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Slaydon v. Hansford8/27/2002
"that as a legal duty the proprietor of a place of amusement is required to exercise civil conduct toward those he permits to enter and remain on his premises. For a breach of such legal duty an action in tort will lie." Boswell v. Barnum & Bailey, 185 S.W. 692, 693 (Tenn. 1916), cited in Saenger, 178 So. at 87. Further elaboration on the cause of action occurred later.
. The present tort requires that malicious, intentional or outrageous conduct lead to mental injury . Adams v. U.S. Homecrafters, Inc., 744 So. 2d 736, 742 (Miss. 1999). Whether physical injury is required if the emotional distress arises only from negligence has been reviewed in a recent Supreme Court decision. American Bankers' Ins. Co. of Fla. v. Wells, 1999-CA-00523-SCT ( 42-43) (Miss. Dec. 6, 2001).
. This modern tort is a permutation of the protections against personal injury that formerly were covered solely by what is mentioned in the hoary statute of limitation as "assault" and "menace." The outrageous conduct of an emotional distress claim is assaultive, in that it is an "attempt or threat to inflict injury upon the person of another, when coupled with a present ability so to do. . . ." Black's Law Dictionary 114 (6th ed. 1990). The attempt is not to commit a physical injury but to cause an emotional one. The outrageous conduct alleged against defendant Hansford would in fact be an assault. Whether the defendant fed the plaintiff as alleged in the complaint or instead had thrown the same substances at him, that would be an assault if it threatened physical injury. What Saenger added to the long-standing right to sue, is that even if only mental and emotional injuries were intended and resulted, a claim would exist.
. The word "menace" was used in the intentional tort statute of limitations with no broader meaning than "threat." Dennis, 234 So. 2d at 626. Evidence of the understanding of "menace" contemporary with the adoption of the relevant portions of this statute in 1871 is found in an 1870 opinion that the law provides a "guard against menaced wrongs and injuries to the person." Evans v. State, 44 Miss. 762, 777 (1871). If, instead of relying on the law, persons against whom threats or menaces are made "take the life of their enemy," they are guilty of a crime. Id. at 777-78. Therefore, "menace" in this old statute meant a "threat" of harm.
. The infliction of emotional distress is, to use the words of Nichols v. Tri-State Brick, a tort that "address damage to persons or their reputations," and "may be fairly categorized as one of the enumerated torts," namely assault or menace. Nichols, 608 So. 2d at 332-33. If the tort is alleged to have been committed intentionally, it is subject to the one-year statute. If committed negligently, the three-year statute applies. Air Comfort Systems, 760 So. 2d at 47. With respect for our federal judicial brothers, or perhaps they are our cousins, I believe they have erred in their protests about our analysis. Of course, the state Supreme Court in loco parentis has the final word on which is the obedient and which is the wayward interpretation of their precedents on a Mississippi statute.
McMILLIN, C.J., BRIDGES, LEE, MYERS AND CHANDLER, JJ., JOIN THIS SEPARATE WRITTEN OPINION.
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