This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
Affirmed in part, reversed in part, and remanded
Hennepin County District Court
File No. EM9913284
Julia K. Rhodes, Suite 6, 906 Ninth Avenue South, Hopkins, MN 55343 (for appellant)
Donald W. Selzer, Jr., Shannon M. Magill, Littler Mendelson, P.C., Suite 3110, 33 South Sixth Street, Minneapolis, MN 55402-3720 (for respondent Perkins)
Considered and decided by Shumaker, Presiding Judge, Stoneburner, Judge, and Huspeni, Judge.*
Appellant Rebecca Boykin alleges that the district court erred by (1) granting respondent Perkins summary judgment on Boykin’s claims of intentional infliction of emotional distress and vicarious liability for battery, (2) denying Boykin a jury trial on the battery claim; and (3) determining that Boykin did not prove damages from sexual harassment. Boykin also alleges that the district court abused its discretion by denying her motion to amend her complaint to add a claim for punitive damages.
We affirm summary judgment dismissing Boykin’s claim of intentional infliction of emotional distress and the district court’s denial of Boykin’s motion to amend the complaint to add a claim of punitive damages. We reverse the district court’s grant of summary judgment to Perkins determining that, as a matter of law, Perkins is not vicariously liable for Sehm’s battery, and we reverse the district court’s determination that Boykin did not prove damages attributable to sexual harassment. We remand for a jury determination of (1) whether Sehm’s battery was sufficiently foreseeable to support Perkins’s vicarious liability for those acts; and (2) damages attributable to battery, and for the court’s redetermination of the issue of damages from sexual harassment under the appropriate standard.
Boykin was a server at Perkins in Crystal from November 1998 to April 1999. Sean Sehm was a co-worker. Beginning in January 1999, Sehm made sexual comments to Boykin and engaged in inappropriate touching that included (1) pressing his penis against Boykin’s buttocks 10 to 15 times; (2) unsnapping Boykin’s bra while she was carrying a tray on approximately five occasions, and (3) grabbing Boykin’s buttocks and placing “his hands so far in-between [her] legs he touched [her] genital area.” Sehm also entered a cooler that Boykin had entered, turned the lights off and shut the door, frightening Boykin. Boykin told Sehm to leave her alone. She was polite at first but became loud and angry in her protests as time progressed. Boykin reported Sehm’s conduct to Angela Benesch, a service leader, in February 1999, before the genital-touching incident. Benesch told Boykin that she would speak with Kim Modeen, the general manager, and take care of the problem. Sehm’s conduct continued.
On March 5, 1999, Robert Coombs, the Food Production Manager, informed Modeen of a potential problem between Boykin and Sehm based on comments Boykin made to him. Modeen and Coombs met with Boykin to discuss Boykin’s problems with Sehm. Modeen did not conduct any investigation after this meeting but gave Sehm a verbal warning that did not specify the complainant, and posted reminders about Perkins’s no-touch policy in the workplace. Boykin testified that Sehm’s offensive behavior continued, although on one occasion when he passed her he said “I’m not touching you.” Modeen sent Sehm to service-leader training on March 18, 1999.
Boykin alleges that she suffered emotional distress because of Sehm’s harassment, her relationship with her daughter suffered, her relationship with her boyfriend almost ended, and she was afraid to go to work. Boykin contacted an attorney and began to take statements from co-workers. When Modeen became aware of this, she contacted Perkins’s regional manager who conducted an investigation that revealed Sehm’s inappropriate behavior toward Boykin and several other employees. Perkins terminated Sehm’s employment on March 31, 1999. Boykin left her employment with Perkins at the end of April 1999.
Boykin sued Perkins and Sehm for assault, battery, intentional infliction of emotional distress, and sexual harassment. Perkins moved for summary judgment on all of Boykin’s claims. The district court granted summary judgment to Perkins on the assault, battery, and intentional infliction of emotional distress claims and denied summary judgment to Perkins on the sexual-harassment claim. At the time of trial Sehm was not represented by counsel. Attorneys for Boykin and Perkins agreed with the district court that the only issue for trial was Boykin’s claim against Perkins for sexual harassment. After a bench trial, the district court concluded that (1) Sehm sexually harassed Boykin; (2) Perkins was aware of the harassment and failed to take timely and appropriate action, but Boykin failed to prove that she suffered “actionable emotional distress attributable to Perkins” as a result of the sexual harassment; (3) Sehm committed battery against Boykin; and (4) Boykin suffered “mental suffering and humiliation” as a result of Sehm’s battery. The district court awarded Boykin $8,500 in damages against Sehm and dismissed Boykin’s complaint against Perkins. This appeal followed.
1. Intentional infliction of emotional distress
This court, when reviewing a grant of a motion for summary judgment, asks “(1) whether there are any genuine issues of material fact and (2) whether the lower courts erred in the application of their law.” State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990) (citation omitted). Fabio v. Bellomo states that:
A motion for summary judgment shall be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to a judgment as a matter of law. On appeal, the reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted.
504 N.W.2d 758, 761 (Minn. 1993) (citations omitted).
Boykin argues that the district court erred in granting summary judgment to Perkins on her claim of intentional infliction of emotional distress. The standard of proof for intentional infliction of emotional distress is high. In order to prove intentional infliction of emotional distress a plaintiff must show that “(1) the conduct complained of was extreme and outrageous; (2) the conduct was intentional or reckless; (3) the conduct caused emotional distress; (4) and the distress suffered was severe.” Kelly v. City of Minneapolis, 598 N.W.2d 657, 663 (Minn. 1999) (citation omitted).
Conduct is extreme and outrageous when it is “so atrocious that it passes the boundaries of decency and is utterly intolerable to the civilized community.” Hubbard v. United Press Int’l Inc., 330 N.W.2d 428, 439 (Minn. 1983) (quotation omitted). Distress is severe when it is the kind that “no reasonable man could be expected to endure.” Johnson v. Morris, 453 N.W.2d 31, 41 (Minn. 1990) (quotation omitted). Medical testimony may be required to substantiate physical manifestations of physical distress. Born v. Medico Life Ins. Co., 428 N.W.2d 585, 590 (Minn. App. 1988), review denied (Minn. Nov. 16, 1988) (holding that the elements of intentional infliction of emotional distress were not met, in part, because “respondent failed to present medical testimony to substantiate any concrete physical manifestations of physical distress.”).
We agree with the district court that, although reprehensible, the conduct alleged by Boykin is not so atrocious as to meet the standard for intentional infliction of emotional distress and the distress alleged is insufficient to support a finding of the severe distress necessary to support a claim of intentional infliction of emotional distress. The court noted that Boykin had not produced any evidence that she had received any treatment for her alleged distress. See Elstrom v. Indep. Sch. Dist. No. 270, 533 N.W.2d 51, 57 (Minn. App. 1995) (holding that “insomnia, crying spells, a fear of answering [the] door and telephone, and depression” causing the victim to seek treatment was insufficient to support a finding of severe emotional distress), review denied (Minn. July 27, 1995); Odegard v. Finne, 500 N.W.2d 140, 144 (Minn. App. 1993) (holding that depression requiring medication, “impairment of * * * ability to trust,” and a “damaged relationship with” one’s children is insufficient to support a claim of intentional infliction of emotional distress). The district court did not err in granting summary judgment to Perkins on Boykin’s claim of intentional infliction of emotional distress.
Boykin argues that the district court erred in granting summary judgment to Perkins and Sehm on Boykin’s battery claim. Boykin mistakenly assumed that the district court granted summary judgment to Sehm on this claim. But Sehm did not move for summary judgment, and the district court did not dismiss Boykin’s battery claim against Sehm. The district court granted summary judgment to Perkins on Boykin’s battery claim on the basis that Sehm’s acts, although committed during work time and at the job site, were not foreseeable by Perkins and were not otherwise related to or connected with acts within the scope of Sehm’s employment with Perkins.
Summary judgment to Perkins should be reversed if there is a genuine issue of material fact as to whether Sehm was acting within the scope of his employment when the battery occurred. An employer is vicariously liable for a tort committed by an employee if that employee commits the tort while acting within the scope of employment. Fahrendorff v. North Homes, Inc., 597 N.W.2d 905, 910 (Minn. 1999). The scope-of-employment test provides that “an employer is vicariously liable for the intentional torts of an employee when: (1) the tort is related to the employee’s duties; and (2) the tort occurs within work-related limits of time and place.” Hagen v. Burmeister & Assocs., Inc., 633 N.W.2d 497, 504 (Minn. 2001) (citing Fahrendorff, 597 N.W.2d at 910).
“[A]n important consideration in determining whether an act is related to the duties of employment is whether the act was foreseeable.” Hagen, 633 N.W.2d at 504. If battery, as a part of sexual harassment, is a foreseeable risk of the restaurant business, summary judgment is inappropriate. See id. at 505 (“This standard of foreseeability is commonly proven, or a question of fact is raised, when a party establishes that the type of tortious conduct involved is a well-known industry hazard.”); Fahrendorff, 597 N.W.2d at 911.
The court in Fahrendorff also noted that
[f]orseeability as a test for respondeat superior merely means that in the context of the particular enterprise an employee’s conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer’s business.
597 N.W.2d at 912 (quotation omitted).
Sehm’s touching of Boykin, which included grabbing her buttocks, unsnapping her bra, and touching her genitals, was a part of Sehm’s sexual harassment of Boykin. Knowledge that sexual harassment is a foreseeable risk of Perkins’s business is evidenced by the fact that each new Perkins employee is required to go through an orientation procedure that includes reading a handbook that discusses Perkins’s sexual-harassment policies, giving new employees an alert-line packet that includes a phone number for employees to report any complaints or concerns, and having new employees watch a video that discusses Perkins’s sexual-harassment policies. Modeen posted Perkins’s no-touch policy at the restaurant after being made aware of Boykin’s allegations. This evidence raises genuine issues of material fact as to Perkins’s forseeability of Sehm’s sexual touching, making summary judgment to Perkins inappropriate on Boykin’s claims that Perkins is vicariously liable for Sehm’s battery.
3. Right to jury trial on common-law battery claims
Despite a pretrial discussion that the only claim to be tried to the court was Boykin’s sexual-harassment claim against Perkins, the district court made findings and concluded that Sehm committed battery against Boykin and that Boykin established “mental suffering” caused by the battery, entitling her to damages. The district court awarded $8,500 as damages for the battery. Boykin had demanded a jury trial on her common-law battery claims and had paid the jury fee.
“[O]ur state constitution guarantees a jury trial for causes of action recognized as common law actions when our constitution was adopted.” Tyroll v. Private Label Chemicals, Inc., 505 N.W.2d 54, 57 (Minn. 1993) (citation omitted). A district court’s denial of a jury trial is reviewed de novo. In re Trust Created by Hill, 499 N.W.2d 475, 490 (Minn. App. 1993), review denied (Minn. July 15, 1993). Perkins contends that Boykin waived her right to a jury trial by submitting to a bench trial without objection and that Boykin cannot argue the issue on appeal because she failed to preserve the claim by objecting at the district court. A party waives its right to object to a jury trial when it submits to a bench trial without objection. Karlstad State Bank v. Fritsche, 374 N.W.2d 177, 183 (Minn. App. 1985).
We cannot conclude, on this record, that Boykin waived her right to a jury trial on the battery claim because the parties were proceeding under the understanding that the battery claim was not being tried. There has been no appeal from the court’s determination that Sehm committed battery, but Boykin claims she is entitled to a jury determination of damages for battery. On remand, Boykin is entitled to a jury trial on the issues of Perkins’s liability for Sehm’s battery and damages for battery. The same acts that constituted the battery constituted part of Sehm’s sexual harassment of Boykin. Boykin is not entitled to a double recovery for these acts. Wirig v. Kinney Shoe Corp., 461 N.W.2d 374, 379 (Minn. 1990) (holding that the Minnesota Human Rights Act and common-law battery may provide two legal remedies for the same wrongful conduct and that plaintiff may pursue either or both provided there is not double recovery). On remand, Boykin will need to elect whether to pursue damages under her claim of battery or under her claims for violation of the Minnesota Human Rights Act.
A district court’s “findings should not be disturbed on appeal if they are reasonably supported by the evidence as a whole.” Johnson v. Ramsey County, 424 N.W.2d 800, 804 (Minn. App. 1988), review denied (Minn. Aug. 24, 1988). A district court’s “decision will be reversed only if the result is clearly erroneous.” Id. “[F]indings are clearly erroneous if they are without substantial evidentiary support or are induced by an erroneous view of the law.” Id.
It appears from the district court’s statement that Boykin “failed to prove that she suffered actionable emotional distress attributable to Perkins,” and from the reference to lack of expert testimony, that the district court may have been applying the high standard for the recovery in a claim of intentional infliction of emotional distress to the issue of emotional-distress damages for sexual harassment. If so, application of the standard for establishing an independent claim of emotional distress was error. Mental anguish or suffering compensable under the Minnesota Human Rights Act “need not be severe or accompanied by physical injury.” Bradley v. Hubbard Broad., Inc., 471 N.W.2d 670, 677 (Minn. App. 1991) (citation omitted) (holding testimony about diminished self-worth and deterioration of relationship with children met statutory requirements and supported $10,000 damage award for reprisal discrimination), review denied (Minn. Aug. 2, 1991); Johns v. Harborage I, Ltd., 585 N.W.2d 853, 863 (Minn. App. 1998) (affirming $25,000 emotional damage award for sexual harassment based on testimony that victim had trouble sleeping, her relationship with boyfriend was affected, she cried frequently, she was frightened to be approached from behind, she was fearful of going into bars, she could not work as a waitress, and her relationship with her son was affected.)
Because the district court’s determination that Boykin failed to prove emotional-distress damages may have been based on an erroneous standard, and is clearly erroneous in light of the finding of mental anguish caused by the offensive touching that comprised only a portion of the sexual harassment, we reverse and remand for a new trial the issue of damages for the sexual harassment Boykin suffered.
1. Punitive damages
A district court’s “decision to grant or deny a motion to add a claim for punitive damages” will not be reversed unless the district court abused its discretion. LeDoux v. Northwest Publ’g, Inc., 521 N.W.2d 59, 69 (Minn. App. 1994) (citation omitted), review denied (Minn. Nov. 16, 1994).
Punitive damages may be recovered in civil actions when a plaintiff shows by “clear and convincing evidence that the acts of the defendant show deliberate disregard for the rights or safety of others.” Minn. Stat. § 549.20, subd. 1(a) (2000). “A mere showing of negligence is not sufficient; instead, the conduct must be done with malicious, willful, or reckless disregard for the rights of others.” Admiral Merchs. Motor Freight, Inc. v. O’Connor & Hannan, 494 N.W.2d 261, 268 (Minn. 1992). A victim has “the burden to prove such willful indifference by clear and convincing evidence.” See Minneapolis Police Dep’t v. Minneapolis Comm’n on Civil Rights, 402 N.W.2d 125, 133 (Minn. App. 1987), aff’d, 425 N.W.2d 235 (Minn. 1988). In an agency context, punitive damages may be awarded against a principal when
(c) the agent was employed in a managerial capacity with authority to establish policy and make planning level decisions for the principal and was acting in the scope of that employment, or
(d) the principal or a managerial agent of the principal, described in clause (c), ratified or approved the act while knowing of its character and probable consequences.
Minn. Stat. § 549.20, subd. 2 (2000).
At the close of Boykin’s case-in-chief, Boykin’s attorney moved to amend the complaint to include a claim for punitive damages against Perkins. The district court denied the motion. A motion to amend the complaint to add a claim for punitive damages is permissible when the court “finds prima facie evidence in support of the motion.” Minn. Stat. § 549.191 (2000).
Boykin argues that she was entitled to make a claim for punitive damages because Perkins “exhibited a callous and reckless disregard for appellant’s rights by promoting the perpetrator of the harassment” after Boykin informed Modeen of Sehm’s conduct. We disagree. After Modeen spoke with Boykin about her problems with Sehm, Modeen gave Sehm a verbal warning about his conduct, spoke with managers and service leaders about the no-touch policy, and posted a note regarding the no-touch policy. The evidence supports the district court’s finding that Perkins did not take timely and appropriate remedial action but does not mandate a finding of a willful disregard for Boykin’s rights. The district court did not abuse its discretion in denying Boykin’s motion to amend the complaint to add a claim for punitive damages.
Affirmed in part, reversed in part, and remanded.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 A service leader is in charge of making sure business runs smoothly when the salaried managers are not at the restaurant.
 Boykin also sued Modeen and the regional manager individually but does not appeal summary judgment granted to these individuals.
 The district court also dismissed Boykin’s claim for constructive discharge, but this issue is not before us on appeal.
 Perkins argues on appeal that the district court erred by concluding it had notice, but Perkins did not file a Notice of Review, therefore, this issue is not before us.
 Boykin argues that Kimbrough v. Loma Linda Dev., Inc., 183 F.3d 782 (8th Cir. 1999), supports her proposition that Perkins ratified Sehm’s conduct by making him a service leader and therefore is liable for punitive damages. In Kimbrough, evidence was presented that the general manager “repeatedly ignored detailed and graphic complaints” about the head chef’s conduct regarding two waitresses. 183 F.3d at 785. Here, Modeen listened to Boykin’s complaints and took some actions to remedy the situation and, therefore, did not ratify Sehm’s conduct.