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Johnson v. Dillard's

June 18, 2007


The opinion of the court was delivered by: J. Leon Holmes United States District Judge


Leslie Johnson brought this action against Dillard's, Inc., and three affiliated companies as a result of an incident that occurred at a Dillard's store in Fayetteville, Arkansas. According to Johnson, she took three pairs of black and white pants and two black shirts into a dressing room to try them on. She returned the items that she did not intend to purchase to the clothing racks and purchased one pair of pants. After purchasing the pants, she and two friends who were with her went to the parking lot to leave. As she was about to open the car door, she was approached by a white male with a Dillard's logo on his shirt. The man stated, "You need to come back with me." Johnson followed him back to the store. She went into a private room with him where she was asked to sit down. He told her that the surveillance tapes showed that she took five items into the dressing room and only came out with four of them. He also told her that they could not find one of the shirts that she had taken into the dressing room. He then checked her purse and shopping bags but did not find the missing shirt. Johnson then left. Johnson was kept in the room for thirty to forty-five minutes even though she had done nothing wrong.

Johnson went home, called her mother, told her mother what happened, and cried. That night, she took medication for her stomach and head so that she could sleep. She felt embarrassed, humiliated, and sick. She testified, "I felt it was an attack on my dignity and my character as a person." She still gets emotional about it.

Johnson's complaint alleged eight claims for relief: false imprisonment, assault and battery, negligence, defamation, outrage, invasion of privacy, an unnamed seventh cause of action, and a claim for racial discrimination in violation of 42 U.S.C. §§ 1981 and 1982. The Court previously dismissed Johnson's claims for false imprisonment, assault, battery, defamation, and invasion of privacy because those claims are barred by the statute of limitations. The defendants have now moved for partial summary judgment. They seek summary judgment on Johnson's claims arising under § 1981 and § 1982, her claim of outrage, her unnamed seventh cause of action, her claim that the defendants were alter egos of each other, and her claim for punitive damages.

In her response to the motion for summary judgment, Johnson states that she is abandoning the seventh cause of action. She states also that she provides no response to the motion for summary judgment on the §§ 1981 and 1982 claims, nor does she respond to the argument that the corporations are not alter egos of one another. She objected to the motion for summary judgment on tort of outrage and on the issue of whether punitive damages can be granted.

The defendants have established a prima facie case of entitlement to summary judgment on Johnson's claims arising under 42 U.S.C. § 1981 and § 1982, on their contention that the corporations are not alter egos of one another, and on the seventh cause of action. Because Johnson has not responded to the motion for summary judgment on those claims, summary judgment is hereby granted in favor of the defendants on those claims.

On the issue of tort of outrage, the defendants rely primarily on Dillard Dept. Stores, Inc. v. Adams, 315 Ark. 303, 867 S.W.2d 442 (1993). There, the Supreme Court of Arkansas reversed in a case in which a jury found Dillard's liable for the tort of outrage. The court stated the facts in that case as follows:

Mary Adams was shopping for a bathing suit at Dillards in Jonesboro. She tried on several suits in one of the store's dressing rooms. Peggy Hallmark, a sales manager with Dillards said that, through the vents in the dressing room door, she observed Ms. Adams switch the price tags on two bathing suits. Except for minor differences in testimony by Ms. Hallmark and Ms. Adams there is no dispute as to the remainder of the relevant events.

Ms. Adams left the dressing room with a bathing suit and continued shopping in the store. Ms. Hallmark continued observing Ms. Adams until Ms. Adams purchased the bathing suit with her Dillard's credit card. As Ms. Adams was leaving the store, Ms. Hallmark and a security guard stopped her. Identifying herself as "Dillards security," Ms. Hallmark asked Ms. Adams if she could accompany them to the rear of the store. In a manager's office, Ms. Hallmark confronted Ms. Adams about switching the price tag to obtain the bathing suit she had purchased at a price lower than that originally marked on that suit. Ms. Adams denied any wrongdoing. The store manager and the Jonesboro Police were called. The store manager questioned Ms. Adams and then took her picture and told her she was banned from the store. The police arrived and issued a citation to Ms. Adams who was then escorted from the store. The entire incident lasted from twenty minutes to an hour.

After the incident Ms. Adams suffered from depression. Her husband became so concerned he quit his job as a truck driver as he felt the need to stay at home due to his wife's condition. Ms. Adams saw a psychologist and a psychiatrist. Both diagnosed her as being depressed. Medication was prescribed for her, and her condition stabilized somewhat.

A theft charge against Ms. Adams was dismissed by the Jonesboro Municipal Court. Id. at 304-05, 867 S.W.2d at 442-43. The court held:

Outrage, or intentional infliction of emotional distress, was first recognized by this Court, in its current form, in M.B.M. Co. v. Counce, 268 Ark. 269, 596 S.W.2d 681 (1980). We stated "one who by extreme and outrageous conduct wilfully and wantonly causes severe emotional distress to another is subject to liability for such emotional distress and for bodily harm resulting from the distress." We said, "[b]y extreme and outrageous conduct, we mean conduct that is 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 society." We were quoting RESTATEMENT (SECOND) OF TORTS § 46, cmt. d (1977).

In subsequent decisions, we have addressed outrage in a cautious manner. Our recognition of this tort is not intended to "open the doors of the courts to every slight insult or indignity one must endure in life." Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380 (1988); Hess v. Treece, 286 Ark. 434, 693 S.W.2d 792 (1985); Tandy Corp. v. Bone, 283 Ark. 399, 678 S.W.2d 312 (1984).

We cannot say Ms. Adams presented sufficient evidence for a jury instruction on the tort of outrage. Ms. Adams testified the entire incident lasted less than an hour. During that time she was not physically touched, and while Dillards employees may have questioned her in a confrontational manner, there is no evidence that their tone was abusive or harassing. Ms. Adams testified that Ms. Hallmark initially ...

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