## Facts

- Late at night, Laura Vetter stopped at a red light while alone in her van.
- A car driven by Dana Gaither pulled alongside; Chad Morgan rode as a passenger, with another passenger in the car.
- Morgan shouted threatening obscenities, shook his fist, and made obscene gestures in a violent manner while facing Vetter.
- Vetter reported that Gaither revved the engine and moved the car back and forth while Morgan threatened her.
- Vetter testified Morgan threatened to remove her from the van and spat on her van door when the light turned green.
- When traffic moved, Vetter claimed Gaither’s car suddenly veered into her lane, causing her to swerve into a curb; she suffered physical injury from the impact inside the van.
- Morgan and Gaither denied swerving and claimed they drove straight ahead and did not see Vetter hit the curb.
- Morgan admitted the verbal and gestural conduct but claimed he did not intend to scare or harm Vetter.

## Issues

1. Whether Morgan’s conduct and Vetter’s distress met Kansas requirements for intentional infliction of emotional distress (outrage).
2. Whether Morgan’s threats and gestures, in context, could constitute assault by creating immediate apprehension of bodily harm.
3. Whether a negligence claim may be based on intentional actions that affect another’s conduct and create an unreasonable risk of harm, and whether causation was for the jury.
4. Whether Morgan could be liable for Gaither’s driving under an acting-in-concert theory.

## Decision

- Affirmed summary judgment for Morgan on the intentional infliction of emotional distress (outrage) claim.
- Reversed summary judgment for Morgan on the assault and negligence claims and remanded for further proceedings.
- Held that factual disputes about apprehension, foreseeability, and causation made summary judgment improper on assault and negligence.
- Recognized potential liability for a passenger under an acting-in-concert theory when evidence supports coordinated tortious conduct.

## Legal Principles

- Summary judgment is improper when material facts are disputed or when reasonable inferences could support the nonmovant’s claims.
- Intentional infliction of emotional distress requires conduct so extreme and outrageous as to permit recovery and emotional distress so severe that no reasonable person should be expected to endure it.
- Assault is an intentional threat or attempt, coupled with apparent ability, to do bodily harm, resulting in immediate apprehension of bodily harm.
- A negligence claim may be based upon intentional actions that affect the conduct of another in a manner that creates an unreasonable risk of harm to another.
- Negligence causation requires both cause in fact and proximate cause; foreseeability and intervening-cause questions are commonly for the jury.
- One tortfeasor may be liable for another’s tortious conduct when they act in concert.

## Conclusion

The court held that the evidence did not satisfy Kansas’s strict standard for outrageous emotional distress, but a jury could find assault and negligence where a passenger’s threatening conduct foreseeably contributed to a dangerous roadway encounter and resulting injuries, including under a concert-of-action theory.


Vetter v. Morgan, 22 Kan. App. 2d 1, 913 P.2d 1200 (Kan. Ct. App. 1995)