Torts - Deron R. Hicks and Travis C. Hargrove

• Publication year: 2008

Tortsby Deron R. Hicks^* and Travis C. Hargrove^**

I. Defamation

In Scouten v. Amerisave Mortgage Corp.,¹ Stephen Scouten, a former employee of Amerisave Mortgage Corporation, filed suit against Amerisave, Information Technology Force, Inc., and several Amerisave employees, asserting claims under the Georgia Racketeer Influenced and Corrupt Organizations Act (RICO Act)² and for defamation and intentional infliction of emotional distress. The statements that were the basis for the defamation claims were made solely to the employees of Amerisave and were at no point disseminated outside the corporation. Amerisave moved for dismissal of the complaint based on the fact that there was no allegation in the complaint that any of the allegedly defamatory statements were published to anyone outside the corporation and, therefore, there was no publication of the slander. The Georgia Court of Appeals affirmed the dismissal, holding that Scouten failed to state a claim because he did not allege that the false statements were disseminated outside the corporation.³

The Georgia Supreme Court reversed the court of appeals decision, holding that Scouten had indeed stated a claim upon which relief could be granted.⁴ The court noted that publication of slander "occurs when the slander is communicated to anyone other than the person slan-dered,"⁵ but that an exception to that general definition of slander exists "'when the communication is intracorporate, or between members of unincorporated groups or associations, and is heard by one who, because of his/her duty or authority has reason to receive the information, there is no publication of the allegedly slanderous material.'"⁶ The court noted, however, that this exception is not absolute "[a]s subsequent cases have made clear, not all intracorporate statements come within the exception, only those statements received by one who because of his duty or authority has reason to receive the information."⁷

The court noted that Scouten's complaint stated that the alleged defamation was "disseminated to employees with no need to have access to his private personnel information."⁸ Because at the motion to dismiss stage a complaint must be construed in the light most favorable to the pleader, the court held that it was possible within the framework of the complaint to introduce evidence that the statements were disseminated to individuals within Amerisave who had no duty or authority giving them reason to receive the information.⁹ Therefore, the supreme court reversed and Scouten was allowed to proceed with his case.¹⁰

Scouten provides a few items of note. First, it provides a warning to corporations that they should be careful to distribute information within the corporation only to those who have a duty and authority to have knowledge of a situation. Second, while Scouten dealt with a motion to dismiss and not a motion for summary judgment, it will be interesting to see how the court deals with this situation when a motion for summary judgment is filed based on the intracorporate communication defense to publication. Practitioners should carefully craft discovery to deal with this issue should it arise in a defamation case.

The court of appeals dealt with slander per se in Bullard v. Bouler.¹¹ Bullard and Bouler had been involved in a previous trespass dispute that Bullard had won. In the previous dispute, Bullard alleged that Bouler caused a tree on Bullard's property to be cut down. In the present case, Bullard, according to the facts as construed in her favor, took pictures on April 12, 2003 of the trees that had been cut down as evidence for the prior trespass suit. Shortly thereafter, after being contacted by Bouler, Officer R. J. Finley of the Fulton County Police Department came to Bullard's door and explained that Bouler had complained that Bullard was taking pictures of Bouler's wife in Bouler's own backyard. Bullard stated that this was not the case and explained the issue with the trees. Pertinent to this case, Officer Finley told Bullard that Bouler also said Bullard had been posting signs in her window that said, "9-11 F___You" and that Bouler had other witnesses who had seen these signs.¹²

Bullard felt that Officer Finley reported these allegations "with a look of utter contempt."¹³ Bullard vehemently denied the charge to first Finley and again in an affidavit filed in this case.¹⁴ Finley later corroborated Bullard's testimony in a sworn statement and said that Bouler had told him that Bullard had posted signs in a window "of a vulgar nature" that said "9-11 F___You" and that Bouler had witnesses.¹⁵

Bullard filed a defamation suit against Bouler and his wife (who was later dismissed), claiming that the allegation regarding the existence of the "9-11 F You" sign accused her "of a debasing act that may exclude her from all of American society."¹⁶ This is a claim for slander per se under section 51-5-4(a)(2) of the Official Code of Georgia Annotated (O.C.G.A.)¹⁷ because damage is inferred.¹⁸ The court reviewed the standard for slander per se established in Bellemead, LLC v. Stoker,¹⁹ noting that "in order to constitute slander per se the words must be injurious on their face, extrinsic facts may not be considered, and it is inappropriate to rely on innuendo."²⁰ The court held that a slanderous meaning attributable to the statement that Bullard had displayed a sign stating "9-11 F___You" is not readily apparent from the plain meaning of that statement.²¹ The court held that "[a]t most, Bouler's words mean that Bullard is the type of person who would say to the public, 'Nine-eleven, F___You,'" but that "to know what sort of person is being described, we would need to know the meaning of the sign itself."²² According to the court, that meaning is at best ambiguous; however, despite the fact that Bullard contended that Bouler

was asserting that she was the type of person who would disparage America's loss on September 11, 2001 and that Bouler intended to inflame Officer Finley, a "first responder," who might have taken offense at that thought . . . Bouler's words may very well constitute slander, but they do not constitute slander per se because that meaning is not apparent from the plain meaning of the words.²³

Therefore, summary judgment in favor of Bouler was appropriate.²⁴

Bullard demonstrates that the standard established in Bellemead, which was discussed in the previous survey period,²⁵ will not be narrowly applied by the court of appeals and that, with respect to slander per se, statements, no matter how derogatory about a person, must clearly be injurious on their face and subject to no interpretation by the hearer.

II. Emotional Distress

In Cook v. Covington Credit of Georgia, Inc.,²⁶ "Charlie Cook sued Sharon Gravitt, John Carter, and their employer, Covington Credit of Georgia, Inc. [Covington Credit], alleging that he suffered damages as a result of defendants' assault, battery, and intentional infliction of emotional distress."²⁷ Cook had fallen behind on a loan he had taken from Covington Credit in November 2004. Gravitt and Carter, employees of Covington Credit, had attempted to reach Cook by phone on numerous occasions but were unable to reach him. On November 22, 2004, Gravitt and Carter, in one last attempt to discuss Cook's default prior to Covington Credit filing a lawsuit, went to the hospital where Cook was employed as a janitor. Gravitt and Carter confronted Cook regarding his default on the loan.²⁸ When they did, "Cook became upset, asked them both to leave, and also asked them not to bother him at work."²⁹ Gravitt continued her attempt to discuss the matter with Cook despite Cook's request that Gravitt and Carter leave, at which point Cook pushed Gravitt to the ground. Carter intervened, was pushed by Cook, and the two began fighting. During the fight that ensued, Carter insulted Cook with racial epithets. The fight ended when hospital staff intervened and the police were called.³⁰

Because of the incident, Cook's employer suspended Cook from work for three days and required him to undergo financial counseling. In November 2005, Cook filed suit against Gravitt, Carter, and Covington Credit for claims of assault, battery, and intentional infliction of emotional distress.³¹ After Cook concluded his presentation of evidence, the "defendants moved for a directed verdict as to Cook's claim of intentional infliction of emotional distress, arguing that Cook had failed to show that defendants' conduct was extreme or outrageous and that he had failed to show that his emotional distress was severe."³² The trial court granted the defendants' motion, and the jury returned a verdict in favor of the defendants for Cook's other claims.³³

Cook appealed several issues, including the directed verdict against him on his claim for intentional infliction of emotional distress.³⁴ Cook claimed that the defendants' conduct was sufficiently extreme or outrageous and that his emotional distress was severe, as required to sustain a claim for intentional infliction of emotional distress.³⁵ The Georgia Court of Appeals noted that in determining whether conduct is sufficiently extreme and outrageous,

"Actionable conduct does not include insults, threats, indignities, annoyances, petty oppressions, or other vicissitudes of daily living but must go beyond all reasonable bounds of decency so as to be regarded

as atrocious and utterly intolerable in a civilized community."³⁶ "Whether a claim rises to the requisite level of outrageousness and egregiousness to sustain a claim for intentional infliction of emotional distress is a question of law."³⁷

Applying these standards, the court concluded that the actions taken by the defendants, including making numerous telephone calls and visiting Cook at work, were not sufficient to constitute outrageous and egregious conduct as a matter of law.³⁸ "[T]hreatening language in the context of collecting a debt does not go beyond all...