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Gunderson v. Harrington9/6/2001
d spent two hours having his braces put on. Gunderson stated that the force of the blow caused her head to go forward "like whiplash," straining her neck. Gunderson claims that the boy witnessed the blow and that she and the boy looked at one another for a moment after Harrington hit her. In deposition she was asked whether she thought Harrington meant to hurt her and she answered, "I think with the force of the hit, I think it was intentional." When asked, "Is it possible that he just got carried away out of frustration without intending to hurt you?" Gunderson answered, "I don't know."
Gunderson testified that she did not speak with Harrington and finished her work quickly that day so she could leave the office. Later in the evening she discussed the incident with her husband and friends. They urged her to go to the police and quit her job . The next day Gunderson went to the Plymouth police station and filed a report, and on the advice of the police she then went to an urgent care center. Gunderson testified that a physician examined her head and noted swelling. The record does not contain a medical report.
Gunderson testified that she suffered from head and neck pain following the July 10 incident and she had feelings of insecurity, embarrassment and humiliation. She also stated that bruising and swelling on the back of her head made it difficult for her to comb her hair or rest her head on a pillow for one to two weeks.
The workers' compensation insurer for Harrington Orthodontics, Berkley Administrators, accepted Gunderson's claim for a July 10, 1998 head injury and agreed to pay reasonable medical expenses. In an application for reemployment insurance benefits, Gunderson characterized the first four incidents as "little swats on the head."
Harrington was charged with fifth-degree assault for the July 10 incident. According to Harrington, he paid $100 in costs, completed anger management classes, and committed no similar offenses for one year, in exchange for the city dismissing the charge.
Gunderson brought this civil action against Harrington alleging assault, battery and intentional infliction of emotional distress. The complaint was later amended to include claims of negligent failure to refrain from making offensive contact with Gunderson and negligent failure to take reasonable steps to ensure that the workplace at Harrington Orthodontics was free from violence.
Harrington submitted an affidavit stating that Gunderson "was one of my most valued and trusted employees, and I considered her a friend. I would never do anything to intentionally injure anyone, certainly not a valued employee whom I considered to be a friend." At deposition, Harrington testified that he does not recall the first four alleged incidents and that, "I do believe that it is possible that I could have done that, but I don't have a specific recollection of any particular incidents." Harrington denied hitting Gunderson on July 10, 1998 and stated that he never intended to injure her. Harrington identified the patient whom Gunderson alleged witnessed the July 10 assault as 14-year-old Ryan Wolcott. In a statement not under oath, apparently prepared by the attorney representing Harrington on the fifth-degree assault charge, Wolcott asserted "I never saw Dr. Harrington hit his receptionist or any other employee." Gunderson acknowledged it was Walcott who witnessed the assault.
The district court dismissed Gunderson's suit on summary judgment. The court held that because Dr. Harrington is the alter ego of Harrington Orthodontics, Harrington is Gunderson's employer, and because the alleged injuries arose in the course of employment, Gunderson must seek
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