This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-96-2557

Duane J. Anderson and Gail L. Anderson,

as the parents and natural guardians of

Court Anderson, a minor,

Appellants,

vs.

Ryan Peavey, a minor by Roger Peavey and

Gail Peavey, in their capacity as his guardians ad litem,

Respondents.

Filed June 24, 1997

Affirmed

Harten, Judge

Lyon County District Court

File No. C3-96-312

James R. Anderson, Attorney at Law, P.O. Box 1196, Marshall, MN 56258 (for Appellants)

Arlo H. Vande Vegte, Arlo H. Vande Vegte, P.A., 1850 West Wayzata Blvd., P.O. Box 39, Long Lake, MN 55356-0039 (for Respondents)

Considered and decided by Parker, Presiding Judge, Harten, Judge, and Holtan, Judge.[*]

U N P U B L I S H E D O P I N I O N

HARTEN, Judge

Appellants challenge the grant of summary judgment to respondents on appellants' intentional infliction of emotional distress claim. We affirm.

FACTS

C.A., a minor, by and through his parents, Duane and Gail Anderson, brought this action for intentional infliction of emotional distress against R.P., a minor, by and through his parents, Roger and Gail Peavey. Appellant C.A. and Respondent R.P. were classmates at Marshall High School and played together on the golf team. C.A. alleges that R.P. masterminded a scheme to degrade and humiliate him in order to drive him off the golf team. C.A. claims that R.P.'s harassing conduct caused emotional distress, physical illness, and his eventual withdrawal from Marshall High School. Following pretrial discovery, R.P. moved for summary judgment. The district court granted summary judgment finding that C.A. failed to establish two of the essential elements for a claim of intentional infliction of emotional distress. This appeal followed.

D E C I S I O N

1. On appeal from summary judgment, we must determine whether there are any genuine issues of material fact and whether the district court erred in applying the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). The non-moving party cannot merely rely on conclusory statements in affidavits or allege that a genuine issue of material fact exists, but must demonstrate the existence of specific facts that create an issue for trial. Minn. R. Civ. P. 56.05; Midway Manor Convalescent & Nursing Home, Inc. v. Adcock, 386 N.W.2d 782, 787 (Minn. App. 1986). A defendant is entitled to summary judgment as a matter of law if the record reflects a lack of proof of an essential element of the plaintiff's case. Nicollet Restoration, Inc. v. City of St. Paul, 533 N.W.2d 845, 847-48 (Minn. 1995) (citing Celotex Corp v. Catrett, 477 U.S. 317, 322, 325, 106 S. Ct. 2548, 2552-53 (1986)).

The elements of intentional infliction of emotional distress require extreme and outrageous conduct that is intentional or reckless and causes severe emotional distress. Hubbard v. United Press Int'l, Inc., 330 N.W.2d 428, 438-39 (Minn. 1983). Because mental distress damages claims are disfavored, only egregious facts satisfy the requirements of extreme conduct and severe mental distress. Id. at 437. The severity of the resulting mental distress must be "so severe that no reasonable man could be expected to endure it." Id. at 439 (quoting Restatement (Second) of Torts § 46 cmt. j (1965)).

C.A. claims that R.P's harassment caused him to suffer physical illness, confusion, anger, and depression; to entertain thoughts of suicide; and to withdraw from Marshall High School. We agree with the district court that, despite C.A.'s characterization, the distress actually suffered by C.A. is not sufficiently severe to be actionable. See Hubbard, 330 N.W.2d at 440 (plaintiff's claim of depression, vomiting, stomach disorders, skin rash, and high blood pressure insufficient where plaintiff did not miss work, file a worker's compensation claim, or see a doctor regarding his emotional distress); Strauss v. Thorne, 490 N.W.2d 908, 913 (Minn. App. 1992) (embarrassment, nervousness, and depression not sufficient for claim of emotional distress), review denied (Minn. Dec. 15, 1992); Eklund v. Vincent Brass & Aluminum Co., 351 N.W.2d 371, 379 (Minn. App. 1984) (summary judgment affirmed where plaintiff suffered from humiliation, embarrassment, fear, and depression), review denied (Minn. Nov. 1, 1984). We also agree with the district court that C.A.'s distress is not beyond what a reasonable person would endure in similar circumstances. See Cafferty v. Garcia's of Scottsdale, Inc., 375 N.W.2d 850, 853 (Minn. App. 1985) (distress not actionable where of type people commonly encounter and endure). Accordingly, we conclude that the district court properly granted summary judgment. See Strauss, 490 N.W.2d at 913 (summary judgment properly granted on intentional infliction of emotional distress claim when plaintiff fails to meet standard of proof). Because we conclude that C.A. failed to establish that his emotional distress was sufficiently severe to be actionable, we need not address C.A.'s claim that his emotional distress was caused by R.P.'s conduct.

2. Respondents contend that the district court erred in denying their motion for attorney fees under Minn.Stat. § 549.21 (1996). We disagree. The district court, in its discretion, may award costs and reasonable attorney fees against a party who has "acted in bad faith [or has] asserted a claim or defense that is frivolous." Minn. Stat. § 549.21, subd. 2. The standard of review regarding awards of such costs and attorney fees is whether the district court abused its discretion. Radloff v. First Am. Nat'l Bank, 470 N.W.2d 154, 156 (Minn. App. 1991), review denied (Minn. July 24, 1991).

The district court found that C.A.'s claim and his attorney's conduct during discovery and pre-trial matters did not rise to the level of bad faith or frivolousness so as to warrant sanctions. The record supports the district court finding. Consequently, we cannot say that the district court's denial of the motion for sanctions constituted an abuse of discretion.

Affirmed.

[ ]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.