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Travis Pruitt & Associates12/1/2005
her supervisor about Taylor's contacts, TPA took no action until Taylor was terminated in August 1998 when she complained to TPA's president that Taylor was violating the direct contact ban.
A cause of action for negligence against an employer may be stated if the employer, in the exercise of reasonable care, should have known of an employee's reputation for sexual harassment and that it was foreseeable that the employee would engage in sexual harassment of a fellow employee but he was continued in his employment.
Cox v. Brazo, 165 Ga. App. 888, 889 (303 SE2d 71) (1983). Even assuming that Hooper produced evidence that, after TPA was made aware of Taylor's alleged harassment, it negligently allowed the harassment to continue for a period of time before Taylor was eventually terminated, TPA was still entitled to summary judgment on the claim for emotional distress damages resulting from the negligence. A claim for emotional distress damages caused by negligence must be supported by evidence that the plaintiff suffered an impact resulting in physical injury or pecuniary loss resulting from an injury to the person. OB-GYN Assoc. &c. v. Littleton, 259 Ga. 663, 665-667 (386 SE2d 146) (1989); Ryckeley v. Callaway, 261 Ga. 828 (412 SE2d 826) (1992); Jordan v. Atlanta Affordable Housing Fund, Ltd., 230 Ga. App. 734, 735 (498 SE2d 104) (1998). Since Hooper alleged no physical injury or resulting pecuniary loss, TPA was entitled to summary judgment on all claims that it was negligent.
3. In the absence of such physical injury or pecuniary loss, Hooper's claim for emotional distress damages must be based on evidence that TPA's conduct directed toward her was malicious, wilful, or wanton. Westview Cemetery v. Blanchard, 234 Ga. 540, 544 (216 SE2d 776) (1975); Jordan, 230 Ga. App. at 736. Hooper contends on appeal that she asserted a claim against TPA for intentional infliction of emotional distress which was based on evidence which also shows malicious, wilful, or wanton conduct. However, we find no support for this contention in the pleadings or the evidence.
First, all the claims against TPA in the complaint plainly assert that TPA was negligent. Hooper's initial action filed in state court included claims against TPA based on state law negligence and claims under Title VII of the Civil Rights Act of 1964 alleging that TPA subjected her to a sexually hostile work environment as a result of Taylor's alleged sexual harassment, and that TPA retaliated against her by terminating her employment because she complained about the harassment. The state court action was subsequently removed to federal court. In unpublished opinions, the United States District Court granted summary judgment in favor of TPA on both Title VII claims, and the Eleventh Circuit Court of Appeals affirmed the grant of summary judgment. After the federal district court resolved the Title VII claims in favor of TPA, it declined to exercise supplemental jurisdiction finding that "[Hooper's] only remaining claims are state law claims of negligent hiring and negligent retention." Hooper then renewed her action de novo in state court pursuant to OCGA ยง 9-2-61 (a) alleging, as required, substantially the same negligence claims against TPA as she alleged in the initial state court action. Baskin v. Ga. Dept. of Corrections, 272 Ga. App. 355, 356 (612 SE2d 565) (2005).
Second, even if the complaint as initially filed and renewed could be liberally construed to assert a claim against TPA for intentional infliction of emotional distress, we find no evidence in the record supporting that claim. It is not enough for Hooper to point to evidence that Taylor directed conduct at her that was malicious, wilful, or
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