Yeend v. United Parcel Service, Inc.

659 P.2d 87, 104 Idaho 333, 1982 Ida. LEXIS 324

• Court: Idaho Supreme Court
• Decided: December 29, 1982
• Docket: 14332
• Status: Published

Opinions

BAKES, Chief Justice.

The facts in this appeal are virtually undisputed. On or about December 27, 1978, plaintiff appellant, Patricia Yeend, in the course of her employment with defendant respondent, United Parcel Service, Inc. (UPS), slipped and fell while delivering a package and sustained injury to her back and shoulders. Appellant telephoned her employer, UPS, at the Coeur d’Alene office and informed an employee of the accident and the severe pain she was suffering. The employee stated that he would try to locate the UPS manager, defendant respondent Clement, and directed appellant to call back. After approximately twenty minutes, appellánt again called UPS and was informed that respondent Clement had instructed appellant to continue her route. Appellant attempted to resume her route but, unable to make deliveries, once again called the UPS office. Respondent Clement, again via an employee, instructed appellant that she must continue to drive on her route, but sent another employee to carry the packages for her.

Appellant applied for and received certain workman’s compensation benefits, including temporary total disability payments and medical expense payments for the physical injuries she suffered in the accident. In her affidavit she stated that “she HAS NOT filed an application for workmen’s compensation benefits with the Idaho State Industrial Commission for the severe emotional distress and pain and suffering that she suffered when she was forced by her employer ... to continue working

Appellant filed her complaint in this action on December 23, 1980, alleging that respondent UPS, by and through respondent Clement’s instructions to appellant to continue her route “intentionally and recklessly subjected the Plaintiff to severe emotional distress, pain and suffering so that its packages could be delivered.” Defendant respondents filed an amended motion for summary judgment on February 27, 1981, on the ground that appellant’s exclusive remedy existed in Idaho’s workmen’s compensation laws, chapter 2, Title 72, Idaho Code. The trial court granted respondents’ motion for summary judgment, and appellant perfected this appeal.

The issue to be decided on appeal is whether the trial court erred in determining as a matter of law that appellant’s action was barred by the exclusive remedy provisions of the Idaho Workmen’s Compensation Act. Appellant alleges the emotional trauma she suffered is a compensable injury under the common law action for intentional infliction of emotional distress, citing Hatfield v. Max Rouse & Sons Northwest, 100 Idaho 840, 606 P.2d 944 (1980),¹ but is not a compensable “injury” under the workmen’s compensation statutes, nor barred by the exclusive remedy provisions of the Workmen’s Compensation Act. We disagree.

To recover in a separate action against an employer, a plaintiff must allege the existence of a tort not covered by the workmen’s compensation statute. This the plaintiff has failed to do. Taking all of the facts alleged in plaintiff’s complaint and affidavit as true, as we must in this summary judgment proceeding, the only allegation of wrongdoing on the part of the defendants is the allegation that defendant Howard Clement twice directed plaintiff to continue working after she informed him that she had been injured in a fall. These allegations, even if proven and viewed most favorably to the plaintiff, are not sufficient as a matter of law to have justified submission of the intentional tort issue to the jury. See Hatfield v. Max Rouse & Sons Northwest, 100 Idaho 840, 606 P.2d 944 (1980); Wade v. Ford Motor Credit Co., 455 F.Supp. 147 (E.D.Mo.1978); Waugh v. Gaudio Bros., Inc., 422 F.Supp. 392 (E.D.Pa.1976); Beidler v. W.R. Grace, Inc., 461 F.Supp. 1013 (E.D.Pa.1978), aff’d 609 F.2d 500 (3rd Cir.1979); Rondelli v. Pima Co., 120 Ariz. 483, 586 P.2d 1295 (App.1978); Roshto v. Bajon, 335 So.2d 486 (La.App.1976); Jones v. Harris, 35 Md.App. 556, 371 A.2d 1104 (1977), aff’d 281 Md. 560, 380 A.2d 611.

Since we conclude that appellant’s claim for emotional distress did not constitute a separate tort of outrage under Hatfield v. Rouse, supra, any such claim, to the extent that it constituted a neurosis or other psychological condition traceable in part to an industrial accident and injury is compensable under the workmen’s compensation scheme. See Skelly v. Sunshine Mine Co., 62 Idaho 192, 109 P.2d 622 (1941); Provo v. Bunker Hill Co., 393 F.Supp. 778 (D.Idaho 1979). Idaho workmen’s compensation laws provide the exclusive remedy of an employee against his employer for injuries arising out of and in the course of employment. I.C. §§ 72-201, -209, and -211. Provo v. Bunker Hill Co., 393 F.Supp. 778 (D.Idaho 1979); Tucker v. Union Oil Co. of Calif., 100 Idaho 590, 603 P.2d 156 (1979); Adam v. Titan Equipment Supply Corp., 93 Idaho 644, 470 P.2d 409 (1970); Nichols v. Godfrey, 90 Idaho 345, 411 P.2d 763 (1966).²

Thus we hold that in the present case the plaintiff has not alleged facts sufficient to withstand a motion for summary judgment and thus affirm the trial court’s grant of summary judgment to the defendants.³

SHEPARD, J„ and SCOGGIN, J. Pro Tern., concur.

1 . In Summers v. Western Idaho Potato Processing Co., 94 Idaho 1, 479 P.2d 292 (1970), this Court held that there is no “common law right of recovery for purely emotional trauma, negligently caused.” In Hatfield v. Rouse, supra, this Court recognized a developing tort law action of intentional infliction of emotional distress, but held as a matter of law that the facts in that case did not come within the developing tort of “outrage” referred to in section 46 of the Restatement (Second) of Torts.

2 . Injuries not covered by the Workmen’s Compensation Act are set out in I.C. § 72-208. The exemptions from common law liability given to an employer by I.C. § 72-209 “shall not apply in any case where the injury or death is proximately caused by the wilful or unprovoked physical aggression of the employer, its officers, agents, servants or employees, the loss of such exemption applying only to the aggressor and shall not be imputable to the employer unless provoked or authorized by the employer, or the employer was a party thereto.” I.C. § 72-209(3).

3 . The dissent argues that disposition of this case in this manner deprives plaintiff of due process because this issue was not previously raised by the parties. We cannot confirm this argument because there is no verbatim transcript of the summary judgment hearing in the record. However, the respondent does argue in its brief on appeal that: “The district court properly held that under Idaho law the circumstances of the case at bar fall short of establishing a basis for an employee to recover at common law for damages allegedly resulting from an on-the-job accident.”

It thus appears that, at least in respondent’s view, this was an issue raised on appeal, and that the trial court’s judgment properly disposed of the issue.