Appeal from the Superior Court of the District of Columbia (CA-4615-00) (Hon. Zoe Bush, Trial Judge)
Before Schwelb, Ruiz, and Reid, Associate Judges
The opinion of the court was delivered by: Reid, Associate Judge
Appellant, Ms. Eleanor Carter, sued Mr. John S. Hahn and others for intentional infliction of emotional distress and defamation related to her arrest on theft charges. *fn1 On appeal she challenges the trial court's decision to grant his motion for directed verdict and to dismiss her claims. We reverse and remand for a new trial.
In late May 1999, Ms. Carter relocated and completed the necessary forms with her employer (DCHA) to have her paycheck mailed to her new home address. But the check was mistakenly sent to her old address and she never received it. So the DCHA issued her a replacement check. It also placed a stop payment order on her original check. In the meantime, someone retrieved the original check and endorsed it in Ms. Carter's name. That person presented the check for payment to the Market Liquor Store at 1400 7th Street, Northwest, which offers a check-cashing service. *fn2 Mr. Hahn, the store's operator, paid the check but was not reimbursed by the DCHA. He then met with Investigator Paul Sinclair twice regarding the matter. At their first meeting Investigator Sinclair explained that the agency would not pay him for the check. And at their second meeting Mr. Hahn claimed that he knew Ms. Carter and that she was the person who cashed the check at his store. Investigator Sinclair verified as much in a sworn affidavit and obtained a warrant for Ms. Carter's arrest. Officers with the Metropolitan Police Department then apprehended her on June 23, 1999, at the DCHA's offices, charged her with theft and held her overnight. Unbeknownst to Investigator Sinclair or any of the officers, this information was false.
Shortly before trial on August 25, 1999, authorities held a line-up and learned that Mr. Hahn could not identify Ms. Carter. So they dropped the charges against her. *fn3 She then filed a civil complaint; and Mr. Hahn subsequently recanted his claims.
The case was tried before a jury as one for defamation and intentional infliction of emotional distress. After the completion of Ms. Carter's case-in-chief, the trial court granted a directed verdict on behalf of Mr. Hahn because a "qualified privilege is a complete defense . . . to defamation. . . . ," except where malice is shown; and Ms. Carter failed to establish malice. The trial court also granted a directed verdict on Ms. Carter's intentional infliction of emotional distress claim because of her alleged failure to prove that Mr. Hahn's conduct "was extreme or outrageous or . . . intentionally reckless."
Ms. Carter contends that in directing a verdict against her on her intentional infliction of emotional distress and defamation claims the trial court "completely ignored" the statement Mr. Hahn made to Investigator Sinclair. She claims that jurors could have reasonably inferred from this evidence, and Mr. Hahn's subsequent actions, that he "lied" in an effort to gain "the assistance of the criminal justice system to recover his money" regardless of the consequences to her.
A directed verdict is proper "'[i]f during a trial by jury [Ms. Carter] has been fully heard with respect to [her claim], and there is no legally sufficient evidentiary basis for a reasonable jury to have found for [her].'" Abebe v. Benitez, 667 A.2d 834, 835-36 (D.C. 1995) (quoting Super. Ct. Civ. R. 50 (a)(1)). Accordingly, "[a] verdict may be directed only if it is clear that [she] has not established a prima facie case." Haynesworth v. D.H. Stevens Co., 645 A.2d 1095, 1097 (D.C. 1994) (internal quotations and citations omitted). Furthermore, since the trial court is not the trier of fact it "must take care to avoid weighing the evidence, passing on the credibility of witnesses, or substituting its judgment for that of the jury." Abebe, supra, 667 A.2d at 836 (internal quotations and citations omitted). And "[i]n reviewing a directed verdict, we view the facts, as the trial court was required to, in the light most favorable to [Ms. Carter]." Haynesworth, supra, 645 A.2d at 1097 (internal quotations and citations omitted).
Moreover, "[t]o establish a prima facie case of intentional infliction of emotional distress, [Ms. Carter] must show (1) extreme and outrageous conduct on the part of [Mr. Hahn] which (2) either intentionally or recklessly (3) cause[d] [her] severe emotional distress." Larijani v. Georgetown Univ., 791 A.2d 41, 44 (D.C. 2002) (citations omitted). "Liability will not be imposed for mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities." Homan v. Goyal, 711 A.2d 812, 818 (D.C. 1998) (internal quotations and citations omitted) (amended by, 720 A.2d 1152 (D.C. 1998)). But it is properly imposed where the conduct 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 community." Larijani, supra, 791 A.2d at 44 (internal quotations and citations omitted).
To prove defamation, "'[a] plaintiff bringing a defamation action . . . must show: (1) that the defendant made a false and defamatory statement concerning the plaintiff; (2) that the defendant published the statement without privilege to a third party; (3) that the defendant's fault in publishing the statement amounted to at least negligence; and (4) either that the statement was actionable as a matter of law irrespective of special harm or that its publication caused the plaintiff special harm.'" Beeton v. District of Columbia, 779 A.2d 918, 923 (D.C. 2001) (quoting Crowley v. North American Telecomms. Assoc., 691 A.2d 1169, 1173 n.2 (D.C. 1997) (other citation omitted)).
Here, the evidence, as viewed in the light most favorable to Ms. Carter, indicates that reasonable jurors could find Mr. Hahn intentionally and recklessly lied about Ms. Carter's theft of government funds. According to Investigator Sinclair Mr. Hahn initially came to his office in early June 1999 claiming that "he didn't understand why" the agency stopped payment on the check. He interviewed Mr. Hahn briefly, then investigated the matter further. Subsequently, he went to Mr. Hahn's store at a later date and interviewed him again. At that point, for the first time, Mr. Hahn claimed that he knew Ms. Carter. He indicated that his surveillance equipment had malfunctioned so he was unable to record the transaction. But he maintained that "he kn[e]w [her] very well . . . because [she] . . . c[a]me in his . . . business ...