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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Lybrand v Trask (09/28/2001) sp-5479

Lybrand v Trask (09/28/2001) sp-5479

     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.



             THE SUPREME COURT OF THE STATE OF ALASKA
                                 


GEORGE and ELIZABETH LYBRAND, )
                              )    Supreme Court No. S-9510
             Appellants,      )
                              )    Superior Court No.
     v.                       )    1KE-98-169 CI
                              )
ROBERT and LETA TRASK,        )    O P I N I O N
                              )
             Appellees.       )    [No. 5479 - September 28, 2001]
______________________________)



          Appeal from the Superior Court of the State of
Alaska, First Judicial District, Ketchikan,
                   Michael A. Thompson, Judge.


          Appearances:  Ronald P. Hemby, Hemby & Keller,
P.C., Ketchikan, for Appellants.  Robert C. Erwin and Roberta C.
Erwin, Erwin & Erwin, LLC, Anchorage, for Appellees. 


          Before: Fabe, Chief Justice, Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.  


          EASTAUGH, Justice.


I.   INTRODUCTION
          Elizabeth Lybrand sued her neighbors, Robert and Leta
Trask, for intentional infliction of emotional distress (IIED)
after Leta Trask painted large words and symbols on the Trasks'
roof.  The trial court dismissed Lybrand's IIED claim at trial at
the conclusion of her case in chief.  Because the trial court did
not abuse its discretion in concluding that Leta Trask's conduct
was not sufficiently "outrageous"to support an IIED claim, we
affirm.
II.  FACTS AND PROCEEDINGS
          George and Elizabeth Lybrand live in Ketchikan in a
hillside home adjacent to and uphill from residential rental
property owned by Robert and Leta Trask.  After fire damaged the
Lybrands' home and Elizabeth Lybrand suffered a stroke, the
Lybrands undertook construction projects to rebuild and improve
their home.  As a result, debris from the Lybrand property entered
the Trask property.  When the Trasks and Lybrands were unable to
amicably resolve their resulting disputes, Leta Trask painted the
following Biblical passages and citations in large print on her
roof: "DO UNTO OTHERS,""LUK 6:31 MAT 7:12 19:19,""LOVE THY
NEIGHBOR,""BY THEIR (DEEDS) YE SHALL KNOW THEM,""MAT 7:20."
These were followed by a large painted crucifix and the message,
"YOURE WELCOME GEORGE L." 
          In April 1998 George Lybrand sought a superior court
injunction ordering the Trasks to remove the lettering.  In an
amended complaint, Elizabeth Lybrand sought IIED damages, claiming
that the lettering had been painted for vexatious and retaliatory
purposes, with the intent to inflict emotional distress, and had
caused Elizabeth Lybrand to suffer emotional distress and trauma
requiring professional therapy.  The Trasks answered and
counterclaimed for compensatory and punitive damages; they alleged
various tortious and unneighborly activities, including trespass,
nuisance, and misrepresentation.
          Superior Court Judge Michael A. Thompson heard the
parties' claims at a bench trial.  At the conclusion of Elizabeth
Lybrand's case in chief, the Trasks' attorney moved for judgment on
the IIED claim.  The superior court found Elizabeth Lybrand had
suffered emotional distress, but that, although Leta Trask's
conduct was intentional, it was not outrageous.  The superior court
therefore granted the Trasks' motion for judgment on the IIED
claim.  Trial then proceeded on the Trasks' counterclaims.  At the
close of trial, the superior court found that a trespass had
occurred when debris entered the Trasks' property; it awarded the
Trasks nominal damages of one dollar.  The court declined to award
any other relief, finding that none of the remaining claims or
counterclaims had been sufficiently established.  The parties
agreed to entry of an injunctive order prohibiting the painting of
words or messages on the Trasks' roof.
          The Lybrands appeal the dismissal of Elizabeth Lybrand's
claim for IIED damages.
III. DISCUSSION
     A.   Standard of Review
          Whether Elizabeth Lybrand presented sufficient evidence
to support a prima facie case for intentional infliction of
emotional distress is a threshold question which we review for
abuse of discretion. [Fn. 1]
     B.   The Trial Court Did Not Abuse Its Discretion in
Concluding that Leta Trask's Conduct Was Not Outrageous.
          To establish a prima facie case of intentional infliction
of emotional distress, the plaintiff must prove that the defendant
"'through extreme or outrageous conduct . . . intentionally or
recklessly cause[d] severe emotional distress or bodily harm to
another.'"[Fn. 2]  The trial court must "'make a threshold
determination whether the severity of the emotional distress and
the conduct of the offending party warrant a claim of intentional
infliction of emotional distress.'"[Fn. 3]  Liability for IIED
should only be found when "'the conduct has been so outrageous in
character, and so extreme in degree, as to go beyond all possible
bounds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community.'"[Fn. 4]
          The superior court, sitting as the trier of fact in this
bench-tried case, found that the Lybrands had failed to prove that
Leta Trask's conduct was extreme and outrageous.  It therefore
dismissed the IIED claim.  The Lybrands argue that the superior
court abused its discretion in making this finding.  They point to
the testimony of neighbors and the mayor of Ketchikan who "decried"
the appearance of the Trask roof, and to George Lybrand's testimony
that the appearance of the roof caused the Ketchikan-Gateway
Borough Assembly, sitting as the Board of Equalization, to reduce
the assessed value of the Lybrand property by $75,000.  The
Lybrands argue that "[t]o hold that conduct which alienates
neighbors, imparts acrimonious messages to immediate neighbors, and
seriously diminishes the value of nearby property, is not
outrageous is contrary to common sense and precedent."
          The evidence the Lybrands cite does not establish that
Leta Trask's conduct was sufficiently outrageous to satisfy the
requirements of an IIED claim in Alaska or that the trial court
abused its of discretion by dismissing the IIED claim.  The trial
court considered the conduct in light of the prerequisites for
making an IIED claim in Alaska and compared it to the conduct
discussed in reported Alaska IIED cases.  The trial court concluded
that Leta Trask's conduct did not "measure[] up"to the
outrageousness threshold required for an IIED claim.  We agree.
          In only two cases, Odom v. Fairbanks Memorial Hospital
and King v. Brooks, have we held that a trial court abused its
discretion in determining that conduct was not sufficiently
outrageous to justify an IIED claim. [Fn. 5]  In each of those
cases, the appellate record contained far more substantial evidence
of outrageousness than does the record in this case.  In King, we
reversed the superior court's grant of summary judgment dismissing
the plaintiff's IIED claim, where the rich evidentiary record
showed that the defendant-supervisor had pursued a "two year
private vendetta"against the plaintiff-employee. [Fn. 6] 
Similarly, in Odom, we concluded that the plaintiff-
anesthesiologist at Fairbanks Memorial Hospital had alleged facts
sufficient to support an IIED claim when he alleged that his
employer had retaliated against him -- after he announced plans to
open a clinic that would compete with the hospital -- by placing
him under investigation in bad faith, denying him staff privileges,
and publishing in a national medical professional reporting system
that his privileges had been revoked for
"Incompetence/Malpractice/Negligence."[Fn. 7]  
          Unlike the present case, the disputed conduct in those
cases involved multiple, concerted efforts to seriously damage the
well-being and reputation of the plaintiff. [Fn. 8]  The trial
court properly concluded that the disputed conduct in this case was
not sufficiently egregious to warrant the label: "Outrageous!".
[Fn. 9]  We therefore conclude that the trial court did not abuse
its discretion in dismissing Elizabeth Lybrand's IIED claim. 
     C.   The Alleged Violation of the Ketchikan Gateway Borough
Sign Ordinance Has No Independent Bearing on Whether Leta Trask's
Conduct Was Outrageous. 

          The Lybrands also argue that the trial court erred by
failing to determine whether Leta Trask violated the Ketchikan
Gateway Borough sign ordinance. [Fn. 10]  They argue that this
determination is crucial to deciding whether Leta Trask's conduct
was outrageous.  The Lybrands cite no authority to support their
argument, and none is apparent in our IIED case law.  Our cases do
not characterize as "outrageous"conduct that violates regulatory
law such as a sign ordinance, if it is not otherwise the sort of
atrocious and intolerable conduct our IIED cases discuss.  Any
violation of the sign ordinance by Leta Trask did not make her
conduct outrageous.
IV.  CONCLUSION
          We AFFIRM the trial court's decision dismissing Elizabeth
Lybrand's IIED claim.


                            FOOTNOTES


Footnote 1:

     See Odom v. Fairbanks Mem'l Hosp., 999 P.2d 123, 133 (Alaska
2000); Hawks v. State, Dep't of Pub. Safety, 908 P.2d 1013,  1015
(Alaska 1995); see also Lincoln v. Interior Reg'l Hous. Auth., __
P.3d __, Op. No. 5467 at 15-17 (Alaska, September 14, 2001) 
(applying threshold determination requirement to summary judgment
stage of IIED claim; reversing trial court's grant of summary
judgment to IIED defendant and remanding for threshold
determination of whether defendant's conduct was sufficiently
outrageous and plaintiff's emotional suffering was sufficiently
severe to support IIED claim).


Footnote 2:

     Odom, 999 P.2d at 133 (quoting Richardson v. Fairbanks N. Star
Borough, 705 P.2d 454, 456 (Alaska 1985)). 


Footnote 3:

     Id. (quoting Richardson, 705 P.2d at 456). 


Footnote 4:

     Id. (citations omitted).  This court adopted its rule from the
Restatement (Second) of Torts sec. 46 (1965).  See Richardson, 705
P.2d at 456.  Comment d of that section states:

          The cases thus far decided have found
liability only where the defendant's conduct has been extreme and
outrageous.  It has not been enough that the defendant has acted
with an intent which is tortious or even criminal, or that he has
intended to inflict emotional distress, or even that his conduct
has been characterized by "malice,"or a degree of aggravation
which would entitle the plaintiff to punitive damages for another
tort.  Liability has been found only where the conduct has been so
outrageous in character, and so extreme in degree, as to go beyond
all possible bounds of decency, and to be regarded as atrocious,
and utterly intolerable in a civilized community.  Generally, the
case is one in which the recitation of the facts to an average
member of the community would arouse his resentment against the
actor, and lead him to exclaim, "Outrageous!"


Footnote 5:

     See Odom, 999 P.2d at 133; King v. Brooks, 788 P.2d 707, 711
(Alaska 1990). 


Footnote 6:

     See King, 788 P.2d at 711.  The record revealed that King's
supervisor had: (1) created a special performance evaluation for
King; (2) assigned King extensive overtime and additional
responsibilities; (3) yelled at King and called him a liar; (4)
insisted that King undergo a psychological examination under
intimidating circumstances; (5) delayed King's return to work after
he passed the psychological evaluation; (6) kept King on light duty
status contrary to departmental policies; (7) reduced King's rank
and status and placed him on probationary review for six months;
(8) publicly and falsely accused King of misrepresenting his rank,
causing King embarrassment and humiliation; (9) altered and amended
King's past work evaluations; (10) harassed King and singled him
out for negative comments; (11) wrongly accused King of making a
false arrest and tape recorded an interview concerning the
incident; (12) concealed from King a potentially dangerous
situation on campus; and (13) accused King a second time of false
arrest and then sought a letter from the district attorney stating
that King's involvement had been illegal.  See id. at 708-09. 


Footnote 7:

     See Odom, 999 P.2d at 126-27, 133.


Footnote 8:

     We have affirmed trial court determinations that disputed
conduct satisfied the threshold of outrageousness where there was
evidence of similarly sustained attacks.  See, e.g., Cameron v.
Beard, 864 P.2d 538, 540-41, 548-49 (Alaska 1994) (affirming
threshold finding of outrageous conduct where supervisor-defendants
had retaliated against employee-plaintiff for making allegations of
workplace corruption by undertaking "purposeful campaign to force
him off the job"; where campaign included bad faith investigations
and punishment of plaintiff); Oaksmith v. Brusich, 774 P.2d 191,
193-94, 200 (Alaska 1989) (affirming threshold finding of
outrageousness where record contained evidence of conduct
including: (1) telling plaintiff's customers that plaintiff ran his
business badly; (2) putting "for sale"signs on business property
to make customers believe that plaintiff was going out of business;
(3) throwing temper tantrum, screaming and pulling out hair in
front of customers; (4) using profanity and insulting language
toward plaintiff in front of customers; and (5) using motor vehicle
to charge and crash into plaintiff's car).  

          Of course, an isolated incident or series of
uncoordinated events may also be sufficiently egregious to satisfy
the outrageousness threshold.  Compare Teamsters Local 959 v.
Wells, 749 P.2d 349, 358 (Alaska 1988) (holding that threatening
union member's life if he did not convince his supervisor-spouse to
quit during strike was outrageous conduct as matter of law) with
Hawks, 908 P.2d at 1015 (affirming grant of summary judgment
dismissing claim that state's five-year delay in identifying
remains of murder victim amounted to IIED where "State's conduct of
the investigation exhibited, at most, a lack of diligence and
organization that perhaps could be characterized as negligent"),
and Chizmar v. Mackie, 896 P.2d 196, 209 (Alaska 1995) (affirming
trial court's directed verdict based on conclusion that physician's
alleged misdiagnosis of patient as HIV positive was not outrageous
conduct even when doctor failed to warn patient that screening test
upon which diagnosis was based was unconfirmed).


Footnote 9:

     See Restatement (Second) of Torts, supra note 5, sec. 46 cmt.
d.


Footnote 10:

     Ketchikan Gateway Borough Code sec. 60.10.090(B) (governing
signs
permitted in residential zones).