2013 Unpublished Opinion No. 586
Appeal from the District Court of the First Judicial District, State of Idaho, Kootenai County. Hon. Benjamin R. Simpson, District Judge.
Summary judgment in favor of defendants on claim of negligent infliction of emotional distress, affirmed.
Curtis Jay Johnson, Coeur d'Alene, pro se appellant.
Respondents did not participate on appeal.
GUTIERREZ, Chief Judge
Curtis Jay Johnson appeals from the summary judgment in favor of Mike McPhee and JCAV, LLC on Johnson's claim of negligent infliction of emotional distress, granted by the district court on remand from this Court. For the reasons set forth below, we affirm.
I. FACTS AND PROCEDURE
The facts of this case are more fully recited in this Court's prior opinion, Johnson v. McPhee, 147 Idaho 455, 210 P.3d 563 (Ct. App. 2009). We limit our recitation to only those facts relevant to this appeal.
In December 2005, Johnson filed suit alleging JCAV, a real estate company, and McPhee, its agent, breached a contract to compensate him for his services in a subdivision development. Johnson further contended that JCAV was negligent in its supervision of McPhee concerning performance of the alleged contract and concerning McPhee's alleged abusive behavior. Additionally, Johnson alleged that McPhee intentionally and negligently inflicted emotional distress on him, for which JCAV should be held vicariously liable.
With regard to his claim for negligent infliction of emotional distress (NIED), Johnson alleged that from early 2003 to August 2003, McPhee verbally abused him, often in a sexually crude manner, including demands from McPhee that Johnson perform or participate in sexual acts with him. According to Johnson, McPhee also belittled and demeaned Johnson's capabilities as a real estate agent. Johnson asserted that the abuse abated for a time, but resumed in 2005. The abuse was largely verbal in nature, in the form of profane and derogatory language. Johnson alleged the verbal abuse caused him severe emotional distress and that he attempted to communicate this to McPhee on more than one occasion. Johnson produced evidence that he suffered from post-traumatic stress disorder, was at times rendered nearly immobile due to his emotional state, once fainted while discussing McPhee's alleged abuse with a business acquaintance, and generally suffered "strange chaotic bodily experiences."
McPhee and JCAV each moved for summary judgment as to all of Johnson's claims. The district court granted the motions as to each claim, including the claim for NIED on the basis that McPhee's conduct was not sufficiently extreme and outrageous. On direct appeal to this Court, we held that summary judgment was not appropriate on that basis because extreme and outrageous conduct is not an element of a claim for NIED. Id. at 465-66, 210 P.3d at 573-74. We next considered whether summary judgment was appropriate under the correct legal standard and held that the evidence was sufficient to permit an inference that Johnson could satisfy his burden of proof on all elements of a claim for NIED. We, therefore, vacated the judgment as to the NIED claim and remanded the case with instructions that the district court consider whether Johnson's evidence met the elements for a claim of NIED. Particularly, this Court emphasized that the relevant question would be whether the evidence Johnson presented was ...