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Gamble v. Dollar General Corp.8/1/2002
e counseling or professional psychological help. No expert testimony supporting mental anguish was offered. As for the surprise headache testimony, it was error for the judge to allow this testimony at such a late date as she had not mentioned it during her deposition. No proof was offered to connect the recent headaches to the incident at bar.
. It is true that " f there is outrageous conduct, no injury is required for recovery for intentional infliction of emotional distress or mental anguish," Adams v. U.S. Homecrafters, Inc., 744 So. 2d 736, 742 (Miss. 1999) (quoting Smith v. Malouf, 722 So. 2d 490, 497-98 (Miss. 1998)). This, however, does not mean that any plaintiff who gets on the stand and says I had trouble sleeping, and by the way, I now have headaches too, is entitled to damages for mental anguish. The standard has not dropped so low that the scant proof offered by Gamble warrants the damages awarded by this jury. This is particularly true when one considers the fact the jury was improperly allowed to hear substantial amount of prejudicial information which the trial court should never have allowed in the first place.
. This Court has repeatedly held that minor, subjective claims of insomnia and serious anxiety cannot establish an emotional distress claim. Adams, 744 So. 2d at 743-44. In Strickland v. Rossini, 589 So. 2d 1268, 1275-76 (Miss. 1991), the Court again held that where the plaintiff was very depressed, upset and unable to sleep that such evidence was inadequate to sustain a proper claim for damages for emotional distress. Finally, in Morrison v. Means, 680 So. 2d 803, 806 (Miss. 1996), once again the Court held that an award for damages for mental anguish should be reversed where the plaintiff's claim was based on loss of sleep. In Morrison as well as the case at bar there was a lack of medical testimony to support claims for mental anguish.
. Thus, it is clear that in order to properly establish mental anguish requires proof of deep emotional and psychological trauma. Summers ex rel. Dawson v. St. Andrew's Episcopal Sch., Inc., 759 So. 2d 203 (Miss. 2000). This Court has clearly reasoned that our law requires only in those cases where a plaintiff has suffered significant emotional harm would damages be warranted. This is true because mental anguish is a nebulous concept requiring substantial proof for recovery. Morrison v. Means, 680 So. 2d at 805-06 Gamble failed to prove mental anguish. I would reverse and remand for a new trial on the sole issue of the wrongful improper touching occurring in the parking lot.
. Second, the jury's verdict of compensatory damages against both Thornton and Dollar General, yet only assessing punitive damages against Dollar General is both astounding and contradictory. It defies reason, logic, and clearly evinces bias and prejudice on the part of the jury. In my view, several errors contributed to the excessive and improper verdict. First, the trial court erred in allowing the jury to consider negligent supervision by Dollar General. The court erred again in giving a criminal assault instruction and allowing counsel to repeatedly argue wrongful detention and defamation, when summary judgment had been sought pre-trial and denied. Finally, the jury should never have been allowed to consider punitive damages under the facts of this case.
. First, let us examine the majority's view that Dollar General failed to provide additional training to its employees, thus reasons the majority, negligent supervision applies. This phase has been renamed by the majority as, "no training whatsoever." Contrary to the majority view, Dollar General had a very clear, concise, written policy included in its employee (SOP)
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