On appeal from the Superior Court of New Jersey, Law Division, Morris County.
Michels, Petrella and Baime. The opinion of the Court was delivered by Michels, P.J.A.D.
Plaintiff Earl Henderson appeals from judgments of involuntary dismissal entered by the Law Division in favor of defendants Morristown Memorial Hospital (Hospital), Arthur Strock, Dr. Sylvia Diehl, and Elizabeth DeViney and Saint Joseph's Catholic School (Saint Joseph's), Father James Hanley, Sister Mary Ripp and Margaret DeGroat after plaintiff's opening to the jury and at the conclusion of the presentation of his proofs.
Plaintiff instituted this action against the Hospital and certain staff members of its Center for Evaluation and Counseling (Center), seeking to recover compensatory and punitive damages based on their alleged negligence and malpractice in the preparation of a child study team report. He also sought damages for the alleged negligent infliction of emotional distress. Plaintiff joined Saint Joseph's and its pastor, principal and one of its teachers as defendants, charging them with intentionally inflicting emotional distress upon him by refusing to discuss his children with him and by failing to follow the recommendations of the Center's child study team. The Hospital and its employees denied that they were under any liability to plaintiff and the Hospital, by way of counterclaim, sought to recover the unpaid balance of the bill rendered for the child study team evaluation and report. Saint Joseph's and its employees also denied that they were under any liability to plaintiff.
The facts essential to an understanding of this matter may be summarized briefly as follows. In August, 1979, after approximately 12 years of marriage, plaintiff and his wife, Elsa Henderson, separated. Three children, a girl and twin boys were born of the marriage. Mrs. Henderson retained custody of the three children with the consent of plaintiff. Sometime in 1979 Mrs. Henderson made application to the public school system for remedial help for the twins, who were attending Saint Joseph's. Plaintiff was concerned about the psychological effect that the divorce was having on his children and the
educational assistance his twins were receiving at Saint Joseph's. He was particularly concerned about James, one of the twins, and whether James should be held back in the third grade. He therefore attempted to have Mrs. Henderson agree to a psychological evaluation of the children and sought the assistance of a child evaluation team. When Mrs. Henderson rejected the idea, plaintiff instructed his attorney to pursue the matter. Eventually plaintiff applied for a court order compelling such evaluation in his divorce proceeding pending in the Chancery Division. In March, 1980, the Chancery Division ordered plaintiff, Mrs. Henderson and their children to be evaluated by the hospital's Center. In conformance with the court order the Center conducted the evaluation and in June, 1980 rendered a detailed report, containing the following recommendations:
1. Supervision of visits to the parents by Division of Youth and Family Services.
2. Professional counseling for Mr. Henderson in order to improve the relationship between father and children.
3. Therapy for Maria, John and James and Mrs. Henderson.
4. Academically, it is suggested that the boys not be retained in third grade, but that next year they receive an individualized remediation program in addition to their regular class work. Enrollment in a public school should be considered because of the supplemental programs available in that setting.
5. A summer camp experience for the boys is highly recommended.
According to plaintiff, after he and his wife discussed the Center's report, he called Strock, a clinical social worker with the Center, to obtain a clarification as to why a public school was recommended only for the twins, and not his daughter as well. Strock indicated that the public school recommendation applied to all three children and later confirmed this in writing. Plaintiff thereupon sent a copy of the Center's report to Saint Joseph's and requested that it abide by the recommendations contained in the report. He also directed Saint Joseph's to immediately transfer all records of the children to the public school system. When St. Joseph's did not respond to this letter plaintiff followed with other letters, including a request for the
complete report cards of his children for the school year ending June, 1980. In July, 1980 plaintiff telephoned Father Hanley and discussed the mental health of his children and pleaded with the pastor to intercede with his wife to convince her to abide by the Center's recommendations. During this period of time, plaintiff was attempting to get his wife and children to go for counseling and therapy as recommended by the Center. They refused to do so and in August, 1980 plaintiff informed his wife that unless the children were transferred to a public school and she and the children joined him in counseling, he would not pay her the weekly support ordered by the Chancery Division.
Thereafter, plaintiff met with the principal of Saint Joseph's, Sister Ripp, and explained to her how he felt about enforcing the Center's recommendations. According to plaintiff, Sister Ripp indicated that the school was abiding by the wishes of Mrs. Henderson, the custodial parent. Thereupon, in September, 1980, plaintiff obtained an order to show cause in the Chancery Division why the children should not be transferred from Saint Joseph's to the public school system. On the return day of the order, an informal meeting was held in the judge's chambers. Members of the Center's child study team who attended the meeting indicated that the team's preference for a public school expressed in the June 1980 report should be eliminated based on the new information acquired by them that both the public school and Saint Joseph's could provide the desired "supplemental programming" for the twins. Thereafter, DeViney, the Administrative Director of the Center wrote to plaintiff explaining the reasons for the change in the public school recommendation, stating:
No change with the first sentence that the boys not be retained in third grade and that they receive an individual remedial program. The changes suggested were that enrollment should be considered in a facility that will provide supplemental programming. The decision of preference was eliminated by the team based on additional information that either facility could provide such programming. The decision as to which ...