, and to occasional acts that are inconsiderate and unkind”. 1 Restatement Torts, 2d, supra, p 73. A racial slur may, at times, merely be such "rough language”. In other circumstances, the same slur may be viewed beyond the bounds of decency, atrocious and utterly intolerable in a civilized *20 community. Consider the national cabinet official who, when asked why his political party was comprised of so few blacks, remarked in grossly sexual and scatological language that members of the minority group simply had other interests. When the comments were reported by the mass media they were universally condemned and the official was forced to resign, despite the fact that the statement did not reflect his true feelings. 3 The strong public outcry that resulted is evidence of the condemnation given in this society to blatant expressions of racial inferiority, there made in the context of discussing minority political participation.
We believe the racial slurs in the instant case, taken in the context in which they were made, could be considered by a trier of fact to be extreme and outrageous. Defendant called Mr. Ledsinger a "nigger” while in the process of throwing Led-singer out of his place of business, ostensibly a public establishment. His remarks that he "did not want or need nigger business” implied, that, irrespective of their contractual dispute, Ledsinger would not be dealt with further because of the color of his skin. Therefore, this case presents not merely that name-calling which one might be expected to endure but slurs in the course of a discriminatory act. See,
e.g., Agarwal v Johnson,
25 Cal 3d 932;
We conclude that the allegations of plaintiffs’ complaint were sufficient to state a cause of action for intentional infliction of emotional distress. The trial court erred in granting summary judgment dismissing that count of plaintiffs’ suit.
Ill
The second count of plaintiffs’ second amended complaint claimed liability for slander of Mr. Led-singer. A communication is defamatory if it tends to harm an individual’s reputation so as to lower him in the estimation of the community or deter others from associating with him.
Nuyen v Slater,
IV
The third count of plaintiffs’ complaint alleges violation of the Elliott-Larsen Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. Section 302 of the act, MCL 37.2302; MSA 3.548(302), makes it unlawful to:
"(a) Deny an individual the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation or public service because of religion, race, color, national origin, age, sex, or marital status.
"(b) Print, circulate, post, mail, or otherwise cause to be published a statement, advertisement, notice, or sign which indicates that the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation or public service will be refused, withheld from, or denied an individual because of religion, race, color, national origin, age, sex, or marital status, or that an individual’s patronage of or presence at a place of public accommodation is objectionable, unwelcome, unacceptable, or undesirable because of religion, race, color, national origin, age, sex, or marital status.”
The act defines a "place of public accommodation” as "a business, or an educational, refreshment, entertainment, recreation, health or transportation facility, or institution of any kind, whether licensed or not, whose goods, services, facilities, privileges, advantages, or accommodations are extended, offered, sold, or otherwise made available to the public”. MCL 37.2301(a); MSA 3.548(301)(a).
*23 An inference that might fairly be drawn from plaintiff’s allegations is that defendant ultimately denied Mr. Ledsinger the sale of goods because of Ledsinger’s race, MCL 37.2302(a); MSA 3.548(302)(a). Moreover, defendant’s alleged statement that he "did not want or need nigger business”, if established, would constitute the publication of a statement that full and equal enjoyment of the goods sold at defendant’s establishment would be withheld on the basis of race. MCL 37.2302(b); MSA 3.548(302)(b). Therefore, plaintiffs’ complaint appears to set forth two violations of the Elliott-Larsen Civil Rights Act.
The act authorizes a person alleging a violation to bring a civil action for injunctive relief or damages. MCL 37.2801(1); MSA 3.548(801X1). Compensatory and exemplary damages may be recovered for the indignity and anguish caused by discrimination.
Freeman v Kelvinator, Inc,
V
The fourth count of plaintiffs’ second amended complaint alleges that defendant’s conduct constituted an invasion of Mr. Ledsinger’s right to privacy. Plaintiffs’ theory is that when defendant called Ledsinger a "nigger” he published an embarrassing private fact about Ledsinger.
Michigan law recognizes that an invasion of privacy claim may be grounded on the public
*24
disclosure of embarrassing private facts about the plaintiff.
Beaumont v Brown,
Here, the alleged epithet, although offensive, revealed about plaintiff only that he was black. As noted above, plaintiffs have not alleged facts that would point to an alternative construction. Additionally, there are no allegations that Mr. Ledsinger’s race was in the nature of a private fact or, for that matter, that it was something that would be highly offensive to a reasonable person. Thus, plaintiffs have failed to state a cause of action for invasion of privacy. Disposition of that count by summary judgment was proper.
VI
The fifth count of plaintiffs’ second amended complaint alleges a violation of Michigan’s public accommodations law, MCL 750.146; MSA 28.343. The statute reflects the Legislature’s special concern for eliminating discrimination based on race, creed or color.
Riegler v Holiday Skating Rink,
As stated in Part IV, above, plaintiffs’ allegations allow a fair inference that defendant ultimately denied Mr. Ledsinger equal accommodation in his store based on Ledsinger’s race. Consequently, plaintiffs have stated a cause of action under the public accommodations law and the trial court erred in dismissing that count of their complaint by summary judgment.
VII
The sixth count of plaintiffs’ second amended complaint alleges that defendant’s conduct violated Mr. Ledsinger’s federal civil rights under 42 USC 1983. That statute reads:
"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”
Although state courts exercise concurrent jurisdiction over federal civil rights claims,
Dickerson v Warden, Marquette Prison,
VIII
The final count of plaintiffs’ second amended complaint claims liability to Mrs. Ledsinger for loss of consortium.
Michigan law clearly recognizes the right of a person to recover damages for loss of consortium caused by injuries wrongfully inflicted upon that person’s spouse.
Montgomery v Stephan,
*27 Conclusion
Plaintiffs’ second amended complaint sufficiently alleges causes of action for intentional infliction of emotional distress, violation of the Elliott-Larsen Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., violation of the public accommodations law, MCL 750.146; MSA 28.343, as well as loss of consortium under these three theories. Summary judgment under GCR 1963, 117.2(1) was improper as to these counts. Plaintiffs’ remaining claims were appropriately dismissed.
Affirmed in part, reversed in part and remanded for further proceedings. No costs, neither party having prevailed in full.
Notes
Restatement Torts, 2d, § 46, comment c, p 72.
Indeed, words that generally refer derogatorily to racial or ethnic classes may, in some instances, not even rise to the level of insult. For example, I may refer to one of my colleagues by way of ethnic slang without any intended or resulting slur, insult or vilification. Rather, that remark would instead express the warmth and admiration I feel for that colleague, and would proudly acknowledge that persons of different ethnic origins can work together and engender mutual respect.
Newsweek, October 11, 1976, p 26; Time, October 18, 1976, p 23; U.S. News & World Report, October 18, 1976, p 18.