BARRY SCHERMER, Bankruptcy Judge
The matters before this Court in this objection to discharge case are the Motion for Summary Judgment (the "Motion") filed by Defendant Jorge Carvalho and Plaintiff Ursula Hanson's Motion to Strike Affidavit of Stefani Da Silva. This Court held a hearing on both motions on November 17, 2009 at which Hanson and Carvalho appeared through their counsel. Based on the pleadings of record and the arguments made at the November 17, 2009 hearing, this Court makes the following findings of fact and conclusions of law.
BACKGROUND
In June of 2007, Jorge Carvalho ("Carvalho") was the owner of Café Brasil, Ltd., a Missouri corporation operating primarily as a bar and restaurant. On January 30, 2009, Carvalho filed a voluntary petition for relief under Chapter 7 of Title 11 of the United States Code (the "Bankruptcy Code").
Plaintiff Ursula Hanson ("Hanson") filed a Complaint against Carvalho on April 27, 2009, commencing this adversary proceeding. Hanson seeks a determination that claims she asserts against Carvalho be excepted from his bankruptcy discharge. Her claims against Carvalho arise from a sexual assault on her by Alex Roca ("Roca"), a bartender employed at Café Brasil, on the evening of June 21, 2007.
The Complaint originally included five counts against Carvalho. This Court dismissed two of the five counts for failure to state a claim upon which relief could be granted because they alleged causes of action based on negligence, which is not recognized as a basis for exception to discharge under Section 523. Three counts remain, Count II for intentional infliction of emotional distress, Count III for false imprisonment, and Count V, which seeks to hold debts for intentional infliction of emotional distress and false imprisonment nondischargeable under Section 523(a)(6).
On October 14, 2009, Defendant filed his Motion for Summary Judgment (the "Motion") under Rule 56(b) of the Federal Rules of Civil Procedure, which is applicable herein pursuant to Federal Rule of Bankruptcy Procedure 7056, arguing that there is no genuine issue of material fact as to whether Carvalho willfully and maliciously injured Plaintiff.
As support for his Motion, Carvalho filed a list of facts that he describes as uncontroverted. He relied on his own affidavit, his deposition testimony, deposition testimony of restaurant patron Amanda Wolf ("Wolf"), and an affidavit of another restaurant patron, Stefani Da Silva ("Da Silva"). Hanson filed an opposition to the Motion, together with her response to Carvalho's statement of uncontroverted facts, and a list of facts that she claims are in controversy. As support for her account of the facts, Hanson relies largely on Wolf's deposition testimony. She also cites to a police statement made by Carvalho and deposition testimony of Carvalho. Carvalho replied to Hanson's opposition and to Hanson's statement of facts that he believed were in controversy. Thereafter, Hanson moved to strike Da Silva's affidavit.
FACTS
Viewed in the light most favorable to Hanson, the relevant facts are as follows. Hanson consumed alcoholic beverages at Café Brasil on the evening of June 21, 2007. That evening or early the next morning, Hanson and Roca were kissing and "making out" in the bar. Hanson and Roca then moved away from the bar and toward the restaurant area of Café Brasil.
Early in the morning on June 22, 2007, Roca approached Carvalho and various restaurant patrons, announcing that Hanson was not moving. Carvalho was the first person to go to the back room of the restaurant, finding Hanson lying on the floor undressed and unconscious. Carvalho then immediately closed the door to the back room and directed Wolf and another female patron to dress Hanson and to keep other patrons from entering the back room. He did not call the police, an ambulance or Hanson's friends or parents to assist her. Shortly thereafter, Hanson left Café Brasil with the assistance of two patrons or employees of the restaurant. According to Wolf's deposition testimony, while Wolf dressed Hanson, Hanson was either completely unconscious or "really out of it." Deposition of Wolf at p. 29 ("Wolf Dep."). Wolf also testified that Hanson could not walk, but then indicated that two men "walked her" outside the restaurant. Wolf Dep. at pp. 29-30.
Hanson has not proven that her state of unconsciousness was caused by anything other than alcohol consumption.
For the purpose of summary judgment, Carvalho does not dispute that he opened the door to the back room, saw Hanson, immediately closed the door and asked two patrons to help her.
DISCUSSION
This Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1334(b), 157(b)(I) and Local Rule 9.01(B) of the United States District Court for the Eastern District of Missouri. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(I).
Summary Judgment Standard
Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56, applicable herein pursuant to Fed.R.Bankr.P. 7056; Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). We view the record in the light most favorable to the nonmoving party and afford that party all reasonable inferences. Blocker v. Patch (In re Patch), 526 F.3d 1176, 1180 (8th Cir. 2008). Once the moving party has carried its burden of demonstrating the absence of a genuine issue of fact, the nonmoving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Rather it "must come forward with `specific facts showing there is a genuine issue for trial.'" Id. (quoting Fed.R.Civ.P. 56(e)) (emphasis added).
Hanson claims that Carvalho's fact statements are contradicted by Wolf's testimony. However, at the hearing on Carvalho's summary judgment motion, Carvalho agreed to accept Hanson's version of all facts that this Court deems to be material to a summary judgment determination. Based on the record before this Court on summary judgment, Carvalho has met his burden of demonstrating the absence of a genuine issue of material fact and he is entitled to judgment as a matter of law under Section 523(a)(6).
Bankruptcy Code Section 523(a)(6) — Willful and Malicious Injury
Section 523(a)(6) of Title 11 of the United States Code (the "Bankruptcy Code") excepts from discharge debts "for willful and malicious injury by the debtor to another entity or to the property of another entity." 11 U.S.C. § 523(a)(6). A party opposing a debtor's discharge must prove separately that the debt is for a "willful injury" and for a "malicious injury." Patch, 526 F.3d at 1180 (citation omitted).
Willfulness
The Supreme Court has ruled that the term "willful" under Section 523(a)(6) requires "a deliberate or intentional injury, not merely a deliberate or intentional act that leads to injury." Kawaauhua v. Geiger, 523 U.S. 57, 61, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998). Relying on the Restatement (Second) of Torts, the Court stated that "the [Section 523](a)(6) formulation triggers in the lawyer's mind the category `intentional torts,' as distinguished from negligent or reckless torts." Id. at 61-62 Satisfaction of the "willful" element "requires proof that the debtor desired to bring about the injury or was, in fact, substantially certain that his conduct would result in the injury that occurred. Patch, 526 F.3d at 1180-1181 ( citing Geiger v. Kawaauhua (In re Geiger), 113 F.3d 848, 852-854 (8th Cir. 1997) (en banc), aff'd, 523 U.S. 57, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998)).
Hanson's Complaint alleges that Carvalho is responsible for two separate torts, intentional infliction of emotional distress and false imprisonment, which "involve a willful and malicious injury" and are excepted from discharge under Section 523(a)(6). Complaint at Counts II, III and V. Viewing the record in the light most favorable to Hanson and affording her all reasonable inferences, her two causes of action fail because she is unable to prove that Carvalho possessed the requisite intent to injure Hanson.
Intentional Infliction of Emotional Distress
In Missouri, a cause of action for intentional infliction of emotional distress requires a showing that the defendant engaged in extreme and outrageous conduct and that he intentionally or recklessly caused severe emotional distress, resulting in bodily harm. Bailey v. Bayer Cropscience L.P., 563 F.3d 302, 310 (8th Cir. 2009) (citing Gibson v. Brewer, 952 S.W.2d 239, 249 (Mo. 1997) (en banc)) ( citing K.G. v. R.T.R., 918 S.W.2d 795, 799 (Mo. 1996) (en banc)). The defendant's sole intent must be to cause extreme emotional distress to the plaintiff. Bailey, 563 F.2d at 310 ( citing Gibson, 952 S.W.2d at 249) (citation omitted); Roe v. St. Louis Univ., Case No. 4:08CV1474 JCH, 2009 WL 910738, at *5 (E.D. Mo. 2009) ; Central Mo. Elec. Coop. v. Balke, 119 S.W.3d 627, 636-637 (Mo. App. W.D. 2003).
Here, Hanson's action for emotional distress is defeated by her own Complaint. In Paragraph 81, she claims that after finding her unconscious and undressed, Carvalho failed to take certain measures to assist her "with the intent to conceal what had happened to [Hanson]." Accordingly, Hanson cannot maintain that Carvalho had the sole intent to cause her emotional distress, a requirement for a cause of action based on intentional infliction of emotional distress. Id.
This Court does not decide whether Carvalho possessed the intent to conceal what happened to Hanson.
The undisputed facts also do not support an inference that Carvalho intended to cause, or was substantially certain to cause, emotional distress to Hanson. Hanson's unverified Complaint, claims that with knowledge that Roca took Hanson to the back room and prevented Hanson's friends from entering the back room, Carvalho took no action other than to order Hanson's friends to leave. The mere allegations in Hanson's Complaint that Carvalho knew that Hanson's friends were prevented from entering the back room or that Hanson did not want to stay in the back room, are not supported by affidavit or deposition testimony. Hanson cannot rely on her unsupported Complaint to defeat a grant of summary judgment. Fed.R.Civ.P. 56(e)(2), applicable herein pursuant to Fed.R.Bankr.P. 7056 (when summary judgment motion is properly made and supported, opposing party may not rely on mere allegations or denials in its own pleadings).
Hanson bases her claim of extremeness and outrageousness on Carvalho's failure to call the police, paramedics or her friends and family to asst her when she was unconscious or barely conscious. This Court is called upon to determine whether those omissions were extreme and outrageous. To provide a basis for liability, Carvalho's conduct must have been "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." RESTATEMENT (SECOND) OF TORTS § 46, cmt. d (1965). A determination of whether Carvalho's conduct was extreme and outrageous must be made in the context of Carvalho's understanding of Hanson's condition as she lay on the floor of the back room. Id. at cmt. f.
When Carvalho found Hanson on the floor of the back room, he asked two patrons to help her. Once Hanson became somewhat conscious, though woozy, she left Café Brasil. There is no proof that Carvalho kept others from seeking additional assistance for Hanson or prevented Hanson from obtaining assistance on her own. Carvalho was not as attentive to Hanson's needs as one might have hoped he would be, but his conduct certainly did not go "beyond all possible bounds of decency" under the circumstances. Id. at cmt. d.
False Imprisonment
A cause of action for false imprisonment exists when a plaintiff has shown that she was confined against her will without legal justification. Walker v. Hanke, 992 S.W.2d 925, 935 (Mo. App. W.D. 1999) (citation omitted). A person may also be liable for false imprisonment where there is a showing that he aided, abetted, assisted, instigated, caused or procured the imprisonment.
Initially, I must determine what alleged confinement of Hanson is properly before this Court. In her summary judgment papers and at the November 17, 2009 hearing, Hanson referred to her false imprisonment as existing when she was in the back room of Café Brasil and also continuing after she left the restaurant. However, Hanson's Complaint limits her imprisonment to the time when she was at the restaurant. Complaint at ¶¶ 88 and 91. For purposes of this decision, I examine only whether Hanson was imprisoned while she was at Café Brasil.
No statement in the record supports the conclusion that Carvalho detained Hanson against her will. Hanson has not demonstrated that she was restricted from leaving the back room or the restaurant. See Walker, 992 S.W.2d at 935-936 (no cause of action where defendant kept others away from house where plaintiff lived, but evidence did not show that plaintiff was prevented from leaving house) (Mo. App. W.D. 1999); Hyatt v. Trans World Airlines, Inc., 943 S.W. 2d 292, 299 (Mo. App. E.D. 1997) (plaintiff failed to make cause of action where restraint was just an obstruction of right to go where plaintiff pleased, rather than total restraint).
Hanson's allegations are, in essence, based on a failure by Carvalho to take certain actions to assist Hanson, which presupposes that Carvalho had a duty to act. But duty and breach of duty are not elements of a cause of action for the intentional tort of false imprisonment. Gulley v. Werth, 61 S.W.3d 293, 299 (Mo. App. S.D. 2001). Moreover, this Court is doubtful that there is any fact situation in which Carvalho's failure to act could constitute a willful injury under Section 523(a)(6). Patch, 526 F.3d at 1181.
Next, I must decide whether Carvalho played a role in an alleged confinement of Hanson by Roca. In Paragraph 91 of her Complaint and at the summary judgment hearing, Hanson claims that Carvalho "assisted, furthered, aided and/or prolonged Hanson's unlawful imprisonment" by Roca based on Carvalho's actions or inactions both before and after he found Hanson unconscious in the back room. She claims that before Carvalho found her, he told her friends she was not being harmed, prevented them from entering the back room (even though Hanson was alone in the room with Roca) and instructed them to leave Café Brasil without her. These allegations in Hanson's Complaint are not properly considered on summary judgment because Hanson failed to support them by affidavits or deposition testimony. Fed.R.Civ.P. 56(e)(2), applicable herein pursuant to Fed.R.Bankr.P. 7056. Hanson bases Carvalho's culpability after the time he found her in back room on his failure to call the police or Hanson's friends or family.
Even if Hanson had supported her allegations regarding Carvalho's actions during the time before he found her on the floor of the back room, this Court would fail to see how Carvalho's statements and instructions to Hanson's friends demonstrated that he intended to confine her or was substantially certain she would be confined.
Hanson asks this Court to assume, without proof, that Roca imprisoned her, even though this adversary proceeding includes no claims against Roca. In addition, Paragraph 88 of the Complaint includes an unsupported allegation that, before Carvalho found Hanson on the floor the back room, Carvalho knew that Roca was preventing Hanson from leaving the back room. Hanson's bare allegations do not constitute `specific facts showing there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting Fed.R.Civ.P. 56(e)). There is no way for this Court to infer that Carvalho played a part in an imprisonment that may not have existed and for which there is no proof of his awareness. Moreover, a conclusion that Carvalho prolonged an already existing imprisonment by Roca would require this Court to find that Carvalho independently confined Hanson against her will, a fact that is not supported by the record.
In addition, the minimal facts introduced for summary judgment do not support a finding that Carvalho intended to confine Hanson. Hanson's own recitation of Carvalho's actions after he found Hanson in the back room of the restaurant shows that he assisted with the efforts to get her out of the back room, not that he tried to detain her. He had two restaurant patrons dress Hanson and assist with getting her out of the back room.
Moreover, because Hanson was not conscious of her alleged confinement and because Carvalho's supposed false imprisonment did not harm her, she cannot make a case for false imprisonment. "It is generally held that the plaintiff in a false imprisonment action must be aware or conscious of the confinement." Walker v. Hanke, 992 S.W.2d 925, 935 (Mo.App. W.D. 1999) ( quoting 32 Am. Jur. 2d False Imprisonment § 14 (1995)) (additional citation omitted); see also THE RESTATEMENT (SECOND) OF TORTS § 35 (1965) (requiring the party falsely imprisoned to be conscious of the confinement or harmed by it). Here, Hanson's position, as set forth in Wolf's deposition testimony, shows that Hanson was unconscious and "out of it" when Carvalho found her in the back room of his restaurant and while he had restaurant patrons dress her. See Wolf Dep. at p. 29. In addition, Hanson has not provided affidavits or deposition testimony to support a finding that Carvalho's alleged imprisonment harmed her.
Based on the limited record on summary judgment and any inferences reasonably drawn from it, this Court cannot conclude that Carvalho falsely imprisoned Hanson or that he is liable for the tort of intentional infliction of emotional distress. I find that Carvalho's actions or failure to act were not "willful" within the meaning of Section 523(a)(6). Patch, 526 F.3d at 1181-1182.
Maliciousness
For the purposes of Section 523(a)(6), "maliciousness" is defined as "conduct `targeted at the creditor . . . at least in the sense that the conduct is certain or almost certain to cause . . . harm." Sells v. Porter (In re Porter), 539 F.3d 889, 894 (8th Cir. 2008) (citations omitted). Like with Hanson's claim of willfulness, the record does not support a finding that Carvalho purposely targeted Hanson with the intent to cause her harm. Assuming that Carvalho saw Hanson lying unconscious and undressed in his restaurant, but asked restaurant patrons to assist her rather than calling the police or her friends or family, this Court cannot find that Carvalho targeted Hanson to cause her unlawful detention and emotional distress. Rather, Carvalho's motive was likely to protect himself and the restaurant from liability.
CONCLUSION
Carvalho is not liable to Hanson for the two torts alleged in Hanson's Complaint, intentional infliction of emotional distress and false imprisonment. Accordingly, Hanson's claims against Carvalho based on the two torts are dischargeable as a matter of law. Summary judgment shall enter in favor of Carvalho on Counts II, III and V of the Complaint. Because this Court finds that it need not consider the affidavit of Stefani Da Silva to grant Carvalho's summary judgment Motion, the Motion to Strike Affidavit of Stefani Da Silva shall be granted by a separate order.