Appeal from Pierce County Superior Court. Docket No: 11-2-11357-0. Date filed: 09/14/2012. Judge signing: Honorable Edmund Murphy.
David H. Black Jr. (of Law Office of David H. Black PC ); and Thaddeus P. Martin IV, for appellant.
Emma O. Gillespie (of Preg O'Donnell & Gillett PLLC ), for respondents.
AUTHOR: Bradley A. Maxa, J. We concur: J. Robin Hunt, J., Thomas R. Bjorgen, J.
[180 Wn.App. 862] ¶ 1 Rose Sutton appeals an order granting summary judgment to Tacoma School District No. 10 and Jeffrey Frederick (collectively School District) on her claims for assault, battery, and outrage arising from Frederick's alleged conduct toward Sutton's granddaughter, NYY. Sutton argues that questions of fact exist regarding these claims where Frederick, NYY's first grade teacher, allegedly berated NYY in a loud voice while towering over her and physically bumping her until she was pinned against a wall. We reverse the trial court's grant of summary judgment on the battery and assault claims because questions of fact exist as to whether Frederick's alleged conduct was intended to cause both offensive contact with NYY and NYY's apprehension of such contact. But we affirm the trial court's grant of summary judgment on the outrage claim because although there was evidence of outrageous conduct and intent to cause emotional distress, Sutton failed to present evidence creating a question of fact as to whether NYY actually suffered severe emotional distress as a result of Frederick's alleged conduct. We remand for further proceedings.
¶ 2 Frederick was the instructor in the Therapeutic Learning Center (TLC) at Stanley Elementary School. NYY [180 Wn.App. 863] was a first grade special education student in the TLC. Linda Brieger, a paraprofessional instructional assistant, worked in the TLC with Frederick.
¶ 3 On January 14, 2011, Brieger told Frederick that she needed help with NYY, who had tipped over her desk and poured milk into it. While Frederick was responding to the situation, Sutton happened to walk into the classroom and observe his interaction with NYY. Sutton described the scene in her deposition:
So now I stepped in the door and I'm looking. And I look in the back, in the dark, and he was back there in front of [NYY], over her with his chest practically on her, hollering and swinging his arms, telling her how he's tired of her, he's getting -- she's getting on his dang-gone nerves -- well, his damn nerves.
And I panicked and I said, Why are you talking to her like that? Why are you hollering? ...
And he was so intense in talking to her that he didn't even realize I was in the room. ...
[He] was just swinging his arms all around her and his chest was bumping up against her. How do you -- he was powered over her. She's a little girl.
[He] bumped her with his chest, because he towered over her. And he was right up on her. He was bumping her and throwing his arms up.
Clerk's Papers (CP) at 59-60. Sutton stated that Frederick was " up in [NYY's] face." CP at 60.
¶ 4 In her subsequent declaration Sutton elaborated that Frederick had NYY " pinned against the wall" and was physically keeping her in the corner as his body was bumping against her. CP at 184. And Sutton could hear Frederick yelling down the hall even before she reached the classroom. Some of the things he yelled were " You make me sick" and " Why are you so stupid?" CP at 207, 183. Sutton claimed that after the incident NYY's face was covered with spit.
[180 Wn.App. 864] ¶ 5 Sutton sued the School District on behalf of NYY based on multiple claims for relief, eventually pursuing just three claims: assault, battery, and outrage. Sutton alleged in the complaint that Frederick physically assaulted NYY, screamed and cursed at her,
pushed her into a corner while yelling at the top of his voice, and yelled at her so closely that her face was covered with his saliva. The complaint alleged that Frederick later apologized, stating that he had just broken up two fights and had taken his frustration out on NYY.
¶ 6 The School District filed a motion for summary judgment, attaching statements from Frederick and Brieger with an account of the incident radically different than Sutton's. It also pointed out that Sutton's descriptions of the incident became progressively worse over time. In response, Sutton filed the declaration described above. Sutton ...