Kirkland v. Earth Fare, Inc.

Dwain Lee Kirkland, acting pro se, filed the underlying action against Earth Fare, Inc., and its employee, Gere Warrick (called “Gere Doe” in the complaint), based on an incident that occurred in an Earth Fare store. Kirkland now brings this pro se appeal of the trial court’s grant of summary judgment in favor of appellees. Finding no error, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.* 1 On appeal from a grant of summary judgment, we apply a de *820novo standard of review, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.2

Viewed in this light, the record reveals that on July 7, 2003, Kirkland entered an Earth Fare grocery store in order to return an item. According to Kirkland, the manager of the store, Warrick, called Kirkland aside to an area immediately adjacent to the checkout lane and within earshot of the other customers, and asked him to leave the store. When Kirkland asked why, Warrick accused him of sexually harassing female employees of Earth Fare and of masturbating in the men’s restroom. Kirkland denied these allegations. After their encounter, Kirkland was not ejected from the Earth Fare store nor was he asked not to return to the store; instead, according to Kirkland’s verified complaint, “he was unmolested as he finished the refund and then his shopping and exited Earth Fare.” Kirkland admitted that there was no physical contact between himself and any employee of Earth Fare.

Kirkland filed the underlying lawsuit against Earth Fare and Warrick on June 27, 2005, more than a year after the incident occurred, alleging damage to his reputation, “extreme emotional duress and irreversible mental damage,” that the actions of appellees were “contributory to a near fatal event... that occurred in late 2003,” “loss of companionship,” “extreme unhappiness,” and near loss of life, plus punitive damages and costs. Appellees moved to dismiss the complaint. After a hearing on November 29, 2005, the trial court converted appellees’ motion to dismiss to a motion for summary judgment and subsequently granted summary judgment in favor of appellees. Kirkland appeals, asserting that the trial court erred, first, in failing to grant summary judgment in his favor and, second, in granting summary judgment to appellees as to Kirkland’s claims for negligent infliction of emotional distress, intentional infliction of emotional distress, and tortious misconduct. Kirkland has not challenged the trial court’s ruling that his claims for loss of reputation were time-barred.

1. In his first four enumerations of error, Kirkland asserts that the trial court erred in failing to grant summary judgment in his favor on his claims of negligent infliction of emotional distress, “intentional negligent infliction of emotional distress,” tortious misconduct, and on all his claims set forth in paragraphs 1 through 29 of his complaint. The record reveals, however, that Kirkland did not move for summary judgment on any of these claims before the trial court, nor did the trial *821court enter a ruling denying summary judgment on any of these claims. Thus, these enumerations of error present nothing for us to review.®

Kirkland correctly points out that the trial court had the power to enter a summary judgment ruling sua sponte. Nonetheless, “[wjhere a trial court does not rule on an issue, it remains outside the jurisdiction of this Court and we cannot consider it,”3 4 especially if the issue is one of summary judgment.5 Further, in light of the rulings in the following Divisions of this opinion, any such claim of error is also moot.

2. Kirkland argues generally that, because appellees did not file any affidavits or other sworn testimony, summary judgment cannot be granted in their favor. This argument is without merit. As this Court has stated, “a defendant may pierce the plaintiff’s pleadings and establish entitlement to summary judgment simply by showing that no jury issue exists as to an essential element of the plaintiff’s claim.”6 Thus, appellees need only “show an absence of evidence to support an essential element of [Kirkland]’s claim [in order] to prevail on summary judgment.”7

3. In support of his claim that the trial court erred in granting summary judgment against him as to his claim for negligent infliction of emotional distress, Kirkland cites Ryckeley v. Callaway.8 Ryckeley, however, involved a claim of intentional infliction of emotional distress,9 and thus Kirkland’s reliance on this case is misplaced.

In order to prevail on this claim, Kirkland must meet the requirements of the Georgia impact rule, which requires that he show that (1) he suffered a physical impact; (2) the physical impact caused him physical injury; and (3) the physical injury caused his mental suffering or emotional distress.10 It is undisputed that no physical *822impact occurred between Kirkland and any employee of Earth Fare; and there is no allegation or evidence of any physical injury to Kirkland.

Nor does Kirkland’s claim come under the “pecuniary loss” exception to the impact rule.11 Kirkland failed to produce evidence showing that he suffered any pecuniary loss stemming from the July 7, 2003, incident at Earth Fare. Although Kirkland submitted an affidavit in which he averred that “all 31 counts of the original complaint... are true and correct to the best of my knowledge at this time,” and his complaint alleged that

Dwain Lee Kirkland believes he has suffered damages for Count 20 [relating to “extreme emotional duress”] in the amount of $20,000 per year for the past two years and $20,000 per year for the next seven years which he may be expected to survive totaling $180,000, or whatever amount the jury may award,

these conclusory allegations do not provide evidence of pecuniary damage that would withstand summary judgment.12 We conclude that the trial court did not err in granting summary judgment to appellees on Kirkland’s claim for negligent infliction of emotional distress.

4. Kirkland argues that the trial court erred in granting summary judgment as to his claim for intentional infliction of emotional distress. In order to prevail on such a claim, Kirkland must allege and prove that: (1) appellees’ conduct was intentional or reckless; (2) appellees’ conduct was extreme and outrageous; (3) appellees’ conduct caused Kirkland’s emotional distress; and (4) Kirkland’s emotional harm was severe.13 “[A] 11 four of [these elements] must be present in order for an action to lie.”14

In order to meet his burden as to the third required element, Kirkland must show that appellees’ conduct was “so outrageous in *823character, 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.”15 “Whether the alleged conduct is sufficiently extreme or outrageous is a question of law for the trial court.”16

Here, the undisputed facts show that Warrick, Earth Fare’s store manager, confronted Kirkland concerning alleged misconduct on store property. Kirkland was allowed to explain his side of the story; and after this encounter, “he was unmolested as he finished the refund and then his shopping and exited Earth Fare.” He was not expelled from the store at that time nor was he banned from the store for the future. Warrick’s conduct was not, as a matter of law, sufficiently extreme or outrageous to support a claim for the intentional infliction of emotional distress. As this Court has recently reiterated, “outrageous conduct” sufficient to justify a claim of intentional infliction of emotional distress “does not include mere insults, indignities, threats, annoyances, petty oppressions, or other vicissitudes of daily living. Plaintiffs are expected to be hardened to a certain amount of rough language and to occasional acts that are definitely inconsiderate and unkind.”17 Even if the store manager’s manner in confronting Kirkland was annoying and insensitive, “there is no occasion for the law to intervene in every case where someone’s feelings are hurt.”18 Accordingly, the trial court did not err in granting summary judgment to appellees as to Kirkland’s claim for intentional infliction of emotional distress.

5. Kirkland contends that the trial court erred in granting summary judgment to appellees as to his claims for tortious misconduct. “A claim for tortious misconduct arises when a customer-invitee on the premises of the invitor for the purpose of transacting business is subjected to abusive, opprobrious, insulting, or slanderous language by an agent of the invitor.”19

It is not completely clear that Kirkland asserted this theory in the court below. It is not set forth in his complaint, nor does the order of the trial court granting summary judgment refer to this claim. *824Nonetheless, because the trial court granted summary judgment as to all of Kirkland’s claims, we will address this claim of error.

Here, the store manager spoke to Kirkland about his supposed conduct in the store. There is no evidence or allegation that anyone else was in the store. Even if so, there is no evidence that anyone else in the store heard or was aware of the conversation, although Kirkland did allege that it took place “within earshot” of the checkout lanes. Further, as noted in Division 4 above, Kirkland continued with his business “unmolested” in the store after this confrontation. Although the store owner “has a duty to protect its customers from injury caused by the tortious misconduct of its employees,”20 the incident of which Kirkland complains “does not rise to the level of unprovoked and unjustifiable opprobrious and insulting and abusive words by an employee tending to humiliate, mortify, and wound the feelings of the customer.”21 The trial court did not err in granting summary judgment to appellees.

Judgment affirmed.