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TUMMINELLO v. BERGEN EVENING RECORD

May 23, 1978

Salvatore TUMMINELLO, Plaintiff,
v.
The BERGEN EVENING RECORD, INC., United Press International, Inc., Associated Press, Inc., WABC-TV, Inc., WCBS-TV, Inc., William Soiffer, and WNBC-TV, Inc., Defendants



The opinion of the court was delivered by: STERN

 Salvatore Tumminello instituted this action against the Bergen Evening Record [Record]; William Soiffer, one of its reporters; United Press International, Inc. [UPI]; Associated Press, Inc. [AP]; American Broadcasting Companies [ABC]; CBS, Inc. [CBS]; and National Broadcasting Company, Inc. [NBC]. The defendants now move to dismiss the complaint for failure to state a claim under F.R.Civ.P. 12(b)(6) or for summary judgment under F.R.Civ.P. 56; or for judgment on the pleadings under F.R.Civ.P. 12(c).*Because on a motion for judgment on the pleadings, all well-pleaded material allegations of the opposing party are taken as true, see 2A Moore's Federal Practice para. 12.15, at 1243, and because in this case, it is unnecessary to look beyond the plaintiff's pleading, analytically the motions can all be treated as motions to dismiss for failure to state a claim. They will be granted.

 The allegations of the complaint are as follows. Plaintiff is a citizen of Florida. Defendant Soiffer is a citizen of New Jersey. The corporate defendants are corporations of states other than Florida with principal places of business in states other than Florida. The amount in controversy allegedly exceeds $10,000, exclusive of interest and costs.

 On November 16, 1977, at a meeting of the Paramus Chamber of Commerce, the Honorable Morris Pashman, Associate Justice of the Supreme Court of New Jersey, delivered a speech. Defendant Soiffer, a reporter employed by the Record, was present at that meeting. After the meeting, Soiffer wrote a story which stated that Justice Pashman had announced that the Supreme Court of New Jersey would rule the following day that a five-year statute of limitations applies to the crime of murder. Notwithstanding Justice Pashman's request that no story be published until after the Supreme Court officially announced its ruling, and notwithstanding a lack of confirmation, the story was copyrighted by the Record, picked up by the defendant wire services AP and UPI, and broadcast by the defendant TV stations. Through one or more of these channels of communication, the story came to the attention of plaintiff Tumminello, who was then under indictment in New Jersey for a murder committed in 1968.

 Upon hearing the story, Tumminello became elated, presumably because a ruling that murder was governed by a five-year limitations period would require dismissal of his indictment.

 His elation was short-lived. Much to Tumminello's disappointment, on November 17, 1977, the Supreme Court ruled unanimously in the case of State v. Zarinsky, 143 N.J.Super. 35, 362 A.2d 611 that the statute of limitations did not apply to the crime of murder. Upon hearing this bad news, Tumminello:

 
was rendered despondent and depressed, suffered in his health, both physically and mentally, has been unable to sleep, and unable to assume his normal daily activities. Furthermore, his reputation among the people to whom he communicated the original story was lowered and suffered because of his reliance thereon.

 Believing that Tumminello might be incarcerated in New Jersey and thus might be viewed as a citizen of New Jersey for diversity purposes, the Court initially and sua sponte questioned its jurisdiction. The Court is, however, satisfied that incarceration in a penal institution will not work a change in domicile and that Tumminello remains a citizen of Florida. See generally 13 Wright & Miller, Federal Practice and Procedure, § 3618, at 749-750. Accordingly, the Court concludes that diversity jurisdiction exists. The Court also concludes (and all parties agree) that New Jersey law applies.

 Plaintiff attempts to plead causes of action (1) for intentional infliction of emotional distress and (2) for negligent infliction of emotional distress. The Court will treat these theories in turn.

 (1) Intentional Infliction of Emotional Distress.

 The leading case permitting recovery for extreme intentional misconduct causing emotional distress is Wilkinson v. Downston, 2 Q.B.D. 57 [1897] in which a practical joker amused himself by telling a woman that her husband had been smashed up in an accident and was lying at The Elms at Leytonstone with both legs broken, and that she was to go at once in a cab with two pillows to fetch him home.

 The fact patterns in cases which have recognized this tort, also known as the tort of outrage, are widely varied. So far as it is possible to generalize, the rule which seems to have emerged is that there is liability only for conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, emotional distress of a very serious kind. In cases which bear some resemblance to the facts in the instant case, extreme outrage has been found in decoying a woman suspected of insanity to a hospital by a concocted tale of an injured husband and child, Savage v. Boies, 77 Ariz. 355, 272 P.2d 349 (1954); and in spreading the false rumor that the plaintiff's son had hanged himself, Bielitski v. Obadiak, 61 Dom.L.Rep. 494 (1921). The cases, however, allow recovery only where the mental distress has been inflicted intentionally, either in the sense that the defendant desired to cause it, or that he knew that it was substantially certain to follow from his conduct. See generally Prosser, Handbook on the Law of Torts 55-60.

 In no sense can the defendants' publication of the initially erroneous news story be deemed to have been intentionally done in order to harm the ...


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