Page:McQuay v. Guntharp.pdf/9

474   the women had placed in him. They argue that the existence of a special relationship justifies the finding by this court that the gist of the claim arose out of the violation of that relationship, rather than the physical touching. We agree.

In Turner, the plaintiff brought an action against Baptist Medical Center for false imprisonment and assault and battery. The plaintiff alleged that the defendant hospital had illegally confined her to its hospital for approximately sixteen days and had mistreated her during that time. The plaintiff filed an amended com.plaint to include as a defendant Dr. Charles Betts, asserting false imprisonment, assault and battery, and the intentional infliction of mental and emotional distress. The trial court entered summary judgment in favor of the hospital and dismissed the claims against Dr. Betts as being barred by the statute of limitations. On appeal, this court upheld the trial court's dismissal of the claims against Dr. Betts, holding that they were barred by the one-year statute of limitations governing false imprisonment and battery. As to the claim of intentional infliction of emotional distress, this court held:

"No facts were alleged that would make the assertion of mental and emotional distress anything more than an element of damage flowing from the imprisonment and mistreatment; so the same one-year statute would apply."

Turner, 275 Ark. at 426, 631 S.W.2d at 277. It is upon this language that Appellees rely. That reliance is misplaced, however, as the facts alleged in the present complaint establish that the outrage flows not merely from the physical touching of the women's breasts, which would make out a claim for battery, but from the violation of a trusted relationship. In this respect, the trauma suffered is not the result of the act of unwanted, improper physical touching, but from the position and occupation of the actor.

In looking to other jurisdictions, we observe that in Mindt v. Shavers, 337 N.W.2d 97 (Neb. 1983), a sexual-assault case, the Supreme Court of Nebraska found that while the victim could have chosen to seek recovery on the theory of assault and battery, if properly pleaded, she was equally able to seek recovery on the