Travis Pruitt & Associates12/1/2005
person could find severe emotional distress resulting from extreme and outrageous conduct, then the issue is for the jury. Id. Moreover, for Hooper to recover damages for emotional distress in the absence of physical injury or pecuniary loss resulting from physical injury, there must be evidence that TPA's conduct directed at Hooper was malicious, wilful, and wanton. Westview Cemetery, 234 Ga. at 544-545. The test used to determine whether conduct was malicious, wilful, and wanton "is essentially the same as the test for recovery of `punitive damages.' See Standard Oil Co. v. Mt. Bethel &c. Church, 230 Ga. 341 (196 SE2d 869) (1973)." Westview Cemetery, 234 Ga. at 545. Under that test, "there must be evidence of wilful misconduct, malice, fraud, wantonness, or oppression, or that entire want of care which would raise the presumption of a conscious indifference to consequences." Standard Oil Co., 230 Ga. at 343; OCGA § 51-12-5.1. We find that Taylor's alleged acts of sexual harassment directed at Hooper may be evidence that could sustain a claim against Taylor for intentional infliction of emotional distress under these tests. But we find, as a matter of law, that TPA's conduct in response to Taylor's alleged harassment was neither extreme or outrageous, nor malicious, wilful or wanton. Accordingly, there is no evidence which could support Hooper's claim against TPA for intentional infliction of emotional distress. The evidence shows that TPA addressed Hooper's initial complaint (including her initial concern that Taylor not be terminated) by banning further contact, and later refused Hooper's request that she and Taylor be allowed to directly contact each other for business purposes. And when Hooper complained again, TPA terminated Taylor for violating the direct contact ban. Construing the evidence in favor of Hooper on TPA's motion for summary judgment, at best there is evidence that TPA negligently failed to take additional or quicker action to prevent Taylor's continuing contacts with Hooper. Because, as set forth above, evidence of negligence is insufficient to support Hooper's claims, the trial court erred by denying summary judgment to TPA. Lau's Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).
4. TPA claims the trial court erred by denying its motion for summary judgment on Hooper's claim seeking to impose liability for the alleged harassment on the basis that TPA failed to provide safe employment as required by OCGA § 34-2-10. The order denying summary judgment simply states without elaboration that, after considering the record and arguments of counsel, the motion is denied. But the record otherwise shows that the trial court's order did not address Hooper's claim made under OCGA § 34-2-10. Hooper correctly points out that TPA did not move for summary judgment on this claim in its initial motion for summary judgment filed on May 28, 2004. Rather, TPA moved for summary judgment on this claim for the first time in a subsequent pleading filed on September 13, 2004. The trial court's order denying TPA's motion for summary judgment was entered on October 8, 2004, less than 30 days later. The record shows that Hooper did not waive the requirement set forth in OCGA § 9-11-56 that she be given 30 days notice and opportunity to respond to TPA's motion for summary judgment on this claim. See Peppers v. Elder, 248 Ga. 136 (281 SE2d 582) (1981). Accordingly, we find the trial court did not consider Hooper's claim under OCGA § 34-2-10 in its October 8, 2004 order denying TPA's initial motion for summary judgment.
Judgment reversed. Ruffin, C. J., Johnson, P. J., Blackburn, P. J., Ellington and Mikell, JJ., concur. Smith, P. J., Barnes, Miller, Phipps, Adams and Bernes, JJ., concur specially.
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