Hill, J.

The liability of an infant for an alleged battery is presented to this court for the first time. Brian *199Dailey (age five years, nine months) was visiting with Naomi Garratt, an adult and a sister of the plaintiff, Ruth Garratt, likewise an adult, in the backyard of the plaintiff’s home, on July 16, 1951. It is plaintiff’s contention that she came out into the backyard to talk with Naomi and that, as she started to sit down in a wood and canvas lawn chair, Brian deliberately pulled it out from under her. The only one of the three persons present so testifying was Naomi Garratt. (Ruth Garratt, the plaintiff, did not testify as to how or why she fell.) The trial court, unwilling to accept this testimony, adopted instead Brian Dailey’s version of what happened, and made the following findings:

“III. . . . that while Naomi Garratt and Brian Dailey were in the back yard the plaintiff, Ruth Garratt, came out of her house into the back yard. Some time subsequent thereto defendant, Brian Dailey, picked up a lightly built wood and canvas lawn chair which was then and there located in the back yard of the above described premises, moved it sideways a few feet and seated himself therein, at which time he discovered the plaintiff, Ruth Garratt, about to sit down at the place where the lawn chair had formerly been, at which time he hurriedly got up from the chair and attempted to move it toward Ruth Garratt to aid her in sitting down in the chair; that due to the defendant’s small size and lack of dexterity he was unable to get the lawn chair under the plaintiff in time to prevent her from falling to the ground. That plaintiff fell to the ground and sustained a fracture of her hip, and other injuries and damages as hereinafter set forth.

“IV. That the preponderance of the evidence in this case establishes that when the defendant, Brian Dailey, moved the chair in question he did not have any wilful or unlawful purpose in doing so; that he did not have any intent to injure the plaintiff, or any intent to bring about any unauthorized or offensive contact with her person or any objects appurtenant thereto; that the circumstances which immediately preceded the fall of the plaintiff established that the defendant, Brian Dailey, did not have purpose, intent or design to perform a prank or to effect an assault and battery upon the person of the plaintiff." (Italics ours, for a purpose hereinafter indicated.)

It is conceded that Ruth Garratt’s fall resulted in a fractured hip and other painful and serious injuries. To ob*200viate the necessity of a retrial in the event this court determines that she was entitled to a judgment against Brian Dailey, the amount of her damage was found to be eleven thousand dollars. Plaintiff appeals from a judgment dismissing the action and asks for the entry of a judgment in that amount or a new trial.

The authorities generally, but with certain notable exceptions (see Bohlen, “Liability in Tort of Infants and Insane Persons,” 23 Mich. L. Rev. 9), state that, when a minor has committed a tort with force, he is liable to be proceeded against as any other person would be. Paul v. Hummel (1868), 43 Mo. 119, 97 Am. Dec. 381; Huchting v. Engel (1863), 17 Wis. 237, 84 Am. Dec. 741; Briese v. Maechtle (1911), 146 Wis. 89, 130 N. W. 893; 1 Cooley on Torts (4th ed.) 194, § 66; Prosser on Torts 1085, § 108; 2 Kent’s Commentaries 241; 27 Am. Jur. 812, Infants, § 90.

In our analysis of the applicable law, we start with the basic premise that Brian, whether five or fifty-five, must have committed some wrongful act before he could be liable for appellant’s injuries.

The trial court’s finding that Brian was a visitor in the Garratt backyard is supported by the evidence and negatives appellant’s assertion that Brian was a trespasser and had no right to touch, move, or sit in any chair in that yard, and that contention will not receive further consideration.

It is urged that Brian’s action in moving the chair constituted a battery. A definition (not all-inclusive but sufficient for our purpose) of a battery is the intentional infliction of a harmful bodily contact upon another. The rule that determines liability for battery is given in 1 Restatement, Torts, 29, § 13, as:

“An act which, directly or indirectly, is the legal cause of a harmful contact with another’s person makes the actor liable to the other, if

“(a) the act is done with the intention of bringing about a harmful or offensive contact or an apprehension thereof to the other or a third person, and

“(b) the contact is not consented to by the other or the *201other’s consent thereto is procured by fraud or duress, and

“ (c) the contact is not otherwise privileged.”

We have in this case no question of consent or privilege. We therefore proceed to an immediate consideration of intent and its place in the law of battery. In the comment on clause (a), the Restatement says:

“Character of actor’s intention. In order that an act may be done with the intention of bringing about a harmful or offensive contact or an apprehension thereof to a particular person, either the other or a third person, the act must be done for the purpose of causing the contact or apprehension or with knowledge on the part of the actor that such contact or apprehension is substantially certain to be produced.”

See, also, Prosser on Torts 41, § 8.

We have here the conceded volitional act of Brian, i.e., the moving of a chair. Had the plaintiff proved to the satisfaction of the trial court that Brian moved the chair while she was in the act of sitting down, Brian’s action would patently have been for the purpose or with the intent of causing the plaintiff’s bodily contact with the ground, and she would be entitled to a judgment against him for the resulting damages. Vosburg v. Putney (1891), 80 Wis. 523, 50 N. W. 403; Briese v. Maechtle, supra.

The plaintiff based her case on that theory, and the trial court held that she failed in her proof and accepted Brian’s version of the facts rather than that given by the eyewitness who testified for the plaintiff. After the trial court determined that the plaintiff had not established her theory of a battery (i.e., that Brian had pulled the chair out from under the plaintiff while she was in the act of sitting down), it then became concerned with whether a battery was established under the facts as it found them to be.

In this connection, we quote another portion of the comment on the “Character of actor’s intention,” relating to clause (a) of the rule from the Restatement heretofore set forth:

“It is not enough that the act itself is intentionally done and this, even though the actor realizes or should realize *202that it contains a very grave risk of bringing about the contact or apprehension. Such realization may make the actor’s conduct negligent or even reckless but unless he realizes that to a substantial certainty, the contact or apprehension will result, the actor has not that intention which is necessary to make him liable under the rule stated in this Section.”

A battery would be established if, in addition to plaintiff’s fall, it was proved that, when Brian moved the chair, he knew with substantial certainty that the plaintiff would attempt to sit down where the chair had been. If Brian had any of the intents which the trial court found, in the italicized portions of the findings of fact quoted above, that he did not have, he would of course have had the knowledge to which we have referred. The mere absence of any intent to injure the plaintiff or to play a prank on her or to embarrass her, or to commit an assault and battery on her would not absolve him from liability if in fact he had such knowledge. Mercer v. Corbin (1889), 117 Ind. 450, 20 N. E. 132, 3 L. R. A. 221. Without such knowledge, there would be nothing wrongful about Brian’s act in moving the chair, and, there being no wrongful act, there would be no liability.

While a finding that Brian had no such knowledge can be inferred from the findings made, we believe that before the plaintiff’s action in such a case should be dismissed there should be no question but that the trial court had passed upon that issue; hence, the case should be remanded for clarification of the findings to specifically cover the question of Brian’s knowledge, because intent could be inferred therefrom. If the court finds that he had such knowledge, the necessary intent will be established and the plaintiff will be entitled to recover, even though there was no purpose to injure or embarrass the plaintiff. Vosburg v. Putney, supra. If Brian did not have such knowledge, there was no wrongful act by him, and the basic premise of liability on the theory of a battery was not established.

It will be noted that the law of battery as we have *203discussed it is the law applicable to adults, and no significance has been attached to the fact that Brian was a child less than six years of age when the alleged battery occurred. The only circumstance where Brian’s age is of any consequence is in determining what he knew, and there his experience, capacity, and understanding are of course material.

From what has been said, it is clear that we find no merit in plaintiff’s contention that we can direct the entry of a judgment for eleven thousand dollars in her favor on the record now before us.

Nor do we find any error in the record that warrants a new trial.

What we have said concerning intent in relation to batteries caused by the physical contact of a plaintiff with the ground or floor as the result of the removal of a chair by a defendant, furnishes the basis for the answer to the contention of the plaintiff that the trial court changed its theory of the applicable law after the trial, and that she was prejudiced thereby.

It is clear to us that there was no change in theory so far as the plaintiff’s case was concerned. The trial court consistently from beginning to end recognized that, if the plaintiff proved what she alleged and her eyewitness testified, namely, that Brian pulled the chair out from under the plaintiff while she was in the act of sitting down and she fell to the ground in consequence thereof, a battery was established. Had she proved that state of facts, then the trial court’s comments about inability to find any intent (from the connotation of motivation) to injure or embarrass the plaintiff, and the italicized portions of his findings as above set forth, could have indicated a change of theory. But what must be recognized is that the trial court was trying in those comments and in the italicized findings to express the law applicable, not to the facts as the plaintiff contended they were, but to the facts as the trial court found them to be. The remand for clarification gives the plaintiff an opportunity to secure a judgment even though the trial court did not accept her version of the facts, if from all the evidence the trial court can find that Brian knew with sub*204stantial certainty that the plaintiff intended to sit down where the chair had been before he moved it, and still without reference to motivation.

The plaintiff-appellant urges as another ground for a new trial that she was refused the right to cross-examine Brian. Some twenty pages of cross-examination indicate that there was no refusal of the right of cross-examination. The only occasion that impressed us as being a restriction on the right of cross-examination occurred when plaintiff was attempting to develop the fact that Brian had had chairs pulled out from under him at kindergarten and had complained about it. Plaintiff’s counsel sought to do this by asking questions concerning statements made at Brian’s home and in a court reporter’s office. When objections were sustained, counsel for plaintiff stated that he was asking about the conversations to refresh the recollection of the child, and made an offer of proof. The fact that plaintiff was seeking to develop came into the record by the very simple method of asking Brian what had happened at kindergarten. Consequently, what plaintiff offered to prove by the cross-examination is in the record, and the restriction imposed by the trial court was not prejudicial.

It is argued that some courts predicate an infant’s liability for tort upon the basis of the existence of an estate in the infant; hence it was error for the trial court to refuse to admit as an exhibit a policy of liability insurance as evidence that there was a source from which a judgment might be satisfied. In our opinion, the liability of an infant for his tort does not depend upon the size of his estate or even upon the existence of one. That is a matter of concern only to the plaintiff who seeks to enforce a judgment against the infant.

The motion for a new trial was also based on newly discovered evidence. The case having been tried to the court, the trial judge was certainly in a position to know whether that evidence would change the result on a new trial. It was not of a character that would make the denial of the motion an abuse of discretion.

*205The plaintiff complains, and with some justice, that she was not permitted to take a pretrial deposition of the defendant, Brian Dailey. While Rule of Pleading, Practice, and Procedure 30 (b), 34A Wn. (2d) 91, gives the trial court the right “for good cause shown” to prevent the taking of a deposition, it seems to us that though it might well have been taken under the supervision of the court to protect the child from leading, misleading, and confusing questions, the deposition should have been allowed, if the child was to be permitted to testify at the trial. If, however, the refusal to allow the taking of the deposition was an abuse of discretion, and that we are not prepared to hold, it has not been established that the refusal constituted prejudicial error. (Parenthetically we would add that the right to a review of the rulings on pretrial procedure or with respect to depositions or discovery or incidental procedural motions preceding the trial seems to be limited to an appeal from a final judgment (2 Barron and Holtzoff, Federal Practice and Procedure (rules ed.), § 803; 3. Id. § 1552) and realistically such a review is illusory for the reasons given by Prof. David W. Louisell. See 36 Minn. L. Rev. 654.)

The cause is remanded for clarification, with instructions to make definite findings on the issue of whether Brian Dailey knew with substantial certainty that the plaintiff would attempt to sit down where the chair which he moved had been, and to change the judgment if the findings warrant it.

Costs on this appeal will abide the ultimate decision of the superior court. If a judgment is entered for the plaintiff, Ruth Garratt, appellant here, she shall be entitled to her costs on this appeal. If, however, the judgment of dismissal remains unchanged, the respondent will be entitled to recover his costs on this appeal.

Remanded for clarification.

Schwellenbach, Donworth, and Weaver, JJ., concur.

May 3, 1955. Petition for rehearing denied.

GREENHILL, Justice.

This is a suit for actual and exemplary damages growing out of an alleged assault and battery. The plaintiff Fisher was a mathematician with the Data Processing Division of the Manned Spacecraft Center, an agency of the National Aeronautics and Space Agency, commonly called NASA, near Houston. The defendants were the Carrousel Motor Hotel, Inc., located in Houston, the Brass Ring Club, which is located in the Carrousel, and Robert W. Flynn, who as an employee of the Carrousel was the manager of the Brass Ring Club. Flynn died before the trial, and the suit proceeded as to the Carrousel and the Brass Ring. Trial was to a jury which found for the plaintiff Fisher. The trial court rendered judgment for the defendants notwithstanding the verdict. The Court of Civil Appeals affirmed. 414 S.W.2d 774. The questions before this Court are whether there was evidence that an actionable battery was committed, and, if so, whether the two corporate- defendants must respond in exemplary as well as actual damages for the malicious conduct of Flynn.

The plaintiff Fisher had been invited by Ampex Corporation and Defense Electronics to a one day’s meeting regarding telemetry equipment at the Carrousel. The invitation included a luncheon. The guests were asked to reply by telephone whether they could attend the luncheon, and Fisher called in his acceptance. After the morning session, the group of 25 or 30 guests adjourned to the Brass Ring Club for lunch. The luncheon was buffet style, and Fisher stood in line with others and just ahead of a graduate student of Rice University who testified at the trial. As Fisher was about to be served, he was approached by Flynn, who snatched the plate from Fisher’s hand and shouted that he, a Negro, could not be *629served in the club. Fisher testified that he was not actually touched, and did not testify that he suffered fear or apprehension of physical injury; but he did testify that he was highly embarrassed and hurt by Flynn’s conduct in the presence of his associates.

The jury found that Flynn “forceably dispossessed plaintiff of his dinner plate” and “shouted in a loud and offensive manner” that Fisher could not be served there, thus subjecting Fisher to humiliation and indignity. It was stipulated that Flynn was an employee of the Carrousel Hotel and, as such, managed the Brass Ring Club. The jury also found that Flynn acted maliciously and awarded Fisher $400 actual damages for his humiliation and indignity and $500 exemplary damages for Flynn’s malicious conduct.

The Court of Civil Appeals held that there was no assault because there was no physical contact and no evidence of fear or apprehension of physical contact. However, it has long been settled that there can be a battery without an assault, and that actual physical contact is not necessary to constitute a battery, so long as there is contact with clothing or an object closely identified with the body. 1 Harper & James, The Law of Torts 216 (1956) ; Restatement of Torts 2d, §§ 18 and 19. In Prosser, Law of Torts 32 (3d Ed. 1964), it is said:

“The interest in freedom from intentional and unpermitted contacts witlrthe plaintiff’s person is protected by an action for the tort commonly called battery. The protection extends to any part of the body, or to anything which is attached to it and practically identified with it. Thus contact with the plaintiff’s clothing, or with a cane, a paper, or any other object held in his hand will be sufficient; * * * The plaintiff’s interest in the integrity of his person includes all those things which are in contact or connected with it.”

Under the facts of this case, we have no difficulty in holding that the intentional grabbing of plaintiff’s plate constituted a battery. The intentional snatching of an object from one’s hand is as clearly an offensive invasion of his person as would be an actual contact with the body. “To constitute an assault and battery, it is not necessary to touch the plaintiff’s body or even his clothing; knocking dr snatching anything from plaintiff’s hand or touching anything connected with his person, when done in an offensive manner, is sufficient.” Morgan v. Loyacomo, 190 Miss. 656, 1 So.2d 510 (1941).

Such holding is not unique to the jurisprudence of this State. In S. H. Kress & Co. v. Brashier, 50 S.W.2d 922 (Tex.Civ.App.1932, no writ), the defendant was held to have committed “an assault or trespass upon the person” by snatching a book from the plaintiff’s hand. The jury findings in that case were that the defendant “dispossessed plaintiff of the book” and caused her to suffer “humiliation and indignity.”

The rationale for holding an offensive contact with such an object to be a battery is explained in 1 Restatement of Torts 2d § 18 (Comment p. 31) as follows:

“Since the essence of the plaintiff’s grievance consists in the offense to the dignity involved in the unpermitted and intentional invasion of the inviolability of his person and not in any physical harm done to his body, it is not necessary that the plaintiff’s actual body be disturbed. Unpermitted and intentional contacts with anything so connected with the body as to be customarily regarded as part of the other’s person and therefore as partaking of its inviolability is actionable as an offensive contact with his person. There are some things such as clothing or a cane or, indeed, anything directly grasped by the hand which are so intimately connected with one’s body as to be universally regarded as part of the person.”

*630We hold,. therefore, that the forceful dispossession of plaintiff Fisher’s plate in an offensive manner was sufficient to constitute a battery, and the trial court erred in granting judgment notwithstanding the verdict on the issue of actual damages.

In Harned v. E-Z Finance Co., 151 Tex. 641, 254 S.W.2d 81 (1953), this Court refused to adopt the “new tort” of intentional interference with peace of mind which permits recovery for mental suffering in the absence of resulting physical injury or an assault and battery. This cause of action has long been advocated by respectable writers and legal scholars. See, for example, Prosser, Insult and Outrage, 44 Cal.L.Rev. 40 (1956); Wade, Tort Liability for Abusive and Insulting Language, 4 Vand.L.Rev. 63 (1950); Prosser, Intentional Infliction of Mental Suffering: A New Tort, 37 Mich.L.Rev. 874 (1939); 1 Restatement of Torts 2d § 46(1). However, it is not necessary to adopt such a cause of action in order to sustain the verdict of the jury in this case. The Harned case recognized the well established rule that mental suffering is compensable in suits for willful torts “which are recognized as torts and actionable independently and separately from mental suffering or other injury.” 254 S.W.2d at 85. Damages for mental suffering are recoverable without the necessity for showing actual physical injury in a case of willful battery because the basis of that action is the unpermitted and intentional invasion of the plaintiff’s person and not the actual harm done to the plaintiff’s body. Restatement of Torts 2d § 18. Personal indignity is the essence of an action for battery; and consequently the defendant is liable not only for contacts which do actual physical harm, but also for those which are offensive and insulting. Prosser, supra; Wilson v. Orr, 210 Ala. 93, 97 So. 123 (1923). We hold, therefore, that plaintiff was entitled to actual damages for mental suffering due to the willful battery, even in the absence of any physical injury.

We now turn to the question of the liability of the corporations for exemplary damages. In this regard, the jury found that Flynn was acting within the course and scope of his employment on the occasion in question; that Flynn acted maliciously and with a wanton disregard of the rights and feelings of plaintiff on the occasion in question. There is no attack upon these jury findings. The jury further found that the defendant Carrousel did not authorize or approve the conduct of Flynn. It is argued that there is no evidence to support this finding. The jury verdict concluded with a finding that $500 would “reasonably compensate plaintiff for the malicious act and wanton disregard of plaintiff’s feelings and rights. * * * ”

The rule in Texas is that a principal or master is liable for exemplary or punitive damages because of the acts of his agent, but only if:

(a) the principal authorized the doing and the manner of the act, or

(b) the agent was unfit and the principal was reckless in employing him, or

(c) the agent was employed in a managerial capacity and was acting in the scope of employment, or

(d) the employer or a manager of the employer ratified or approved the act.

The above test is set out in the Restatement of Torts § 909 and was adopted in King v. McGuff, 149 Tex. 432, 234 S.W.2d 403 (1950). At the trial of this case, the following stipulation was made in open, court:

“It is further stipulated and agreed to by all parties that as an employee of the Carrousel Motor Hotel the said Robert W. Flynn was manager of the Brass Ring Club.”

We think this stipulation brings the case squarely within part (c) of the rule an*631nounced in the King case as to Flynn’s managerial capacity. It is undisputed that Flynn was acting in the scope of employment at the time of the incident; he was attempting to enforce the Club rules by depriving Fisher of service.

The rule of the Restatement of Torts adopted in the King case set out above has four separate and disjunctive categories as a basis of liability. They are separated by the word “or.” As applicable here, there is liability if (a) the act is authorized, or (d) the act is ratified or approved, or (c) the agent was employed in a managerial capacity and was acting in the scope of his employment. Since it was established that the agent was employed in a managerial capacity and was in the scope of his employment, the finding of the jury that the Carrousel did not authorize or approve Flynn’s conduct became immaterial.

The King case also cited and relied upon Ft. Worth Elevator Co. v. Russell, 123 Tex. 128, 70 S.W.2d 397 (1934). In that case, it was held not to be material that the employer did not authorize or ratify the particular conduct of the employee; and the right to exemplary damages was supported under what is section (b) of the Restatement or King rule: The agent was unfit, and the principal was reckless in employing [or retaining] him.

After the jury verdict in this case, counsel for the plaintiff moved that the trial court disregard the answer to issue number eight [no authorization or approval of Flynn’s conduct on the occasion in question] and for judgment upon the verdict. The trial court erred in overruling that motion and in entering judgment for the defendants notwithstanding the verdict; and the Court of Civil Appeals erred in affirming that judgment.

The judgments of the courts below are reversed, and judgment is here rendered for the plaintiff for $900 with interest from the date of the trial court’s judgment, and for costs of this suit.

Savage, J.

'Action for false imprisonment. The plaintiff recovered a verdict for $1100. The case comes up on defendant’s exceptions and motion for a new trial.

The case shows that for several years prior -to 1910, at a locality called “Shiloh” in Durham in this State there had been gathered together a religious sect, of which the defendant was at least the religious leader. They dwelt in a so called colony. There was a similar' colony under the same religious leadership at Jaffa, in Syria. The plaintiff was a member of -this sect, and her husband *79was one of its ministers. For the promotion of the work of the “movement” as it is called, a Yacht Club was incorporated, of which the defendant was president. The Yacht Club owned two sailing yachts, the ‘.‘Kingdom” and the “Coronet.” So far as this case is concerned, these yachts were employed in transporting members of the movement, back and forth, between the coast of Maine and Jaffa.

The plaintiff, with her four children, sailed on the Coronet to Jaffa in 1905. Her husband was in Jerusalem, but came to Jaffa, and there remained until he sailed, a year later, apparently to America. The plaintiff lived in Jerusalem and Jaffa, as a member of the colony, until March, 1909. At that time she decided to abandon the movement, and from that time on ceased to take part in its exercises, or to be recognized as a member. She made her preparations to return to America by steamer, but did not obtain the necessary funds therefor until December 24, 1909. At that time the Kingdom was in the harbor at Jaffa, and the defendant was on board. On Christmas day he sent a messenger to ask the plaintiff to come on board. She went, first being assured by the messenger, that she should be returned to shore. The defendant expressed a strong desire that she should come back to America on the " Kingdom, rather than in a steamer, saying, as she says, that he could not bear the sting of having her come home by steamer, he having taken her out. The plaintiff fearing, as she says, that if she came on board the defendant’s yacht she would not be let off until she was “won to the movement” again, discussed that subject with the defendant, and he assured her repeatedly that under no circumstances would she be detained on board the vessel after they got into port, and that she should be free to do what she wanted to the moment they reached shore. Relying upon this promise, she boarded the Kingdom on December 28, and sailed for America. She was treated as a guest, and with all respect. She had her four children with her. The defendant was also on board.

The Kingdom arrived in Portland Harbor on the afternoon of Sunday, May 8, 1910. The plaintiff’s husband, who was at Shiloh, was telephoned to by someone, and went at once to Portland Harbor, reaching the yacht about midnight of the same day. The *80Coronet was also in Portland Harbor at that time. Later both yachts sailed to -South Freeport, reaching there Tuesday morning, May io. From this time until June 6 following the plaintiff claims that she was prevented from leaving the Kingdom, by the defendant, in such manner as to constitute false imprisonment.

The Exceptions.

i. The first exception relied upon relates to the admissibility of the record of habeas corpus proceedings, by virtue of which the plaintiff was removed from the Kingdom- by a sheriff on June 6, and under which she was discharged later. This record was admitted subject to the defendant’s objection and exception. Further, the presiding Justice was requested to instruct -the jury that the habeas corpus proceedings were inadmissible, and must be entirely disregarded by them. The presiding Justice declined to give the requested instruction, saying, “I have said all that I desire in regard to the habeas corpus. You have the right to consider the fact as bearing on the conduct of the plaintiff and the situation under which she had applied for it.” The presiding Justice in his charge had already said: “It -is my duty to say to you that that [the discharge of the plaintiff on habeas corpus] is not a judicial determination of the question involved here. The defendant would not be bound by that adjudication of a single Justice under the circumstances of this case, there being no notice to him and he having no opportunity to be heard upon it. You have a right, I say to you, for the purposes of this trial, to consider the fact that she did resort to this petition of habeas corpus to obtain her release as bearing upon the testimony and all the circumstances surrounding her at that time as tending to show that she was restrained of her liberty.” To this refusal to instruct, the defendant took an exception. These exceptions will be considered together.

The case shows that on June 4, 1910, application was made to a Justice of this court for a writ o-f habeas corpus to take, and bring before the court, the plaintiff and -her four minor children, who it was alleged were restrained of their liberty on a certain yacht named Kingdom by the defendant, or by the captain or commanding officer of said Kingdom, or by the person or persons in charge of said Kingdom. The application was made by one Harriman, *81under the provisions of R. S., 'Chap, ioi, Section 4, which provides that application may be made “by any person.” The Justice ordered “writ to issue as prayed for, returnable before me at the Court House in Auburn, and to be heard on Wednesday, June 8, 1910, 2 P. M.” The form prescribed by statute for such a writ contains the following direction to the officer, “and summon the said A. B. [the person alleged to be holding the party in restraint] then and there to appear before our said court, to show cause for taking and detaining said C. D. [the party restrained].” R. S., Chap. 101, Sect. 18. The order for the writ to issue therefore necessarily embraced the direction in the writ to the officer to “summon the defendant.” No further order of notice was necessary. But in the writ, as issued by the clerk, the clause commanding the officer to “summon” the defendant was omitted. The officer took the writ and proceeded to the Kingdom, then lying about three miles off shore. He exhibited the writ to the plaintiff’s husband, to whom, it is now claimed by the defendant, he had committed the care of, and responsibility for, the plaintiff. Mr. Whittaker read it. The commanding officer asked to take the writ, in order that the stenographer could make a copy of it. This request was complied with. But no service of the writ was made on either the defendant or the commanding officer. The defendant himself was not then on board the Kingdom, but was on the Coronet, lying not far away. The officer took the plaintiff and children, and carried them before the Justice, who after hearing discharged them. The defendant did not attend the hearing. But Mr. Whittaker, the plaintiffs husband, went to Auburn, and was in the Court House when the hearing was had, but did not go into the room where it was being held.

It is not necessary now to consider the propriety or legality of the discharge, in the absence of notice to the defendant. The presiding Justice correctly instructed the jury that it was not a judicial determination of the question involved in this case, which was whether the defendant had wrongfully restrained the plaintiff of her liberty. He expressly instructed the jury also that the defendant was not bound by the adjudication. In considering the exception we must assume that the jury heeded the instruction. Limited in its application as it was by the presiding Justice, we think the *82record was admissible. In the first place, it was proper for the plaintiff to show when and how she obtained her liberty. It is so closely connected with the question of restraint as to be practically inseparable. It was a part of the history of the transaction, the concluding part. Besides, the pith of the proposition lies not in t’he discharge, concerning the effect of which the jury were instructed favorably to the defendant, but in the fact that the situation was such that resort was had to habeas corpus. It was a part of the conduct of the parties. It had a tendency to show an improbability that the plaintiff was free to leave the yacht when she should choose. The probative force of it was well stated by the presiding Justice in his charge, in stating the differing contentions of the parties. “It is argued on the part of the plaintiff,” he said, “that it is unreasonable and improbable to assert that she was not restrained of her liberty when you find her resorting to a writ of habeas corpus; that if she could 'have had at any time a boat to go on shore and be taken on shore, that she would not in all human probability have resorted to, or even acquiesced in, the resort of any of her friends to a writ of habeas corpus, for there was no necessity for it.” We think the argument is not devoid of merit. How much weight should be given to it was for the jury to say. It will be noticed that this evidence, as the case was submitted by the court to the jury, was applied to the question of restraint of liberty by some one, and not to the responsibility of the defendant for it. We think the rulings were right.

2. The plaintiff claimed and testified that on two or three occasions the defendant personally refused to furnish her with a boat so that she could leave the Kingdom, that when she wanted to go ashore, “they,” evidently referring to the defendant and her husband, “had talked against it,” that the defendant “had spoken plainly that it was out of fhe question,” that when she spoke to him about it he said he would leave it to her husband to do what he wanted to, that he would not fake the responsibility of separating families, but that when she asked her husband to take her ashore, he replied, 'We will see Mr. Sanford about it and see what he says.” The plaintiff contended that in this way the defendant and her husband in effect played into -each other’s hands, and shifted *83the responsibility from one to the other, while she was the victim of this play of battledore and shuttlecock. It was contended that by virtue of the peculiar religious character attributed to the defendant by those who were in the movement, of whom the plaintiff’s husband was one, being a minister of that faith, he possessed and exercised supreme control over the members, both on sea and on land, and that his wish was law both to their wills and to their consciences, and that the plaintiff’s husband, whatever part he took in the matter, was either merely the defendant’s instrument, or else was colleagued with him.

It therefore became pertinent for the plaintiff to show the nature and extent of the defendant’s authority and power. This, of course, was only one step, but it was a step. Another would be to show that the defendant exercised that authority and that it was effective in restraining the plaintiff of her liberty.

And the plaintiff was permitted to testify, subject to exception, to the following effect: — Several years ago the defendant said that God gave him a message, that Elijah was here, that he was the second Elijah, and had come to prepare the way for the coming of Christ, that he talked that to the people in the movement for years, and that they knew him as Elijah; that later he said God gave him messages and made him know that the Kingdom, of God was established again on earth, and that God made him know that he was to be king among the people, the twelve tribes of Israel scattered out over all the earth, that God scattered them, when they were in Palestine after he had brought them out of the land of Egypt, that they sinned and he scattered them, but he said that in the last days they should be restored and brought back to Palestine, and Palestine should be made a glorious land again as God intended it to be, and these people should be gathered up and brought back and restored to the true religion of Jesus Christ, and that God said in the Bible among the prophesies that when these days come and the people are restored He is going to give them a king; he said that a king shall reign and rule in righteousness; he said that God made him know that he was King David, and that he was to reign and rule in righteousness, and that all the earth was going to bow to him. And the witness testified further, that all the people in the *84movement at Shiloh, which seems to have been the original home of the movement, and the place where the plaintiff’s husband was minister, know him as King David, and call him so.

In connection with this exception it may be noticed that one of the defendant’s witnesses; a member of the movement, and apparently a frank and intelligent man, being asked on cross-examination to explain why the defendant is sometimes called King David, testified without objection: — “We believe that Mr. Sanford is the Dav-id that is spoken of as the character that is to appear in the last days to prepare God’s people for the coming of Christ.”

Under the circumstances of this case, we think that the evidence objected to was admissible. We think it is a fair inference that a person believed by his followers to possess the character thus attributed to the defendant would be very likely to obtain the power and influence over them, which it is claimed the defendant had. This is not a religious question, but a question of law. We are not concerned in this case with the beliefs of the defendant and those connected with him. We do not seek to impugn in the slightest degree the grounds of their beliefs. But, whether right or wrong, we think that it is clear that to the trusting and devout followers of such a leader, his influence, his will, his wish, might easily, • and probably would, become paramount over. their minds, and would control their actions. Besides, the question of the nature and extent of the defendant’s control was made relevant by the defendant’s contention that the captain and other officers of the yacht, and not the defendant, were in control of the small boats and that the control was practically independent of the defendant. It must be remembered that this discussion goes only to> the admissibility of the evidence, and not to its effect. If in fact the power was not used by the defendant to keep the plaintiff on board the yacht against her will, the possession of the power cannot' count against the defendant.

3. The plaintiff’s writ was brought in a plea of the case, but the defendant contends that the declaration in her writ was in its effect a declaration for trespass to the person. The defendant requested the court to instruct the jury that “to maintain her action the plaintiff must show some actual physical force exercised *85by the defendant or by someone acting as his agent and by his authority to restrain her of her liberty.”

We think the defendant’s assumption in his request that the action in effect is trespass .to the person is without warrant. In argument, stress is laid upon the use of the words “with force and arms.” These words appear only in the first and fourth counts. But the record shows that the court at the defendant’s request instructed the jury that the plaintiff could not recover under either of these counts. They are out of the case now. In the remaining counts it is alleged that the unlawful restraint was “by force and against the will of the plaintiff.” The court instructed the jury that the plaintiff to recover must show that the restraint was physi- ' cal, and not merely a moral influence, that it must have been actual physical restraint, in the sense that one intentionally locked into a room would be physically restrained, but not necessarily involving physical force upon the person; that it was not necessary that the defendant, or any person by his direction, should lay his hand upon the plaintiff, that if the plaintiff was restrained so that she could not' leave the yacht Kingdom by the intentional refusal to furnish transportation as agreed, she not having it in her power to escape otherwise, it would a physical restraint and unlawful imprisonment. We think the instructions were apt and sufficient. If one should, without right, turn the key in a door, and thereby prevent a person in the room from leaving, it would be the simplest form of unlawful imprisonment. The restraint is physical. The four walls and the locked door are physical impediments to escape. How is it different when one who is in control of a vessel at anchor, within practical rowing distance from the shore, who has agreed that a guest on board shall be free to leave, there being no means to leave except by rowboats, wrongfully refuses the guest the use of a boat? The boat is the key. By refusing the boat he turns the key. The guest is as effectually locked up as if there were walls along the sides of the vessel. The restraint is physical. The impassable sea is the physical barrier.

There are other exceptions, but the points involved are all covered by the foregoing discussion. The exceptions must all be overruled.

*86The Motion.

A careful study of the evidence leads us to conclude that the jury were warranted in finding that the defendant was guilty of unlawful imprisonment. This, to be sure, is not an action based upon the defendant’s failure to keep his agreement to permit the plaintiff to leave the yacht as soon as it should reach shore. But his duty under the circumstances is an important consideration. It cannot be believed that either party to the agreement understood that it was his duty merely to bring her to an American harbor. The agreement implied that she was to go ashore. There was no practical way for her to go ashore except in the yacht’s boats. The agreement .must be understood to mean that he would bring her to land, or to allow her to get to land, by the only available means. The evidence is that he refused her a boat. His refusal was wrongful. The case leaves not the slightest doubt that he had the power to control the boats, if he chose to exercise it. It was not enough for him to leave it -to the husband to say whether she might go ashore or not. She had a personal right to go on shore. If the defendant personally denied her the privilege, as the jury might find he did, it was a wrongful denial.

It is shown -that on several .occasions the defendant told the plaintiff she could have a boat when she wished, but it is also shown by testimony which the jury might believe that each time she made request for a boat to be used at the time, she was refused. The plaintiff did not ask the captain or other officers of the yacht for a boat. These officers testified that they had authority to let anyone have the use of a boat, and that, without consulting the defendant. We do not think the defendant can justly claim that she should have asked the officers under him, if he had himself denied her a boat. And in the one specific case shown in the evidence, when she did ask the captain for a boat to go on shore, he referred the discussion of the matter to the defendant. This was at Malta. She apparently believed that an appeal to- the officers would be useless. It was not an unreasonable belief.

The defendant did not become a witness, but it is claimed for him that after Tuesday, May 10, he assumed no responsibility whatever for the plaintiff, and left her in the care of her husband, *87specifically saying that he would leave it to her husband to say whether she could leave the yacht. From that date, he stayed on the Coronet, only coming aboard the Kingdom once, though on that occasion she says he refused her the use of a boat. From that date she was in the company of her husband, though they were not living in marital relations. She went ashore with him. She visited neighboring islands with him. She was trying to persuade him to leave the movement and make a home for her and their children. He was trying to persuade her to become again a member of the movement. When on shore with him she made no effort to escape. She says she believed it would be useless, and thus went back to the yacht with him. She says that when she did ask her husband to put her ashore to leave, he replied, “We will see Mr. Sandford about it and see what he says.” She further says that the defendant had told her that “he” (her husband) “couldn’t do it” (put her on shore).

Besides the evidence of express personal refusal on the part of the defendant, we think that a jury might well find upon the evidence that the defendant was strongly desirous that the plaintiff should not leave the yacht, probably for the reason that he hoped her husband’s influence might lead her back into the movement, that the husband was strongly desirous of the same end, that if she left the yacht she would be beyond the influence of her husband; that the subject was a matter of conversation between the defendant and the husband; that in view of the relation which the defendant bore to the movement and to the husband, in view of the mystical character attributed to him, in view of the manifest power possessed by him over the minds of the members, growing out of a belief which we have already stated, and which the husband shared in, the husband, if not acting by express mutual understanding with the defendant, was the minister of his known will, with the result that the plaintiff was prevented from leaving the yacht; that the defendant was the superior, the controlling factor, by an influence intentionally used, in keeping her there; that he possessed the key that would unlock the situation; and that in violation of his duty he refused to use it, and thus restrained her of her liberty. If all this was true, the defendant is liable to the plaintiff. The verdict should not be set aside on that ground.

*88But the damages awarded seem to us manifestly excessive. The plaintiff, if imprisoned, was by no means in close confinement. She was afforded all the liberties of the yacht. She was taken on shore by her husband to do shopping and transact business at a bank. She visited neighboring islands with fier husband and children; on one of which they enjoyed a family picnic. The case lacks the elements of humiliation and disgrace that frequently attend false imprisonment. She was respectfully treated as a guest in every way, except that she was restrained from quitting the yacht for good and all.

The certificate will be,

Exceptions overruled.

If the plaintiff remits all of the verdict in excess of $joo, within 30 days after the certificate is received by the clerk, motion overruled; otherwise, motion sustained.

Justice ABBOTT

delivered the opinion of the Court,

in which Chief Justice PHILLIPS, Justice HECHT, Justice ENOCH, Justice BAKER, Justice HANKINSON, Justice O’NEILL, and Justice GONZALES join.

In this case we determine whether three GTE Southwest, Incorporated employees may recover damages for intentional infliction of emotional distress based on the workplace conduct of their supervisor. The trial court rendered judgment for the employees on the jury verdict, and the court of appeals affirmed. 956 S.W.2d 636. We affirm the judgment of the court of appeals.

I

Facts

Three GTE employees, Rhonda Bruce, Linda Davis, and Joyce Poelstra, sued GTE for intentional infliction of emotional distress premised on the constant humiliating and abusive behavior of their supervisor, Morris Shields. Shields is a former U.S. Army supply sergeant who began working for GTE in 1971. Between 1981 and May 1991, Shields worked as a supervisor in GTE’s supply department in Jacksonville, Arkansas. During his tenure there, four of Shields’s subordinate employees (none of the employees involved in this case) filed formal grievances against Shields with GTE, alleging that Shields constantly harassed them. As a result of these complaints, GTE investigated Shields’s conduct in 1988 and 1989, but took no formal disciplinary action against him.

In May 1991, GTE transferred Shields from Jacksonville to Nash, Texás, where he became the supply operations supervisor. The supply department at Nash was small, consisting of two offices and a store room. There were approximately eight employees other than Shields. Bruce, Davis, and Poelstra (“the employees”) worked under Shields at the Nash facility. Like the GTE employees in Jacksonville, Bruce, Davis, and Poelstra complained to GTE of Shields’s conduct, alleging that Shields constantly harassed and intimidated them. The employees complained about Shields’s daily use of profanity, short temper, and his abusive and vulgar dictatorial manner. The employees complained that, among other offensive acts, *609Shields repeatedly yelled, screamed, cursed, and even “charged” at them. In addition, he intentionally humiliated and embarrassed the employees.

GTE investigated these complaints in April 1992, after which GTE issued Shields a “letter of reprimand.” After the reprimand, Shields discontinued some of his egregious conduct, but did not end it completely.

Eventually, Bruce, Davis, and Poelstra sought medical treatment for emotional distress caused by Shields’s conduct. In March 1994, the employees filed suit, alleging that GTE intentionally inflicted emotional distress on them through Shields. The employees asserted no causes of action other than intentional infliction of emotional distress. The jury awarded $100,000.00 plus prejudgment interest to Bruce, $100,000.00 plus interest to Davis, and $75,000.00 plus interest to Poelstra.

II

The Texas Workers’ Compensation Act

GTE argues that, because it is a subscriber to the Texas Workers’ Compensation Act, the employees’ claim for intentional infliction of emotional distress is barred by the Act, which provides the exclusive remedy for an employee covered by workers’ compensation insurance against an employer for a work-related injury. See Tex. Lab.Code § 408.001. GTE contends that the Act provides compensation for the employees’ injuries, and accordingly, the Act bars the employees’ claims unless they can show that GTE committed an intentional tort. See Massey v. Armco Steel Co., 652 S.W.2d 982, 983 (Tex.1983). The employees respond that the Act cannot bar their intentional infliction of emotional distress claim because their injuries are not in fact compensable under the Act.

The court of appeals held that the Act did not bar the employees’ claims because GTE was alleged to have committed intentional acts by and through its supervisor, Morris Shields. 956 S.W.2d at 639; see Medina v. Herrera, 927 S.W.2d 597, 600 (Tex.1996) (Act does not bar recovery for intentional torts directly attributable to the employer). Because it held that the tort was directly attributable to GTE, the court of appeals did not consider whether the employees’ injuries were compensable under the Act in the first instance. We conclude that the employees’ injuries are not compensable under the Act.

The employees allege that they suffered severe emotional distress, which manifested “in the form of tension, nervousness, anxiety, depression, loss of appetite, inability to sleep, crying spells, and uncontrollable emotional outbursts.” Because of these problems, the employees sought medical and psychological treatment. GTE argues that the employees’ emotional distress is a “compensable injury,” defined by the Act as “an injury that arises out of and in the course and scope of employment for which compensation is payable under this subtitle,” because the Act provides compensation for psychological services prescribed by a doctor. Tex. Lab.Code §§ 401.011(10), 401.011(19X0. Although the Act provides compensation for the types of medical care obtained by the employees, the definition of “injury” under the Act must still be satisfied before such compensation is allowed. Thus, we must determine whether the employees’ allegations establish an “injury” for which compensation is payable under the Act.

The Act defines “injury” as “damage or harm to the physical structure of the body and a disease or infection naturally resulting from the damage or harm,” including an occupational disease. Id. § 401.011(26). An “occupational disease” is defined as “a disease arising out of and in the course of employment that causes damage or harm to the physical structure of the body, including a repetitive trauma injury.” Id. § 401.011(34). A “repetitive trauma injury” means “damage or harm to the physical structure of the body occurring as the result of repetitious, physically traumatic *610activities that occur over time and arise out of and in the course and scope of employment.” Id. § 401.011(36).

This Court has liberally construed the word “injury” in cases involving emotional distress and traumatic neurosis. See Olson v. Hartford Accident & Indem. Co., 477 S.W.2d 859, 860 (Tex.1972). The phrase “physical structure of the body” refers to the entire body, and emotional distress may constitute an “injury” when it results in malfunctioning of the physical structure of the body. Transportation Ins. Co. v. Maksyn, 580 S.W.2d 334, 336-37 & n. 2 (Tex.1979); Bailey v. American Gen. Ins. Co., 154 Tex. 430, 279 S.W.2d 315, 318-19 (1955).

We have previously considered whether an injury caused by repetitious mental traumatic activity rather than physical activity is compensable under the Act. In Maksyn, the employee suffered from “anxiety depression” attributed to long hours and stress. Maksyn, 580 S.W.2d at 334-35. We held that repetitive mental trauma resulting in injury is not a compensable occupational disease under the Act. Id. at 337-39. However, we also recognized that an employee may recover for an accidental injury due to mental trauma (as opposed to an occupational disease) when there is evidence of an undesigned, untoward event traceable to a definite time, place, and cause. Id. at 336-37; see also Brown v. Texas Employers’ Ins. Ass’n, 635 S.W.2d 415, 416 (Tex.1982); Olson, All S.W.2d at 859-60.

GTE argues that the employees’ injuries are traceable to a definite time, place, and cause — namely, Morris Shields’s behavior toward the employees at GTE from March 1, 1992 to October 1, 1993. GTE relies on Director, State Employees Workers’ Compensation Division v. Camarata, 768 S.W.2d 427, 429 (Tex.App. — El Paso 1989, no writ), in which the court of appeals held the employee’s post-traumatic stress syndrome to be a compensable accidental injury because it was traceable to the particular event of seeing a supervisor’s memo criticizing his work performance.

A survey of the cases allowing recovery for accidental injuries due to mental trauma indicates that, in each case, as in Ca-marata, the injuries were caused by a particular exciting event. See, e.g., Bailey, 279 S.W.2d at 316 (traumatic neurosis suffered by worker on scaffold after almost falling from scaffold and seeing fellow worker fall to his death); Hood v. Texas Indem. Ins. Co., 146 Tex. 522, 209 S.W.2d 345 (1948) (traumatic neurosis following single injury to foot and elbow); Travelers Ins. Co. v. Garcia, 417 S.W.2d 630 (Tex. Civ.App. — El Paso 1967, writ refd n.r.e.) (neurosis after experiencing armed robbery); see also Maksyn, 580 S.W.2d at 336-37 (“The ascertainable single event, though caused by mental stimuli, supported [the employee’s] contention that he suffered an accidental injury.”) (emphasis added); Olson, All S.W.2d at 860 (“The cases allowing recovery for heart attacks, strokes, and traumatic neuroses have involved particular events.”). In contrast, we have found no case allowing recovery for injuries resulting from repetitive mental trauma. See, e.g., Maksyn, 580 S.W.2d at 338-39; Olson, All S.W.2d at 860; Jackson v. Liberty Mut. Ins. Co., 580 S.W.2d 70, 71-72 (Tex.Civ.App. — El Paso 1979, writ refd n.r.e.) (evidence that truck driver’s job was stressful was not an event sufficient to prove a compensable injury from a heart attack).1

*611Here, the employees alleged that the cause of their distress was the continuing harassment and abuse inflicted by Shields from May 1991 to October 1993. GTE does not point to any particular event that caused the mental distress, and instead refers to the scope of events occurring over two-and-a-half years. These allegations establish that the employees’ injuries were caused by repetitive mental trauma rather than an ascertainable event. When there is no evidence of a particular event causing the mental injury, there can be no recovery under the Act. Brown, 635 S.W.2d at 416. Accordingly, the employees’ injuries are not compensable under the Act. See Olson, 477 S.W.2d at 860; Shannon v. Texas Gen. Indent. Co., 889 S.W.2d 662, 665 (TexApp. — Houston [14fh Dist.] 1994, no writ); see also Chavis v. Director, State Worker’s Compensation Div., 924 S.W.2d 439, 444 (Tex.App.— Beaumont 1996, no writ) (“[A] mental condition caused by a gradual buildup of emotional stress over a period of time is not compensable as an occupational disease without accompanying physical force or exertion.”) (quoting Shannon, 889 S.W.2d at 664). Because the injuries are not compensable under the Act, the Act does not bar the employees’ intentional infliction of emotional distress claims. Accordingly, we conclude, as the court of appeals did, that the employees’ claims are not barred by the Act, although we do so on different grounds.

Ill

Intentional Infliction of Emotional Distress

An employee may recover damages for intentional infliction of emotional distress in an employment context as long as the employee establishes the elements of the cause of action. See Womick Co. v. Casas, 856 S.W.2d 732, 734 (Tex.1993). To recover damages for intentional infliction of emotional distress, a plaintiff must prove that: (1) the defendant acted intentionally or recklessly; (2) the conduct was extreme and outrageous; (3) the actions of the defendant caused the plaintiff emotional distress; and (4) the resulting emotional distress was severe. Standard Fruit & Vegetable Co. v. Johnson, 985 S.W.2d 62, 65 (Tex.1998). In addition, “[a] claim for intentional infliction of emotional distress cannot be maintained when the risk that emotional distress will result is merely incidental to the commission of some other tort.” Id. at 68. Accordingly, a claim for intentional infliction of emotional distress will not lie if emotional distress is not the intended or primary consequence of the defendant’s conduct. Id.

GTE contests its liability for intentional infliction of emotional distress on several grounds. First, GTE argues that the alleged conduct does not rise to the level necessary to constitute extreme and outrageous conduct. Second, GTE argues that the employees did not prove that GTE, as opposed to Shields, had the requisite intent. And, third, GTE contends that the employees have not shown that they suffered severe emotional distress. We consider these arguments in turn.

A. Extreme and Outrageous Conduct

GTE first argues that Shields’s conduct is not extreme and outrageous. To be extreme and outrageous, conduct must be “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.” Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994) (quoting Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex.1993)); Restatement *612(Second) of ToRts § 46 cmt. d (1965). Generally, insensitive or even rude behavior does not constitute extreme and outrageous conduct. Natividad, 875 S.W.2d at 699. Similarly, mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities do not rise to the level of extreme and outrageous conduct. See Porterfield v. Galen Hosp. Corp., 948 S.W.2d 916, 920 (Tex.App. — San Antonio 1997, writ denied); Restatement (Second) of ToRts § 46 cmt. d (1965).

In determining whether certain conduct is extreme and outrageous, courts consider the context and the relationship between the parties. See Atchison, Topeka & Santa Fe Ry. v. Buell, 480 U.S. 557, 569, 107 S.Ct. 1410, 94 L.Ed.2d 568 (1987) (“[S]ome States consider the context and the relationship between the parties significant, placing special emphasis on the workplace.”); Wilson v. Monarch Paper Co., 989 F.2d 1138, 1143 (5 th Cir.1991) (“The facts of a given claim of outrageous conduct must be analyzed in context....”). “The extreme and outrageous character of the conduct may arise from an abuse by the actor of a position, or a relation with the other, which gives him actual or apparent authority over the other, or power to affect his interests.” Restatement (Second) of ToRts § 46 cmt. e (1965).

In the employment context, some courts have held that a plaintiffs status as an employee should entitle him to a greater degree of protection from insult and outrage by a supervisor with authority over him than if he were a stranger. See, e.g., Alcorn v. Anbro Eng’g, Inc., 2 Cal.3d 493, 86 CaLRptr. 88, 468 P.2d 216, 218 n. 2 (1970); White v. Monsanto Co., 585 So.2d 1205, 1209-10 (La.1991); see also Bridges v. Winn-Dixie Atlanta, Inc., 176 Ga.App. 227, 335 S.E.2d 445, 448 (1985) (“[T]he existence of a special relationship in which one person has control over another, as in the employer-employee relationship, may produce a character of outrageousness that otherwise might not exist.”); Travis v. Alcon Labs., Inc., 202 W.Va. 369, 504 S.E.2d 419, 426-27 (1998). This approach is based partly on the rationale that, as opposed to most casual and temporary relationships, the workplace environment provides a captive victim and the opportunity for prolonged abuse. See Coleman v. Housing Auth. of Americus, 191 Ga.App. 166, 381 S.E.2d 303, 306 (1989).

In contrast, several courts, including Texas courts, have adopted a strict approach to intentional infliction of emotional distress claims arising in the workplace. See, e.g., Miller v. Galveston/Houston Diocese, 911 S.W.2d 897, 900-01 (TexApp.— Amarillo 1995, no writ); Amador v. Tan, 855 S.W.2d 131, 135 (TexApp. — El Paso 1993, writ denied); Horton v. Montgomery Ward & Co., 827 S.W.2d 361, 369 (Tex. App. — San Antonio 1992, writ denied) (“Incidents in which a Texas court has determined the conduct to be extreme and outrageous in the employer/employee setting are few.”); see also Sterling v. Upjohn Healthcare Sews., Inc., 299 Ark. 278, 772 S.W.2d 329, 330 (1989) (“We have taken a strict view of claims for outrage in employment situations”). These courts rely on the fact that, to properly manage its business, an employer must be able to supervise, review, criticize, demote, transfer, and discipline employees. See Johnson v. Merrell Dow Pharms., Inc., 965 F.2d 31, 34 (5th Cir.1992); Sterling, 772 S.W.2d at 330. Although many of these acts are necessarily unpleasant for the employee, an employer must have latitude to exercise these rights in a permissible way, even though emotional distress results. See Miller, 911 S.W.2d at 901; Diamond Shamrock Ref. & Mktg. Co. v. Mendez, 809 S.W.2d 514, 522 (Tex.App.—San Antonio 1991), aff'd in part and rev’d in part on other grounds, 844 S.W.2d 198 (Tex.1992); Restatement (Second) of Torts § 46 cmt. g (1965). We agree with the approach taken by these courts.

Given these considerations, Texas courts have held that a claim for intentional infliction of emotional distress does not lie for ordinary employment dis*613putes. Miller, 911 S.W.2d at 900-01; see also Johnson, 965 F.2d at 33. The range of behavior encompassed in “employment disputes” is broad, and includes at a minimum such things as criticism, lack of recognition, and low evaluations, which, although unpleasant and sometimes unfair, are ordinarily expected in the work environment. See, e.g., Johnson, 965 F.2d at 33-34; Ulrich v. Exxon Co., U.S.A., 824 F.Supp. 677, 687 (S.D.Tex.1993). Thus, to establish a cause of action for intentional infliction of emotional distress in the workplace, an employee must prove the existence of some conduct that brings the dispute outside the scope of an ordinary employment dispute and into the realm of extreme and outrageous conduct. See Ramirez v. Allright Parking El Paso, Inc., 970 F.2d 1372, 1376 (5th Cir.1992) (requiring employee to show conduct “elevating [the employer’s] actions above those involved in an ‘ordinary employment dispute’ ”). Such extreme conduct exists only in the most unusual of circumstances.2 See Porterfield, 948 S.W.2d at 920-21 (“Only in the most unusual of employment cases does the conduct move out of the ‘realm of an ordinary employment dispute’ and into the classification of extreme and outrageous ....”); see also Wilson v. Monarch Paper Co., 939 F.2d 1138, 1143 (5th Cir.1991).

GTE contends that the evidence establishes nothing more than an ordinary employment dispute. To the contrary, the employees produced evidence that, over a period of more than two years, Shields engaged in a pattern of grossly abusive, threatening, and degrading conduct. Shields began regularly using the harshest vulgarity shortly after his arrival at the Nash facility. In response, Bruce and Davis informed Shields that they were uncomfortable with obscene jokes, vulgar cursing, and sexual innuendo in the office. Despite these objections, Shields continued to use exceedingly vulgar language on a daily basis. Several witnesses testified that Shields used the word “f — ” as part of his normal pattern of conversation, and that he regularly heaped abusive profanity on the employees. Linda Davis testified that Shields used this language to get a reaction. Gene Martin, another GTE employee, testified that Shields used the words “f — ” and “motherf — er” frequently when speaking with the employees. On one occasion when Bruce asked Shields to curb his language because it was offensive, Shields positioned himself in front of her face, and screamed, “I will do and say any damn thing I want. And I don’t give a s— who likes it.” Another typical example is when Gene Martin asked Shields to stop his yelling and vulgarity because it upset the female employees, and Shields replied “I’m tired of walking on f — ing eggshells, trying to make people happy around here.” There was further evidence that Shields’s harsh and vulgar language was not merely accidental, but seemed intended to abuse the employees.

More importantly, the employees testified that Shields repeatedly physically and verbally threatened and terrorized them. There was evidence that Shields was continuously in a rage, and that Shields would frequently assault each of the employees by physically charging at them. When doing so, Shields would bend his head down, put his arms straight down by his sides, ball his hands into fists, and walk quickly toward or “lunge” at the employees, stopping uncomfortably close to their faces while screaming and yelling. The *614employees were exceedingly frightened by this behavior, afraid that Shields might hit them. Linda Davis testified that Shields charged the employees with the intent to frighten them. At least once, another employee came between Shields and Poelstra to protect her from Shields’s charge. A number of witnesses testified that Shields frequently yelled and screamed at the top of his voice, and pounded his fists when requesting the employees to do things. Bruce testified that Shields would “come up fast” and “get up over her” — causing her to lean back — and yell and scream in her face for her to get things for him. Shields included vulgar language in his yelling and screaming. Bruce stated that such conduct was not a part of any disciplinary action against her. Further, the incidents usually occurred in the open rather than in private. Bruce testified that, on one occasion, Shields began beating a banana on his desk, and when he jumped up and slammed the banana into the trash, Bruce thought he would hit her. Afterwards, Shields was shaking and said “I’m sick.”

Bruce also told of an occasion when Shields entered Bruce’s office and went into a rage because Davis had left her purse on a chair and Bruce had placed her umbrella on a fifing cabinet in the office. Shields yelled and screamed for Bruce to clean up her office. Shields yelled, “If you don’t get things picked up in this office, you will not be working for me.” He later said that Bruce and Davis would be sent to the unemployment line and “could be replaced by two Kelly girls” that were twenty years old. On another occasion, Shields came up behind Bruce and said, “You’re going to be in the unemployment line.” Once he told Bruce that he had been sent to Nash to fire her. Another time, he typed “quit” on his computer and said, “That’s what you can do.” Davis testified that Shields threatened to “get them” for complaining about his behavior. And both Bruce and Martin testified that Shields had stated that “he was in a position to get even for what [the employees] had done.”

. Bruce also testified that Shields called her into his office every day and would have her stand in front of him, sometimes for as long as thirty minutes, while Shields simply stared at her. Bruce was not allowed to leave Shields’s office until she was dismissed, even though Shields would periodically talk on the phone or read papers. This often occurred several times a day. Bruce testified that it made her nauseated and intimidated her. On one occasion, Shields backed Bruce into a corner, leaned over her, and said, “Rumor has it that you know how to get anything you want out here.” During an annual review, Shields said to Bruce, “You’re mean and you’re deadly, very deadly.” Davis also testified that Shields would stand over her desk and stare at her.

Shields required Bruce and Davis, both general clerks at GTE, to purchase vacuum cleaners with company funds and to vacuum their offices daily, despite the fact that the company had a cleaning service that performed janitorial services such as vacuuming. The purpose of this seemed not to clean, but to humiliate. Bruce testified that she was ridiculed by other employees. Shields also yelled and screamed when he discovered a spot on the carpet; he made Bruce get on her hands and knees and clean the spots while he stood over her yelling. Poelstra testified that Shields required her to clean tobacco stains from a wall in the warehouse. Poelstra testified that, after she forgot her paperwork for a driving test, Shields ordered her to wear a post-it note on her shirt that said, “Don’t forget your paperwork.” Other witnesses corroborated the employees’ testimony about Shields’s conduct.

In considering whether the evidence establishes more than an ordinary employment dispute, we will also address GTE’s argument that because none of Shields’s acts .standing alone rises to the level of outrageous conduct, the court of appeals erred in holding that, considered cumula*615tively, the conduct was extreme and outrageous. 956 S.W.2d at 644, 647.

As already noted, the employees demonstrated at trial that Shields engaged in a course of harassing conduct directed at each of them, the totality of which caused severe emotional distress. It is well recognized outside of the employment context that a course of harassing conduct may support liability for intentional infliction of emotional distress. See, e.g., Duty v. General Fin. Co., 154 Tex. 16, 273 S.W.2d 64, 65-66 (1954) (debt collection). In such cases, courts consider the totality of the conduct in determining whether it is extreme and outrageous. See id. (analyzing creditor’s entire course of conduct, including repetitive threatening phone calls and letters).

Similarly, in the employment context, courts and commentators have almost unanimously recognized that liability may arise when one in a position of authority engages in repeated or ongoing harassment of an employee, if the cumulative quality and quantity of the harassment is extreme and outrageous. See Womick, 856 S.W.2d at 736 (recognizing that a number of cases in which courts have found extreme and outrageous conduct “involved repeated or ongoing harassment of an employee”); EdgaR & Sales, Texas ToRts and Remedies § 45.09[3], at 45-63 (July 1998) (“[R]epeated or ongoing harassment of the employee is likely to be considered outrageous conduct.”); see also, e.g., Howard Univ. v. Best, 484 A.2d 958, 986 (D.C.1984) (“This evidence of a pattern of harassment was sufficient for the jury to find that [defendant] intentionally and recklessly subjected [plaintiff] to outrageous conduct....”); White, 585 So.2d at 1210 (“Recognition of a cause of action for intentional infliction of emotional distress in a workplace environment has usually been limited to cases involving a pattern of deliberate, repeated harassment over a period of time.”); Boyle v. Wenk, 378 Mass. 592, 392 N.E.2d 1053, 1056 (1979) (“Repeated harassment ... may compound the outrageousness of incidents which, taken individually, might not be sufficiently extreme to warrant liability....”).

When such repeated or ongoing harassment is alleged, the offensive conduct is evaluated as a whole. See, e.g., Subbe-Hirt v. Baccigalupi, 94 F.3d 111, 114-15 (3d Cir.1996) (considering employee’s evidence that supervisor repeatedly threatened, cursed and embarrassed employee and engaged in process called “root canal” sufficient to show extreme and outrageous behavior); Lightning v. Roadway Express, Inc., 60 F.3d 1551, 1554-55, 1558 (11th Cir.1995) (considering the “totality of the circumstances,” district court properly entered judgment on evidence that supervisors repeatedly verbally abused and insulted employee, on one occasion tried to hit employee, on another occasion spat on employee, threatened employee, and engaged in concerted effort to provoke and demean employee); Coleman, 381 S.E.2d at 306 (recognizing that although some of the incidents standing alone would not amount to actionable infliction of emotional distress, the repetition, over plaintiff’s protests, could be found to have a cumulative effect); Walters v. Rubicon Inc., 706 So.2d 503, 507 (La.Ct.App.1997) (evidence that supervisor continuously cursed at, screamed at, and threatened plaintiff, and required him to engage in activities he believed were illegal was sufficient to show extreme and outrageous conduct); Travis, 504 S.E.2d at 423 (considering totality of abusive conduct over a four-year period); Kanzler v. Renner, 937 P.2d 1337, 1343 (Wyo.1997) (concluding that extreme and outrageous conduct was shown by “repeated incidents over a period of several weeks in which [plaintiffs supervisor] stared at [plaintiff], followed her, and subjected her to sexually-motivated advances and physically intimidating behavior”). Cf. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 82, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998) (emphasizing that whether harassment is severe “should be judged from the perspective of a reasonable per*616son in the plaintiffs position, considering ‘all the circumstances’ ”); Henson v. City of Dundee, 682 F.2d 897, 904 (11th Cir.1982) (“Whether sexual harassment at a workplace is sufficiently severe and persistent ... is a question to be determined with regard to the totality of the circumstances.”), cert, denied, 479 U.S. 1065, 107 S.Ct. 952, 93 L.Ed.2d 1001 (1987) (quoted in Jones v. Flagship Int’l, 793 F.2d 714, 720 (5th Cir.1986)).

In addition to the court of appeals in this case, at least two other Texas courts of appeals have followed this approach. See Qualicare, Inc. v. Runnels, 863 S.W.2d 220, 223 (Tex.App.—Eastland 1993, no writ) (considering as a whole evidence that supervisor made repeated threats and phone calls, surveilled the employees, and sent a black floral arrangement as a death threat); American Med. Int’l, Inc. v. Giurintano, 821 S.W.2d 331, 340-42 (Tex.App.—Houston [14 th Dist.] 1991, no writ) (considering as a whole evidence that hospital administrators spread rumors, yelled at, cursed, and insulted plaintiff as part of conspiracy to engage plaintiff in confrontations and use his responses to oppose his appointment). GTE cites no cases to the contrary. And amicus curiae Texas Employment Law Council cites only one court adopting a contrary view. See Denton v. Chittenden Bank, 163 Vt. 62, 655 A.2d 703, 706 (1994) (“Absent at least one incident of behavior that transcends the ignoble and vast realm of unpleasant and often stressful conduct in the workplace, incidents that are in themselves insignificant should not be consolidated to arrive at the conclusion that the overall conduct is outrageous.”).3

We agree with the overwhelming weight of authority in this state and around the country that when repeated or ongoing severe harassment is shown, the conduct should be evaluated as a whole in determining whether it is extreme and outrageous. Accordingly, we hold that the court of appeals did not err in doing so.

We now consider whether Shields’s conduct, taken as a whole, amounts to extreme and outrageous conduct. “It is for the court to determine, in the first instance, whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery-” Womick, 856 S.W.2d at 734 (quoting Restatement (Second) of ToRts § 46 cmt. h (1965)). When reasonable minds may differ, however, it is for the jury, subject to the court’s control, to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability. Restatement (Second) of ToRts § 46 cmt. h. To support liability for intentional infliction of emotional distress, it is not enough that the defendant has acted with an intent that is tortious, malicious, or even criminal, or that he has intended to inflict emotional distress. Id. § 46 cmt. d. Although the defendant’s intent is relevant, the conduct itself must be extreme and outrageous to support liability. See Brewerton v. Dal-rymple, 997 S.W.2d 212, 216 (Tex.1999).

GTE argues that the conduct complained of is an ordinary employment dispute because the employees’ complaints are really that Shields was a poor supervisor with an objectionable management style. See Porterfield, 948 S.W.2d at 921 (fact that supervisor is discourteous or demanding is insufficient for liability); see also Ulrich, 824 F.Supp. at 687 (“[Personality conflicts with a supervisor certainly are not uncommon occurrences, nor do they give rise to an actionable legal wrong.”). GTE also contends that the ac*617tions are employment disputes because Shields committed the acts in the course of disciplining his employees.

We recognize that, even when an employer or supervisor abuses a position of power over an employee, the employer will not be liable for mere insults, indignities, or annoyances that are not extreme and outrageous. Restatement (Second) of ToRts § 46 cmt. e (1965). But Shields’s ongoing acts of harassment, intimidation, and humiliation and his daily obscene and vulgar behavior, which GTE defends as his “management style,” went beyond the bounds of tolerable workplace conduct. See Travis, 504 S.E.2d at 423; White, 585 So.2d at 1210. The picture painted by the evidence at trial was unmistakable: Shields greatly exceeded the necessary leeway to supervise, criticize, demote, transfer, and discipline, and created a workplace that was a den of terror for the employees. And the evidence showed that all of Shields’s abusive conduct was common, not rare. Being purposefully humiliated and intimidated, and being repeatedly put in fear of one’s physical well-being at the hands of a supervisor is more than a mere triviality or annoyance. See Kanzler, 937 P.2d at 1343; see also Restatement (Second) of ToRts § 46 illus.2 (1965) (defendant who threatens and extorts plaintiff liable when plaintiff suffers severe emotional distress).

Occasional malicious and abusive incidents should not be condoned, but must often be tolerated in our society. But once conduct such as that shown here becomes a regular pattern of behavior and continues despite the victim’s objection and attempts to remedy the situation, it can no longer be tolerated. It is the severity and regularity of Shields’s abusive and threatening conduct that brings his behavior into the realm of extreme and outrageous conduct. Conduct such as being regularly assaulted, intimidated, and threatened is not typically encountered nor expected in the course of one’s employment, nor should it be accepted in a civilized society. An employer certainly has much leeway in its chosen methods of supervising and disciplining employees, but terrorizing them is simply not acceptable. If GTE or Shields was dissatisfied with the employees’ performance, GTE could have terminated them, disciplined them, or taken some other more appropriate approach to the problem instead of fostering the abuse, humiliation, and intimidation that was heaped on the employees. Accordingly, the trial court properly submitted the issue to the jury, and there was some evidence to support the jury’s conclusion that Shields’s conduct was extreme and outrageous.

B. Intent

GTE argues that the employees failed to establish that GTE, as opposed to Shields, possessed the requisite intent to support GTE’s liability. The jury found that Shields intentionally inflicted emotional distress on the employees. The jury further found that Shields was acting in the scope of his employment. GTE contends that these findings are insufficient to support GTE’s liability because the jury never found that GTE acted with the requisite intent. GTE relies on the fact that the jury failed to find that GTE ratified Shield’s intentional infliction of emotional distress and failed to find that GTE acted “with malice.” GTE further contends that the jury’s finding that Shields was acting in the scope of his employment is insufficient for liability because, GTE argues, an employer is never liable for an employee’s intentional or malicious acts that are unforeseeable considering the employee’s duties, and there was no finding that Shields’s intentional acts were foreseeable by GTE.

Generally, a master is vicariously liable for the torts of its servants committed in the course and scope of their employment. Medina v. Hert'era, 927 S.W.2d 597, 601 (Tex.1996); Restatement (Second) of Agency § 219(1) (1958). This is true even though the employee’s tort is *618intentional when the act, although not specifically authorized by the employer, is closely connected with the servant’s authorized duties. See Medina, 927 S.W.2d at 601 (citing Texas & Pac. Ry. v. Hagenloh, 151 Tex. 191, 247 S.W.2d 236, 239 (1952)); Ramos v. Frito-Lay, Inc., 784 S.W.2d 667, 668 (Tex.1990). If the intentional tort is committed in the accomplishment of a duty entrusted to the employee, rather than because of personal animosity, the employer may be liable. See Soto v. El Paso Natural Gas Co., 942 S.W.2d 671, 681 (Tex.App. — El Paso 1997, writ denied). Shields’s acts, although inappropriate, involved conduct within the scope of his position as the employees’ supervisor. See Hooper v. Pitney Bowes, Inc., 895 S.W.2d 773, 777-78 (Tex.App. — Texarkana 1995, writ denied); Bushell v. Dean, 781 S.W.2d 652, 659 (Tex.App. — Austin 1989), rev’d on other grounds, 803 S.W.2d 711 (Tex.1991); Southwestern Bell Tel. Co. v. Wilson, 768 S.W.2d 755, 759 (Tex.App.- — Corpus Christi 1988, writ denied). GTE admitted as much when it argued that Shields’s acts were “mere employment disputes.” GTE has cited no evidence that Shields’s actions were motivated by personal animosity rather than a misguided attempt to carry out his job duties. The jury concluded that Shields’s acts were committed in the scope of his employment, and there is some evidence to support this finding. Thus, GTE is liable for Shields’s conduct. See Travis, 504 S.E.2d at 431-32.

Moreover, regardless of whether Shields acted within the scope of his employment, his status as a vice-principal of the corporation is sufficient to impute liability to GTE with regard to his actions taken in the workplace. Cf. Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387, 391-92 (Tex.1997) (corporations may be liable for punitive damages for torts committed by vice-principals). Corporations can act only through their agents. Id. at 391; Fort Worth Elevators Co. v. Russell, 123 Tex. 128, 70 S.W.2d 397, 402 (1934), disapproved in part on other grounds by Wright v. Gifford-Hill & Co., 725 S.W.2d 712, 714 (Tex.1987). When actions are taken by a vice-principal of a corporation, those acts may be deemed to be the acts of the corporation itself. Fort Worth Elevators, 70 S.W.2d at 406. A vice-principal represents the corporation in its corporate capacity, and includes persons who have authority to employ, direct, and discharge servants of the master, and those to whom a master has confided the management of the whole or a department or division of his business. See Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 922 (Tex.1998). The jury found that Shields was a vice-principal of GTE. It is undisputed that Shields was the highest ranking management person stationed at the Nash facility, and that Shields had authority to employ, direct, and discharge employees. This evidence is sufficient to support the jury’s finding. Accordingly, the court of appeals correctly concluded that Shields’s acts were the acts of GTE.

C. Severe Emotional Distress

GTE next contends that any distress the employees suffered was not severe. GTE argues that the employees’ complaints of embarrassment, fear, stomach aches, loss of sleep, and headaches “are problems that are normally dealt with by each of us in every day life.”

Emotional distress includes all highly unpleasant mental reactions such as embarrassment, fright, horror, grief, shame, humiliation, and worry. See Washington v. Knight, 887 S.W.2d 211, 216 (Tex.App.—Texarkana 1994, writ denied); Havens v. Tomball Community Hosp., 793 S.W.2d 690, 692 (Tex.App.—Houston [1st Dist.] 1990, writ denied). Severe emotional distress is distress that is so severe that no reasonable person could be expected to endure it. Washington, 887 S.W.2d at 216. The employees testified that, as a result of being exposed to Shields’s outrageous conduct, they experienced a variety of emotional problems, including crying spells, emotional outbursts, nausea, stomach dis*619orders, headaches, difficulty in sleeping and eating, stress, anxiety, and depression. The employees testified that they experienced anxiety and fear because of Shields’s continuing harassment, especially his charges and rages. Each employee sought medical treatment for these problems, and all three plaintiffs were prescribed medication to alleviate the problems. An expert witness testified that each of them suffered from post-traumatic stress disorder. This evidence is legally sufficient to support the jury’s finding that the employees suffered severe emotional distress.

IV

Limitations

GTE contends that not all of Shields’s conduct should have been considered by the jury. Specifically, GTE argues that the court of appeals erred in considering evidence of Shields’s conduct before March 1, 1992 because it occurred outside the two-year period of limitations for intentional infliction of emotional distress.4 Much of the employees’ evidence concerned Shields’s conduct before March 1, 1992; some of the evidence focused on his conduct after that date. Significantly, GTE did not object to the admission of evidence concerning Shields’s conduct before March 1, 1992, even though it had filed a motion in limine asking the court to prohibit “[a]ny mention of any words, acts, or deeds of Morris Shields, any other employee or representative of GTE or GTE which occurred prior to March 1, 1992.”

GTE relies on Stroud v. VBFSB Holding Corp., 917 S.W.2d 75 (Tex.App. — San Antonio 1996, writ denied), for the proposition that, “as a matter of law” the jury could not base its answers on any facts occurring more than two years before March 1, 1994. In Stroud, the employee brought suit on June 29, 1993, alleging intentional infliction of emotional distress. He had resigned by early June 1991. The court of appeals recognized that all of the acts complained of occurred before June 29, 1991. Id. at 82. Based on this fact, the court correctly held that limitations barred the intentional infliction of emotional distress claim. Id. The cause of action necessarily accrued more than two years before Stroud filed suit. Accordingly, Stroud does not support GTE’s position.

A more analogous case is Soto v. El Paso Natural Gas Co., 942 S.W.2d 671, 677 (Tex.App. — El Paso 1997, writ denied). In Soto, some of the offensive conduct occurred within the two-year period preceding suit, and some before that time. The Eighth Court of Appeals held that evidence of events occurring outside the limitations period was relevant “to show the atmosphere in which those events which precipitated th[e] lawsuit occurred,” but could not be the basis for legal redress. Id. Assuming without deciding that this is correct, the court of appeals properly held that GTE waived its complaint to the admission of the evidence for all purposes because it did not object to the admission of the evidence as a basis for legal redress and did not ask the court to instruct the jury accordingly.

Y

Expert Testimony

Last, GTE complains about the trial court’s admission of expert testimony that Shields’s conduct was extreme and outrageous. The employees obtained opinion evidence from three different expert witnesses that Shields’s conduct was extreme and outrageous. GTE objected to this testimony at trial, and complained of the trial court’s admission of the testimony of two of the witnesses on appeal.

The court of appeals held that the trial court’s admission of expert testimony on the issue of whether Shields’s conduct was extreme and outrageous was error. 956 S.W.2d at 641. We agree. “[A]n expert may state an opinion on a *620mixed question of law and fact as long as the opinion is confined to the relevant issues and is based on proper legal concepts.” Birchfield v. Texarkana Mem’l Hosp., 747 S.W.2d 361, 365 (Tex.1987). But to be admissible, expert testimony must generally involve “scientific, technical, or other specialized knowledge” as to which a witness could be qualified as an expert by “knowledge, skill, experience, training, or education,” and it must assist the trier of fact. Tex.R. Evid. 702; Warner v. Hurt, 834 S.W.2d 404, 406 (Tex.App.—Houston [14th Dist.] 1992, no writ) (“Admissibility of the expert’s opinion hinges on whether or not the expert has special knowledge concerning [the] matter on which his opinion is sought.”). Except in highly unusual circumstances, expert testimony concerning extreme and outrageous conduct would not meet this standard. Where, as here, the issue involves only general knowledge and experience rather than expertise, it is within the province of the jury to decide, and admission of expert testimony on the issue is error.

Nevertheless, the court of appeals correctly concluded that the error was harmless. The court applied our reasoning in Louder v. De Leon, 754 S.W.2d 148, 149 (Tex.1988), that “[jjurors realize that they are the final triers to decide the issues. They may accept or reject an expert’s view. Thus there is little danger in an expert’s answer to an all-embracing question on a mixed question of law and fact.”

Texas Rule of Appellate Procedure 44.1(a)(1) mandates that no judgment may be reversed on appeal on the ground that the trial court made an error of law unless the error complained of probably caused the rendition of an improper judgment. Tex.R.App. P. 44.1(a)(1). GTE argues that “it is inconceivable that expert opinion on the ultimate issue could be harmless.” To demonstrate that it was harmed by the expert’s testimony, GTE relies solely on the jury’s answers to the charge, pointing out that the jury did not find malice, upon which there was no expert opinion, but did find intentional infliction of emotional distress, upon which there was expert testimony. This questionable logic is insufficient to demonstrate that admitting the testimony harmed GTE. See Templeton v. Dreiss, 961 S.W.2d 645, 672 (Tex.App.— San Antonio 1998, pet. denied). Absent the expert testimony, there was an abundance of evidence from the employees and other witnesses establishing the continuing assaults and humiliation by Shields. At most, the expert testimony GTE finds objectionable was merely cumulative of evidence demonstrating that Shields’s conduct amounts to intentional infliction of emotion distress. See Southwestern Elec. Power Co. v. Burlington N. R.R., 966 S.W.2d 467, 474 (Tex.1998). This nonex-pert testimony is sufficient to support the jury’s verdict.

In sum, we hold that the employees’ claims are not barred by the Workers’ Compensation Act because their injuries are not compensable under the Act. We conclude that there is legally sufficient evidence to support the jury’s verdict against GTE on each of the employees’ claims for intentional infliction of emotional distress. We further conclude that GTE waived any complaint about evidence of Shields’s conduct before March 1, 1992 because GTE did not object to the evidence at trial. And, although the trial court erred in admitting expert testimony about whether Shields’s conduct was extreme and outrageous, such error was harmless. Accordingly, we affirm the court of appeals’ judgment.

Justice OWEN filed a concurring opinion.

Justice OWEN,

concurring.

I agree that there is more than a scintilla of evidence to support the jury’s finding that Shields intentionally inflicted emotional distress on the plaintiffs. I cannot join the Court’s opinion because most of the testimony that the Court recounts is legal*621ly insufficient to support the verdict in this case.

There was evidence that Shields physically threatened, although he did not touch, the plaintiffs. There was also evidence of sustained and threatening sexual harassment and that some of Shields’s profanity was uttered at the same time that he sexually harassed or physically threatened the plaintiffs. That conduct was sufficient to permit a jury to conclude that Shields had intentionally inflicted emotional distress on the plaintiffs.

But regardless of how long and how often most of the conduct cataloged by the Court may have been committed in the workplace, it does not meet the rigorous standard for intentional infliction of emotional distress set forth in the Restatement (Second) of ToRts § 46 cmt. d (1965) or in this Court’s decisions applying that section. The following conduct is not a basis for sustaining a cause of action for intentional infliction of emotional distress, even when the employees who are upset by the conduct are women:

• cursing, profanity, or “yelling and screaming” when it was not simultaneously accompanied by sexual harassment or physically threatening behavior

• pounding fists on a table when requesting employees “to do things”

• going into “a rage” when employees leave an umbrella or purse on a chair or filing cabinet

• screaming at employees that if they do not “get things picked up” they will be fired

• telling an employee that she would be sent to the unemployment line

• telling an employee that she could be replaced by two Kelly girls

• a supervisor’s statement to an employee that he had been sent to fire her

• typing “quit” on a computer and telling an employee that is what she can do

• requiring employees to vacuum their offices daily even though a janitorial service vacuums as well

• requiring an employee to clean a spot off the carpet while “yelling” over her

• requiring an employee to clean tobacco stains off a wall

• telling an employee that she must wear a post-it note that says “don’t forget your paperwork.”

Most of the foregoing conduct would be offensive and degrading in most circumstances. But it is not “ ‘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.’ ” Twyman v. Twymcm, 855 S.W.2d 619, 621 (Tex.1993) (quoting Restatement (Second) of ToRts § 46 cmt. d (1965)). As we recently observed in Brewerton v. Dalnjm-ple, 997 S.W.2d 212 (Tex.1999), the fact that an action is intentional, malicious, or even criminal does not mean that it is extreme or outrageous for purposes of the tort of intentional infliction of emotional distress, as the Restatement explains:

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.

Restatement (Second) of Torts § 46 cmt. d (1965).

The Court’s conclusion that there is evidence of intentional infliction of emotional distress because Shields suggested to and even threatened the plaintiffs that they may be discharged or replaced is particularly inconsistent with our prior decisions. We have held that discharging an employee, even when it amounted to wrongful discharge under our laws, did not amount to intentional infliction of emotional distress. See Southwestern Bell Mobile Sys., Inc. v. Franco, 971 S.W.2d 52, 54-55 (Tex. 1998); see also Breweiion, 997 S.W.2d at *622216; Womick Co. v. Casas, 856 S.W.2d 732, 735-36 (Tex.1993). We have said that firing an employee in front of her eo-workers and then having her escorted off the premises by a security guard was not the type of conduct that could support a finding of intentional infliction of emotional distress. See Womick Co., 856 S.W.2d at 736. I fail to see how screaming at a plaintiff that she may be fired is conduct of a degree and character that is actionable when actually firing an employee in the presence of her co-workers and physically escorting her off the premises with uniformed security guards is not.

The Court’s conclusion that cursing and profanity may constitute intentional infliction of emotional distress is also inconsistent with a specific example given by the Restatement in which highly profane language is used. See Restatement (Second) of ToRts § 46 cmt. d, illus. 4 (1965). I fail to see how using a profane word ten or even a hundred times is intentional infliction of emotional distress when that cursing is not directed at the plaintiff and is not simultaneously accompanied by sexual harassment or physically threatening behavior.

Because the Court’s writing is far too broad and in some respects unfaithful to our precedent, I cannot join the Court’s opinion.

MEMORANDUM AND ORDER

VRATIL, District Judge.

Louise Sawyer and Grace Fuller bring suit against Southwest Airlines Co. (“Southwest”), alleging that it violated their rights under 42 U.S.C. § 1981 and intentionally inflicted emotional distress under Kansas law. Fuller also alleges that Southwest negligently inflicted emotional distress. The matter is before the Court on Defendant Southwest Airlines Co.’s Motion To Exclude The Testimony Of Plaintiffs’ Expert Valdenia Winn (Doc. # 78) filed November 15, 2002 and Defendant Southwest Airlines Co. ’s Motion For Summary Judgment (Doc. # 79) filed November 15, 2002. For reasons stated below, the Court sustains each motion in part.

Summary Judgment Standards

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir.1993). A factual dispute is “material” only if it “might affect the outcome of the suit under the governing law.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. A “genuine” factual dispute requires more than a mere scintilla of evidence. Id. at 252, 106 S.Ct. 2505.

The moving party bears the initial burden of showing the absence of any genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Hicks v. City of Watonga, Okla., 942 F.2d 737, 743 (10th Cir.1991). Once the moving party meets its burden, the burden shifts to the non-moving party to demonstrate that genuine issues remain for trial “as to those disposi-tive matters for which it carries the burden of proof.” Applied Genetics Int’l, Inc. v. First Affiliated Secs., Inc., 912 F.2d 1238, 1241 (10th Cir.1990); see also Matsushita Elec. Indus. Co. v. Zenith Radio *1262 Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991). The nonmoving party may not rest on her pleadings but must set forth specific facts. Applied Genetics, 912 F.2d at 1241.

The Court must view the record in a light most favorable to the party opposing summary judgment. See Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir.1991). Summary judgment may be granted if the non-moving party’s evidence is merely colorable or is not significantly probative. See Anderson, 477 U.S. at 250-51, 106 S.Ct. 2505. “In a response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial.” Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.1988). Essentially, the inquiry is “whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505.

Factual Background

The following facts are either undisputed or, where disputed, construed in the light most favorable to plaintiffs.

1. Plaintiffs’ Experience With Southwest

Plaintiffs are African-American. On February 12, 2001, plaintiffs — who are sisters — flew from Kansas City, Missouri to Las Vegas, Nevada on Southwest Airlines. Their return flight, number 2441, was scheduled to leave Las Vegas at 9:30 a.m. on February 15, 2001.

A. Flight 2441

On February 15, 2001, plaintiffs arrived at the Las Vegas airport around 8:30 a.m. They waited in the Southwest check-in line for about 45 minutes and arrived at the departure gate at 9:22 a.m. Southwest customer service agent Laura Gonzalez, who was at the gate, refused to let plaintiffs board because their check-in time was less than ten minutes before the scheduled departure and they were subject to Southwest’s ten minute rule.1 Plaintiffs did not know about the ten minute rule, so Gonzalez showed Fuller that it was printed on her ticket.2 Although Gonzalez was stern, she and plaintiffs had a civil conversation.3

*1263Because Flight 2441 was full and plaintiffs had checked in late, Gonzalez placed them on the “priority standby” list at no additional cost, for the next available Southwest flight to Kansas City. That flight, Flight 524, was scheduled to leave at 12:00 p.m. Fuller was irritated that she was not allowed to board Flight 2441, but she did not experience any stress which resulted in physical symptoms. According to Sawyer, Fuller was “a little tee’d off, upset and irritated,” and Sawyer herself was irritated. Plaintiffs, however, do not believe or claim that they should have been exempted from the ten minute rule.

Gonzalez has been a customer service agent for Southwest since October of 1996, working at the ticket counter and boarding gate. She testified that she applies the ten minute rule equally to all passengers, that she does not discriminate on the basis of race or national origin, and that she has never prohibited a passenger from boarding based on race or national origin. Plaintiffs have cited no contrary evidence.

B. Flight 524

After it boarded all non-standby passengers on Flight 524, Southwest allowed plaintiffs to board. When plaintiffs first boarded, they could not find open seats. As plaintiffs stood in the aisle, searching for seats, Southwest flight attendant Jennifer Cundiff said over the intercom, “ee-nie, meenie, minie, moe, pick a seat, we gotta go.” Plaintiffs recognized the comment as a reference to a racist nursery rhyme which began: “eenie, meenie, minie, moe; catch a nigger by his toe ... ” Plaintiffs were the only passengers standing in the aisle and in response to Cundiff s comment, many passengers snickered and directed their attention to plaintiffs. After the comment, Sawyer sat down in a seat near the front of the airplane. Because no other seats were open, Fuller remained standing until another Southwest employee instructed a different flight attendant, who was an unticketed passenger on the flight, to give up her seat for Fuller.

Defendant’s conduct humiliated, angered and alienated plaintiffs. Fuller did not feel that she had received the same treatment as other passengers on the flight. Plaintiffs worried that the comment would cause Fuller to have a seizure on the plane. After Cundiffs comment, a male flight attendant gave Fuller special attention by offering her drinks and peanuts and trying to make her comfortable. As Fuller sat on the airplane, she became more angry and embarrassed at the way she was treated. During the flight, her hands were shaking. She took epilepsy medication and tried to calm down. When the airplane landed, Fuller’s hands were still shaking. Fuller has significant and unexplained memory gaps about Flight 524 and her drive home from the airport.4 Fuller rested when she got home because she was drained and upset. Fuller had a grand mal seizure on the evening of February 15, 2001 and was bedridden for three days, but she was uninsured and she therefore did not seek medical attention.5

*1264After February 15, plaintiffs wrote letters of complaint to Southwest. Southwest instigated an investigation and asked Cundiff to write a report. In her report, Cundiff wrote “the statement I made on Flight 524 was not racist or discriminating, and I am offended that because I have white skin suddenly I am a racist. Maybe those that run around pointing fingers yelling racist should stop and turn that finger around.” Cundiff Deposition, Exhibit 6 in Plaintiffs’ Response To Defendant’s Motion For Summary Judgment (Doc. # 87) filed December 30, 2002. Southwest did not believe the phrase was racist and did not reprimand Cundiff for using it or instruct her to stop using it. Cundiff no longer uses it, however, because of the ordeal it has put her and Southwest through.

II. Southwest Flight Attendants

Southwest flight attendants are responsible for the safety and enjoyment of passengers on the aircraft, and Southwest is known for using humorous announcements over the intercom.6

Flight attendants attend four weeks of initial training. The training includes a video called “It’s a Matter of Respect,” by Herb Keller. It and the Southwest flight attendant manual cover racial sensitivity. Flight attendants are required to attend recurrent training at least once every 13 months. Recurrent training, which lasts one day, keys in on the most essential information like how to evacuate the aircraft, CPR and rescue breathing, and security. Southwest also uses “read before flies,” memoranda which are posted in a briefing book at every base to communicate with flight attendants. Flight attendants are required to read the information before they fly. These memoranda are used to get information to flight attendants on short notice. Paula Gaudet Deposition at 11-12, Exhibit 5 in Plaintiffs’ Response (Doc. # 87). Training programs and “read before flies” do not discuss comments, words or phrases that flight attendants should or should not use over the aircraft intercom. Id. at 7-10.

III. Jennifer Cundiff

Cundiff has worked as a Southwest flight attendant since 2000. On several prior flights, Cundiff had said “eenie mee-nie, minie, moe, pick a seat, we gotta go” over the intercom to get passengers to sit down and inject humor on board the aircraft. She first heard the phrase from other flight attendants. Cundiff Deposition at 9-10. Cundiff used it only when the aircraft was completely full and running late and passengers were in the aisle.7 When Cundiff made the remark on Flight 524, Southwest was running about ten minutes late, passengers had been on the plane for “quite a while,” and some people were getting up and standing in the aisle.8 Cundiff testified that she directed the remark to all passengers, that she did not believe it was racist, and that she did not intend to be discriminatory or racist. She intended only to make the flight enjoyable.

Cundiff, who was born on April 11, 1978 and grew up in Argyle, Texas, was 22 years old on February 15, 2001. When she was growing up, she never heard the word “nigger” or the phrase “eenie, minie, minie, moe, catch a nigger by the toe.” *1265She had heard the nursery rhyme, “eenie, meenie, minie, moe, catch a tiger by its toe. If he hollers, let him go, my mother told me ...” and “eenie, meenie, minie, moe, here comes a piggy to grab your toe.”

IV.Grace Fuller

Since October 5, 1998, Ivan Osorio, M.D., has treated Fuller for seizures which probably result from epilepsy. According to Dr. Osorio, Fuller can suffer a seizure virtually any time, any place, without any apparent cause other than the fact that she may suffer from epilepsy. Before February 15, 2001, Fuller had seizures and complained to Dr. Osorio about shaking hands.9 According to Fuller, stress is a trigger for her seizures. Dr. Osorio could not pinpoint any particular seizure that Fuller had suffered on account of stressful activity, however, and he testified that shaking hands may be a side effect of her medication.

Fuller did not seek professional counseling after the events of February 15, 2001, but she called Dr. Osorio’s office on February 21 about her grand mal seizure on February 15. During the call, Fuller told Dr. Osorio’s nurse that she had a loss of appetite and difficulty sleeping, but that she did not have insurance at the time and could not seek medical care.

Dr. Osorio cannot express an opinion about the cause of the symptoms that Fuller experienced on February 15, 2001.

V. Louise Sawyer

Sawyer did not become physically ill or seek treatment from a psychologist or psychiatrist as a result of the events on February 15, 2001. She did not miss work and except for the fact that a lawsuit is on file, her life has not been altered in any way.

VI. Claims

Southwest seeks summary judgment on all claims. As to plaintiffs’ discrimination claim under 42 U.S.C. § 1981, Southwest argues that as a matter of law, plaintiffs cannot prove (1) intentional discrimination on the basis of race or (2) discrimination which concerns activities enumerated in Section 1981. On plaintiffs’ claim for intentional infliction of emotional distress, Southwest maintains that plaintiffs cannot prove that it intentionally and recklessly subjected them to extreme and outrageous conduct which caused extreme mental distress. On Fuller’s claim for negligent infliction of emotional distress, Southwest *1266argues that plaintiff cannot prove negligence or contemporaneous physical injury as a direct result of its conduct.

Under the Federal Rules of Evidence and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and its progeny, Southwest also seeks to preclude testimony by plaintiffs’ expert, Dr. Yaldenia Winn, who proposes to testify about racism and segregation in the United States from the 1850s to the present, the history of the “eenie, meenie, minie, moe” nursery rhyme, and whether the phrase is outrageous and objectively racist.

Analysis

I. Motion To Exclude Testimony By Dr. Winn

A. Standards For Admitting Expert Testimony

The touchstone of Rule 702, Fed. R.Evid., is helpfulness of the expert testimony — a condition that goes primarily to relevance. See BioCore, Inc. v. Khosrowshahi 183 F.R.D. 695, 699 (D.Kan.1998) (quoting Miller v. Heaven, 922 F.Supp. 495, 501 (D.Kan.1996)). Thus, the Court must determine whether the proffered evidence would be helpful to the trier of fact. See BioCore, 183 F.R.D. at 699. In so doing, the Court examines specific subject areas of proposed expert testimony to ascertain whether each is sufficiently tied to the facts of the case so that it will be helpful to the fact finder. See id. Any doubts should be resolved in favor of admissibility. See id.

The Court has broad discretion in deciding whether to admit expert testimony. See Kieffer v. Weston Land, Inc., 90 F.3d 1496, 1499 (10th Cir.1996). Rule 702 allows expert testimony, by opinion or otherwise, if the witness who is qualified as an expert by knowledge, skill, experience, training or education, and her specialized knowledge “will assist the trier of fact to understand the evidence or to determine a fact in issue.” Expert testimony is admissible only if it is both relevant and reliable. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (citing Daubert v. Merrell Dow Pharm., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)). The trial judge has a general “gate-keeping” obligation which “applies not only to testimony based on ‘scientific’ knowledge, but also to testimony based on ‘technical’ and ‘other specialized’ knowledge.” Id. at 142, 119 S.Ct. 1167. Reliability determinations must be tied to the facts of the particular case. Id. at 150, 119 S.Ct. 1167. The Daubert test of reliability is flexible and the court may use the Daubert factors: (1) whether the proffered technique can and has been tested; (2) whether the technique or theory has been subject to peer review; (3) the known or potential rate of error; and (4) the general acceptance of a technique in the relevant community. See id. at 149, 119 S.Ct. 1167. “[T]he law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination.” Id. at 142, 119 S.Ct. 1167 (citations omitted).

An expert’s qualifications are relevant to the reliability inquiry. See United States v. Taylor, 154 F.3d 675, 683 (7th Cir.1998); In re Indep. Serv. Org. Antitrust Litig., 85 F.Supp.2d 1130, 1163 (D.Kan.2000).

B. Dr. Yaldenia Winn

Plaintiffs offer Dr. Winn’s testimony to provide non-scientific factual and opinion testimony to educate the jury about the historical genesis of “eenie, meenie, minie, moe” and to explain why the phrase is inherently offensive and racist. Dr. Winn, who holds a Doctorate of Philosophy, has been a college professor of histo*1267ry, political science, American foreign policy and labor studies from 1972 to the present. She has engaged in extensive lecturing, teaching, reading and study in the areas of Black History and racial and ethnic stereotypes in American society. She proposes to testify that:

(1) The phrase “eenie, meenie, minie, moe ...” is the first line to a racist nursery rhyme that incorporates the word “nigger.”

(2) There are many derivations of the racist nursery rhyme, but almost all versions begin with “Eenie meenie minie moe / Catch a nigger by the toe .... ”

(3) The “eenie, meenie, minie, moe” nursery rhyme was common in pre-Civil War America when slavery was legal, and blacks were considered property and less than human.

(4) The use of the word “nigger” in the nursery rhyme and the imagery of a “nigger” being something a white person could “catch” had the intended effect of dehumanizing blacks, and teaching white children that blacks were inferior.

(5) During this same time period, “white” society used racist caricatures and other racist words and phrases to achieve this same racist goal. These racist caricatures, phrases, and words imparted the accepted public policy that whites were superior to blacks, and that blacks were effectively not human.

(6) Such racists words, phrases, and caricatures continued to permeate society and was reflected in popular culture in America after the Civil War.

(7) “White” society continued to use the “eenie, meenie, minie, moe” nursery rhyme after the Civil War and throughout the Jim Crow era.

(8) During the Jim Crow era and throughout the 1960’s the “eenie, meenie, minie, moe” nursery rhyme and other racist words, phrases, and caricatures were used to depict blacks as inferior to whites, to dehumanize blacks, and to teach racism and separatism to white children.

(9) Because of the history surrounding the purpose and effect of the “eenie, meenie, minie, moe” nursery rhyme, the phrase “eenie, meenie, minie, moe” is outrageous, objectively racist, insulting to African Americans, and has no place in society.

(10) In the year 2002, virtually all adult African Americans would understand the phrase “eenie, meenie, minie, moe” to be the opening line to the racist nursery rhyme containing the word “nigger,” and would consider the utterance of the phrase to be racist, reprehensible, and outrageous.

(11) African Americans born prior to 1960 would be particularly sensitive to and outraged by the racist message and purpose of the phrase “ee-nie, meenie, minie, moe.”

(12) The “eenie, meenie, minie, moe” nursery rhyme is still in use today, but the work “nigger” is generally removed and replaced with the word “tiger.”

(13) The substitution of the word “tiger” for “nigger” highlights the original purpose and meaning of the “eenie, meenie, minie, moe” nursery rhyme. The nursery rhyme imparted to the listener that “niggers,” like tigers, were dangerous animals that should be feared and destroyed.

Report of Dr. Valdenia Winn, PhD. at 1-2, Exhibit 1 in Plaintiff’s Response to Defendant’s Motion to Exclude Expert Testimony And Request for Hearing (Doc. # 84) filed December 18, 2002.

*1268Southwest argues that Dr. Winn’s testimony should be excluded because her opinions and methodology do not satisfy the requisite criteria for relevancy and reliability. Specifically, Southwest argues that (1) her opinions are not relevant; (2) her testimony contains improper legal conclusions; (3) her testimony is within the common knowledge of the jury; and (4) her testimony is not reliable. Plaintiffs respond that Dr. Winn’s testimony should be admitted because (1) it is based upon extensive, specialized experience as an educator, lecturer and student of American history, Black history, race relations and racial and ethnic stereotypes in American society; and (2) it will provide the jury the specialized knowledge which it needs to decide the factual issues before it.

“Reliability analysis applies to all aspects of the expert’s testimony, including the facts underlying the opinion, the methodology and the link between the facts and the conclusion drawn.” Fuentes v. Thomas, 2000 WL 1114892, at *2 (D.Kan. July 13, 2000) (citations omitted). The Court must therefore make a practical, flexible analysis of the reliability of the testimony considering relevant factors and the circumstances of the case. See Fuentes, 2000 WL 1114892, at *2.

The Court agrees that because the parties dispute how “eenie, meenie, minie, moe” is reasonably interpreted in the year 2001, most of Dr. Winn’s testimony is relevant. Even Southwest is apparently of two minds on the question, variously arguing that (1) it is “common knowledge” that “eenie, meenie, minie, moe” is the first line of a racist nursery rhyme that originally ended “catch a nigger by the toe,” and (2) that the phrase is totally benign and could not reasonably be interpreted as a racial slur. Dr. Winn’s testimony on this issue is not an opinion or legal conclusion, and the Court has no reason to question its reliability. The genesis of the phrase is essential to an understanding of the parties’ dispute, and nothing in the record suggests that such information is a matter of common knowledge. The Court therefore finds that the subjects outlined in paragraphs 1, 2, 3, 4, 7, 8 (except as to “other racist words, phrases, and caricatures”) and 12 are helpful, relevant and generally admissible.

Several of the matters outlined in Dr. Winn’s report are irrelevant and therefore inadmissible. In particular, paragraphs 5, 6, 8 (in part) and 13 concern racist language and caricatures which are not at issue in this case. Testimony on these subjects will not help the jury understand the evidence or determine a factual issue before it. In addition, the probable value of such evidence would be substantially outweighed by the considerations of undue delay and waste of trial time. Rule 403, Fed.R.Evid. The matters outlined in paragraphs 5, 6, part of 8 and 13 are therefore not admissible.

Paragraphs 9 and the last part of paragraph 10 opine that African Americans would consider the phrase to be racist, reprehensible, and outrageous. Dr. Winn’s opinion on this question is essentially a legal conclusion. Expert testimony may not include improper legal conclusions, and “in no instance can a witness be permitted to define the law of the case.” Smith v. Ingersoll-Rand Co., 214 F.3d 1235, 1246 (10th Cir.2000) (citations omitted). While an expert may be “called upon to aid the jury in understanding the facts in evidence even though reference to those facts is couched in legal terms,” expert testimony which “attempts to define the legal parameters within which the jury must exercise its fact-finding function” is impermissible. Id. The Advisory Committee notes to Rule 704, Red. R. Evid., make it clear that opinions which merely give legal conclusions or allow the witness to tell the jury what result to reach are not *1269permitted. See Fed.R.Evid.; Owen v. Kerr-McGee Corp., 698 F.2d 236, 239-40 (5th Cir.1983) (citations omitted). Paragraph 9 and the last part of paragraph 10 are also inadmissible because they would not be helpful to the jury’s deliberations. Any jury would be well qualified to evaluate whether Cundiff s comment was outrageous and offensive in the context of this case. Dr. Winn’s opinions on this issue are irrelevant.

Dr. Winn also proposes to testify about the sensitivities of African Americans born before 1960. She has apparently done no studies, polling or tests, however, which form the basis for her opinion, and the record does not establish that she is otherwise qualified to express this opinion. The proponent of expert testimony must show “a grounding in the methods and procedures of science which must be based on actual knowledge and not subjective belief or unaccepted speculation.” Mitchell v. Gencorp. Inc., 165 F.3d 778, 780 (10th Cir.1999). The question is one of reliability. Absent proof of study, polling or testing, Dr. Winn’s testimony appears to be speculative and a mere expression of personal views and perceptions. Paragraph 11 is therefore inadmissible.

In sum, the Court overrules Southwest’s motion in limine as to paragraphs 1, 2, 3, 4, 7, 8 (except as to “other racist words, phrases, and caricatures”) and 12 of Dr. Winn’s report. The motion is otherwise sustained.

II. Defendant’s Summary Judgment Motion

A. Discrimination In Violation Of 42 U.S.C. § 1981

Plaintiffs allege that Southwest discriminated against them in violation of 42 U.S.C. § 1981 when Gonzalez did not board them on Flight 2441 and Cundiff remarked “eenie, meenie, minie, moe, pick a seat, we gotta go” over the intercom on Flight 524. Specifically, plaintiffs claim that Southwest’s conduct made the terms and conditions of their respective contracts with Southwest less favorable than the terms and conditions which white customers of Southwest enjoyed. Pretrial Order (Doc. # 77) at 9. Section 1981 provides:

(a) Statement of equal rights

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

(b) “Make and enforce contracts” defined

For purposes of this section, the term “make and enforce contract” includes the making, performance, modification and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.

(c) Protection against impairment

The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.

42 U.S.C. § 1981. To establish a prima facie case of discrimination under Section 1981, plaintiffs must prove (1) that they are members of a protected class; (2) that Southwest intended to discriminate against them on the basis of race; and (3) that the discrimination interfered with a protected activity as defined in Section 1981. Hampton v. Dillard Dep’t Stores, Inc., 247 F.3d 1091, 1102 (10th Cir.2001).10 South*1270west contends that it is entitled to summary judgment because plaintiffs cannot make out a prima facie case. Specifically, Southwest argues that plaintiffs cannot show (1) that Southwest intended to discriminate when Gonzalez prohibited them from boarding Flight 2441 or when Cundiff her remark on Flight 541, or (2) that the alleged discrimination concerns one or more activities enumerated in Section 1981.

1. Intent

While the prima facie elements “are flexible and not to be applied rigidly,” Hampton, 247 F.3d at 1102 (quotations omitted), to establish a claim under Section 1981, plaintiffs must show that Southwest intentionally or purposefully discriminated against them. See Reynolds v. Sch. Dist. No. 1, Denver, Colo., 69 F.3d 1523, 1532 (10th Cir.1995). In this regard, “the proper focus is on whether the defendant had the intent to discriminate on the basis of race, and whether that discrimination interfered with the making or enforcing of a contract.” Hampton, 247 F.3d at 1106-07 (Section 1981 protects from any impairment of the enjoyment of benefits of contract, so long as impairment arises from intentional discrimination).

a. Flight 2441

The undisputed evidence is that Southwest refused to let plaintiffs board Flight 2441 because they reached the departure gate eight minutes before the scheduled departure and they were subject to Southwest’s ten minute rule — which was clearly stated on their tickets. Gonzalez placed plaintiffs on the priority standby list for the next available flight to Kansas City, which was scheduled to leave two and one-half hours later.

The ten minute rule is facially neutral and plaintiffs cite no evidence that Southwest applies it in a racially disparate manner or that Gonzalez intended to discriminate on the basis of race. Plaintiffs do not claim that they should have been exempted from the ten minute rule. Plaintiffs’ only *1271evidence of discrimination is that Gonzalez was stern — which does not create a genuine issue of material fact whether Southwest intended to discriminate in refusing to let plaintiffs board Flight 2441.11 Therefore, assuming that refusal to board plaintiffs could violate Section 1981 in other circumstances, defendant is entitled to summary judgment on this claim.

b. Flight 524

With regard to Cundiffs “eenie, meenie, minie, moe” remark, Southwest argues that it is entitled summary judgment because Cundiffs remark was not a racial slur, because plaintiffs cannot prove intentional discrimination, and because Southwest did not prevent plaintiffs from making or enforcing a contract in violation of Section 1981.

While plaintiffs cite no direct evidence that Cundiff intended a racial slur, plaintiffs who lack direct evidence of racial discrimination may rely on indirect evidence of discrimination. Hampton, 247 F.3d at 1107. Plaintiffs argue that because of its history, “eenie, meenie, minie, moe” is an objectively racist and offensive phrase, regardless of the context in which it is used. Plaintiffs also argue that the following facts give rise to a reasonable inference that Cundiff intended to discriminate by using that phrase: (1) plaintiffs were the only passengers who were not seated when Cundiff made the remark; (2) white passengers laughed at Cundiffs comment and directed their attention to plaintiffs; (3) a male flight attendant later patronized Fuller by offering drinks and peanuts and trying to make her feel comfortable; (4) Cundiffs testimony that she never heard the word “nigger” when she was growing up is inherently incredible; and (5) Cundiff later wrote that “the statement I made on the FI. # 524 was not racist or discriminating — and I am offended that [because] I have white skin, suddenly I’m racist? Maybe those that run around pointing fingers, yelling ‘racists!’ should stop & turn that finger around.” Plaintiffs’ Response (Doc. # 87) at 39.

The Court agrees with plaintiffs that because of its history, the phrase “eenie meenie, minie, moe” could reasonably be viewed as objectively racist and offensive. The jury, however, must decide whether Cundiffs remark was racist, or simply a benign and innocent attempt at humor. The record contains evidence that when Cundiff made the remark, plaintiffs were the only passengers standing in the aisle and thus the only possible targets of her attention. This circumstance raises a genuine issue of material fact regarding Cun-diffs credibility in denying discriminatory intent. On this record, a jury could find that the phrase is objectively offensive to African Americans, or at least those African Americans who are familiar with its history. The next question is whether Cundiffs remark is otherwise actionable under Section 1981.

2. Protected Activity Under Section 1981

As noted, plaintiffs were not denied admittance or service on Flight 524. Southwest boarded plaintiffs, transported them to Kansas City, and apparently gave them the same refreshments, access to toilet facilities and other amenities as white passengers. Plaintiffs claim, however, that because of Cundiffs remark, they did not enjoy the benefits and privileges of contract which white passengers enjoyed. Specifically, plaintiffs argue that “an African American passenger who is subjected *1272to racial slurs and epithets by a flight attendant does not enjoy the same privileges and benefits of the contract with Southwest as those enjoyed by white passengers.” Plaintiffs’ Response (Doc. # 87) at 32. Southwest seeks summary judgment that as a matter of law, Section 1981 did not entitle plaintiffs to freedom from racial comments during the flight.

On its face, Section 1981 addresses “any act of discrimination committed in the making or the performance of a contract.” In Hampton, the Tenth Circuit made it clear that Section 1981 requires “interference with a contract beyond the mere expectation of being treated without discrimination.” Hampton, 247 F.3d at 1118; see, e.g., Lewis v. J.C. Penney Co., Inc., 948 F.Supp. 367, 371 (D.Del.1996) (rejecting theory that unwritten contract between commercial establishment and public guarantees members equal treatment regardless of race); Robertson v. Burger King, Inc., 848 F.Supp. 78, 81 (D.La.1994) (dismissing claim where plaintiff not denied admittance or service). At the same time, Section 1981 explicitly reaches contract “performance” and its legislative history reveals that Congress viewed Section 1981 as a critically important tool in striking down racially discriminatory practices in a broad variety of contexts. In Callwood v. Dave & Buster’s, Inc., 98 F.Supp.2d 694 (D.Md.2000), the district court summarized that legislative history as follows:

Congress intended the amended language in section 1981-in particular, the use of the phrase “benefits, privileges, terms and conditions”-to be an “illustrative rather than exhaustive” list of the protected facets of the contractual relationship.

The illustrative language was “intended to bar all race discrimination in contractual relations.... ” [T]he use, in section 703 of Title VII of the Civil Rights Act of 1964, of the phrase “benefits, privileges, terms and conditions of the contractual relationship” “evinces a congressional intent to strike at the entire spectrum of disparate treatment.”

98 F.Supp.2d at 703 (citations omitted). In Callwood, the district court noted that “the trivialities and frustrations of life in post-modern America must not be made the fodder for federal civil rights claims simply because service is slow or otherwise lacking in those attributes paying customers always have a right to expect.” Id. at 706 (citations omitted). At the same time, it noted that Section 1981 has been increasingly employed in a restaurant setting, as follows:

In the restaurant context, section 1981 has been read to protect against the discriminatory denial of the accouterments that are ordinarily provided with a restaurant meal.... Put another way, the contract formed between a restaurant and a customer does include more than just the food served, in that the experience includes being served in an atmosphere which a reasonable person would expect in the chosen place.

Id. at 703 (citations and quotations omitted). In Callwood, defendant argued that Section 1981 did not implicate “poor service,” but only a denial of “all service per se,” and that it was therefore entitled to summary judgment. Id. at 715. The district court summarily rejected this argument, holding that

[w]hen ... allegations go beyond poor service, and the inference of discriminatory intent has been successfully raised, ... what would initially be seen as a regrettable and frustrating phenomenon familiar to all who eat at restaurants, becomes conduct which necessarily implicates section 1981’s protection of the enjoyment of all benefits, privileges, terms and conditions of the contractual relationship.

*1273 Id. (citations and quotations omitted). In so holding, the district court in Callwood incorporated its prior ruling that “markedly hostile” behavior towards members of the protected class may give rise to a rational inference of discrimination, and that factors relevant to the determination whether defendant’s conduct is “markedly hostile” include whether the merchant’s conduct is “(1) so profoundly contrary to the manifest financial interests of the merchant and/or her employees; (2) so far outside of widely-accepted business norms; and (3) so arbitrary on its face, that the conduct supports a rational inference of discrimination.” Id. at 708; see, e.g., McCaleb v. Pizza Hut of Am., 28 F.Supp.2d 1043, 1048 (N.D.Ill.1998) (Section 1981 cause of action exists where defendant denied plaintiffs opportunity to purchase and provided plaintiffs less than what they paid for); Perry v. Burger King Corp., 924 F.Supp. 548, 551-52 (S.D.N.Y.1996) (denial of full services for which plaintiff paid).

Viewing the evidence in the light most favorable to plaintiffs, Cundiffs comment did more than violate plaintiffs’ “mere expectation of being treated without discrimination.” Flight attendants for Southwest are responsible for passenger safety and “enjoyment,” and a jury might reasonably conclude that plaintiffs’ contract with Southwest incorporated a right to transportation and service in an atmosphere which did not make plaintiffs the butt of a racist joke over the air-craft intercom. Viewed in this light, and ignoring all inferences to the contrary, Cundiffs remark went beyond poor service; it evidenced marked hostility to plaintiffs which was contrary to the business interests of Southwest, far outside of widely accepted business norms and arbitrary on its face. The record therefore reveals genuine issues of material fact whether Southwest deprived plaintiffs of “the enjoyment of all benefits, privileges, terms and conditions” expected to be enjoyed and actually enjoyed by ones not in a protected class who flew on Southwest Flight 524 on February 15, 2001. Summary judgment is therefore not appropriate on this claim.

B. Intentional Infliction Of Emotional Distress

Kansas recognizes the tort of intentional infliction of emotional distress. Moore v. State Bank of Burden, 240 Kan. 382, 388, 729 P.2d 1205 (1986). Liability arises when a person engages in extreme and outrageous conduct and thereby intentionally or recklessly causes severe emotional distress to plaintiffs. Id.

Plaintiffs allege that Southwest’s conduct was extreme and outrageous and amounted to intentional infliction of emotional distress. Pretrial Order (Doc. # 77) at 9. To prevail on a claim for intentional infliction of emotional distress, plaintiffs must prove that (1) the conduct of Southwest was intentional or in reckless disregard of plaintiffs; (2) the conduct was extreme and outrageous; (3) a causal connection existed between Southwest’s conduct and plaintiffs’ mental distress; and (4) plaintiffs’ mental distress was extreme and severe. Id. (citing Hoard v. Shawnee Mission Med. Ctr., 233 Kan. 267, Syl. ¶ 3, 662 P.2d 1214 (1983)). Southwest argues that it is entitled summary judgment because its conduct was not “extreme and outrageous” and, even if it was, plaintiffs did not suffer emotional distress which was so severe that no reasonable person should be expected to endure it.

In evaluating Southwest’s argument, the Court must first ascertain whether its conduct may reasonably be regarded as so extreme and outrageous as to permit recovery. See Roberts v. Saylor, 230 Kan. 289, 292, 637 P.2d 1175, 1179 (1981). To be regarded as “extreme and *1274outrageous,” defendant’s conduct must satisfy the following test:

Liability may be found only in those cases where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond the bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society .... [F]urther ... liability may be found to exist generally in a case when the recitation of facts to an average citizen would arouse resentment against the actor, and lead that citizen to spontaneously exclaim, “Outrageous!” It should be understood that liability does not arise from mere insults, indignities, threats, annoyances, petty expression, or other trivialities. Members of the public are necessarily expected and required to be hardened to a certain amount of criticism, rough language and to occasional acts and words that are definitely inconsiderate and unkind. The law should not intervene where someone’s feelings merely are hurt .... Conduct to be a sufficient basis for an action to recover for emotional distress must be outrageous to the point that it goes beyond the bounds of decency and is utterly intolerable in a civilized society.

Id. at 293, 637 P.2d at 1179.12 If defendant’s conduct rises to this level, the Court must determine whether the emotional distress suffered by plaintiffs is so severe that no reasonable person should be expected to endure it. If plaintiffs’ claim fails either of these threshold requirements, the claim cannot survive. If the Court determines that “reasonable fact finders might differ as to whether defendant’s conduct was sufficiently extreme and outrageous as to subject him to liability for emotional distress,” and that “plaintiffs emotional distress was such that reasonable fact finders might differ as to whether plaintiffs emotional distress was genuine and so severe and extreme as to result in liability, then and only then, it must be left to the jury to determine liability based on the evidence at trial.” Taiwo v. Vu, 249 Kan. 585, 590, 822 P.2d 1024, 1027-28 (1991).

In seeking to recover for intentional infliction of emotional distress, plaintiffs rely solely on one remark which plaintiffs heard one time. While the Court does not doubt the power of language, it is satisfied that as a matter of law, Cundiff s language is not actionable under the tort of outrage.13 The few Kansas cases which *1275have survived summary judgment have involved repeated physical threats and racially or sexually abusive language. See White v. Midwest Office Tech., Inc., 5 F.Supp.2d 936, 953 (D.Kan.1998); Oliphant v. Perkins Rests. Operating Co., 885 F.Supp. 1486, 1489-90 (D.Kan.1995) (claim survived summary judgment when supervisor repeatedly cursed at and threw objects at employee for a year and berated her at home with daily phone calls when she was pregnant and on medical leave); Miller v. Bircham, Inc., 874 F.Supp. 337, 341 (D.Kan.1995) (claim survived summary judgment when supervisor took no action in face of knowledge that employee was subjected to offensive touching by co-employee on numerous occasions).

The Court recognizes that the phrase “eenie, meenie, minie, moe” is burdened by racial connotations and that a person of any race, familiar with its history, could take reasonable offense at hearing it broadcast over the intercom of an airplane. In this case, as noted above, a reasonable jury could find that (1) Cundiffs statement was objectively offensive, regardless of her intent, and (2) depending on plaintiffs’ testimony at trial, that plaintiffs themselves took offense. Nonetheless, plaintiffs have not shown that Cundiffs remark was so extreme and outrageous as to be “utterly intolerable in a civilized society.” It bears repeating that Cundiffs remark was not expressly racist in nature. Its ability to offend lay exclusively in its history, of which — according to Dr. Winn — recent generations are increasingly unaware. Therefore, while plaintiffs may have been insulted, annoyed and humiliated, and Cundiffs language may have been deliberately unkind, impolitic and insensitive, no reasonable jury would agree that in these circumstances, her language was so outrageous in character and so extreme in degree as to be regarded as atrocious and utterly intolerable in a civilized society.

Even if plaintiffs met the threshold requirement of showing “extreme and outrageous” conduct, they have not established that they suffered emotional distress which was so severe that no reasonable person should be expected to endure it. The Kansas Supreme Court has adopted Restatement (Second) of Torts § 46(1) (1963), and comments j and k to that section are instructive on this issue:

The law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it. The intensity and the duration of the distress are factors to be considered in determining its severity. Severe distress must be proved; but in many cases the extreme and outrageous character of the defendant’s conduct is in itself important evidence that the distress has existed. * * *

The distress must be reasonable and justified under the circumstances, and there is no liability where the plaintiff has suffered exaggerated and unreasonable emotional distress, unless it results from a peculiar susceptibility to such distress of which the actor has knowledge. * * *

It is for the court to determine whether on the evidence severe emotional distress can be found; it is for the jury to determine whether, on the evidence, it has in fact existed. * * *

Normally, severe emotional distress is accompanied or followed by shock, illness, or other bodily harm, which in itself affords evidence that the distress is genuine and severe. The rule stated is not, however, limited to cases where there has been bodily harm; and if the conduct is sufficiently extreme and outrageous there may be liability for the emotional distress alone, without such harm. In such cases the court may perhaps tend to look for more in the way *1276of outrage as a guarantee that the claim is genuine; but if the enormity of the outrage carries conviction that there has in fact been severe emotional distress, bodily harm is not required.

Taiwo, 249 Kan. at 594-95, 822 P.2d at 1030-31. Kansas does not permit recovery for emotional distress in tort actions unless that emotional distress is accompanied by physical injury. See Maddy v. Vulcan Materials Co., 737 F.Supp. 1528 (D.Kan.1990) (citing Anderson v. Scheffler, 242 Kan. 857, 752 P.2d 667 (1988)).

Sawyer and Fuller claim that as a direct result of Cundiff s comment, they suffered humiliation, stress and extreme and severe mental and emotional distress. The record evidence, however, is that Sawyer did not have any physically symptoms; except for the fact that a lawsuit is on file, her life has not been altered in any way. Fuller did provide evidence of emotional distress — she was humiliated, upset, her hands began to shake and she suffered seizures as a result of her stress — but she has provided no evidence that it was “so severe that no reasonable person should be expected to endure it.” Lindemuth v. Goodyear Tire & Rubber Co., 19 Kan. App.2d 95, 100, 864 P.2d 744, 749 (1993) (citations omitted). The record also contains no evidence that Cundiff knew that Fuller was unusually susceptible to stress or unusually likely to suffer epileptic seizures as a result of stress. A reasonable jury would not hold Southwest liable for Fuller’s atypical response to the events of February 15, 2001, which Cundiff had no reason to anticipate.

The Court sustains Southwest’s summary judgment motion as to plaintiffs’ claim for intentional infliction of emotional distress.

C. Negligent Infliction Of Emotional Distress

Fuller testified that she suffered seizures on February 15, 2001 because Southwest refused to let her board Flight 2441, because Cundiff made the “eenie, meenie, minie, moe” remark and did not help her find a seat, and because other passengers snickered at her.14 Fuller claims that Southwest’s conduct amounted to negligent infliction of emotional distress. Southwest argues that it is entitled summary judgment because Fuller’s injuries cannot sustain an action for negligent infliction of emotional distress under Kansas law and negligent conduct has not been alleged.

As noted, Kansas law has long prohibited any recovery for negligent infliction of emotional distress which is not accompanied by or does not result in physical injury. E.g., Humes v. Clinton, 246 Kan. 590, 598, 792 P.2d 1032, 1038 (1990); Anspach v. Tomkins Indus., Inc., 817 F.Supp. 1499,1509 (D.Kan.1993); Payne v. Gen. Motors Corp., 731 F.Supp. 1465, 1474 (D.Kan.1990). The purpose of the physical injury rule is to guard against fraudulent or exaggerated claims, Maddy, 737 F.Supp. at 1534; it also recognizes that emotional distress is a common experience in life and is usually trivial, Freeman v. Kan. State Network, Inc., 719 F.Supp. 995, 1001 (D.Kan.1989). Thus, generalized physical symptoms of emotional distress are insufficient to support an emotional distress claim. See Schweitzer-Reschke v. Avnet, Inc., 874 F.Supp. 1187, 1196 (D.Kan.1995) (feeling of anxiety, rapid heartbeat and sense of collapsing lungs insufficient); Maddy, 737 F.Supp. at 1534, 1537 (“real-keyed up, nervous, anxious-type felling, headaches” insufficient); Anderson, *1277242 Kan. 857, 752 P.2d 667 (shock, emotional pain, feelings of guilt, recurring nightmares and depression insufficient); Hopkins v. State, 287 Kan. 601, 612-13, 702 P.2d 311 (1985) (insomnia, headaches, weight gain and general physical upset insufficient). Furthermore, plaintiff must show “that the physical injuries complained of were the direct and proximate result of the emotional distress caused by the alleged negligent conduct.” Hoard, 233 Kan. at 277, 662 P.2d 1214. Recovery is not allowed “when the cause is remote and speculative or when the alleged resulting damages are so conjectural and speculative as to undermine any sound basis for measurement.” Id. at 277, 662 P.2d 1214.

In this case, although Fuller was irritated when Gonzalez did not board her on Flight 2441, she did not feel stress which caused physical symptoms at that time. Fuller Deposition at 51. After she heard Cundiffs remark, however, her hands were shaking, she was very upset, she had one or more petit mal seizures and a grand mal seizure, and she was bedridden for two or three days. Such evidence satisfies the physical injury rule. Also, even though Fuller can suffer a seizure virtually anytime, anywhere and without any apparent cause other than the fact that she suffers from epilepsy, Fuller testified that any kind of stress causes her seizures. See id. at 38-39, 662 P.2d 1214. Fuller has personal experience on which to base a lay opinion that stress is a triggering event for her seizures. See Rule 701, Fed.R.Evid.; United States v. Morris, 41 Fed.Appx. 160, 166 (10th Cir.2002) (Rule 701 allows witness to give opinion testimony rationally based on personal perception); Nazar v. Passell, 1989 WL 158037, at *4 (D.Kan.1989) (same). For purposes of summary judgment, such testimony creates a genuine issue of material fact whether Southwest’s conduct was the direct proximate cause of Fuller’s physical injury.

In order to recover for negligent infliction of emotional distress, however, Fuller must also allege and prove that Southwest was negligent. Tyrrell v. Boeing Co., 1994 WL 114841 (D.Kan.1994). She alleges that Gonzalez and Cundiff intentionally discriminated against her and intentionally inflicted emotional distress on her. The Court has carefully reviewed the record and finds no allegations of negligence except with regard to Southwest’s hiring and training of flight attendants. These allegations were not included in the pretrial order and plaintiff cannot avoid summary judgment by asserting new allegations. See Hullman v. Bd. of Trs. of Pratt Cmty. Coll., 950 F.2d 665, 668 (10th Cir.1991) (citation omitted) (“[I]ssues not preserved in the pretrial order have been eliminated from the action, and a party who did not preserve an issue may not use it in resisting a motion for summary judgment.”); Eads v. Unified Sch. Dist. No. 289, Franklin County, Kan., 184 F.Supp.2d 1122, 1131 (D.Kan.2002) (citations omitted).

The Court sustains Southwest’s summary judgment motion as to the negligent infliction of emotional distress on Fuller.

IT IS THEREFORE ORDERED that Defendant Southwest Airlines Co.’s Motion To Exclude The Testimony Of Plaintiffs’ Expert Valdenia Winn (Doc. # 78) filed November 15, 2002, be and hereby is SUSTAINED in part, as to paragraphs 5, 6, part of 8 (which states “other racist words, phrases, and caricatures”), part of 10 (which states “and would consider the utterance of the phrase to be racist, reprehensible, and outrageous”), 11 and 13. Southwest’s motion is otherwise OVERRULED.

IT IS FURTHER ORDERED that Defendant Southwest Airlines Co.’s Motion For Summary Judgment (Doc. # 79) filed November 15, 2002, be and hereby is SUSTAINED in part. Southwest is entitled to *1278summary judgment on plaintiffs’ claims for intentional infliction of emotional distress and negligent infliction of emotional distress. Southwest’s motion for summary judgment is OVERRULED as to plaintiffs’ discrimination claims under 42 U.S.C. § 1981.

*372Ruffin, Chief Justice.

— In the opinion of the Court, there is error in the instructions given to the jury. The amount of damages may depend on the acts done on the land, and the extent of injury to it therefrom. But it is an elementary principle, that every unauthorised, and therefore unlawful entry, into the close of another, is a trespass. From every such entry against the will of the possessor, the law infers some damage; if nothing more, the treading down the grass or the herbage, or as here, the shrubbery. Had the locus in quo been under cultivation or enclosed, there would, have been no doubt of the plaintiff’s right to recover. Now our Courts have for a long time past held, that if there be no adverse possession, the title makes the land the owner’s dose. Making the survey and marking trees,' or making it without marking, differ only in the degree, and not in the nature of the injury. It is the entry that constitutes the trespass. There is no statute, nor rule of reason, that will make a wilful entry into the land of another, upon an unfounded claim of right, innocent, .which one, who sat up no title to the land, could not justify or excuse. On the contrary, the pretended ownership aggravates the wrong. Let the judgment be reversed, and a new trial granted.

Per Curiam. Judgment reversed.

BROWN, J.2

Defendant is a physician and surgeon of standing and character, making disorders of the ear a specialty, and having an extensive practice in the city of St. Paul. He was consulted by plaintiff, who complained to him of trouble with her right ear, and, at her request, made an examination of that organ for the purpose of ascertaining its condition. He also at the same time examined her left ear, but, owing to foreign substances therein, was unable to make a full and complete diagnosis at that time. The examination of her right ear disclosed a large perforation in the lower portion of the drum membrane, and a large polyp *265in the middle ear, which indicated that some of the small bones of the middle ear (ossicles) were probably diseased. He informed plaintiff of the result of his examination, and advised an operation for the purpose of removing the polyp and diseased ossicles. After consultation with her family physician, and one or two further consultations with defendant, plaintiff decided to submit to the proposed operation. She was not informed that her left ear was in any way diseased, and understood that the necessity for an operation applied to her right ear only. She repaired to the hospital, and was placed under the influence of anaesthetics; and, after being made unconscious, defendant made a thorough examination of her left ear, and found it in a more serious condition than her right one. A small perforation was discovered high up in the drum membrane, hooded, and with granulated edges, and the bone of the inner wall of the middle ear was diseased and dead. He called this discovery to the attention of Dr. Davis — plaintiff’s family physician, who attended the operation at her request — who also examined the ear and confirmed defendant in his diagnosis. Defendant also further examined the right ear, and found its condition less serious than expected, and finally concluded that the left, instead of the right, should be operated upon; devoting to the right ear other treatment. He then performed the operation of ossiculectomy on plaintiff’s left ear; removing a portion of the drum membrane, and scraping away the diseased portion of the inner wall of the ear. The operation was in every way successful and skilfully performed. It is claimed by plaintiff that the operation greatly impaired her hearing, seriously injured her person, and, not having been consented to by her, was wrongful and unlawful, constituting an assault and battery; and she brought this action to recover damages therefor.

The trial in the court below resulted in a verdict for plaintiff for $14,322.50. Defendant thereafter moved the court for judgment notwithstanding the verdict, on the ground that, on the evidence presented, plaintiff was not entitled to recover, or, if that, relief was denied, for a new trial on the ground, among others, that the verdict was excessive; appearing to have been given under the influence of passion and prejudice. The trial court denied the motion for judgment, but granted a new trial on the ground, as stated in the order, that the damages were excessive. Defendant appealed from the order denying the *266motion for judgment, and plaintiff appealed from the order granting a new trial.

1. It is contended on plaintiff’s appeal that the trial court erred in granting a new trial of the action; that the order should be reversed, and the verdict reinstated. The new trial was granted, as already stated, on the ground that the verdict was excessive, appearing to have been given under the influence of passion and prejudice; and the point made is that the evidence, as contained in the record, does not sustain this conclusion, within the limits of the rule applicable to motions for a new trial based upon that ground. Considerable confusion has existed with reference to the proper rule guiding this court in reviewing orders of this kind ever since the decision in Nelson v. Village of West Duluth, 55 Minn. 497, 57 N. W. 149, wherein it was said that the rule of Hicks v. Stone, 13 Minn. 398 (434) did not apply. Several decisions involving the same question have since been filed, and the bar is apparently in some doubt as to the true rule upon the subject.

We are not disposed to review the former decisions of the court, but, for future guidance, take this occasion to say (that there may be no further controversy in the matter) that in actions to recover unliquidated damages, such as actions for personal injuries, libel, and slander, and similar actions, where the plaintiff’s damages cannot be computed by mathematical calculation, and are not suceptible to proof by opinion evidence, and are within the discretion of the jury, the motion for new trial on the ground -of excessive or inadequate damages should be made under the fourth subdivision of section 5398, G. S. 1894; and in such cases the court will not interfere with the verdict unless the damages awarded appear clearly to be excessive or inadequate, as the case may be, and to have been given under the influence of passion or prejudice. On the other hand, in all actions, whether sounding in tort or contract, where the amount of damages dep'ends upon opinion evidence, as the value of property converted or destroyed, the nature and extent of injuries to person or property, the mottion for new trial should be made under the fifth subdivision of the statute referred to; and in cases of doubt, or where both elements of damages are involved, under both subdivisions. State v. Shevlin-Carpenter Co., 66 Minn. 217, 68 N. W. 973.

But in any case, whether a new trial upon the ground of excessive *267or inadequate damages should be granted or refused, or whether the verdict should be reduced, rests in the sound judicial discretion of the trial court (Craig v. Cook, 28 Minn. 232, 9 N. W. 712; Pratt v. Pioneer Press Co., 32 Minn. 217, 18 N. W. 836, 20 N. W. 87), in reviewing which this court will be guided by the general rule applicable to other discretionary orders. We applied this rule at the present term in Epstein v. Chicago Great Western Ry. Co., infra, page 516. Where the damages are susceptible of ascertainment by calculation, and the jury return either an inadequate or excessive amount, it is the duty of the court to grant unconditionally a new trial for the inadequacy of the verdict, or, if excessive, a new trial unless plaintiff will consent to a reduction of the amount given by the jury.

Applying the rule stated to the case at bar, we are clear the trial court did not abuse its discretion in granting defendant’s motion for a new trial, and its order on plaintiff’s appeal is affirmed. We cannot adopt the suggestion of counsel for plaintiff that this court now reduce the verdict to a proper amount, for there is no verdict upon which such an order could act. It was set aside by the trial court, i 2. We come then to a consideration of the questions presented by defendant’s appeal from the order denying his motion for judgment notwithstanding the verdict. It is contended that final judgment should be ordered in his favor for the following reasons: (a) That it appears from the evidence received on the trial that plaintiff consented to the operation on her left ear. (b) If the court shall find that no such consent was given, that, under the circumstances disclosed by the record, no consent was necessary, (c) That, under the facts disclosed, an action for assault and battery will not lie; it appearing conclusively, as counsel urge, that there is a total lack of evidence showing or tending to show malice or an evil intent on the part of defendant, or that the operation was negligently performed. /

We shall- consider first the question whether, under the circumstances shown in the record, the consent of plaintiff to the operation was necessary. If, under the particular facts of this case, such consent was unnecessary, no recovery can be had, for the evidence fairly shows that the operation complained of was skilfully performed and of a generally beneficial nature. But if the consent of plaintiff was necessary, then the further questions presented become important. This *268particular question is new in this state. At least, no case has been called to our attention wherein it has-been discussed or decided, and very few cases are cited from other courts. We have given it very deliberate consideration, and are unable to concur with counsel for defendant in their contention that the consent of plaintiff was unnecessary.

The evidence tends to show that, upon the first examination of plaintiff, defendant pronounced the left ear in good condition, and that, at the time plaintiff repaired to the hospital to submit to the operation on her right ear, she was under the impression that no difficulty existed as to the left. In fact, she testified that she had not previously experienced any trouble with that organ. It cannot be doubted that ordinarily the patient must be consulted, and his consent given, before a physician may operate upon him.

It was said in the case of Pratt v. Davis, 37 Chicago Leg. News, 213, referred to and commented on in 60 Cent. Daw J. 452: “Under a free government, at least, the free citizen’s first and greatest right, which underlies all others — the right to the inviolability of his person; in other words the right' to himself — is the subject of universal acquiescence, and this right necessarily forbids a physician or surgeon, however skilful or eminent, who has been asked to examine; diagnose, advise, and prescribe (which are at least necessary first steps in treatment and care), to violate, without permission, tíre bodily integrity of his patient by a major or capital operation, placing him under an anaesthetic for that purpose, and operating upon him without his consent or knowledge.”

1 Kinkead Torts, § 375, states the general rule on this "subject as follows: “The patient must be the final arbiter as to whether he shall take his chances with the operation, or take his chances of living without it. Such is the natural right of the individual, which the law recognizes as a legal right. Consent, therefore, of an individual, must be either expressly or impliedly given before a surgeon may have the right to operate.” There is logic in the principle thus stated, for, in all other trades, professions, or occupations, contracts are entered into by the mutual agreement of the interested parties, and are required to be performed in accordance with their letter and spirit. No reason occurs to us why the same rule should not apply between *269physician and patient. If the physician advises his patient to submit to a particular operation, and the patient weighs the dangers and risks incident to its performance, and finally consents, he thereby, in effect, enters into a contract authorizing his physician to operate to the extent of the consent given, but no further.

It is not, however, contended by defendant that under ordinary circumstances consent is unnecessary, but that, under the particular circumstances of this case, consent was implied; that it was an emergency case, such as to authorize the operation without express consent or permission. The medical profession has made signal progress in solving the problems of health and disease, and they may justly point with pride to the advancéments made in supplementing nature and correcting deformities, and relieving pain and suffering. The physician impliedly contracts that he possesses, and will exercise in the treatment of patients, skill and learning, and that he will exercise reasonable, care and exert his best judgment to bring about favorable results. The methods of treatment are committed almost exclusively to his judgment, but we are aware of no rule or principle of law which would ■extend to him free license respecting surgical operations. Reasonable latitude must, however, be allowed the physician in a particular case; and we would not lay down any rule which would unreasonably interfere with the exercise of his discretion, or prevent Him from taking such measures as his judgment dictated for the welfare of the patient in a case of emergency. If a person should be injured to the extent of rendering him unconscious, and his injuries were of such a nature as to require prompt surgical attention, a physician called to attend him would be justified in applying such medical or surgical treatment as might reasonably be necessary for the preservation of his life or limb, and consent on the part of the injured person would be implied. And again, if, in the course of an operation to which the patient consented, the physician should discover conditions not anticipated before the operation was commenced, and which, if not removed, would endanger the life or health of the patient, he would, though no express consent was obtained or given, be justified in extending the operation to remove and overcome them.

But such is not the case at bar. The diseased condition of plaintiff’s left ear was not discovered in the course of an operation on the right *270which was authorized, but upon an independent examination of that organ, made after the authorized operation was found unnecessary. Nor is the evidence such as to justify the court in holding, as a matter of law, that it was such an affection as would result immediately in the serious injury of plaintiff, or such an emergency as to justify proceeding without her consent. She had experienced no particular difficulty with that ear, and the questions as to when its diseased condition would become alarming or fatal, and whether there was an immediate necessity for an operation, were, under the evidence, questions of fact for the jury.

3. The contention of defendant that the operation was consented to by plaintiff is not sustained by the evidence. At least, the evidence was such as to take the question to the jury. This contention is based upon the fact that she was represented on the occasion in question by her family physician; that the condition of her left ear was made known to him, and the propriety of an operation thereon suggested, to which he made no objection. It is urged that by his conduct he assented to it, and that plaintiff was bound thereby. It is not claimed that he gave his express consent. It is not disputed but that the family physician of plaintiff was present on the occasion of the operation, and at her request. But the purpose of his presence was not that he might participate in the operation, nor does it appear that he was-authorized to consent to any change in the one originally proposed to-be made. Plaintiff was naturally nervous and fearful of the consequences of being placed under the influence of anaesthetics, and the presence of her family physician was requested under the impression that it would allay and calm her fears. The evidence made the question one of fact for the jury to determine.

4. The last contention of defendant is that the act complained of did not amount to an assault and battery. This is based upon the theory that, as plaintiff’s left ear was in fact diseased, in a condition dangerous and threatening to her health, the operation was necessary, and, having been skilfully performed at a time when plaintiff had requested a like operation on the other ear, the charge of assault and battery cannot be sustained; that, in view of these conditions, and the claim that there was no negligence on the part of defendant, and an entire absence of any evidence tending to show an evil intent, the court should say, as a *271matter of law, that no assault and battery was committed, even though she did not consent to the operation. In other words, that the absence of a showing that defendant was actuated by a wrongful intent, or guilty of negligence, relieves the act of defendant from the charge of an unlawful assault and battery.

We are unable to reach that conclusion, though the contention is not without merit. It would seem to follow from what has been said on the other features of the case that the act of defendant amounted at 'east to a technical assault and battery. If the operation was performed without plaintiff’s consent, and the circumstances were not ?uch as to justify its performance without, it was wrongful; and, if it was wrongful, it was unlawful. As remarked in 1 Jaggard, Torts, 437, every person has a right to complete immunity of his person from physical interference of others, except in so far as contact may be necessary' under the general doctrine of privilege; and any unlawful or unauthorized touching of the person of another, except it be in the spirit of pleasantry, constitutes an assault and battery. In the case at bar, as we have already seen, the question whether defendant’s act in performing the operation upon plaintiff was authorized was a question for the jury to determine. If it was unauthorized, then it was, within what we have said, unlawful. It was a violent assault, not a mere pleasantry; and, even though no negligence is shown, it was wrongful and unlawful. The case is unlike a criminal prosecution for assault and battery, for there an unlawful intent must be shown. But that rule does not apply to a civil action, to maintain which it is sufficient to show that the assault complained of was wrongful and unlawful or the result of negligence. 1 Addison, Torts, 689; Lander v. Seaver, 32 Vt. 114; Vosburg v. Putney, 80 Wis. 523, 50 N. W. 403.

The amount of plaintiff’s recovery, if she is entitled to recover at all, must depend upon the character and extent of the injury inflicted upon her, in determining which the nature of the malady intended to be healed and the beneficial nature of the operation should be taken into consideration, as well as the good faith of the defendant.

Orders affirmed.

Chief Justice Hayt

delivered the opinion of the court.

It is admitted or proven beyond controversy that appellee received a gunshot wound at the hands of the appellant at *115the time and place designated in the complaint, and that as the result of such wound the appellee was seriously injured. It is further shown that the shooting occurred under the following circumstances:

That Mr. Courvoisier, on the night in question, was asleep in his bed in the second story of a brick building, situate at the corner of South Broadway and Dakota streets in South Denver; that he occupied a portion of the lower floor of this building as a jewelry store. He was aroused from his bed shortly after midnight by parties shaking or trying to open the door of the jewelry store. These parties, when asked by him as to what they wanted, insisted upon being admitted, and upon his refusal to comply with this request, they used-profane and abusive epithets toward him. Being unable to gain admission, they broke some signs upon the front of the building, and then entered the building by another entrance, and passing upstairs commenced knocking upon the door of a room where defendant’s sister was sleeping. Courvoisier partly dressed himself, and, taking his revolver, went upstairs and expelled-the intruders from the building. In doing this he passed downstairs and out on the sidewalk as far as the entrance to his store, which was at the corner of the building. The parties expelled from the building, upon reaching the rear of the store, were joined by two or three others. In order to frighten these parties away, the defendant fired a shot in the air, but instead of retreating they passed around to the street in front, throwing stones and brickbats at the defendant, whereupon he fired a second and perhaps a third shot. The first shot fired attracted the attention of plaintiff Raymond and two deputy sheriffs, who were at the Tramway depot, across the street. These officers started toward Mr. Courvoisier, who still continued to shoot, but two of them stopped when they reached the men in the street, for the purpose of arresting them, Mr. Raymond alone proceeding towards the defendant, calling out to him that he was an officer and to stop shooting. Although the night was dark, - the street was well lighted by electricity, and when the officer *116approached him defendant shaded his eyes, and, taking deliberate aim, fired, causing the injury complained of.

The plaintiff’s theory of the case is that he was a duly authorized police officer, and in the discharge of his duties at the time; that the defendant was committing a breach of the peace, and that the defendant, knowing him to be a police officer, recklessly fired the shot in question.

The defendant claims that the plaintiff was approaching him at the time in a threatening attitude, and that the surrounding circumstances were such as to cause a reasonable man to believe that his life was in danger, and that it was necessary to shoot in self-defense, and that defendant did so believe at the time of firing the shot.

The first error argued brings up for review the action of the district court in overruling a challenge interposed by the defendant to the juror Gibbons. The ground of this challenge will appear from the following:

“ Q. Have you served as a juror within the year last past? A. I was called a few weeks ago on one case in the county court.

“ Q. As a talesman? A. Yes, sir.

“The Court. When did you serve, Mr. Gibbons? A. A few weeks ago.

“The Court. Since the first of January? A. Yes, sir.”

The statute relied upon to support the challenge reads as follows:

“ The fact that any juror in any district or county court shall have served as juror of the regular panel, or as talesman, in either of said courts at anytime within the year next preceding, shall be a sufficient excuse for such juror from service in the same court and may also be ground for challenge for cause to such individual juror.” Session Laws, 1889, page 220, sec. 1.

The statute limits the exception to service a second time within the year in the same court, and we think it was likewise intended to thus restrict this ground of challenge for cause. This has been the uniform practice under the stat*117ute, and we think it must be upheld as the obvious meaning of the act.

The second error assigned is upon the overruling of defendant’s objections to certain hypothetical questions propounded by plaintiff to medical experts. These questions called for the opinion of the witnesses as to the natural result of the wound received by plaintiff. It is claimed that the questions do not describe the wound with sufficient certainty, and that the evidence of the extent of the injury is not sufficient to form a basis for any hypothetical questions or for expert opinions upon the probable effects of the wound. We think the objections to these questions were properly overruled. The questions contain such a description of the wound as is easily understood by the lay mind, and the answers show that it was fully understood by the experts. The questions are framed upon the assumption that the evidence tended to prove certain facts. This assumption, being within the probable or possible range of the evidence, is permissible. Jackson v. Burnham, 20 Colo. 582.

The third assignment of error challenges the refusal of the court to permit witnesses for the defendant to testify as to whether or not, as a result of a criminal prosecution, one of the participants was convicted of “throwing a stone and hitting Mr. Courvoisier that night.” The objection to this question was properly sustained. If proof of such conviction was admissible, the record is the best evidence thereof, except in the instances specified by statute. Mills’ Annotated Statutes, sec. 4822. But as this action is between other parties, even the record is not admissible in this case.

It was attempted to prove by the witness Reed, who was at the time marshal of the town of South Denver, that the neighborhood in the immediate vicinity of defendant’s house had been the scene of frequent robberies and disturbances shortly prior to this shooting. This evidence was offered for the purpose of justifying the defendant’s action. It is claimed that conduct which would cause no apprehension in a quiet and peaceful neighborhood would naturally and rea*118sonably excite alarm if disturbances and breaches of the peace were frequent. We think, however, the court was justified in refusing this evidence. Its tendency is to raise collateral issues, and thereby divert the attention of the jury.

Under the fourth assignment of error it is claimed that evidence of the financial standing of the defendant was not admissible. If the jury believed from the evidence that the shooting was done with malice, or that the injury was the result of a wanton and reckless disregard of plaintiff’s rights and not in necessary self-defense, exemplary damages might have been awarded, and wherever such damages are permissible, the financial condition of the defendant may be shown. In a number of cases, commencing with Murphy v. Hobbs, 7 Colo. 541, it has been held that in civil actions for injuries resulting from torts, exemplary damages, as a punishment, were not permissible, if the offense is punishable under the criminal laws. These decisions were based upon the common law. In 1889 the legislature provided, by statute, that exemplary damages may be given in certain cases. Before the passage of this act the question was one upon which the courts disagreed, but the statute has now settled the practice in this state.

The next error assigned relates to the instructions given by the court to the jury and to those requested by the defendant and refused by the court. The second instruction given by the court was clearly erroneous. The instruction is as follows: “The court instructs you that if you believe from the evidence, that, at the time the defendant shot the plaintiff, the plaintiff was not assaulting the defendant, then your verdict should be for the plaintiff.”

The vice of this instruction is that it excluded from the juiy a full consideration of the justification claimed by the defendant. The evidence for the plaintiff tends to show that the shooting, if not malicious, was wanton and reckless, but the evidence for the defendant tends to show that the circumstances surrounding him at the time of the shooting were such as to lead a reasonable man to believe that his life *119was in danger, or that he was in danger of receiving great bodily harm at the hands of the plaintiff, and the defendant testified that he did so believe.

He swears that his house was invaded shortly after midnight by two men, whom he supposed to be burglars; that when ejected, they were joined on the outside by three or four others; that the crowd so formed assaulted him with stones and other missiles, when, to frighten them away, he shot into the air; that instead of going away someone approached him from the direction of the crowd; that he supposed this person to be one of the rioters, and did not ascertain that it was the plaintiff until after the shooting. He says that he had had no previous acquaintance with plaintiff; that he did not know that he was a police officer, or that there were any police officers in the town of South Denver; that he heard nothing said at the time by the plaintiff or anyone else that caused him to think the plaintiff was an officer; that his eyesight was greatly impaired, so that he was obliged to use glasses, and that he was without glasses at the time of the shooting, and for this reason could not see distinctly. He then adds: “I saw a man come away from the hunch of men and come up towards me, and as I looked around I saw this man put his hand to his hip pocket. I didn’t think I had time to jump aside, arid therefore turned around and fired, at him. I had no doubts but it was somebody that had come to rob me, because some weeks before Mr. Wilson’s store was robbed. It is next door to mine.”

By this evidence two phases of the transaction are presented for consideration: First, was the plaintiff assaulting the defendant at the time plaintiff was shot? Second, if not, was there sufficient evidence of justification for the consideration of the jury? The first question was properly submitted, but the second was excluded by the instruction under review. The defendant’s justification did not rest entirely upon the proof of assault by the plaintiff. A riot was in progress, and the defendant swears that he was attacked with missiles, hit with stones, brickbats, etc.; that he shot *120plaintiff, supposing him to be one of the rioters. We must assume these facts as established in reviewing the instruction, as we cannot say what the jury might have found had this evidence been submitted to them under a proper charge.

By the second instruction the conduct of those who started the fracas was eliminated from the consideration of the jury. If the jury believed from the evidence that the defendant would have been justified in shooting one of the rioters had such person advanced towards him as did the plaintiff, then it became important to determine whether the defendant mistook plaintiff for one of the rioters, and if such a mistake was in fact made, was it excusable in the light of all the circumstances leading up to and surrounding the commission of the act? If these issues had been resolved by the jury in favor of the defendant, he would have been entitled to a judgment. Morris v. Platt, 32 Conn. 75; Patton v. People, 18 Mich. 318; Kent v. Cole, 84 Mich. 579; Higgins v. Minaghan, 76 Wis. 268.

The opinion in the first of the cases above cited contains an exhaustive review of the authorities and is very instructive. The action was for damages resulting from a pistol shot wound. The defendant justified under the plea of self-defense. The proof for the plaintiff tended to show that he was a mere bystander at a riot, when he received a shot aimed at another, and the court held that, if the defendant was justified in firing the shot at'his antagonist, he was not liable to the plaintiff, for the reason that .the act of shooting was lawful under the circumstances.

Where a defendant in a civil action like the one before us attempts to justify on a plea of necessary self-defense, he must satisfy the jury not only that he acted honestly in using force, but that his fears were reasonable under the circumstances; and also as to the reasonableness of the means made use of. In this case perhaps the verdict would not have been different had the jury been properly instructed, but it might have been, and therefore the judgment must be reversed.

Reversed.

Munson, J.

It is alleged as the ground of recovery that on the 13th day of November, 1904, the defendant was the owner of a certain island in Lake Champlain, and of a certain dock attached thereto, which island and dock were then in charge of the defendant’s servant; that the plaintiff was then possessed of and sailing upon said lake a certain loaded sloop, on which were the plaintiff and his wife and two minor children; that there then arose a sudden and violent tempest, whereby the sloop and the property and persons therein were placed in great danger of destruction; that to save these from destruction or injury the plaintiff was compelled to, and did, moor the sloop to defendant’s dock; that the defendant by his servant unmoored the sloop, whereupon it was driven upon the shore by the tempest, without the plaintiff’s fault; and that the sloop and its contents were thereby destroyed, and the plaintiff and *474his wife and children cast into the lake and upon the shore, receiving injuries.

This claim is set forth in two counts; one in trespass, charging that the defendant by his servant with force and arms wilfully and designedly unmoored the sloop; the other in case, alleging that it was the duty of the defendant by his servant to permit the plaintiff to moor his sloop to the dock, and to permit it to remain so moored during the continuance of the tempest, but that the defendant by his servant, in disregard of this duty, negligently, carelessly and wrongfully unmoored the sloop. Both counts are demurred to generally.

There are many cases in the books which hold that necessity, and an inability to control movements inaugurated in the proper exercise of a strict right, will justify entries upon land and interferences with personal property that would otherwise have been trespasses. A reference to a few of these will be sufficient to illustrate the doctrine.

In Miller v. Fandrye, Poph. 161, trespass was brought for chasing sheep, and the defendant pleaded that the sheep were trespassing upon his land, and that he with a little dog chased them out, and that as soon as the sheep were off his land he called in the dog. It was argued that, although the defendant might lawfully drive the sheep from his own ground with a dog, he had no right to pursue them into the next ground. But the court considered that the defendant might drive the sheep from his land with a dog, and that the nature of a dog is such that he cannot be withdrawn in an instant, and that as the defendant had done his best to recall the dog trespass would not lie.

In trespass of cattle taken in A, defendant pleaded that he was seized of C, and found the cattle there damage feasant, and chased them toward the pound, and that they escaped from him and went into A, and he presently retook them; and this was held a good plea. 21 Bdw. IV. 64; Vin. Ab. Trespass, H. a 4 pi. 19. If one have a way over the land, of another for his beasts to pass, and the beasts, being properly driven, feed the grass by morsels in passing, or run out of the way and are promptly pursued and brought back, trespass will not lie. See Vin. Ab. Trespass, K. a. pl. 1.

A traveller on a highway, who finds it obstructed from a sudden and temporary cause, may pass upon the adjoining land *475without becoming a trespasser, because of the necessity. Henn’s Case, W. Jones 296; Campbell v. Race, 7 Cush. 408, 54 Am. Dec. 728; Hyde v. Jamaica, 27 Vt. 443 (459); Morey v. Fitzgerald, 56 Vt. 487, 48 Am. Rep. 811.

An entry upon land to save goods which are in danger of being lost or destroyed by water or fire is not a trespass. 21 Hen. VII, 27; Vin. Ab. Trespass, H. a. 4, pl. 24, K. a. pl. 3. In Proctor v. Adams, 113 Mass. 376, 18 Am. Rep. 500, the defendant went upon the plaintiff’s beach for the purpose of saving and restoring to the lawful owner a boat which had been driven ashore and was in danger of being carried off by the sea; and it was held no trespass. See also Dunwich v. Sterry, 1 B. & Ad. 831.

This doctrine of necessity applies with special force to the preservation of human life. One assaulted and in peril of his life may run through the close of another to escape from his assailant. 37 Hen. VII, pl. 26. One may sacrifice the personal property of another to save his life or the lives of his fellows. In Mouse’s Case, 12 Co. 63, the defendant was sued for taking and carrying away the plaintiff’s casket and its contents. It appeared that the ferryman of Gravesend took forty-seven passengers into his barge to pass to London, among whom were the plaintiff and defendant; and the barge being upon the water a great tempest happened, and a strong wind, so that the barge and all the passengers were in danger of being lost if certain ponderous things were not cast out, and the defendant thereupon cast out the plaintiff’s casket. It was resolved that in case of necessity, to save the lives of the passengers, it was lawful for the defendant, being a passenger, to cast the plaintiff’s casket out of the barge; that if the ferryman surcharge the barge the owner shall have his remedy upon the surcharge against the ferryman, but that if there be no surcharge, and the danger accrue only by the act of God, as by tempest, without fault of the ferryman, every one ought to bear his loss, to safeguard the life of a man.

It is clear that an entry upon the land of another may be justified by necessity, and that the declaration before us discloses a necessity for mooring the sloop. But the defendant questions the sufficiency of the counts because they do not negative the existence of natural objects to which the plaintiff *476could have moored with equal safety. The allegations are, in substance, that the stress of a sudden and violent tempest compelled the plaintiff to moor to defendant’s dock to save his sloop and the people in it. The averment of necessity is complete, for it covers not only the necessity of mooring, but the necessity of mooring to the dock; and the details of the situation which created this necessity, whatever the legal requirements regarding them, are matters of proof and need not be alleged. It is certain that the rule suggested cannot be held applicable irrespective of circumstance, and the question must be left for adjudication upon proceedings had with reference to the evidence or the charge.

The defendant insists that the counts are defective in that they fail to show that the servant, in casting off the rope, was acting within the scope of his employment. It is said that the allegation that the island and dock were in charge of the servant does not imply authority to do an unlawful act; and that the allegations as a whole fairly indicate that the servant unmoored the sloop for a wrongful purpose of his own, and not by virtue of any general authority or special instruction received from the defendant. But we think the counts are sufficient in this respect. The allegation is that the defendant did this by his servant. The words “wilfully and designedly” in one count, and “negligently, carelessly and wrongfully” in the other, are not applied to the servant, but to the defendant acting through the servant. The necessary implication is that the servant was acting within the scope of his employment.13 Ency. Pl. & Pr. 922; Voegeli v. Pickel Marble etc. Co., 49 Mo. App. 643; Wabash, Ry. Co. v. Savage, 110 Ind. 156, 9 N. E. 85. See also Palmer v. St. Albans, 60 Vt. 427, 13 Atl. 569, 6 Am. St. Rep. 125.

Judgment affirmed and cause remanded.

O’BRIEN, J.

The steamship Reynolds, owned by the defendant, was for the purpose of discharging her cargo on November 27, 1905, moored to plaintiffs’ dock in Duluth. While the unloading of the boat was taking place a storm from the northeast developed, which at about ten o’clock p. m., when the unloading was completed, had so grown in violence that the wind was then moving at fifty miles per hour and continued to increase during the night. There is some evidence that one, and perhaps two, boats were able to enter the harbor that night, but it is plain that navigation was practically suspended from the hour mentioned until the morning of the twenty ninth, when the storm abated, and during that time no master would have been justified in attempting to navigate his vessel, if he could avoid doing so. After the discharge of the cargo the Peynolds signaled for a tug to tow her from the dock, but none could be obtained because of the severity of the storm. If the lines holding the ship to the dock had been cast off, she would doubtless have drifted away; but, instead, the lines were kept fast, and as soon as one parted or chafed it was replaced, sometimes with a larger one. The vessel lay upon the outside of the dock, her bow to the east, the wind and waves striking her starboard quarter with such force that she was con*458stantly being lifted and thrown against the dock, resulting in its damage, as found by the jury, to the amount of $500.

We are satisfied that the character of the storm was such that it would have been highly imprudent for the master of the Reynolds to have attempted to leave the dock or to leave permitted his vessel to drift away from it. One witness testified upon the trial that the vessel could have been warped into a slip, and that, if the attempt to bring the ship into the slip had failed, the worst that could have happened would be that the vessel would have been blown ashore upon a soft and muddy bank. The witness was not present in Duluth at the time of the storm, and, while he may have been right in his conclusions, those in charge of the dock and the vessel at the time of the storm were not required to use the highest human intelligence, nor were they required to resort to every possible experiment which could be suggested for the preservation of their property. Nothing more was demanded of them than ordinary prudence and care, and the record in this case fully sustains the contention of the appellant that, in holding the vessel fast to the dock, those in charge of her exercised good judgment and prudent seamanship.

It is claimed by the respondent that it was negligence to moor the boat at an exposed part of the wharf, and to continue in that position after it became apparent that the storm was to be more than usually severe. We do not agree with this position. The part of the wharf where the vessel was moored appears to have been commonly used for that purpose. It was situated within the harbor at Duluth, and must, we think, be considered a proper and safe place, and would undoubtedly have been such during what would be considered a very severe storm. The storm which made it unsafe was one which surpassed in violence any which might have reasonably been anticipated.

The appellant contends by ample assignments of error that, because its conduct during the storm was rendered necessary by prudence and good seamanship under conditions over which it had no control, it cannot be held liable for any injury resulting to the property of others, and claims that the jury should have been so instructed. An analysis of the charge given by the trial court is not necessary, as in our opinion the only question for the jury was the amount of damages *459which the plaintiffs were entitled to recover, and no complaint is made upon that score.

The situation was one in which the ordinary rules regulating property rights were suspended by forces beyond human control, and if, without the direct intervention of some act by the one sought to be held liable, the property of another was injured, such injury must be attributed to the act of God, and not to the wrongful act of the person sought to be charged. If during the storm the Reynolds had entered the harbor, and while there had become disabled and been thrown against the plaintiffs’ dock, the plaintiffs could not have recovered. Again, if while attempting to hold fast to the dock the lines had parted, without any negligence, and the vessel carried against some other boat or dock in the harbor, there would be no liability upon her owner. But here those in charge of the vessel deliberately and by their direct efforts held her in such a position that the damage to the dock resulted, and, having thus preserved the ship at the expense of the dock, it seems to us that her owners are responsible to the dock owners to the extent of the injury indicted.

In Depue v. Flatau, 100 Minn. 299, 111 N. W. 1, 8 L. R. A. (N. S.) 485, this court held that where the plaintiff, while lawfully in the defendants’ house, became so ill that he was incapable of traveling with safety, the defendants were responsible to him in damages for compelling him to leave the premises. If, however, the owner of the premises had furnished the traveler with proper accommodations and medical attendance, would he have been able to defeat an action brought against him for their reasonable worth?

In Ploof v. Putnam (Vt.) 71 Atl. 188, 20 L. R. A. (N. S.) 152, the supreme court of Vermont held that where, under stress of weather, a vessel was without permission moored to a private dock at an island in Lake Champlain owned by the defendant, the plaintiff was not guilty of trespass, and that the defendant was responsible in damages because his representative upon the island unmoored the vessel, permitting it to drift upon the shore, with resultant injuries to it. If, in that case, the vessel had been permitted to remain, and the dock had suffered an injury, we believe the shipowner would have been held liable for the injury done.

*460Theologians hold that a starving man may, without moral guilt, take what is necessary to sustain life; but it could hardly be said that the obligation would not be upon such person to pay the value of the property so taken when he became able to do so. And so public necessity, in times of war or peace, may require the tailing of private property for public purposes; but under our system of jurisprudence compensation must be made.

Let us imagine in this case that for the better mooring of the vessel those in charge of her had appropriated a valuable cable lying upon the dock. No matter how justifiable such appropriation might have been, it would not be claimed that, because of the overwhelming necessity of the situation, the owner of the cable could not recover its value.

This is not a case where life or property was menaced by any object or thing belonging to the plaintiffs, the destruction of which became necessary to prevent the threatened disaster. Nor is it a case where, because of the act of God, or unavoidable accident, the infliction of the injury was beyond the control of the defendant, but is one where the defendant prudently and advisedly availed itself of the plaintiffs’ property for the purpose of preserving its own more valuable property, and the plaintiffs are entitled to compensation for the injury done.

Order affirmed.

LEWIS, J.

(dissenting).

I dissent. It was assumed on the trial before the lower court that appellant’s liability depended on whether the master of the ship might, in the exercise of reasonable care, have sought a place of safety before the storm made it impossible to leave the dock. The majority opinion assumes that the evidence is conclusive that appellant moored its boat at respondents’ dock pursuant to contract, and that the vessel was lawfully in position at the time the additional cables were fastened to the dock, and the reasoning of the opinion is that, because appellant made use of the stronger cables to hold the boat in position, it became liable under the rule that it had voluntarily made use of the property of another for the purpose of saving its own.

*461In my judgment, if the boat was lawfully in position at the time the storm broke, and the master could not, in the exercise of due care, have left that position without subjecting his vessel to the hazards of the storm, then the damage to the dock, caused by the pounding of the boat, was the result of an inevitable accident. If the master was in the exercise of due care, he was not at fault. The reasoning of the opinion admits that if the ropes, or cables, first attached to the dock had not parted, or if, in the first instance, the master had used the stronger cables, there would be no liability. If the master could not, in the exercise of reasonable care, have anticipated the severity of the storm and sought a place of safety before it became impossible, why should he be required to anticipate the severity of the storm, and, in the first instance, use the stronger cables?

I am of the opinion that one who constructs a dock to the navigable line of waters, and enters into contractual relations with the owner of a vessel to moor the same, takes the risk of damage to his dock by a boat caught there by a storm, which event could not have been avoided in the exercise of due care, and further, that the legal status of the parties in such a case is not changed by renewal of cables to keep the boat from being cast adrift at the mercy of the tempest.

JAGGARD, J.

I concur with lewis, J.

BOWER, J.

The City of Des Moines (City) appeals the district court’s ruling denying its petition for a writ of certiorari and upholding the ruling for the intervenors-appellees, James Loveland, Jeanne Zeitler, and Eric Randall (appellees). The City claims the district court erred in finding the defense of necessity applicable to the homeless individuals’ situation. We find the district court erred in finding substantial evidence existed to support the defense of necessity. Accordingly, we reverse the judgment of the district court and remand for entry of an order sustaining the writ of certiorari.

I. BACKGROUND FACTS AND PROCEEDINGS.

Homeless people in Des Moines often resort to living under bridges in the metro area. The homeless have created campsites from a collection of canvas tents and makeshift lean-tos made from discarded wood and other materials. These dwellings serve as a place to sleep and store their possessions. The campsite at issue is located on the southwestern bank of the Raccoon River, underneath the Martin Luther King Jr. bridge and near the West Martin Luther King Jr. Parkway/Fleur Drive intersection. The appellees began living at the campsite in March 2012.

*879On January 17, 2013, the City posted notices addressed to the occupants under the Martin Luther King Jr. bridge. The notice stated they were in violation of section 102-615 of the Municipal Code of the City of Des Moines “by encroaching (living/residing and storage of personal property) on City of Des Moines property.”1 The notice advised the occupants to leave by January 29, 2013, or be “subject to immediate forcible removal and/or arrest.” The occupants were given until January 28, 2013, to file an appeal with the City clerk. A timely appeal was filed.

On January 31, 2013, an administrative hearing was held before Administrative Hearing Officer Cassandra Webster. Attorney Charles Hill from Iowa Legal Aid represented the appellees. Appearing for the City were SuAnn Donovan, Zoning Enforcement Neighborhood Inspection Administrator with the City of Des Moines Community Development Department, and Roger Brown, Des Moines Deputy City Attorney.

At the hearing the City discussed the history of homeless people living under the bridges in Des Moines. The City acknowledged it last pursued legal action in November 2008. The City explained the 2008 action was prompted by the construction of “hooches” or small structures made out of plywood, one of which had caught fire. As a result, the City removed eight individuals from a campsite. In the spring and summer of 2011 the City removed two structures and three individuals from the levee north of Gray’s Lake. That year the City spent $25,000 in the removal of twenty abandoned campsites and contributed $165,000 in an effort to secure housing for the homeless.

The City stated it had received several complaints about the individuals living under the bridge. A recreational trail passes under the bridge. Users of the trail reported verbal assaults, being frightened by the homeless, instances of panhandling, the unsightliness of the camps, and the accumulation of junk under the bridge. The City inspected the camps and found unsanitary conditions and unsafe heating methods creating a fire hazard. The location of the camps would also make it difficult for first responders to provide prompt services.

Des Moines Fire Marshall, Tom Patava, was called as a witness. He discussed the safety concerns caused by homeless persons using propane, camp fires/fire pits, or homemade wood burners for heat. Patava voiced concerns about the close proximity of the heat sources to the flammable heating materials the individuals use for shelter and bedding. He also noted, because of these problems, emergency responders are twenty times more likely to respond to a fire at one of the campsites versus a single family home.

Next, Cody Christensen, the deputy building official in the community development department, testified about the safety concerns unique to the camps. Christensen stated the city code sets a minimum standard of living for residents of the city and Christensen opined that since the homeless individuals inhabited the camps on a long-term basis, the city housing codes should also apply to their structures. However, these structures do not meet the *880housing standards set by the City. In addition to creating a fire hazard, the camps fail to provide adequate cooking, bathing, or restroom facilities.

Iowa Legal Aid attorney Charles Hill offered general information about homelessness. Hill argued the City did not give proper notice, the City’s action was ultra vires, and the homeless persons he represented acted out of necessity due to the lack of suitable housing. Hill noted the local homeless shelter, which has a 150-bed capacity, exceeded its capacity during the January 2013. cold snap while providing shelter for 180 individuals. Hill faults the City for not providing a homeless shelter of sufficient size, and also for the general lack of affordable housing in Des Moines. Hill based his necessity argument on the Restatement (Second) of Torts, section 197, which states an individual is privileged to enter and remain on the land of another if it is reasonably necessary to prevent serious harm to the individual or his chattel. Finally, Hill remarked that the City’s officials had visited the campsite on numerous occasions since the appellees began living there. Other than the City’s officials advising the appellees about the safety hazards, the officials did not ask the appellees to leave the campsite until the notice was posted in January 2013.

Hill also presented the testimony of Eric Randall, one of the appellees and a resident at the campsite. Randall testified the local homeless shelter was over its capacity, and he did not view the shelter as a viable living space. He stated that if he went to the shelter, given the over-capacity, he may have to sleep on a hard bench or in a chair. Randall believes his campsite is more comfortable than the shelter, the campsite is tidy, and the residents have implemented a system for trash disposal. Randall highlighted an additional problem — he would have to leave his possessions if he went to the shelter .as the shelter does not provide storage space. Randall testified further, if he and the others had to leave within the ten days mandated by the City, they would not have sufficient time to remove their possessions, leaving them with no choice but to stay under the bridge. Finally, Randall stated that he could not think of any injury caused to the City by his presence under the bridge.

Deidre Henriquez, the Program Manager for the Advocacy Department at Primary Health Care Outreach, testified on behalf of the appellees. She provided a brief overview of homeless camps in Des Moines, stating camps have existed dating back to at least 1983 when Drake University Professor Dean Wright began keeping records on the homeless population in Des Moines. Henriquez personally began observing homeless camps in 2001. She confirmed the City does have a homeless shelter with fifty beds for women and 100 beds for men. During the week the City posted the notice, about 170 people were staying at the shelter. The shelter did accommodate the over-capacity individuals by allowing them to sleep on chairs or benches. Henriquez opined that increasing the number of individuals at the shelter would lower the quality of services provided to the homeless.

The hearing concluded with closing statements by counsel. The City discussed the homeless problem in the United States, but emphasized the present hearing was about individuals living in a dangerous situation. The present situation placed the City in the position of an unwilling landlord to the homeless. The City claimed the defense of necessity does not apply as there was’no imminent threat of bodily harm. Finally, the City indicated it had been more than fair, and with the winter conditions, the chance of harm to *881the appellees and first responders is so apparent it prompted the City to take action.

The appellees reasserted the necessity defense, claiming the cold weather created imminent harm if they were forced to relocate and faulted the City for a decade-long policy of acquiescing and allowing people to live under the bridges while failing to provide other suitable housing.

The hearing officer entered an order on February 11, 2013, ruling against the City. In the ruling, the hearing officer discussed the applicable city code provision dealing with encroachments and the December 7, 2012 amendment to the code. The amendment added “tent or other material configured or used for habitation or shelter” to the definition of items constituting an “encroachment” under code section 102-596. Also amended was section 102-615, which acted to limit the scope of a hearing on appeal from an encroachment removal action by the City, or to allow for immediate removal without notice if the encroachment “unreasonably endangers the safety of persons or property.”

In analyzing the appellees’ necessity argument and the applicable case law, the hearing officer relied on State v. Walton, 311 N.W.2d 113 (Iowa 1981), for guidance on the defense of necessity, as well as several California criminal cases: Jones v. City of Los Angeles, 444 F.3d 1118 (9th Cir.2006), vacated 505 F.3d 1006 (9th Cir.2007); Tobe v. City of Santa Ana, 9 Cal.4th 1069, 40 Cal.Rptr.2d 402, 892 P.2d 1145 (1995); In re Eichorn, 69 Cal.App.4th 382, 81 Cal.Rptr.2d 535 (1998). These cases generally dealt with homeless persons who raised the defense of necessity after being charged with criminal trespass. In allowing the necessity defense herein, the officer concluded the lack of available beds in the shelter and the cold weather created a necessity for the appellees to continue residing under the bridge.

The City petitioned the district court for a writ of certiorari. The City requested the court sustain the writ, annul the defense of necessity, and allow the City to remove the encroachments. A hearing on the writ was held on August 30, 2013. At the hearing, the City again claimed the appellees failed to prove the defense of necessity since there was no emergency when the appellees first built their encroachments in the warmer months. The appellees claimed the elements of a necessity defense, as set out in Walton and the Restatement (Second), were satisfied. They noted the City amended the encroachment ordinance four weeks before the City posted the notices, which occurred during the cold winter months. The ap-pellees also discussed the lack of reasonable alternative living arrangements. Finally, the appellees claimed their right to survive outweighed the City’s property rights, claiming because there was no other place to stay the defense of necessity was satisfied.

In upholding the decision of the hearing officer, the district court relied on Walton and the Restatement (Second) of Torts to find the appellees satisfied the defense of necessity. Given the limited jurisdiction granted to the district court by Iowa Rule of Civil Procedure 1.1411,2 annulling or sustaining the writ, the district court de-*882dined to offer a time frame or circumstance that could act to end the appellees’ defense of necessity.

The City appealed, claiming the district court erred in upholding the hearing officer’s allowance of the defense of necessity. The City asks this court to remand to the trial court with instructions to sustain the petition for writ of certiorari and to order the removal of appellees’ encroachments.

II. STANDARD OF REVIEW

This case comes to us from the district court’s ruling on the City’s petition for writ of certiorari from the hearing officer’s order. We review a certiorari action for the correction of errors at law. Meyer v. Jones, 696 N.W.2d 611, 613-14 (Iowa 2005). A certiorari action may be asserted by a party when authorized by a statute or when an “inferior tribunal, board, or officer” exceeded its jurisdiction or otherwise acted illegally in executing judicial functions. Iowa R. Civ. P. 1.1401; Meyer, 696 N.W.2d at 614. An inferior tribunal commits an illegality if the decision violates a statute, is not supported by substantial evidence, or is unreasonable, arbitrary, or capricious. Bowman v. City of Des Moines Mun. Housing Agency, 805 N.W.2d 790, 796 (Iowa 2011). Evidence is substantial “when a reasonable mind could accept it as adequate to reach the same findings.” City of Cedar Rapids v. Mun. Fire & Police Ret. Sys., 526 N.W.2d 284, 287 (Iowa 1995). “Tf the district court’s findings of fact leave the reasonableness of the [hearing officer’s] action open to a fair difference of opinion, the court may not substitute its decision for that of the [hearing officer].’ ” Helmke v. Bd. of Adjustment, 418 N.W.2d 346, 347 (Iowa 1988) (quoting Weldon v. Zoning Bd., 250 N.W.2d 396, 401 (Iowa 1977)).

Our rules of civil procedure provide that “[u]nless otherwise specially provided by statute, the judgment on certiorari shall be limited to sustaining the proceedings below, or annulling the same wholly or in part, to the extent that they were illegal or in excess of jurisdiction.” Iowa R. Civ. P. 1.1411. Illegality exists within the meaning of the rule when the findings upon which the hearing officer based her conclusions of law do not have evidentiary support or when the court has incorrectly applied the proper rule of law. Fisher v. Chickasaw Cnty., 553 N.W.2d 331, 334 (Iowa 1996). We presume the hearing officer properly performed her duty under the law, unless clear evidence to the contrary appears. Petersen v. Harrison Cnty. Bd. of Supervisors, 580 N.W.2d 790, 793 (Iowa 1998). The burden of showing illegality rests upon the asserting party. Id.

III. ANALYSIS

The City claims the district court erred in allowing the defense of necessity. The modern construction of the necessity defense has not been applied in the civil context in Iowa.3 In Walton our supreme *883court discussed the criminal defense of necessity:

The rationale of the necessity defense lies in defendant being required to choose the lesser of two evils and thus avoiding a greater harm by bringing about a lesser harm. At least one commentator has suggested the following factors as a framework for analysis where the defendant is not personally at fault in creating the situation calling for the necessity to make a selection: (1) the harm avoided, (2) the harm done, (3) the defendant’s intention to avoid the greater harm, (4) the relative value of the harm avoided and the harm done, and (5) optional courses of action and the imminence of disaster.

Walton, 311 N.W.2d at 115 (citation omitted).

In Walton, the court found the defense of necessity inapplicable for a defendant, Walton, who shot a woman after she threatened him. Id. The defense failed because the threat to the defendant did not create an imminent necessity for the shooting. Id. “The necessity defense does not apply except in emergency situations where the threatened harm is immediate and the threatened disaster imminent. The defendant must be stripped of options by which he or she might avoid both evils.” Id. Further, the criminal defense of necessity has been raised in only a few other cases in Iowa.4 See e.g., State v. Bonjour, 694 N.W.2d 511, 514-15 (Iowa 2005) (holding a medical necessity defense is not available as a defense to manufacturing marijuana); Planned Parenthood of Mid-Iowa v. Maki, 478 N.W.2d 637, 640 (Iowa 1991) (stating “[t]he necessity defense is generally not available to excuse criminal activity by those who disagree with the policies of the government”); State v. Reese, 272 N.W.2d 863, 865 (Iowa 1978) (holding the defense of necessity inapplicable for an inmate who escaped from prison to avoid possible attack or death); State v. Ward, 170 Iowa 185, 152 N.W. 501, 502-03 (1915) (holding the defense of necessity applicable to defendant who unlawfully killed a deer as it ate his crops).

Section 197 of the Restatement (Second) of Torts provides guidance on the defense of necessity. That section describes “Private Necessity” as:

(1) One is privileged to enter or remain on land in the possession of another if it *884is or reasonably appears to be necessary to prevent serious harm to

(a) the actor, or his land or chattels, or

(b) the other or a third person, or the land or chattels of either, unless the actor knows or has reason to know that the one for whose benefit he enters is unwilling that he shall take such action.

(2) Where the entry is for the benefit of the actor or a third person, he is subject to liability for any harm done in the exercise of the privilege stated in Subsection (1) to any legally protected interest of the possessor in the land or connected with it, except where the threat of harm to avert which the entry is made is caused by the tortious conduct or contributory negligence of the possessor.

Restatement (Second) of Torts § 197 (1965). Section 197 is followed by comments and illustrations used to clarify the rule. Most relevant to this appeal are comments (a) and (b) of subsection 1:

a. The privilege stated in this Subsection exists only where in an emergency the actor enters land for the purpose of protecting himself or the possessor of the land or a third person or the land or chattels of any such persons. Furthermore, the privilege must be exercised at a reasonable time and in a reasonable manner. Although the actor is subject to liability for harm done in the unreasonable exercise of the privilege stated in this Section (see § 214), in so far as his original entry was privileged, he is not liable for such entry, or for acts done prior to such unreasonable conduct, except as stated in Comment i.

b. Acts done for self-protection. Where the actor is acting for the protection of himself or his belongings, the privilege stated in this Subsection permits him to enter another’s land to save himself or his property, or to remove his chattel which is lawfully there, in order to save it from a threatened danger. It also permits one already on the land to remain there to avoid a threatened danger to himself or to leave his chattel there under like circumstances.

Id. The following illustration, from comment 1(b)(4), demonstrates the right of private necessity for self-protection:

On a very cold winter night A, visiting at B’s dwelling, is overcome by an attack of illness which leaves him helpless and unable to take care of himself. A is privileged without liability to remain in B’s house until arrangements can be made to take him to a place where he will not be exposed to danger from the weather.

While there are no Iowa cases addressing section 197, other states have addressed this section in a somewhat similar context. In Benamon v. Soo Line Railroad Co., 294 Ill.App.3d 85, 228 Ill.Dec. 494, 689 N.E.2d 366, 370 (1997), the plaintiff claimed he hid on a railroad overpass out of necessity to escape a gang of boys who had been chasing him. The court held the defense of necessity inapplicable. Benamon, 228 Ill.Dec. 494, 689 N.E.2d at 370. Echoing section 197, the court found the plaintiffs actions were not exercised at a reasonable time or in a reasonable manner in light of all the circumstances. Id. The court noted the potential threat of harm posed by hiding on the railway was not outweighed by the threat posed by the boys. Id. 228 Ill.Dec. 494, 689 N.E.2d at 371. Further, the court noted the plaintiff had other less dangerous options available to him: “[G]iven the existence of less dangerous options, and given the known risks associated with the railroad tracks, that [the Plaintiffs] presence on or near those tracks was not reasonable and thus his *885presence on those tracks was not a private necessity....” Id.

Although Iowa courts have not addressed the defense of necessity in a civil action, we adopt section 197 of the Restatement (Second) of Torts, while also considering the factors articulated by our supreme court in Walton. The defense of necessity allows an individual to enter and remain on another’s property without permission in an emergency situation when such entry is reasonably necessary to prevent serious harm. See Restatement (Second) of Torts § 197. The privilege must be “exercised at a reasonable time and in a reasonable manner.” Id. With these considerations in mind, we review the appel-lees’ circumstances.

The appellees began living under the Martin Luther King Jr. bridge in March 2012. The Des Moines municipal code was then amended in December 2012, and the appellees were given notice to move their encroachments a few weeks after the change. The record shows a typical Iowa winter occurred in 2013— meaning below-freezing temperatures. That winter, the Des Moines homeless shelter remained at or above capacity, especially during the cold snap when the appellees were ordered to vacate. While the shelter was above capacity, evidence shows the appellees would not have been turned away had they sought shelter. In their reasoning not to go to the shelter, the appellees cited the potential uncomfortable nature of the shelter and the fact they did not want to leave their possessions behind. They claimed they needed their possessions to keep warm and they also claimed their campsite was more comfortable than the shelter.

The City dedicated much of its case to demonstrating the potential dangers associated with living under the bridge. The City presented the testimony of the Des Moines fire marshal who noted the fire department was twenty times more likely to respond to an emergency at a homeless encampment due to the homeless individuals’ methods for heating their camps than to a residence. Homeless individuals’ heating sources use an open flame fueled by wood or propane, and the individuals use highly flammable materials like canvas and wood to create their shelters. The City submitted evidence of a different homeless camp that had burned due to an unsafe heating source.

With these facts in mind, we ask whether substantial evidence supports the defense of necessity. Factors weighing against the necessity defense are the dangers associated with the individuals’ choice of heating sources, the threat to the individuals’ lives in the event of a fire, and the threat to first responders’ lives in responding to a fire under the bridge. Factors supporting the necessity defense are the individuals’ desire not to attend the crowded homeless shelter, the desire to sleep in a familiar place and not on a hard plastic bench, and the desire to keep their possessions. Listing these factors reveals a lack of substantial evidence to prove the defense of necessity. In good conscience, we cannot hold the appellees’ decision to remain in their encroachments under the bridge — endangering their fives and the fives of first responders — was reasonably necessary to prevent the harm of staying in a crowded shelter and leaving their possessions unattended. Moreover, the cold weather is not an emergency as anticipated under section 197. Section 197 illustrates emergency situations as a “violent storm” suddenly overtaking a ship forcing it to moor at another’s dock, an airplane pilot forced to land in a field under a reasonable belief he must land to protect himself, or an individual who must take refuge at another’s home due to “an attack *886of illness.” See Restatement Second § 197 cmt. b(l-4). The factual scenario presented by the appellees is not sufficient evidence of a situation demonstrating an emergency creating a risk of serious harm — the encroachments were constructed in the warmer months, and in the cold months a warm and safe shelter was available. The appellees’ decision to build the encroachments and remain under the bridge was not reasonably necessary in light of all the circumstances.5

We are sensitive to the public policy arguments raised by Iowa Legal Aid. Homelessness is both a local and a national problem. However, it is not our role to rewrite, the law and substitute our views of public policy. State v. Wagner, 596 N.W.2d 83, 88 (Iowa 1999). The Iowa judicial system is not the proper place, in this instance, to change the City of Des Moines’ policy concerning the encroachments of the homeless persons residing within its borders.

We conclude, under the specific circumstances of this case, the district court erred in ruling substantial record evidence supported the hearing officer’s finding the defense of necessity applied to the homeless individuals’ situation. Accordingly, we reverse the judgment of the district court and remand for entry of an order sustaining the writ of certiorari.

REVERSED AND REMANDED WITH DIRECTION.