Page:McQuay v. Guntharp.pdf/13

478   In both of those cases, the conduct giving rise to the claim of outrage allegedly occurred on numerous occasions over an extended period of time. The duration of the conduct is a factor in determining whether the conduct rises to the level of outrage. See Dillard Dep't Stores, Inc. v. Adams, 315 Ark. 303, 867 S.W.2d 442 (1993) (noting the appellee testified that the incident lasted less than an hour as an apparent factor in the determination that the trial court erred in denying appellant's motion for a directed verdict); see also Smith v. American Greetings Corp., 304 Ark. 596, 804 S.W.2d 683 (1991) (citing Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380 (1988)) (stating "[t]he fact that an employer continues unjustifiable conduct over a long period of time can be an important factor weighing in favor of a finding that the employer's conduct towards an employee was outrageous"); Sterling Drug, Inc. v. Oxford, supra,) (noting the length of time that the conduct occurred and stating that in the Hess case, we based our decision in part on the fact that Hess' actions continued over a two year time span); Hess v. Treece, 286 Ark. 434, 693 S.W.2d 792 (1985) (noting that the conduct continued over a period of two years or more in determining that there was substantial evidence to support a finding that the tort of outrage occurred).

Although the majority opinion cites no authority in support of its conclusion that the special relationship between a physician and patient is significant in the context of determining whether the physician's conduct constitutes the tort of outrage, it is a con.clusion to which I could subscribe in a proper case. It has been discussed in obiter dicta elsewhere and said to be a factor making the outrage standard "less stringent." Sharrow v. Bailey, 910 F.Supp. 187, 194 (M.D. Pa. 1995). See also Angie M. v. Superior Court (Hiemstra), 44 Cal. Rptr. 2d 197 (Cal. App. 4 Dist. 1995). Again, the main problem with the complaint here is that it does not state facts showing the claimants suffered emotional distress of the sort that no person could be expected to endure.

Here are the relevant excerpts from the abstract of the complaint:

"The trauma of having a doctor whom each of the Plaintiffs trusted fondle their breasts in a sexually suggestive manner has caused all of the Plaintiffs to become less trusting of physicians in general."