Plaintiffs' reply in support of their motion for partial summary judgment

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Case 2:08-cv-00575-GLF-NMK Document 75 Filed 01/14/10 Page 22 of 54 To survive summary judgment on his counterclaim for intentional infliction of emotional distress, Freshwater must demonstrate that (1) the Dennises intended to cause him emotional distress, knew, or should have known that their conduct would cause serious emotional distress; (2) the Dennises’ “conduct was outrageous and extreme and beyond all possible bounds of decency and was such that it can be considered as utterly intolerable in a civilized community;” (3) the Dennises’ conduct was the proximate cause of his injury; and (4) his “emotional distress was serious and of such a nature that no reasonable person could be expected to endure it.” Talley v. Family Dollar Stores of Ohio, Inc., 542 F.3d 1099, 1110 (6th Cir. 2008) (internal quotation marks omitted). Freshwater has produced no evidence to satisfy any of these elements. 1. Freshwater Has Offered No Evidence That The Dennises Intended To Cause Him Emotional Distress Or That They Should Have Known That Their Conduct Would Cause Him Emotional Distress. Nowhere in his paragraph-long defense of his emotional-distress counterclaim does Freshwater explain how the Dennises acted with the requisite intent to cause him emotional distress. Nor can he, because the Dennises did what any concerned parents would do upon discovering a cross-shaped burn on their son’s arm after school—they contacted school officials to find out more about how that injury had been inflicted. (Jenifer Dennis Decl. 8-10; Stephen Dennis Decl. 10-12.) And the Dennises, unlike Freshwater who has appeared on numerous television and radio broadcasts and who held a public rally on the square in downtown Mount Vernon, have attempted to keep this matter private. (Jenifer Dennis Decl. 10-12, 16; Stephen Dennis Decl. 12-14, 18.) Freshwater has not established the first element of his intentional- infliction-of-emotional-distress counterclaim. (continued…) claims for intentional infliction of emotional distress must also fail.”). Freshwater does not offer any arguments in his opposition memorandum to counter this point. 15
Case 2:08-cv-00575-GLF-NMK Document 75 Filed 01/14/10 Page 23 of 54 2. Freshwater Has Offered No Evidence That The Dennises’ Conduct Was Outrageous And Extreme. Likewise, Freshwater has mustered no viable evidence to satisfy the second element of this counterclaim. Freshwater first argues that the fact that the Dennises “never attended any session of Freshwater’s class or any session of the Fellowship of Christian Athletes,” and therefore appeared to “rel[y] exclusively upon the representations made by their minor son without verification or consultation with Freshwater as was required by the school systems [sic] public complaint process,” somehow constitutes outrageous and extreme conduct. (Hamilton Mem. in Opp. 11.) But that is nonsensical. That the Dennises turned to their son for information about what happened during his eighth grade science class and FCA meetings hardly rises to the level of “outrageous and extreme” behavior needed to sustain a claim for intentional infliction of emotional distress. See Yeager v. Local Union 20, 453 N.E.2d 666, 671 (Ohio 1983), rev’d on other grounds by Welling v. Weinfeld, 866 N.E.2d 1051 (Ohio 2007) (internal quotation marks omitted) (explaining that liability for intentional infliction of emotional distress attaches “only where the conduct has been 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”). In another attempt to show the Dennises acted outrageously, Freshwater offers an untitled, incomplete, and unauthenticated excerpt from an unknown document that he claims proves that the Dennises violated the school district’s “public complaint process” by not speaking to him about the Tesla coil incident before talking to school administrators. (See Ex. LL to Hamilton Mem. in Opp.) Assuming that this unverified document does, in fact, set forth the Mount Vernon City School District’s complaint policy and that the Dennises would even be bound to follow it, the document proves the very opposite of what Freshwater says it does— 16
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Plaintiffs' reply in support of their motion for partial summary judgment

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