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Perkins v. Lavin6/29/1994
fficient evidence to the trial court to establish that there was, at least, a genuine issue whether defendant intentionally invaded her right to be free from offensive contact. Because of plaintiffs recognition that defendant acted to save her life, a jury may find that she is entitled to only nominal damages. Regardless of that, however, the trial court erred in granting defendant's motion for summary judgment dismissing plaintiffs assault and battery claim. That part of plaintiffs second assignment of error related to her assault and battery claim is sustained.
In moving for summary judgment on plaintiffs intentional infliction of emotional distress claim, defendant argued that it had not engaged in "extreme and outrageous conduct." A plaintiff may state a cause of action against a defendant who intentionally or recklessly engages in extreme and outrageous conduct causing the plaintiff to suffer serious emotional distress. Yeager v. Local Union 20 (1983), 6 Ohio St.3d 369, 6 OBR 421, 453 N.E.2d 666. Not all conduct that disturbs a plaintiffs peace of mind, however, rises to the level of "extreme and outrageous." The Ohio Supreme Court has stated that "` t would be absurd for the law to seek to secure universal peace of mind, and many interferences with it must of necessity be left to other agencies of social control.'" Id. at 374, 6 OBR at 425, 453 N.E.2d at 671, quoting Prosser, Law of Torts (4 Ed.1971) 51, Section 12. Conduct rises to the level of extreme and outrageous only if it goes beyond all bounds of decency and can be regarded as atrocious and intolerable in a civilized society. Generally, it must be conduct that would lead an average member of the community to exclaim, "Outrageous!" Id. at 374-375, 6 OBR at 425-427, 453 N.E.2d at 671-672, citing Restatement of the Law 2d, Torts (1965) 71, Section 46(1).
Defendant's conduct that plaintiff claimed was an intentional infliction of emotional distress on her was the provision of a blood transfusion that saved her life and provided her an opportunity to raise the baby girl to which she had given birth just days before. Rather than an average member of the community exclaiming that defendant acted outrageously by providing that transfusion, such a person would view it as outrageous if defendant had not provided it. Accordingly, there was no genuine issue of material fact and defendant was entitled to judgment as a matter of law dismissing plaintiffs claim for intentional infliction of emotional distress. That part of plaintiff s second assignment of error related to her intentional infliction of emotional distress claim is overruled.
Plaintiff's first assignment of error and that part of her second assignment of error related to her assault and battery claim are sustained. That part of plaintiff s second assignment of error related to her intentional infliction of emotional distress claim is overruled. This matter is remanded to the trial court for further proceedings consistent with this opinion.
Judgment accordingly.
COOK, P.J., and REECE, J., concur. |