Food Fair, Inc. v. Anderson

382 So. 2d 150, 1980 Fla. App. LEXIS 15899
CourtDistrict Court of Appeal of Florida
DecidedApril 9, 1980
Docket78-1624/T4-167, 78-1625/T4-167A and 78-1928/T4-167B
StatusPublished
Cited by55 cases

This text of 382 So. 2d 150 (Food Fair, Inc. v. Anderson) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Food Fair, Inc. v. Anderson, 382 So. 2d 150, 1980 Fla. App. LEXIS 15899 (Fla. Ct. App. 1980).

Opinion

382 So.2d 150 (1980)

FOOD FAIR, INC. et al., Appellant,
v.
Stanley ANDERSON et al., Appellee.

Nos. 78-1624/T4-167, 78-1625/T4-167A and 78-1928/T4-167B.

District Court of Appeal of Florida, Fifth District.

April 9, 1980.

*151 Goble D. Dean of Dean, Ringers, Morgan & Lawton, Orlando and Marcia K. Lippincott, Sanford, for appellant Food Fair, Inc.

James R. Barfield and Howard C. Coker of Cowles, Coker & Myers, Jacksonville, for appellant England.

Thomas E. Thoburn, Cocoa, for appellees.

COBB, Judge.

The appellees, Euna and Stanley Anderson, sued the appellants, Food Fair, Inc., and its employee, Douglas England, for intentional infliction of mental distress and for fraud. The facts, viewed in the light most favorable to the plaintiffs below, are as follows:

In 1975, Food Fair experienced a cash shortage, which led to an investigation by England, its security officer. Euna Anderson at that time had been a cashier and office worker for Food Fair for some six years. She was asked on June 5, 1975, to submit to a polygraph test administered by England at a motel room being used for the investigation. Upon arrival, she was told by England that it was company policy to have all employees either take the test or be terminated. She agreed to take the test, and signed consent forms to that effect. England then told Euna it was company policy to have her admit to prior thefts, because anybody who had worked for the company as long as she had must have taken something. He told her that if she denied such past thefts she would be terminated as untrustworthy. Euna protested her innocence, but England persisted that the alternative to confession was termination. Euna told him she needed the job because of family obligations and commenced to cry. England told her not to worry, that it would not go against her record, and that other employees had signed such statements and been retained by Food Fair in return for repayment of the amounts taken. Euna thereupon signed a statement admitting to the theft of $150, a figure suggested by England. The statement she signed was dictated by England and handwritten by Euna, except for an explanation at the bottom of the statement as to what Euna thought was causing the cash shortages. England then administered the polygraph and, afterwards, told her, "It didn't clear." She requested another test and he told her to return the next day because of her nervousness. She left the motel and the store manager drove her back to the store. Euna met with England the following day, June 6, at which time England told her she would have to admit to an amount greater than $150. England dictated a new statement, this time using a $500 figure, and Euna signed it. He then administered another polygraph and told Euna she "didn't clear". Later, she was told that she was suspended until the investigation was completed but would then be *152 notified when to return to work. Instead, she was terminated because of her admission of misappropriating company cash, although she claimed to have returned all money taken. As a result of the foregoing, according to the case for the plaintiffs, Euna Anderson lost her job[1] and her unemployment compensation, and suffered mental distress; Stanley Anderson testified to lost consortium. Euna estimated the loss in earnings comparing the Food Fair Job and her subsequent employment between June, 1975, and the time of trial in April, 1978, to be approximately $11,000.

On July 17, 1975, the plaintiffs met with Food Fair officials to discuss Euna's termination from employment. This meeting was tape-recorded by Stanley Anderson. The taped conversation included a statement by Stanley Anderson that Euna's truthfulness concerning her version of the threats made by the Food Fair investigator at the June meeting was established by an independent polygraph examination administered by a certified polygraph expert whom the Andersons had contacted subsequent to the England investigation. At trial, the tape recording of the July 17th meeting was admitted into evidence over objections by defense counsel. The objections were threefold: (1) that the tape was inaudible in many portions; (2) the tape was replete with hearsay; and (3) there was no individual identification of the voices on the tape, only evidence as to the identity of the people at the meeting.

The defendants' motion for a directed verdict at the close of trial was denied. The jury awarded compensatory damages against both defendants in the amount of $40,000 for Euna Anderson and in the amount of $7,500 for Stanley Anderson. In addition, punitive damages were awarded to Euna in the amount of $300,000 against Food Fair and in the amount of $60,000 against England.

Final judgment in those amounts was entered after various defense motions were denied. The issues on appeal, as framed by appellants are:

I. Did the plaintiff establish a prima facie case for the torts of intentional infliction of mental distress and fraud?
II. Was England's conduct within the scope of his employment by Food Fair?
III. Were the verdicts contrary to the manifest weight of the evidence?
IV. Were the awarded damages excessive?
V. Did the trial court commit reversible error in admitting the tape recording of the July 17th meeting between plaintiffs and the Food Fair officials?

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS:

The first question posed above is the most difficult. The independent tort of intentional infliction of mental distress, sometimes called the tort of outrage, has been discussed, directly or inferentially, in a number of Florida cases. See, e.g., Gilliam v. Stewart, 291 So.2d 593 (Fla. 1974); La Porte v. Associated Independents, Inc., 163 So.2d 267 (Fla. 1964); Slocum v. Food Fair Stores of Florida, 100 So.2d 396 (Fla. 1958); Kirksey v. Jernigan, 45 So.2d 188 (Fla. 1950); Lay v. Roux Laboratories, Inc., 379 So.2d 451 (Fla. 1st DCA 1980); Ford Motor Credit Co. v. Sheehan, 373 So.2d 956 (Fla. 1st DCA 1979); Estate of Harper v. Orlando Funeral Home, Inc., 366 So.2d 126 (Fla. 1st DCA 1979); Dowling v. Blue Cross of Florida, Inc., 338 So.2d 88 (Fla. 1st DCA 1976); Korbin v. Berlin, 177 So.2d 551 (Fla. 3d DCA 1965). The question is raised as to whether the facts adduced herein constitute "conduct exceeding all bounds which could be tolerated by society, of a nature especially calculated to cause mental damage of a very serious kind." Slocum, supra, at 397.

*153 The status in Florida of the independent action for intentional infliction of severe emotional distress was comprehensively reviewed and considered in a scholarly opinion by Judge Ervin in the recent case of Ford Motor Credit Co. v. Sheehan, supra. The factual situation therein concerned a false representation by a credit company that the debtor's children had been seriously injured, its purpose being to locate him. In affirming a verdict for the plaintiff, the district court noted that the majority rule, as set forth in the Restatement (Second) of Torts, Section 46(1) (1965),[2] applies in Florida. The test is not the actual intent to inflict severe emotional distress, but whether or not the actor knows that such distress is certain, or substantially certain, to result from his conduct. The rule also applies where the action is in reckless disregard of a high degree of probability that emotional distress will follow.

The Sheehan

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Bluebook (online)
382 So. 2d 150, 1980 Fla. App. LEXIS 15899, Counsel Stack Legal Research, https://law.counselstack.com/opinion/food-fair-inc-v-anderson-fladistctapp-1980.