individual defendants) gave erroneous information to Cipriano as to the frequency of plaintiff's wife's visits to the bank and as to the amount of money she exchanged on those visits.
The causes of action which can be gleaned from the complaint, the amended complaint and in plaintiff's factual statement incorporated in the pretrial order are three-fold: (i) the bank employees conspired with the New York Police Officer John O'Connor (previously dismissed as a defendant) and with federal law enforcement officers to deprive plaintiff of his constitutional rights in violation of 42 U.S.C. §§ 1983 and 1985; (ii) the bank employees conspired among themselves to deprive plaintiff of his constitutional rights in violation of 42 U.S.C. § 1985; and (iii) the bank employees defamed plaintiff by giving false information about his wife, giving rise to an action for slander under New Jersey common law.
After the remaining defendants moved for summary judgment plaintiff asserted that he is also charging that the bank employees committed the tort of intentional infliction of emotional distress, relying upon Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265 (3d Cir. 1975), which applied Pennsylvania law.
In an oral opinion rendered on April 21, 1980, I granted defendants' motion for summary judgment. My reasons are set forth in that opinion. Plaintiff has moved for reconsideration. The only point which I believe requires further discussion is my rejection of plaintiff's contention that he is entitled to a trial of his claim grounded upon intentional infliction of emotional distress. In my oral opinion I gave two reasons for rejecting plaintiff's contention. First, relying on Hafner v. Hafner, 135 N.J.Super. 328, 343 A.2d 166 (Law Div. 1975), I concluded that the tort of intentional infliction of emotional distress has not yet gained recognition in New Jersey, although a plaintiff may often recover for emotional distress which is suffered as a result of the commission of a recognized tort. Second, even if New Jersey had recognized the tort of intentional infliction of emotional distress, neither the undisputed facts established in the present case nor any permissible inference from such facts could support a finding that defendants committed this tort.
Plaintiff argues on his motion for reconsideration that the statement in Hafner, supra, to the effect that the tort of intentional infliction of emotional distress "has not yet gained express recognition in New Jersey," at p. 332, no longer correctly reflects the law of this State, citing, among other cases, Muniz v. United Hsps. Med. Ctr. Pres. Hsp., 153 N.J.Super. 79, 379 A.2d 57 (App.Div.1977), reversing, 146 N.J.Super. 512, 370 A.2d 76 (Law Div. 1976).
In Muniz, the parents of a new-born child brought suit against the defendant-hospital seeking damages allegedly resulting from the hospital's crude method of informing them of the death of their baby and its failure to locate the baby's body or confirm its death during the following three weeks. The parents sued for simple negligence and for the "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." 146 N.J.Super. 512, 515, 370 A.2d 76, 78. The trial court read the latter claim as asserting the tort of "outrage". After a thorough discussion of the history of the tort, it dismissed the claim for failure of plaintiffs to establish the requisite intent or deliberation or recklessness.
The Appellate Division of the Superior Court reversed. In its opinion it stated that before determining the question of the hospital's liability to the plaintiffs under the facts alleged, the trial court should have permitted an amendment to the complaint so as to develop the requisites for the hospital's responsibility in damages by reason of malpractice or negligence or some other reasonable basis for liability where its conduct relates to a dead body. Further, the appellate court stated that the parties should have been afforded discovery before a decision was rendered.
The appellate court noted that
We express no views as to what an appropriate predicate for the hospital's liability might be or the kind or extent of damage, if any, that may be recovered by plaintiffs; nor do we now rule on whether the circumstances of the case, as alleged in the complaint, are such that relief must be afforded plaintiffs. 153 N.J.Super. at 82, 379 A.2d at 58.
Further, the court stated that after an amendment of the complaint and discovery a claim for relief might "conceivably" be based on four theories, including "(3) conduct by the hospital that would warrant recovery for the tort of outrage." 153 N.J.Super. at 82, 379 A.2d at 58.
It is "conceivable", therefore, that the Muniz case establishes the existence of the tort of intentional infliction of emotional distress in New Jersey. However, in view of the self-effacing remarks of the court limiting the effect of its rulings, it is far from certain that this is the intended effect of the Appellate Division opinion. Furthermore, subsequent New Jersey opinions which cite Muniz involve cases in which damages for emotional distress are permitted, not as a consequence of a new tort, but rather as a part of the damages recoverable upon the commission of a recognized tort or other wrong.
In Lemaldi v. DeLomaso of America, Inc., 156 N.J.Super. 441, 383 A.2d 1220 (Law Div. 1978), it was held that a jury might make an award for mental anguish for conduct of an automobile manufacturer's personnel after selling a plaintiff a gravely defective automobile. In Berman v. Allan, 80 N.J. 421, 404 A.2d 8 (1979), the Court held that parents of a child born with Down's Syndrome could recover for mental and emotional anguish from a physician who had negligently failed to administer tests during pregnancy which would have disclosed the condition and permitted the parents the option of terminating the pregnancy. In Portee v. Jaffee, 84 N.J. 88, 417 A.2d 521 (1980), the Court held that a mother who observes the death of a child crushed by an elevator negligently installed or maintained by the defendant may recover for mental and emotional anguish.
Each of the foregoing cases cited Muniz; each allowed recovery for emotional distress caused by a recognized tort or other wrong. This suggests to me that a proper interpretation of Muniz is that it does not create the tort of outrage or intentional infliction of emotional distress in New Jersey. Rather, the case recognizes that a hospital can be charged with negligence or malpractice if it callously or negligently handles the dead bodies of its former patients and that an element of damages may be the emotional distress caused by such negligence or malpractice, cf., Spiegel v. Evergreen Cemetery Co., 117 N.J.L. 90, 186 A. 585 (Sup.Ct.1936).
I recognize that New Jersey's neighboring states of Pennsylvania and New York have incorporated into their common law the tort of intentional infliction of emotional distress, e.g., Chuy v. Philadelphia Eagles Football Club, supra; Kajtazi v. Kajtazi, 488 F. Supp. 15 (E.D.N.Y.1978). I also recognize the tendency of the New Jersey courts to ever expand the areas of potential liability, e.g., Costa v. Josey, 83 N.J. 49, 415 A.2d 337 (1980); Portee v. Jaffee, supra. Thus, it would not be surprising if in a case involving compelling circumstances the New Jersey Supreme Court were to adopt as a part of New Jersey's common law the tort of intentional infliction of emotional distress. However, I do not believe that any New Jersey court has yet taken this step.
Furthermore, as I held in my oral opinion, even if New Jersey were to adopt the tort of outrage or intentional infliction of emotional distress, the conduct with which plaintiff charges the remaining defendants in this case could not come within the confines of that tort.
Therefore, for the reasons set forth herein and in my oral opinion plaintiff's motion for reconsideration is denied. I request that defendants' attorneys submit an appropriate form of order.