## Facts

- Silvino Gomez worked as a supervisor at the Shawnee County fairgrounds under administrator Robert Kanatzer.
- While addressing a broken water line, Gomez and Kanatzer entered the administrator’s office to call a contractor and encountered county commissioner Roland Hug and another person.
- Viewing the summary-judgment record favorably to Gomez, Hug initiated a confrontation, repeatedly directing racial epithets at Gomez and demanding he come closer.
- Gomez testified Hug raised his fist near him and taunted him to respond, in a confrontation lasting roughly five to fifteen minutes.
- Gomez alleged Hug had used similar abusive language in preceding days.
- Gomez claimed he suffered serious emotional and physical symptoms requiring medical treatment, attributed by physicians to the incident.
- Gomez later resigned, alleging the incident and its effects effectively forced him to leave.
- Gomez sued Hug and the Board of County Commissioners for assault, defamation, intentional infliction of emotional distress (outrage), and a 42 U.S.C. § 1983 due-process violation, and sought to impose vicarious liability on the Board.

## Issues

1. Whether the evidence created a triable issue of assault based on threatening words, physical proximity, and a raised fist causing reasonable apprehension of imminent bodily harm.
2. Whether the evidence could permit a jury to find extreme and outrageous conduct and severe emotional distress sufficient for an outrage claim.
3. Whether the statements constituted actionable defamation, including publication and reputational harm.
4. Whether the conduct, under color of state law, deprived Gomez of a constitutionally protected property interest in employment without due process under § 1983.
5. Whether the Board could be held vicariously liable for Hug’s conduct under respondeat superior.

## Decision

- Reversed summary judgment for Hug on assault; a jury could find reasonable apprehension of imminent harm.
- Reversed summary judgment for Hug on intentional infliction of emotional distress; a jury could find extreme and outrageous conduct and severe distress.
- Affirmed summary judgment for Hug on defamation; the record did not satisfy the elements of defamation.
- Affirmed summary judgment for Hug on the § 1983 claim; the conduct did not establish a constitutional deprivation.
- Affirmed summary judgment for the Board; respondeat superior did not apply to impose liability for Hug’s conduct.
- Remanded for further proceedings on assault and outrage claims against Hug only.

## Legal Principles

- On summary judgment, the record is viewed in the light most favorable to the nonmoving party, and fact-intensive questions such as intent and reasonable apprehension often require jury resolution.
- Assault may be shown by words and gestures, including threatening conduct and physical proximity, that could cause a reasonable person to fear imminent bodily harm.
- Intentional infliction of emotional distress requires conduct that a jury could regard as extreme and outrageous and distress so severe that a reasonable person should not be expected to endure it.
- Derogatory verbal abuse, standing alone, may be insufficient for defamation absent proof of actionable publication and reputational injury, and may be treated as nonactionable insult rather than defamatory fact.
- Verbal harassment and offensive conduct do not, without an official deprivation of a federally protected right, establish liability under 42 U.S.C. § 1983 for denial of due process.
- A county board is not automatically vicariously liable for a commissioner’s personal misconduct; respondeat superior requires a basis to treat the actor as an agent within the scope of authority for the entity.

## Conclusion

The court held that the evidence could support jury findings on assault and intentional infliction of emotional distress against a county commissioner, but it affirmed dismissal of defamation, § 1983, and county board vicarious-liability theories, remanding only the surviving tort claims for further proceedings.


Gomez v. Hug, 7 Kan. App. 2d 603 (Kan. Ct. App. 1982)