may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
MCC Behavioral Care, Inc.,
Filed August 19, 1997
Hennepin County District Court
File No. 9514484
Timothy J. Becker, Ramsay & Becker, Ltd., 619 Rosedale Towers, 1700 West Highway 36, Roseville, MN 55113 (for appellant)
Shirley Lerner, Joseph W.E. Schmitt, A. Lisa Merklin Lewis, Meagher & Geer, P.L.L.P., 4200 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for respondent)
Considered and decided by Short, Presiding Judge, Toussaint, Chief Judge, and Holtan, Judge.
In an appeal from summary judgment against an employee's claims for negligent infliction of emotional distress and negligent retention, we affirm. The record fails to demonstrate that the employee was placed in grave personal peril or that the incident occurred within the scope of employment.
Ihle sued MCC for intentional and negligent infliction of emotional distress, violation of the whistleblower statute, and negligent retention. The district court granted MCC's motion to dismiss Ihle's whistleblower claims. MCC then sought summary judgment on the remaining three claims. The district court granted summary judgment in favor of MCC. Ihle appeals from the district court order granting summary judgment on only two issues identified in the court's order: (1) negligent infliction of emotional distress, and (2) negligent retention.
To establish a claim for negligent infliction of emotional distress where no physical impact has occurred, the plaintiff must demonstrate that he: "(1) was within a zone of danger of physical impact; (2) reasonably feared for [his] own safety; and (3) suffered severe emotional distress with attendant physical manifestations." K.A.C. v. Benson, 527 N.W.2d 553, 557 (Minn. 1995). "However, a remote possibility of personal peril is insufficient to place plaintiff within a zone of danger for purposes of a claim of negligent infliction of emotional distress." Id. at 559. Whether Ihle was within the "zone of danger is an objective inquiry." Id. at 558.
Ihle argues that he was in the "zone of danger" because Bartlett yelled at him and threatened to slap him. The district court found that this conduct did not rise to the level of "grave personal peril." The record supports that finding.
Mere yelling and threatening to slap an individual, although inappropriate, does not satisfy the "zone of danger" requirement for purposes of a negligent infliction of emotional distress claim, which requires a showing of a higher level of actual physical danger than the record demonstrates. Okrina v. Midwestern Corp., 282 Minn. 400, 401, 165 N.W.2d 259, 261 (1969) (within "zone of danger" where plaintiff was in dressing room, "heard what sounded like a bomb and witnessed collapse of wall" and escaped "without being physically struck by debris other than dust"); Purcell v. St. Paul City Ry. Co., 48 Minn. 134, 50 N.W. 1034 (1892) (within "zone of danger" where cable car narrowly avoided a collision with another cable car); Quill v. Trans World Airlines, Inc., 361 N.W.2d 438 (Minn. App. 1985), review denied (Minn. Apr. 18, 1985) (within "zone of danger" where aircraft suddenly plunged towards earth and pilot regained control only seconds before aircraft would have struck ground). These facts are grossly dissimilar to the facts of this case.
Ihle seeks to overcome this problem with the novel argument of equating common law assault with the "zone of danger" as an element of a negligent infliction of emotional distress claim. In effect, Ihle is asking this court to rule as a matter of law that a common law assault satisfies the "zone of danger" requirement. Such a result is unwarranted. It would lower the threshold required to establish a claim for negligent infliction of emotional distress. Not every assault places the victim in a position of "grave personal peril"--the necessary element of proof for a negligent infliction of emotional distress claim. Benson, 527 N.W.2d at 558. This court must look to the quality of the act and not what the act is called to determine whether the "zone of danger" requirement is satisfied.
The tort of negligent retention "impose[s] liability for an employee's intentional tort, an action almost invariably outside the scope of employment, when the employer knew or should have known that the employee was violent or aggressive and might engage in injurious conduct." Yunker v. Honeywell, Inc., 496 N.W.2d 419, 422 (Minn. App. 1993), review denied (Minn. Apr. 20, 1993).
The district court granted summary judgment against Ihle's negligent retention claim because it found that he was not able to demonstrate that Bartlett's acts occurred outside the scope of employment. The district court found that the incident took place during normal working hours. We agree.
Conduct that occurs away from the place of employment and is not work-related is outside the course of employment. Id. at 424 (finding legal duty owed to victim shot in her driveway by dangerous employee); Ponticas v. K.M.S. Inv., 331 N.W.2d 907, 911 (Minn. 1983) (duty owed to tenant raped in her unit by building manager with passkey); cf., Leidig v. Honeywell, Inc., 850 F. Supp. 796, 807 (D. Minn. 1994) (no duty owed to alleged victim of employment discrimination). Given that the incident occurred during normal business hours, the parties were discussing work-related issues, and at least some of the alleged insults were in the nature of performance directions, criticisms, and reprimands--albeit abrasive in tone and tenor--we conclude that the district court did not err when it ruled that the incident did not occur outside the scope of employment.
[ ]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.