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ROSEANN DAWSON v. ZAYRE DEPARTMENT STORES (10/18/85)

filed: October 18, 1985.

ROSEANN DAWSON, APPELLANT,
v.
ZAYRE DEPARTMENT STORES



Appeal from the Order of June 12, 1984 by the Civil Court of Common Pleas, Allegheny County, Civil No. 2559-84.

COUNSEL

Joseph J. Chester, Pittsburgh, for appellant.

Edward D. Klym, Pittsburgh, for appellee.

Rowley, Olszewski and Del Sole, JJ. Olszewski, J., dissents.

Author: Del Sole

[ 346 Pa. Super. Page 359]

Roseann Dawson appeals from an order granting appellee's preliminary objections in the nature of a demurrer and dismissing the complaint.

In April 1983, Appellant entered Zayre's Department Store intending to pick up a lay-away item. She became involved in a dispute with a store employee over the layaway ticket. During the argument, the employee called the Appellant a "nigger". Appellant filed a complaint in trespass alleging that she suffered severe emotional distress as a result of this incident: wounded feelings; humiliation; physical harm; and that she cried and was unable to gain her composure for one-half hour. On June 12, 1984 the trial court granted Appellee's preliminary objections in the nature of a demurrer. We affirm.

Appellant argues that the lower court erred in holding that her complaint failed to establish a cause of action. The lower court held that Appellee's actions did not rise to the level of extreme and outrageous conduct required to sound in tort.

Liability for intentional infliction of emotional distress is limited to those cases in which the conduct complained of is extreme and outrageous. Jones v. Nissenbaum, Rudolph and Seidner, 244 Pa. Super. 377, 368 A.2d 770 (1976). Further, it is for the court to determine, in the first instance, whether the defendant's conduct can reasonably be regarded as so extreme and outrageous so as to permit recovery. Restatement (Second) of Torts, § 46, comment (h) (1965).

Conduct which does not meet the requisites for liability is described in comment (d) of the Restatement (Second) of Torts § 46:

The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivilaties. The rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs must necessarily be expected and required to be

[ 346 Pa. Super. Page 360]

    hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. There is no occasion for the law to intervene in every case where some one's feelings are hurt. There must still be freedom to express an unflattering opinion, and some safety valve must be left through which irascible tempers may blow off relatively harmless steam.

We would find that the conduct outlined in Appellant's Complaint does not possess the degree of severity that is necessary to establish a cause of action. Although we by no means condone the derogatory and offensive language used by Appellee's employee, and while we understand Appellant's rightful resentment, we believe that this conduct merely constitutes insulting namecalling from which no recovery may be had. The Restatement cites the following example:

4. A makes a telephone call but is unable to get his number. In the course of an altercation with the telephone operator, A calls her a God damned woman, a God damned liar, and say that if he were there he would break her God damned neck. B suffers severe emotional distress, broods over the incident, is unable to sleep, and is made ill. A's conduct, although insulting, is not so outrageous or extreme as to make A liable to B.

Restatement (Second) of Torts, supra, § 46, comment (d) illustration 4. Similarly in this case, the Complaint alleges that a dispute arose with regard to a layaway ticket. In the course of the dispute Appellee's employee called Appellant a "nigger". Although this word is insulting and abusive, taken in this context it does not amount to the type of extreme and outrageous conduct which gives rise to a cause of action. Clearly the law cannot serve to redress all indignities. An Illinois court has held under similar circumstances that the plaintiff failed to state a cause of action for intentional infliction of ...


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