                                                                                          08/04/2017
               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                                  June 7, 2017 Session

 SHIRA JEAN STAFFORD, ET AL. V. JACKSON COUNTY, TENNESSEE,
                          ET AL.

                  Appeal from the Circuit Court for Jackson County
                      No. 11-CV-27      Clara W. Byrd, Judge


                            No. M2016-01883-COA-R3-CV


An arrestee sued the arresting sheriff’s deputy, the sheriff, and the county for assault and
battery and intentional infliction of emotional distress. The trial court dismissed the case
on summary judgment. We affirm as to the claim for intentional infliction of emotional
distress but find that there are genuine issues of material fact precluding summary
judgment on the claim for assault and battery.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in
                      Part, Reversed in Part and Remanded

ANDY D. BENNETT, J., delivered the opinion of the Court, in which FRANK G. CLEMENT,
JR., P.J., M.S., and W. NEAL MCBRAYER, J., joined.

Richard Marshall Brooks, Carthage, Tennessee, for the appellants, Shira Jean Stafford
and Donnie Stafford.

Robyn Beale Williams, Nashville, Tennessee, for the appellees, Chris Carter, Jackson
County Sheriff, Jackson County, Tennessee, and Brad Stafford.

                                        OPINION

                       FACTUAL AND PROCEDURAL BACKGROUND

       On the afternoon of November 16, 2010, Deputy Chris Carter of the Sheriff’s
Department of Jackson County, Tennessee pulled over a car driven by Donnie Stafford
for speeding on Jennings Creek Highway at Whitleyville. After hearing of the traffic
stop over a police scanner, Shira Stafford, Mr. Stafford’s wife, and their son, Jacob, drove
to the scene in a van and parked behind Deputy Carter’s police car.1 Mrs. Stafford got
out of the van, questioned Deputy Carter about why her husband had been stopped, and
attempted to go check on Mr. Stafford. When Mrs. Stafford refused his instructions to
return to the van and continued to interfere, Deputy Carter arrested her and placed her in
handcuffs.

       On November 15, 2011, Mr. and Mrs. Stafford (“the plaintiffs”) filed suit against
Jackson County, Sheriff Brad Stafford, and Deputy Carter (“the defendants”) for
numerous causes of action. The plaintiffs sued the defendants in their official capacity
for negligence; negligent hiring, training, supervision and discipline; and false arrest and
imprisonment. They sued the defendants as individuals for negligence, excessive force,
assault and battery, false arrest and imprisonment, negligent infliction of emotional
distress, intentional infliction of emotional distress, malicious prosecution, and loss of
consortium.

       The civil proceedings were stayed in April 2012 until criminal charges against
Mrs. Stafford were resolved. Mrs. Stafford was then convicted of preventing or
obstructing a law enforcement officer from effecting a stop, frisk, halt, or arrest in
violation of Tenn. Code Ann. § 39-16-602, and her conviction was upheld by the Court of
Criminal Appeals. State v. Stafford, No. M2013-01319-CCA-R3-CD, 2014 WL 2902278
(Tenn. Crim. App. June 26, 2014). The parties filed a joint motion to lift the stay in
December 2014.

       The defendants answered, and the parties engaged in discovery. On March 14,
2016, the defendants filed a motion for summary judgment supported by excerpts from
the criminal trial transcript and excerpts from the depositions of Mr. Stafford, Mrs.
Stafford, Jacob Stafford, Sheriff Brad Stafford, and Deputy Carter. The plaintiffs
opposed the motion and submitted deposition excerpts from Mr. and Mrs. Stafford and an
excerpt from the criminal trial transcript.

       The plaintiffs’ response to the defendants’ statement of facts in support of their
motion for summary judgment shows the following pertinent factual disputes and points
of agreement:

        11. As soon as the van stopped, Mrs. Stafford exited and walked in front of
        the van and approached Deputy Carter’s door.
        RESPONSE: Admitted.
        12. Carter then exited his vehicle and instructed Mrs. Stafford numerous
        times to return to her car but she repeatedly refused to do so.

1
  Apparently, there are many people named “Stafford” in Jackson County. At oral argument, counsel for
the appellants maintained that his clients were a part of the “good Staffords” of Jackson County, not the
“bad Staffords.”
                                                  -2-
RESPONSE: It is denied that Mrs. Stafford refused to get back in her car.
In fact, she tried to go.
13. Instead, she kept trying to push her way around Deputy Carter to try
and get to Mr. Stafford’s vehicle.
RESPONSE: It is denied that Mrs. Stafford kept trying to push her way
around Defendant Carter. In fact, Mrs. Stafford tried to get back in her car.
14. During this exchange, Mr. Stafford got out of his vehicle and Jacob
began exiting his vehicle.
RESPONSE: Admitted.
15. Deputy Carter then had three people in different locations all outside of
their vehicles which posed a safety issue.
RESPONSE: It is denied that this caused a safety issue.
16. Carter then instructed the Stafford men to return to the vehicles and
called for back-up.
RESPONSE: It is disputed that Defendant Carter then instructed the
Stafford men back to their vehicles. Testimony will show that Defendant
Carter then handcuffed the plaintiff.
17. The men returned to their vehicles and Mrs. Stafford walked back
toward the rear of the patrol car at which time Carter asked her for
identification and she questioned why he needed her identification to which
she replied she would not.
RESPONSE: It is disputed that Mrs. Stafford told Defendant Carter that
she “would not” show her identification.
18. At that point, Carter makes the decision to arrest her for obstructing his
traffic stop of Mr. Stafford and failing to comply with instructions and
informs her that she is under arrest.
RESPONSE: This is admitted for the purposes of summary judgment as
contemplated by Rule 56 of the T.R.Civ.P., but the Plaintiff disputes that
this is a “material fact” . . . .
19. Mrs. Stafford attempted to return to her vehicle to get her
identification, and Deputy Carter took her by the right forearm and placed a
handcuff on her arm.
RESPONSE: Admitted.
20. Mrs. Stafford attempted to pull away and Deputy Carter instructed her
to stop and finished cuffing her.
RESPONSE: It is denied that Mrs. Stafford attempted to pull away from
Defendant Carter. Defendant Carter, “grabbed [her] right arm and twisted
it around [her] back, put a cuff on it, and pushed [her] over the fender over
the van and told [her] [she] was under arrest for disorderly conduct. And
[Carter] got the other arm and pulled around and cuffed [her].” [Quoting
from Mrs. Stafford’s deposition].
21. Carter then placed Mrs. Stafford in the back seat of his patrol car.
RESPONSE: Admitted.

                                    -3-
      ....
      24. Wade Draper and David Morgan then transported Mrs. Stafford to the
      jail for booking.
      RESPONSE: This is admitted for purposes of summary judgment as
      contemplated by Rule 56 of the Tenn.R.Civ.P., but the Plaintiff disputes
      that this is a “material fact” . . . .
      25. Mrs. Stafford never told Deputies Carter, Morgan or Draper that the
      handcuffs were hurting her, nor did she tell him about any of her health
      conditions.
      RESPONSE: It is admitted that Mrs. Stafford did not tell Carter, Morgan
      or Draper that the handcuffs were hurting her, but she immediately told the
      officers during her intake into the jail that she was in pain.
      ....
      29. Mrs. Stafford was released from Jail at approximately 7:30 p.m.
      RESPONSE: This is admitted for purposes of summary judgment as
      contemplated by Rule 56 of the Tenn.R.Civ.P., but the Plaintiff disputes
      that this is a “material fact” . . . .
      30. Following her release, Mrs. Stafford went home with Jacob.
      RESPONSE: Admitted.
      31. Once she got there, she and her daughter in law went to Cookeville
      Medical Center.
      RESPONSE: Admitted.
      32. While there she complained of pain in her wrists and right shoulder.
      RESPONSE: Admitted.
      33. They x-rayed her wrists, gave her some medication for her blood
      pressure, and released her.
      RESPONSE: Admitted.

       The defendants’ motion for summary judgment was heard on April 14, 2016 and,
on May 3, 2016, the trial court entered an order granting the motion. The court noted that
“the plaintiffs have voluntarily conceded the claims of negligent hiring, negligent
training, negligent supervision, false arrest, false imprisonment, malicious prosecution,
and negligent infliction of emotional distress.” As to the remaining claims, the court
made the following conclusions:

      3. That with regard to a claim for assault and battery, cases have held that
      handcuffing alone can amount to excessive force. Therefore, in this case,
      there is a question of fact as to whether or not the force used by Deputy
      Carter was excessive.
      4. That in order to establish a claim for assault and battery, the plaintiff
      must present sufficient evidence of damages. In this case, there is not a
      scintilla of evidence in the records concerning the medical condition of
      Mrs. Stafford. The only evidence in the record before this Court is that her

                                          -4-
          wrist and right shoulder hurt. Mrs. Stafford went to the emergency room.
          They gave her blood pressure medicine and released her. This is
          insufficient to establish that Mrs. Stafford sustained an injury as a result of
          the arrest. Therefore, the plaintiffs have failed to establish the element of
          damages in this case, and summary judgment is appropriate on the claims
          of assault and battery.
          5. That with regard to the claim for intentional infliction of emotional
          distress, the plaintiff has failed to establish essential elements of a claim
          pursuant to Bains v. Wells, 936 S.W.2d 618 (Tenn. 1997).
          6. That the court record is devoid of any evidence establishing a serious
          mental injury. Additionally, that even in the light most favorable to the
          plaintiff[s], the facts are insufficient in this case to establish conduct on the
          part of Deputy Carter that is so outrageous that it is not tolerated by
          civilized society. Therefore, the plaintiffs’ claim of intentional infliction of
          emotional distress must also fail, and summary judgment is therefore,
          appropriate.

The trial court further determined that, in light of its findings of fact and conclusions of
law, “the defendants are also entitled to summary judgment on all remaining claims in
this matter.”2 The court granted summary judgment in favor of the defendants and
dismissed with prejudice all claims against the defendants.3

      The plaintiffs appeal two issues from the trial court’s grant of the defendants’
motion for summary judgment. The plaintiffs argue that the trial court erred in granting
summary judgment on their claims for assault and battery and intentional infliction of
emotional distress.

                                        STANDARD OF REVIEW

       A party filing a motion for summary judgment should prevail “if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” TENN. R. CIV. P. 56.04. If the
moving party does not bear the burden of proof at trial, it is entitled to summary
judgment if it “(1) [s]ubmits affirmative evidence that negates an essential element of the
nonmoving party’s claim; or (2) [d]emonstrates to the court that the nonmoving party’s
evidence is insufficient to establish an essential element of the nonmoving party’s claim.”
Tenn. Code Ann. § 20-16-101. We review the trial court’s judgment granting the

2
    The only remaining claims were excessive force and loss of consortium.
3
 The trial court did not address any defenses that might have been available under the Tennessee
Governmental Tort Liability Act, Tennessee Code Annotated Sections 29-20-101 et seq.
                                                   -5-
defendants’ motion for summary judgment de novo, according it no presumption of
correctness. See Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 250
(Tenn. 2015); Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 84 (Tenn. 2008).

                                             ANALYSIS

    I.       Assault and Battery

         A. Excessive force.

       Under Tennessee law, a police officer can be liable for “damages caused by his
excessive and unprivileged use of force under the intentional tort of battery.” City of
Mason v. Banks, 581 S.W.2d 621, 626 (Tenn. 1979). In making an arrest, a police officer
is “privileged to use only that force necessary to effect the arrest,” while also
“maintaining his own personal safety and that of others present.” Id. at 625-26.
Tennessee courts apply the same “excessive force” analysis in assault and battery claims
as federal courts in § 1983 claims for excessive force. Harris v. Metro. Gov’t of
Nashville, No. 3:06-0868, 2007 WL 4481176, at *9 (M.D. Tenn. Dec. 18, 2007). Thus,
“Tennessee courts may look to federal case law on excessive force in analyzing claims of
assault and battery by police officers.” Murray ex rel. Morrow v. Metro. Gov’t of
Nashville, No. 3:06-0570, 2007 WL 1521004, at *9 (M.D. Tenn. May 21, 2007)).

       In its order, the trial court determined that, because “handcuffing alone can
amount to excessive force,” “there is a question of fact as to whether or not the force used
by Deputy Carter was excessive.” The defendants argue that the trial court erred in
reaching this conclusion. The plaintiffs assert that the force used by Deputy Carter in
pulling on the center of the handcuffs after handcuffing Mrs. Stafford was “clearly
excessive.”4

         The plaintiffs rely upon the following testimony from Mrs. Stafford’s criminal
trial:

         A. That’s when [Deputy Carter] grabbed me, jerks my arm behind me, puts
         me over the fender of the van, puts the handcuffs on this one, pulls it up and
         tells me I am under arrest for disorderly conduct, and he handcuffs the other
         one, and I did not resist him because I didn’t know I was going to get
         arrested.
         Q. Now, you were referring, when you was telling about handcuffs, when
         you were moving your arm, which arm is that, the right arm?

4
  Although the plaintiffs alleged in the complaint that Deputy Carter used excessive force while
handcuffing Mrs. Stafford, their position as fleshed out at the summary judgment stage is that he used
excessive force immediately after handcuffing her.
                                                -6-
          A. Yes, this one (indicating).
          Q. He cuffed it first?
          A. Yes.
          Q. And then what did he do?
          A. He cuffed it, pulled it up back behind my back and then he reached and
          grabbed this one (indicating). He pushed me down and grabbed it and
          cuffed it and then pulled me up by the chain, by the middle of the cuff, the
          chain.
          Q. So he first cuffed the right—
          A. Yes.
          Q. –and then he pulled that up behind your back—
          A. Yes.
          Q. –and then he grabs the other arm, does the same with it—
          A. Yes.
          Q. –back up behind your back?
          A. Yes.
          Q. And did he lift up on it then?
          A. Up on the middle of the chain part.
          Q. So was that painful?
          A. Yes.
          Q. And what did you do?
          A. Scream. It hurt.

       The defendants rely upon case law regarding instances where the excessive force
claim is based upon handcuffing alone. See Vance v. Wade, 546 F.3d 774, 782 (6th Cir.
2008) (stating that a claim of excessive force based upon handcuffing alone was proper
only where the officer (1) handcuffed the plaintiff unnecessarily tightly, and (2) ignored
the plaintiff’s pleas to be released from the tight handcuffs). As stated above, however,
the plaintiffs’ argument is based on Deputy Carter’s actions after Mrs. Stafford was
already handcuffed. According to Mrs. Stafford’s allegations, Deputy Carter held onto
the middle of the handcuffs and pulled upward, causing pain in her shoulders.5 Thus, the
cases cited by the defendants are not applicable.

       In light of the testimony submitted from Mrs. Stafford’s criminal trial, we agree
with the trial court’s conclusion that there is a question of fact regarding whether Deputy
Carter used excessive force after handcuffing Mrs. Stafford. See Vance, 546 F.3d at 783-
84 (agreeing with magistrate’s finding that “pulling up on [Vance’s] handcuffs while his
hands were cuffed behind his back,” along with other actions, “could constitute an
excessive use of force”).



5
    According to her counsel, Mrs. Stafford is not a small person.
                                                     -7-
       B. Damage/Injury.

        In its decision, the trial court determined that the plaintiffs “failed to establish the
element of damages in this case” and that summary judgment was, therefore, “appropriate
on the claims of assault and battery.” The plaintiffs assert that the trial court erred in
granting summary judgment on the assault and battery claim because, by her testimony,
Mrs. Stafford established that Deputy Carter’s actions caused her to experience pain. She
stated that she cried out in pain when Deputy Carter pulled up on the handcuffs, that she
told jail personnel that she was in pain after they took off the handcuffs, and that she went
to the hospital later that evening.

       This Court has defined the tort of battery as “an intentional act that causes an
unpermitted, harmful or offensive bodily contact.” Doe v. Mama Taori’s Premium Pizza,
LLC, No. M1998-00992-COA-R9-CV, 2001 WL 327906, at *4 (Tenn. Ct. App. Apr. 5,
2001) (citing Cary v. Arrowsmith, 777 S.W.2d 8, 21 (Tenn. Ct. App. 1989);
RESTATEMENT (SECOND) OF TORTS § 18(1) (1965); 7 Stuart M. Speiser, et al., THE
AMERICAN LAW OF TORTS § 26:12 (1990)); see also Raines v. Shoney’s, Inc., 909 F.
Supp. 1070, 1083 (E.D. Tenn. 1995). Therefore, a battery claim requires proof that the
defendant intentionally committed an act that resulted in a harmful or offensive contact
with the plaintiff.

       The federal case law on excessive force generally holds that a “significant physical
injury” is not required to survive summary judgment. Hollis v. Estes, No. 1:09-0077,
2011 WL 336146, at *9 (M.D. Tenn. Jan. 31, 2011) (citing Morrison v. Bd. of Trs. of
Green Twp., 583 F.3d 394, 402 (6th Cir. 2009)). In Martin v. Heideman, 106 F.3d 1308,
1313 (6th Cir. 1997), the court determined that there was a genuine issue of material fact
as to whether the officer used excessive force. The court reached this conclusion even
though the pain and numbness in the plaintiff’s wrists did not continue after the handcuffs
were removed. Id. at 1310, 1312-13.

        One of the instances of excessive force before the court in Morrison v. Board of
Trustees of Green Township, 583 F.3d at 406, involved a police officer pushing the
plaintiff’s face into the ground during an arrest. The officer argued that the plaintiff
“sustained no real injury” because the plaintiff described her injury as a “minor scratch,
not even deep enough to cause [the skin] to bleed.” Morrison, 583 F.3d at 406. The
court rejected the officer’s reasoning, stating, in part, as follows:

       “Gratuitous violence” inflicted upon an incapacitated detainee constitutes
       an excessive use of force, even when the injuries suffered are not
       substantial. See, e.g., Pigram ex rel. Pigram v. Chaudoin, 199 Fed. Appx.
       509, 513 (6th Cir. 2006). In Pigram, it was alleged that the defendant
       police officer slapped the handcuffed plaintiff in the face because the latter

                                             -8-
          was being unruly and had a “smart-ass mouth.” Id. at 513. Finding the
          defendant’s conduct to be unreasonable under the Fourth Amendment for
          the purposes of summary judgment, Pigram emphasized that a “slap to the
          face of a handcuffed suspect—even a verbally unruly suspect—is not a
          reasonable means of achieving anything more than perhaps further
          antagonizing or humiliating the suspect.” Id. The Court reached this
          conclusion notwithstanding the relatively minimal use of force applied and
          the absence of any resulting injury. See id. (stating “under specific
          circumstances, a slap may constitute a sufficiently obvious constitutional
          violation” even if “involv[ing] less physical force than a ‘tackle’”).

Id. at 407. Applying the assumption (required at the summary judgment stage) that a
reasonable officer would not have felt a threat to his safety under the circumstances, the
Morrison court held that this type of “antagonizing” and “humiliating” conduct was
“unreasonable under the Fourth Amendment, regardless of the existence of injury.” Id.

       In the present case, Mrs. Stafford testified (in the criminal trial and in deposition
excerpts submitted for and against summary judgment) that, when Deputy Carter pulled
up on the middle of the handcuffs, she felt pain and screamed. When the handcuffs were
removed at the jail, Mrs. Stafford told the jail personnel that she was in pain; she reported
pain in her shoulders. Later that evening, she went to the emergency room for pain in her
wrists and her right shoulder. After the incident, Mrs. Stafford testified, she was not able
to vacuum.

        Viewing the evidence in the light most favorable to the plaintiffs, we conclude that
the trial court erred in granting summary judgment to the defendants on the assault and
battery claim on the basis that there was no evidence of injury.6 A genuine issue of
material fact exists as to damages.

    II.      Intentional Infliction of Emotional Distress

       The plaintiffs also argue on appeal that Mrs. Stafford has suffered ongoing mental
distress as a result of Deputy Carter’s intentional act of handcuffing her and jerking up on
her wrists, thereby causing a torn rotator cuff.

       A claim for intentional infliction of emotional distress requires a showing that
“‘the defendant’s conduct was (1) intentional or reckless, (2) so outrageous that it is not
tolerated by civilized society, and (3) resulted in serious mental injury to the plaintiff.’”

6
  In their appellate brief, the defendants also argue that the plaintiffs failed to establish the intent to harm
necessary to prove their assault and battery claim. This argument was not asserted by the defendants at
the trial level, and we therefore consider it waived. See Edmunds v. Delta Partners, L.L.C., 403 S.W.3d
812, 825 (Tenn. Ct. App. 2012).
                                                     -9-
Brown v. Mapco Express, Inc., 393 S.W.3d 696, 703 (Tenn. Ct. App. 2012) (quoting
Rogers v. Louisville Land Co., 367 S.W.3d 196, 205 (Tenn. 2012)). Our Supreme Court
noted, in Bain v. Wells, 936 S.W.2d 618, 622-23 (Tenn. 1997), that “no perfect legal
standard exists for determining whether particular conduct is so intolerable as to be
tortious” but has adopted the “high threshold standard” of the Restatement (Second) of
Torts:

       “The cases thus far decided have found liability only where the defendant’s
       conduct has been extreme and outrageous. It has not been enough that the
       defendant has acted with an intent which is tortious or even criminal, or that
       he has intended to inflict emotional distress, or even that his conduct has
       been characterized by ‘malice,’ or a degree of aggravation which would
       entitle the plaintiff to punitive damages for another tort. Liability has been
       found only where the conduct has been so outrageous in character, and so
       extreme in degree, as to go beyond all bounds of decency, and to be
       regarded as atrocious and utterly intolerable in a civilized community.
       Generally, the case is one in which the recitation of the facts to an average
       member of the community would arouse his resentment against the actor,
       and lead him to exclaim, ‘Outrageous.’”

Bain, 936 S.W.2d at 623 (quoting RESTATEMENT (SECOND) OF TORTS § 46, cmt. d
(1965)). Thus, liability for the intentional infliction of emotional distress “‘does not
extend to mere insults, indignities, threats, annoyances, petty oppression or other
trivialities.’” Id. at 622 (quoting Medlin v. Allied Inv. Co., 398 S.W.2d 270, 274 (Tenn.
1966)).

        In granting the defendants summary judgment on the plaintiffs’ claim for
intentional infliction of emotional distress, the trial court concluded that “the court record
is devoid of any evidence establishing a serious mental injury.” The court also stated
that, “even in the light most favorable to the plaintiff, the facts are insufficient in this case
to establish conduct on the part of Deputy Carter that is so outrageous that it is not
tolerated by civilized society.”

        We agree with the trial court’s conclusion. The allegations asserted by the
plaintiffs do not rise to the level of such outrageous and extreme conduct as to go beyond
all bounds of decency and to be regarded as “utterly intolerable in a civilized
community.” RESTATEMENT (SECOND) OF TORTS § 46, cmt. d. Accordingly, we affirm
the trial court’s granting of summary judgment to the defendants on the plaintiffs’ claim
for intentional infliction of emotional distress.




                                             - 10 -
                                     CONCLUSION

       The judgment of the trial court is affirmed in part and reversed in part, and this
matter is remanded with costs of appeal assessed half to the appellants and half to the
appellees. Execution may issue if necessary.


                                                  ________________________________
                                                  ANDY D. BENNETT, JUDGE




                                         - 11 -
