ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION III

LINDA HARDIN

APPELLANT

V.

ST. JOSEPH'S MERCY HEALTH CENTER, D/B/A ST. JOSEPH'S LIFEMOBILE

APPELLEE

CA03-151

September 24, 2003

APPEAL FROM THE GARLAND COUNTY CIRCUIT COURT

[NO. 2001-904 DIV. I]

HONORABLE JOHN HOMER WRIGHT, CIRCUIT JUDGE

AFFIRMED

Josephine Linker Hart, Judge

Appellant Linda Hardin appeals the trial court's grant of summary judgment to appellee St. Joseph's Mercy Health Center on her tort claims of negligent supervision and outrage. For reversal, appellant asserts that the trial court erred because she presented evidence demonstrating a prima facie case for both claims, and therefore, a genuine issue of material fact remained for determination by the trier of fact. We disagree and affirm.

During the evening of June 7, 2001, appellant and her live-in boyfriend, Ricky Greeson, were in bed at her home in Hot Springs when Ricky experienced severe chest pains and had difficulty breathing. Appellant enlisted the help of her daughter, Brandy Hardin, who lived next door. From Brandy's home telephone, and in a state of hysteria, appellant dialed 911 for assistance and informed appellee's dispatcher, Michelle Sawyers, of Ricky's condition. An ambulance was dispatched to appellant's address and assistance was rendered; however, Ricky died soon after coming under the care of appellee. Throughout the conversations with Sawyers, both appellant and her daughter were yelling frantically, and on one occasion, used the words "son-of-a-bitch" while on the phone. At the end of the final conversation between Sawyers and appellant, Sawyers uttered the words "fucking bitch."

According to appellant, during the actual conversation with Sawyers, she was so upset that she could not recall hearing the epithet. Appellant, however, admitted that she was not aware of the epithet uttered by Sawyers until the following morning when a recording of the conversation was found on the answering machine and brought to her attention by her daughter. Sawyers stated that at the time she uttered the offensive words she believed that appellant had already hung up the telephone.

On December 7, 2001, appellant filed suit against appellee, alleging the torts of outrage and negligent supervision and praying for compensatory and punitive damages. Appellee answered the complaint and filed a motion for summary judgment. The trial court granted appellee's motion for summary judgment, finding that appellant had "insufficient evidence to prove that the defendant's employee whose acts are at issue (i.e., Michelle Sawyers) intended to inflict emotional distress or knew or should have knownt hat emotional distress was the likely result of her conduct." The court also found that "because plaintiff cannot sustain a tort of outrage claim based on the acts of Michelle Sawyers, there is likewise insufficient evidence to support plaintiff's claim of negligent supervision against defendant."

We approve the granting of a motion for summary judgment only when the state of the evidence, as portrayed by the pleadings, affidavits, discovery responses, and admissions on file, is such that the nonmoving party is not entitled to a day in court, i.e., when there is no genuine issue of material fact remaining and the moving party is entitled to judgment as a matter of law. Little Rock Elec. Contractors, Inc. v. Entergy Corp., 79 Ark. App. 337, 87 S.W.3d 842 (2002). The burden of proving that there is no genuine issue of material fact is upon the movant, and all proof submitted must be viewed favorably to the party resisting the motion. Id. On appellate review, we determine if summary judgment was proper based on whether the evidence presented by the movant left a material question of fact unanswered. Id.

Here, the question presented is whether appellee committed the tort of outrage and, if so, whether appellee was negligent in its supervision of its employee, Sawyers. Appellant argues that the trial court erred in granting appellee's motion for summary judgment because appellant presented evidence that the conduct of appellee's employee in calling her a "fucking bitch" during her 911 call seeking emergency medical assistance was so outrageous that it went beyond all possible bounds of decency and was intolerable in a civilized society. Further, appellant asserts that the comment caused her to suffer stress so severe that no reasonable person should be expected to endure it.

Appellant also argues that appellee's employee subjected her to offensive language even though Sawyers knew or should have known that the life-threatening emergency rendered appellant particularly vulnerable at the time of the 911 call. Appellant noted that her only option to obtain medical assistance for Ricky was to contact appellee.

The tort of outrage or intentional infliction of emotional distress was first recognized as an intentional tort by our supreme court in M.B.M. Co. v. Counce, 268 Ark. 269, 596 S.W.2d 681 (1980). In that case, the court stated:

Id. at 280, 596 S.W.2d at 687. The court defined extreme and outrageous conduct as "conduct that is 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 society." Id. In Faulkner v. Arkansas Children's Hosp., 347 Ark. 941, 957, 69 S.W.3d 393, 403-04 (2002), our supreme court set out the four factors necessary to establish the tort of outrage as follows:

Despite judicial recognition of this tort, the courts have addressed it in a cautious manner and have stated that recognition of it is not intended to open the doors of the courts to every slight insult or indignity one must endure in life. Dillard Dep't Stores, Inc. v. Adams, 315 Ark. 303, 867 S.W.2d 442 (1993). Abrasive profanity alone is not sufficient reason to support a cause of action. Tandy Corp. v. Bone, 283 Ark. 399, 405, 678 S.W.2d 312, 315 (1984).

In Palmer v. Arkansas Council on Economic Educ., 344 Ark. 461, 474, 40 S.W.3d 784, 792 (2001), the court stated, "The trial court must determine as a matter of law whether the conduct may reasonably be regarded as so outrageous as to permit recovery." Appellant was unaware of the offensive language until the morning following the 911 call and then only after having it brought to her attention by her daughter that the epithet had been recorded on the telephone answering machine. Although we recognize that while appellant may have suffered mental distress as a result of the uttered words, we cannot say that the facts of this case establish the necessary "extreme degree of outrageous conduct that goes beyond all bounds of decency" and, therefore, it is not regarded as atrocious and utterly intolerable to a civilized society. We affirm on this issue.

Additionally, appellant claims that the trial court erred in granting appellee's motion for summary judgment because appellant presented evidence demonstrating a prima facie case of negligent supervision. In support of this assertion, appellant argues that an employer is directly liable to third parties for the wrongs committed by its employees when there is evidence of negligent supervision. Further, appellant argues that appellee knew or through the exercise of ordinary care should have known that Sawyers's conduct would subject 911 callers to an unreasonable risk of harm.

Although citing numerous cases, appellant ultimately relies heavily on Madden v. Aldrich, 346 Ark. 405, 58 S.W.3d 342 (2001), to support her arguments. In Madden, the court stated that

Id. at 415, 58 S.W.3d at 350. In Regions Bank & Trust v. Stone County Skilled Nursing Facility, Inc., 345 Ark. 555, 49 S.W.3d 107 (2001), the court held that there is a duty of reasonable care in supervision of employees.

We do not disagree with appellant's recitation of the law. However, in the present case, the trial court held that because appellant did not "sustain a tort of outrage claim based on the acts of Michelle Sawyers, there is likewise insufficient evidence to support" her claim of negligent supervision against appellee. We note that before an employer may be subject to liability for negligent supervision of its employees, the claimant or injured party must show that the harm resulted from the conduct or actions of an employee and that the tortious conduct would subject the employee to liability. Regions, supra; Madden, supra. Having determined that appellant failed to state sufficient facts to withstand a summary judgment on the tort of outrage against appellee or present other evidence establishing conduct that might give rise to liability on the part of the employee, it is unnecessary to consider appellant's contention of negligent supervision of Sawyers by appellee. We affirm.

Affirmed.

Crabtree and Roaf, JJ., agree.