O'Neil, J.c.c., Temporarily Assigned.
Defendant moves for an order dismissing the complaint in this case for failure to state a claim on which relief can be granted (R. 4:6-2 & 3). The issue thus raised is whether the events constitute the so-called tort of "outrage," and if so, whether such a cause of action has been or should now be recognized in New Jersey. The complaint is drawn in two counts, in the first of which the following narrative is found.
Plaintiffs are husband and wife, and on April 21, 1975 Mrs. Muniz gave birth prematurely to a baby boy at St. Michael's Hospital in Newark. The infant manifested symptoms of respiratory distress and was immediately transferred from St. Michael's Hospital to the Presbyterian Hospital Unit of defendant corporation, where necessary facilities for treatment of the baby were available. The mother remained at St. Michael's. Unfortunately, the infant died at Presbyterian two days after birth.
On the day before the death the mother had telephoned defendant hospital and been advised that the infant was in good condition. Yet, on that same day when plaintiff-father sought to visit the infant he was not permitted to see the child and learned nothing of its condition. At about 9:30 in the evening of April 23, however, the mother received a telephone call at her hospital room in St. Michael's from "an unidentified agent, servant or employee of the defendant" who stated that the baby's heart had stopped
beating and the baby was dead. The mother became hysterical and required a sedative.
The complaint then describes plaintiffs' efforts to verify the death and to get the body for burial if the report were true, alleging that between April 24 and May 14, 1975 constant and repeated personal inquiries of defendant hospital failed to establish the veracity of the telephone report and left them uncertain whether the baby was dead or alive. In personal visits by the father and telephone inquiries by the mother they were told each time that the person spoken to did not know whether the baby was alive or dead or why its body had not been made available to the parents. On May 15, 1975 Mr. Shamus, a hospital employee, told the mother that he had ascertained the baby was dead but was not able to locate the body. Finally, on May 16, 1975 -- more than three weeks after the baby's death -- he advised that the baby's body had been located "upstairs" and asked them to claim it. Presumably, they did so.
The foregoing appear to be all the facts alleged in the complaint and are stated in the first five paragraphs of the first count. No issue is made of the care given to the baby, and damages are not sought because of the death. Instead, paragraph 6 characterizes the recited events as negligent deviation in a number of respects from standard methods of hospital administration. It complains that defendant failed to advise the parents of the baby's death "as expeditiously and humanely as possible," delivering instead a "callus [sic], offhand announcement by an unidentified telephoner to a hospitalized woman in the dead of the night coldly announcing the death of a newborn infant." This feature was asserted to violate "any and all bound of humanity" and to be a "gross deviation from any and all accepted mode of administration or conduct in connection with such a medical incident." Similar negligent deviation is asserted in the "failure to invoke any humane follow up procedure by either personal or even written contact with the plaintiffs to advise
them as to the factual background leading to the baby's death" or to "formally" notify them of the child's death.
The final negligence alleged is the "gross and callus [sic] failure to maintain a system of locating corpses of patients who expire while hospitalized" so that the infant's body was "presumable' [sic] [emphasis supplied] lost or missing while under defendant's control for over three weeks. According to paragraph 7 of the first count the effect of all this was that both plaintiffs "were subjected to intense, prolonged and unrelenting emotional anguish, distress and anxiety which plagued them down to the filing of' the complaint.
It thus seems fair to observe that the first count asserts simple negligence, notwithstanding the generous use of modifiers such as "callous," "coldly" and "gross."
The second count consists of three paragraphs, the first of which repeats and incorporates the allegations of the first count. The second paragraph reads:
2. The plaintiffs jointly and severely [sic] assert that the above stated conduct of the defendant, United Hospitals Medical Center -- Presbyterian Hospital taken at its most liberal and fair interpretation still constitutes outrageous conduct by means of the gross and wanton negligence of the defendant as constituting an intentional infliction of mental and physical suffering to both plaintiffs.
In paragraph 3 plaintiffs specifically plead "the tort of outrage * * * by reason of a conduct generally unacceptable to either business or professional intercourse within the community."
The second count, therefore, contains no different facts than those stated in the first count and the description of defendant's conduct as intentional is simply a gratuitous and argumentative characterization by the pleader of the same facts recited in the first count. Indeed, at oral argument on the motion plaintiffs' attorney acknowledged that the second count contained and relied on no additional factual allegations. This is significant in deciding what well pleaded facts are admitted by defendant for the purposes
of this motion. The only other difference between the two counts is that the ad damnum clause in the second count seeks punitive damages, whereas only simple damages are sought under the first count.
Furthermore, except for what may be indicated by the reference to "intense, prolonged and unrelenting emotional anguish, distress and anxiety,' there is no allegation of physical illness or hurt, and apart from the sedative administered on April 23, no reference at all to any treatment, whether the effects of the events be regarded as physical, mental or emotional.
Defendant's argument in support of its motion is that New Jersey has not allowed a cause of action for mental anguish in the absence of physical impact upon plaintiff and physical trauma resulting from the anguish. Additionally, it asserts that defendant's alleged conduct is not "so extreme and outrageous as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized community," which it views as the essence of such a tort.
Plaintiffs' response is two-fold. They assert, first, that physical suffering as contrasted with simple mental or emotional anguish is alleged in paragraph 2 of the second count. Additionally, they assert defendant's conduct to have been so gross, wanton and outrageous as to warrant punishment by assessment of damages.
The tort of "outrage" has apparently been dealt with in New Jersey under that express label only once, Hafner v. Hafner , 135 N.J. Super. 328 (Law Div. 1975). The principal conduct there complained of -- deliberate interference by a stepson and his wife with a father's affection for plaintiff-stepmother -- was found as a matter of law not to "amount to the type of outrage necessary to establish a cause of action" (135 N.J. Super. at 334). That particular aspect of the complaint really sounded in alienation of affections, and therefore recovery was barred in any event by the Heart Balm Act, N.J.S.A. 2A:23-1. However, in reviewing the
local cases which had allowed recovery for emotional distress, the court noted a useful distinction between those cases where such distress was simply an element of damages caused by an independently recognized substantive tort, and those where the infliction of emotional distress was itself alleged to be the tort.
This distinction is not only useful but necessary in evaluating as precedents the many cases in New Jersey and elsewhere which have been considered the compensability of mental distress.
Until about a decade ago New Jersey had traditionally denied recovery for emotional distress resulting from fright, holding that physical suffering was not a probable or natural consequence of fright in "a person of ordinary physical and mental vigor," and that one had the right to assume that persons likely to be affected by one's acts "are of average strength both of body and of mind." Ward v. West Jersey and Seashore R. Co. , 65 N.J.L. 383, 385 (Sup. Ct. 1900). However, a less spartan view of the average citizen's emotional vulnerability was adopted in Falzone v. Busch , 45 N.J. 559 (1965). Recovery is now allowed where negligence causes fright from a "reasonable fear of immediate personal injury" producing "substantial bodily injury or sickness," and such injury or sickness would have been compensable to plaintiff if it had resulted from physical impact rather than fear, 45 N.J. at 569.
There are similar recent decisions in vehicular cases in other states, and plaintiffs in the present case cite them in support of their cause: Dillon v. Legg , 68 Cal. 2d 728, 69 Cal. Rptr. 72, 441 P. 2d 912 (Sup. Ct. 1968); D'Amicol v. Alvarez Shipping Co., Inc. , 31 Conn. Sup. 164, 326 A.2d 129 (Super. Ct. 1973); Leong v. Takasaki , 55 Hawaii. 398, 520 P. 2d 758 (Sup. Ct. 1974); D'Ambra v. U.S. , 338 A.2d 524 (R.I. Sup. Ct. 1975). However, although these cases did deal generally with the compensability of emotional disturbances, their fact patterns presented the kind of ordinary negligence which has always been actionable by plaintiffs
who had sustained provable damages. None of them made a new kind of conduct tortious. They simply expanded the scope of damages in universally recognized torts. However, the significant judicial exercise in an "outrage" case is not so much the inquiry into plaintiffs' damages as it is the ...