STOCK V. GRANTHAM, 1998-NMCA-081,
125 N.M. 564, 964 P.2d 125
BABETTE STOCK, Plaintiff-Appellant,
vs.
MICHAEL and CAROL GRANTHAM, Defendants-Appellees.
COURT OF APPEALS OF NEW MEXICO
1998-NMCA-081, 125 N.M. 564, 964 P.2d 125
APPEAL FROM THE DISTRICT COURT OF SANTA
FE COUNTY. PETRA JIMENEZ MAES, District Judge.
Certiorari Denied, No. 25,139, June 16,
1998. Released for Publication June 23, 1998.
Stephen D. Aarons, Aarons Law Firm, P.C.,
Santa Fe, NM, for Appellant.
Thomas M. Hnasko, David B. Lawrenz,
Hinkle, Cox, Eaton, Coffield & Hensley, L.L.P., Santa Fe, NM, for
Appellees.
HARRIS L. HARTZ, Chief Judge. WE CONCUR:
RUDY S. APODACA, Judge, M. CHRISTINA ARMIJO, Judge.
{1} On February 9,
1995 Babette Stock began working as a nanny for Dodge Grantham, the infant son
of Michael and Carol Grantham. She and the Granthams executed a written
employment agreement (the Employment Agreement) on March 21, 1995. The
following day Stock suffered a ruptured colon. Her condition prevented her from
working through the middle of October. She never returned to work for the
Granthams.
{2} Stock sued the
Granthams, asserting a number of claims. The Granthams moved for summary
judgment with respect to some claims and moved to dismiss others on the ground
that they failed to state causes of action. The district court granted the
motions and entered judgment for the Granthams. Stock appeals, although she has
abandoned some of the claims she raised below. The issues on appeal are whether
the district court erred in the following respects: (1) granting summary
judgment rejecting Stock's claim that her ruptured colon was caused by the
Granthams' negligence, (2) granting summary judgment rejecting her claims that
the Granthams breached the Employment Agreement by (a) failing to provide
{*567} her with medical insurance and (b)
failing to give her two weeks' written notice before firing her, (3) granting
summary judgment rejecting her claim of wrongful discharge, (4) granting the
motion to dismiss her claim of wrongful interference with her entitlement to
unemployment compensation benefits, (5) granting the motion to dismiss her
claim of intentional infliction of emotional distress, and (6) granting the
motion to dismiss her claim of prima facie tort. We affirm the judgment below
except for the dismissal of the claim of intentional infliction of emotional
distress, which we reverse.
I. MOTIONS FOR SUMMARY JUDGMENT
{3} A party is
entitled to summary judgment if "there is no genuine issue as to any
material fact
" and the undisputed facts establish the existence or
nonexistence of a cause of action. Rule
1-056(C) NMRA 1998. The procedure for
presenting facts and authorities to the trial court is set forth in Rule
1-056(D), which states:
(1) Motions for summary judgment will not be
considered unless filed within a reasonable time prior to the date of trial to
allow sufficient time for the opposing party to file a response and affidavits,
depositions or other documentary evidence and to permit the court reasonable
time to dispose of the motion.
(2) The moving party shall submit to the court a
written memorandum containing a short, concise statement of the reasons in
support of the motion with a list of authorities relied upon. A party opposing
the motion shall, within fifteen (15) days after service of the motion, submit
to the court a written memorandum containing a short, concise statement of the
reasons in opposition to the motion with authorities. The moving party may,
within fifteen (15) days after the service of such memorandum, submit a written
reply memorandum.
The memorandum in support of the motion shall set out
a concise statement of all of the material facts as to which the moving party
contends no genuine issue exists. The facts shall be numbered and shall refer
with particularity to those portions of the record upon which the moving party
relies.
A memorandum in opposition to the motion shall contain
a concise statement of the material facts as to which the party contends a
genuine issue does exist. Each fact in dispute shall be numbered, shall refer
with particularity to those portions of the record upon which the opposing
party relies, and shall state the number of the moving party's fact that is
disputed. All material facts set forth in the statement of the moving party
shall be deemed admitted unless specifically controverted.
{4} The district
court's scheduling order set trial for February 3, 1997, required that motions
for summary judgment be filed at least 60 days before that date, and set a
pretrial conference for January 10, 1997. On December 5, 1996 the Granthams
filed motions for summary judgment with respect to Stock's claims of
negligence, wrongful discharge, and breach of contract. Supporting their motion
was a statement of uncontested material facts accompanied by one affidavit and
deposition testimony with exhibits. Under Rule 1-056(D)(2) Stock's response was
due by December 23, 1996 (assuming service upon her by mail,
see Rule
1-006(D) NMRA 1998 (adding three days to prescribed period if service is by
mail)). But she filed nothing until January 10, 1997, the date of the scheduled
pretrial conference, when she filed a response to the statement of uncontested
facts. Her response contested four of the Granthams' alleged uncontested facts.
It attached no supporting documents and contained no reference to matters of
record except that with respect to one contested fact it said, "See
depositions of Michael Grantham and Deposition of Babette Stock." Also on
January 10, Stock filed a request for additional time to respond to the
Granthams' motions. At the pretrial conference the district court continued the
hearing on the Granthams' motions to January 15.
{5} On January 15
Stock filed a response to the motion for summary judgment on her contract claim
and filed another motion for an extension of time to respond to the Granthams'
{*568} motions for summary judgment. The sole
ground for the extension motion was the alleged need to obtain discovery from
the state Department of Labor regarding statements made by Mr. Grantham about
Stock's claim for unemployment compensation.
{6} The district court
proceeded with the hearing on January 15 and granted the Granthams' motions for
summary judgment. At the hearing Stock's attorney repeatedly referred to
matters not of record, over the objections of the Granthams' attorney. At the
conclusion of the hearing, after the district court had made its oral ruling,
Stock's attorney requested leave to supplement the record after the hearing.
The court denied the motion, saying that the time to supplement the record had
passed. On January 27 Stock moved for reconsideration, attaching her affidavit
and other documents. The next day the district court entered judgment for the
Granthams. The district court did not rule on the motion for reconsideration
prior to Stock's filing her notice of appeal on February 26. The notice of
appeal is from the judgment of January 28.
{7} Stock's First
Amended and Supplemental Complaint (the Complaint) contends that the Granthams
made her work excessive hours, causing her illness, fatigue, etc.; failed to
provide adequate assistance when she was too sick or tired and unable to cope
with the stress of lifting and caring for Dodge; failed to have her instructed
on the safe manner of lifting Dodge; and failed to provide and enforce rules to
give her sufficient rest and to teach her how to lift and care for Dodge. To
support their motion for summary judgment, the Granthams recited the
uncontested facts that Stock had prior experience in caring for children and
that Stock noted this experience as a qualification on her resume.
{8} An employer owes a
duty to employees to provide a reasonably safe work place.
Diaz v. McMahon,
112 N.M. 788, 790,
819 P.2d 1346, 1348 . Concomitant with this duty is the
"duty to give warning of dangers of which the employee might reasonably be
expected to remain in ignorance."
Prosser & Keeton on Torts §
80, at 569 (5th ed. 1984) (
Prosser & Keeton) ;
accord Hastings v.
Mechalske, 336 Md. 663, 650 A.2d 274, 281 n.8 (Md. 1994). this duty
encompasses the duty to warn of dangers in work procedures.
See Hill v.
Metal Reclamation, 348 So. 2d 493, 494 (Ala. 1977).
{9} Despite this
general duty, the Granthams had no duty to warn Stock of the dangers of lifting
their child or the dangers of overwork. Those are dangers well known to every
competent adult. No special circumstances suggested Stock's ignorance of those
dangers; her experience, indeed her very application for the job as nanny,
would suggest the contrary to any employer. As previously stated, the duty to
warn is limited to those "dangers of which the employee might reasonably
be expected to remain in ignorance."
Prosser & Keeton, supra, §
80, at 569. We note that nothing in
Klopp v. Wackenhut Corp.,
113 N.M.
153,
824 P.2d 293 (1992), suggests a duty to warn of obvious dangers. What
Klopp
held is that an owner or occupier of unsafe premises may be liable to a
business visitor even if the unsafe condition is open and obvious. Despite the
obviousness of the danger, the occupier has a duty to take reasonable steps to
remove or reduce the hazard. 113 N.M. at 157-58, 824 P.2d at 297-98.
Klopp
explicitly distinguished the duty involved in that case from a duty to warn.
See
id. at 156, 824 P.2d at 296.
{10} Our holding that
the Granthams owed Stock no duty to warn does not, however, dispose of all
Stock's claims of negligence. Stock also alleges that the Granthams failed to
provide her with adequate help and required her to work excessive hours. the
Granthams have not addressed whether they owed Stock a duty in these respects
or whether the allegations are supported by the facts of this case.
Nevertheless, we also affirm the summary judgment with respect to those
allegations; even assuming the existence of a duty and a breach of duty, Stock
failed to prove causation.
{11} The Granthams
submitted the affidavit of a gastroenterologist asserting that Stock's ruptured
bowel resulted from acute diverticulitis and was not caused by her employment.
{*569} At the time of the hearing on the
motions for summary judgment, nothing in the record countered the
gastroenterologist's opinion. In her brief in chief on appeal, however, Stock
points to deposition testimony of Dr. Anthony Rippo. We have serious concerns
regarding whether his testimony would be sufficient to overcome the
gastroenterologist's affidavit; but we need not reach that issue. Stock's
submission to the district court of the Rippo deposition was untimely. The
Granthams filed their motion for summary judgment on December 5, 1996. The
rules of civil procedure required stock to respond with contrary evidence
within 15 days of service of the motion. Rule 1-056(D)(2). The hearing on the
motion for summary judgment was conducted on January 15, 1997. The deposition
testimony of Dr. Rippo was filed with the court on January 27, 1997, as an
attachment to Stock's memorandum in support of a motion to reconsider. Although
the district court apparently was willing to consider untimely responses of
Stock that were filed by the time of the January 15 hearing, the district court
never agreed to consider matters added to the record after the hearing. On the
contrary, at the close of the hearing Stock's attorney requested permission to
add additional depositions to the record in the future, and the district court
rejected the request, saying that such filings would not be timely.
C. Breach-of-Contract Claim
{12} The Employment
Agreement between Stock and the Granthams executed on March 21, 1995 states as
follows:
BEGINNING DATE: Monday, March 20, 1995
Monday through Friday from 8:00 AM to 5:00 PM; some evenings
and weekends; and family travel times (like hours, which may exceed 45 hours
per week to be determined prior to departure)
$ 39,000 per annum less all applicable Federal and State
Employment Taxes
Health / Medical Insurance package to be provided 30 days
from date of employment
Expenses related to family travel will be covered (i.e.
transportation, accommodations, meals, and out of pocket expenses related to
Dodge)
Use of family automobile to run family errands and to provide
transportation for Dodge during workday
PROBATIONARY PERIOD: 1st 3 months of employment; after such
period will have a performance review
REVIEW PERIOD: 3 months after the probationary period above;
every 6 months thereafter. After first 12 months of employment and based upon
prior performance, will be considered for additional administrative
responsibilities. If duties are expanded, an adjustment to salary may be
considered.
VACATION: After the 1st 6 months of employment will be
granted 2 weeks paid vacation. Must give written notice of vacation at least 1
month prior.
PAID SICK LEAVE: 5 days per annum
. Provide child care for Dodge Legget Grantham at home and
while traveling
. Light domestic work pertaining to Dodge:
-His personal laundry (i.e. clothing, bed linens, wash
towels, etc.) as needed
-Provide his meals and clean up after he is finished
-Help keep his bedroom and play areas clean and orderly
TERMINATION: Either party can terminate this agreement with a
2 week written notice prior to such termination
Stock claims that the Granthams are liable for breach
of two of the provisions of the contract: the requirement that the Granthams
provide medical insurance and the requirement of "2 week written
notice" prior to termination.
{13} Stock's
claims for medical insurance is based on the contract provision stating,
"Health / Medical insurance package to be provided 30 days from date of
employment." The dispute between the parties concerns when the 30-day
period began. The Granthams rely on the language of the Employment Agreement:
"BEGINNING DATE: Monday, March 20, 1995." Using the March 20 date,
the Granthams had no duty to provide insurance until April 19, well after
Stock's hospitalization began. Stock does not argue that insurance commencing
after her March hospitalization would have covered any of her medical bills.
{14} We agree
with the Granthams that the Employment Agreement is unambiguous on its face
with respect to the date of commencement of insurance benefits. The only
reasonable date for the "date of employment" in the insurance
provision is the 'BEGINNING DATE" of March 20, 1995, which appears earlier
in the contract. The evident purposes of including a specific "BEGINNING
DATE" in the contract are to set forth an effective date and to provide a
benchmark for the several provisions--insurance, probation, review, vacation
time--that take effect or terminate a certain time after the beginning of
employment.
{15} In New
Mexico, however, courts are not confined to the four corners of the document in
interpreting a contract. Our Supreme Court summarized the law in
Mark V,
Inc. v. Mellekas,
114 N.M. 778, 781,
845 P.2d 1232, 1235 (1993):
Even if the language of the contract appears to be clear and
unambiguous, a court may hear evidence of the circumstances surrounding the
making of the contract and of any relevant usage of trade, course of dealing,
and course of performance, in order to decide whether the meaning of a term or
expression contained in the agreement is actually unclear. The court is no
longer restricted to the bare words of the agreement in interpreting the intent
of the parties to a contract, but may also consider the context in which the
agreement was made to determine whether the party's words are ambiguous.
New Mexico law, then, allows the court to consider extrinsic
evidence to make a preliminary finding on the question of ambiguity. The
present law in this state concerning the interpretation of ambiguous or unclear
language in written agreements may be summarized as follows: An ambiguity
exists in an agreement when the parties' expressions of mutual assent lack
clarity. The question whether an agreement contains an ambiguity is a matter of
law to be decided by the trial court. The court may consider collateral
evidence of the circumstances surrounding the execution of the agreement in
determining whether the language of the agreement is {*571}
unclear. If the evidence presented is so plain that no reasonable person
could hold any way but one, then the court may interpret the meaning as a
matter of law. If the court determines that the contract is reasonably and
fairly susceptible of different constructions, an ambiguity exists. At that
point, if the proffered evidence of surrounding facts and circumstances is in
dispute, turns on witness credibility, or is susceptible of conflicting
inferences, the meaning must be resolved by the appropriate fact finder.
(Citations and quotation marks omitted.)
{16} Stock
attempts to create an ambiguity by pointing to the undisputed fact that she
began working for the Granthams on February 9. She contends that February 9 is
the "date of employment" referred to in the Employment Agreement. In
support of her argument, Stock points to a draft of the agreement. In the draft
someone inserted in the insurance provision the word "agreement"
after "within thirty days of employment," but then the word
"agreement" was crossed out. Stock infers that the 30-day period was
clearly to begin after the date of her employment--February 9--rather than the
date of the
agreement --March 20.
{17} In our
view, Stock's attempt to create an ambiguity fails. If the "date of
employment" was February 9, then the Granthams were required to provide
Stock with health/medical insurance by March 11, ten days before the Employment
Agreement was executed and nine days before the "BEGINNING DATE." The
Granthams would be in breach of their contract the moment they executed it.
Extrinsic evidence does not create ambiguity in a contract when the alternative
interpretation of the contract supported by the evidence would require a party
to perform an act that both parties must have known to be impossible at the
time the contract was executed.
See Louisiana Power & Light Co. v. Town
of Arcadia, 119 F. Supp. 818, 820 (W.D. La. 1954) ("Contracts should
not be construed so as to impose absurd or impossible conditions . . .
.");
Wembelton Dev. Co. v. Travelers Ins. Co., 45 Mich. App. 168,
206 N.W.2d 222, 225 (Mich. Ct. App. 1973) ("Courts will not interpret a
contract in a manner which would impose an absurd or impossible condition . . .
.");
Kebe v. Nutro Mach. Corp., 30 Ohio App. 3d 175, 507 N.E.2d
369, 372 (Ohio Ct. App. 1985);
cf. Smith v. Tinley,
100 N.M. 663, 665,
674 P.2d 1123, 1125 (1984) ("An interpretation rendering a contract such
that reasonable men would not enter into it is disfavored."). The only
circumstance in which taking February 9 as the "date of employment" would
not require the Granthams to do the impossible would be if they had already
acquired insurance for Stock when they executed the Employment Agreement. But
there is no evidence in the record that the Granthams had obtained insurance
for her prior to March 21. Indeed, if they had, this claim would presumably not
have been brought.
{18} We
conclude that there was no agreement to provide insurance prior to April 19.
Having reached this conclusion, we need not address whether the insurance
provision in the contract was too vague to be enforceable.
See Padilla v.
RRA, Inc.,
1997-NMCA-104, P8,
124 N.M. 111,
946 P.2d 1122;
Lakeview
Farms, Inc. v. Patten, 640 N.E.2d 1092 (Ind. Ct. App. 1994).
{19} Stock's
second contract claim is that the Granthams failed to give two weeks' written
notice before terminating her employment. She contends that Mr. Grantham fired
her during a conversation in the hospital on April 4, 1995. The Granthams
dispute Stock's account of the conversation. But even assuming the account to
be accurate, the Granthams were properly granted summary judgment because Stock
has failed to prove that she is entitled to any damages arising from the
alleged breach.
{20} The
requirement that the employer give notice protects the at-will employee from
being suddenly put on the street. The employee is assured of the benefits of
the contract for at least the prescribed period after notice is given. As a
result, the measure of damages for failure to give notice is ordinarily the
value of the benefits that the employee would have received during the period
from the time of firing to the end of the notice period. For example, if the
employer
{*572} failed to give a
required 30-day notice, the employee's damages are limited to the value of 30
days of benefits. The employee should not be placed in a better position than
if the employer had complied with the contract by giving proper written notice.
See Odell v. Humble Oil & Ref. Co., 201 F.2d 123, 128 (10th Cir.
1953);
Shivers v. John H. Harland Co., 310 S.C. 217, 423 S.E.2d 105
(S.C. 1992);
Curacare, Inc. v. Pollack, 501 So. 2d 470, 471-72
(Ala. Civ. App. 1986);
Mayor of Douglasville v. Hildebrand, 175 Ga. App.
434, 333 S.E.2d 674, 677 (Ga. Ct. App. 1985);
Kemnetz v. Elliott Farmers
Grain Co., 136 Ill. App. 3d 226, 482 N.E.2d 1076, 90 Ill. Dec. 793 (Ill.
App. Ct. 1985).
{21} Accordingly,
if Stock was fired as she claims, she was entitled to the value of the benefits
she would have received under her contract for the two-week period beginning on
the date of the firing. The problem for Stock is her failure to establish that
she would have received any benefits during that two-week period. Under the
Employment Agreement, Stock was required to work Monday through Friday from 8
a.m. to 5 p.m. During the two weeks after the alleged firing, Stock was unable
to work and would not have been entitled to any salary under the contract.
Although the Agreement provided for paid vacations and sick leave, neither
would have been available during the two-week period. Vacation pay was not
available, because she had not been employed for six months. Sick leave was not
available, because she was limited to five days per year. Given that Stock's
hospitalization began March 22, her paid sick leave would have been used up by
April 4, the date of the alleged firing. Because of Stock's failure to explain
what damages she suffered as a result of lack of notice, we affirm the district
court's grant of summary judgment with respect to her claim based on breach of
the notice requirement.
D. Wrongful-Discharge Claim
{22} On appeal
Stock contends that her claim of wrongful discharge is based on the provision
of the New Mexico Human Rights Act prohibiting the discharge of an employee
because of a "serious medical condition." NMSA 1978, Section
28-1-7(A) (1995). Stock has not contested that she was unable to work from
March 22, 1995 through mid-October of that year. In essence, Stock is
contending that the Act forbids an employer from firing an employee for being
too ill to work. (Stock acknowledges that she is not entitled to protection
under the federal Family and Medical Leave Act of 1993, 29 U.S.C.A. §§
2601-54(1994).) On the facts before us, we reject the contention.
{23} Section
28-1-7(A) of the Human Rights Act states:
It is unlawful discriminatory practice for:
A. an employer, unless based on a bonafide occupational
qualification, to refuse to hire, to discharge, to promote or demote or to
discriminate in matters of compensation, terms, conditions or privileges of
employment against any person otherwise qualified because of race, age,
religion, color, national origin, ancestry, sex, physical or mental handicap or
serious medical condition; provided, however, that 29 U.S.C. Section 631(c)(1)
and (2) shall apply to discrimination based on age.
Stock's argument overlooks the statutory provision
allowing discharge of an employee "based on a bona fide occupational
qualification." Id. Ability to attend work regularly is a bona fide
occupational qualification. See, e.g., Jackson v. Veterans Admin.,
22 F.3d 277, 278-79 (11th Cir. 1994); Tyndall v. National Educ. Ctrs.,
31 F.3d 209, 213 (4th Cir. 1994); Carr v. Reno, 306 U.S. App. D.C. 217,
23 F.3d 525, 529 (D.C. Cir. 1994); Lex K. Larson, Employment Discrimination
§ T108A.31(d) (2d ed. 1997). Stock has not contended that she could have
performed the work of a nanny prior to mid-October if only the Granthams had
made reasonable accommodation. The New Mexico Human Rights Act does not
prohibit parents from discharging a nanny who is too ill to care for their
child.
{24} The
Granthams moved to dismiss Stock's claims of interference with entitlement to
unemployment compensation, intentional infliction of emotional distress, and
prima facie tort on the ground that they failed to state claims upon which
relief can be
{*573} granted.
See
Rule
1-012(B)(16) NMRA 1998. On such a motion the court considers whether
Plaintiff is "entitled to relief under any state of facts provable under
the claim."
Trujillo v. Puro,
101 N.M. 408, 414,
683 P.2d 963, 969
. The court must keep in mind that our rules of civil procedure require only
notice pleading; the complaint need not detail the factual basis for the
allegations.
See id.
A. Interference With Entitlement to Unemployment
Compensation
{25} The New
Mexico Department of Labor (the Department) administers claims for unemployment
compensation. NMSA 1978, §
51-1-8 (1996). Stock's complaint alleges that the
Granthams interfered with her ability to obtain unemployment compensation by
withholding information from the Department and providing false information to
the Department. The Granthams argue that Stock cannot bring such a claim prior
to "establishing her entitlement to unemployment compensation in the
administrative process." Because Stock does not even allege that she has
so established her entitlement, the Granthams contend that she has failed to
state a claim upon which relief can be granted. We agree with the Granthams.
{26} New Mexico
has never recognized the tort of interference with entitlement to unemployment
compensation. We need not decide on this appeal whether to recognize such a
tort. The tort might be cognizable as a special case of the tort of intentional
interference with prospective advantage.
See Key v. Chrysler Motors Corp.,
1996-NMSC-38,
121 N.M. 764, 772-73,
918 P.2d 350, 358-59 (1996) (recognizing
tort of interference with prospective advantage);
Ellett v. Grand Food, Inc.,
66 Md. App. 695, 505 A.2d 888, 894-95 (Md. Ct. Spec. App. 1986) (applying tort
in context of claims for unemployment compensation). But even if we were to
recognize the tort, certain limitations must be placed on it in this context.
As explained below, we will not recognize a claim that the employer's actions
prevented
the employee from obtaining benefits. Also, although a
delay in
obtaining benefits might be the basis for a cause of action, the claim cannot
be brought until the plaintiff has established in the appropriate
administrative proceeding that she was entitled to unemployment compensation.
Our reasoning is as follows.
{27} First, an
employee has no private right of action against an employer to recover
unemployment compensation. Such benefits are paid from the state unemployment
compensation fund,
see NMSA 1978, §§
51-1-4(A) (1993), 51-1-19 (1983),
through proceedings before the Department. Moreover, private arrangements to
provide an alternative to such benefits are explicitly prohibited by the first
sentence of NMSA 1978, Section
51-1-37(A) (1982), which states:
Except as provided by Section 51-1-37.1 NMSA 1978, [relating
to child support] any agreement by an individual to waive, release or commute
his rights to benefits or any other rights under the Unemployment Compensation
Law [this chapter] shall be void.
Unless double recovery were allowed--a result to be
avoided--recognition of a private cause of action to recover unemployment
compensation would provide a means to evade this statutory requirement by
stipulated judgment or settlement. We think it apparent from the statutory
scheme that a proceeding before the Department is the exclusive means of
obtaining unemployment compensation.
{28} In
addition, public policy protecting witnesses would be undercut by recognizing a
private cause of action against an employer for engaging in allegedly dishonest
acts that cause the Department to deny the employee unemployment compensation.
An employee has the right to a de novo hearing before the Department regarding
her entitlement to compensation.
See § 51-1-8(D). The cause of action
against the employer would need to be based on allegations of either (1) the
giving of false evidence at the hearing or (2) pre-hearing dishonesty. As for
the first alternative, the giving of evidence at the hearing is privileged. To
encourage witnesses to come forward and testify fully, the common law has long
recognized an absolute privilege protecting witnesses from damage suits
predicated on their testimony.
Briscoe v. LaHue, 460 U.S. 325, 330-34,
{*574} 75 L. Ed. 2d 96, 103 S. Ct. 1108 (1983)
(civil rights action);
see Superior Constr. v. Linnerooth,
103 N.M. 716,
712 P.2d 1378 (1986) (not permitting action for slander of title based on
notice of lis pendens). New Mexico extends this privilege to administrative
hearings, including hearings to determine unemployment compensation benefits.
Zuniga
v. Sears, Roebuck & Co.,
100 N.M. 414, 417,
671 P.2d 662, 665 . (We
note, however, that evidence that there were misrepresentations at a hearing
can justify reopening the employee's claim.
See § 51-1-4(F).)
{29} Pre-hearing
dishonesty is a different matter. It is not necessarily privileged. Some
pre-hearing dishonesty (such as failure to turn over records) could assist an
employer in deceiving the Department at a hearing. But generally, such
dishonesty would have no impact on the decision at the hearing, or the impact
would have been inconsequential if the employer's evidence at the hearing had
been truthful (so that a cause of action based on the pre-hearing misconduct
would in effect punish the privileged conduct).
{30} In light
of these considerations, we will not recognize a cause of action against an
employer for causing the Department to deny an employee's claim for
unemployment compensation. Such a cause of action must be rejected because it
would constitute an end run around an exclusive statutory remedy, would impose
civil liability for privileged conduct, and/or would impose liability without
proximate causation.
{31} Those
reasons do not, however, necessarily foreclose all claims for interference with
entitlement to unemployment compensation. Unprivileged conduct of the employer
may delay the employee's receipt of benefits. We assume, without deciding, that
such conduct should subject the employer to liability. This cause of action has
been recognized in Maryland.
See Ellett, 505 A.2d at 894-95.
{32} Nevertheless,
one can predicate for such a claim is receipt of benefits. The employee must
establish that she was entitled to and did receive benefits but that receipt
would have been sooner absent the employer's misconduct. Here, Stock has not
alleged that she was awarded benefits. The district court, therefore properly
dismissed her claim.
B. Intentional Infliction of Emotional Distress
{33} The
elements of the tort of intentional infliction of emotional distressed (also
known as the tort of "outrage") are set forth in Restatement (Second)
of Torts § 46 (1965)
Outrageous Conduct Causing Severe Emotional Distress
(1) One who by extreme and outrageous conduct 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
form 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.
Only paragraph (1) is pertinent here. The tort
requires conduct "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." Id. at cmt. d; accord
Stieber v. Journal Publ'g Co., 120 N.M. 270, 274, 901 P.2d 201, 205 .
{34} The
Granthams contend that the conduct alleged by Stock does not meet the required
standard. Stock counters that "the Granthams acted outrageously in firing
her while recovering from surgery, refusing to answer telephone messages and
calls from mutual friends, and denying [to the Department of Labor] they had
ever employed Stock."
{35} We doubt
that failure to return telephone calls could meet the standard of outrageous
conduct.
See Restatement (Second) of Torts,
supra, § 46 cmt. d.
("Liability clearly does not extend to mere insults, indignities,
{*575} threats, annoyances, petty oppressions,
or other trivialities.") Also, alleged lying may be a privileged conduct
if the alleged lies were made by a witness in an administrative proceeding.
See
Zuniga, 100 N.M. at 417, 671 P.2d at 665; Restatement (Second) of Torts,
supra,
§§ 46 cmt. g., 588 cmt. d;
cf. Trujillo, 101 N.M. at 415, 683 P.2d at
970 (noting privilege for testimony in a
judicial proceeding). We need
not resolve those matters, however, because the allegation regarding Stock's
firing at the hospital is sufficient to survive a motion to dismiss. Although
we recognize that only in extreme circumstances can the act of firing an
employee support a claim of intentional infliction of emotional distress,
see,
e.g.,
Cox v. Keystone Carbon Co., 861 F.2d 390, 395-96 (3d Cir.
1988) (affirming directed verdict for employer; employee fired on first day
back to work after triple-bypass surgery), we can conceive of a firing at a
hospital as being conducted in a manner that is "utterly intolerable in a
civilized community."
Stieber, 120 N.M. at 274, 901 P.2d at 205
(internal quotation marks omitted);
cf. Restatement (Second) of Torts,
supra,
§ 46 cmt. f. (liability may result if wrongdoer knows victim is
"peculiarly susceptible to emotional distress, by reason of some physical
or mental condition");
id. illus. 12. The complaint alleges:
On 3 April 1995, after the first of four abdominal
operations, Mr. Grantham visited Stock at her hospital bed. After asking if she
would need to wear the colostomy bag outside of her clothes, Mr. Grantham then
dismissed Stock from defendants' employ and terminated their contractual
relationship.
To determine whether Mr. Grantham's alleged conduct at
the hospital would suffice to sustain the tort action, we would need more
specific information concerning Stock's condition at the time and the precise
conversation, Grantham's tone of voice, etc. Dismissal of the claim on the
pleadings was improper. See Trujillo, 101 N.M. at 415, 683 P.2d at 970.
{36} Stock's
Complaint twice mentions a cause of action for prima facie tort. The first
paragraph of Count V, entitled "INTERFERENCE WITH ENTITLEMENT TO
UNEMPLOYMENT COMPENSATION," incorporates the prior allegations of the
complaint "into this fifth count alleging causes of action generally
sounding specifically as the intentional interference with the governmental
entitlement or generally as a prima facie tort." Similarly, the first
paragraph of Count VI, entitled "INTENTIONAL INFLICTION OF EMOTIONAL
DISTRESS,' incorporates the prior allegations of the complaint "into this
sixth count alleging separate causes of action, or a single cause of action
based upon a pattern of misconduct, sounding as the intentional or reckless
infliction of emotional distress or generally as a prima facie tort."
{37} New Mexico
has joined a few jurisdictions recognizing a cause of action for prima facie
tort.
See Schmitz v. Smentowski,
109 N.M. 386, 394,
785 P.2d 726, 734
(1990). The elements of the action are: "(1) an intentional and lawful
act; (2) an intent to injure the plaintiff; (3) injury to the plaintiff as a
result of the intentional act; (4) and the absence of sufficient justification
for the injurious act."
Lexington Ins. Co. v. Rummel, 1997-NMSC-43,
P10,
123 N.M. 774,
945 P.2d 992.
{38} We hold
that the tort has no application here. "Prima facie tort should not be
used to evade stringent requirements of other established doctrines of
law."
Schmitz, 109 N.M. at 398, 785 P.2d at 738;
see Andrews v.
Stallings,
119 N.M. 478, 493-94,
892 P.2d 611, 626-27 . the only function
of the claim of prima facie tort in Stock's complaint is to escape possible
restrictions imposed on the torts of intentional infliction of emotional
distress and interference with entitlement to unemployment compensation. Her
brief in chief begins the discussion of the prima-facie-tort claim by stating:
"As a claim overlapping the previous two intentional torts in both fact
and law, Stock claimed that the Granthams had committed a prima facie tort in
terminating her under the circumstances and denying her existence
afterwards." To the extent that Stock's claim of prima facie tort does not
duplicate the other torts alleged in the complaint, it would simply be a means
of evading the requirements of the doctrines underlying those potential torts.
This is an improper
{*576} use of the
tort. For example, we would not recognize a claim of intentional infliction of
emotional distress in the absence of the outrageous conduct required for that
tort, even if the plaintiff relabeled the cause of action as "prima facie
tort." Similarly, we would not recognize a claim for interference with
entitlement to unemployment compensation without proof that the agency
administering unemployment compensation claims had found the plaintiff to be
entitled to such benefits.
{39} As we
understand the complaint and Stock's briefs, the claim of prima facie tort is
duplicative of her other claims. But to the extent that it is not, we hold that
application of that doctrine in this case would be an improper means of evading
proof of essential, and appropriate, elements of those other claims. We
therefore affirm the dismissal of the claim of prima facie tort.
{40} For the
above reasons we affirm the judgment of the district court except that we
reverse the dismissal of Stock's claim of intentional infliction of emotional
distress. On that claim we reverse and remand for further proceedings in
district court.
HARRIS L. HARTZ, Chief Judge
M. CHRISTINA ARMIJO, Judge