Agis v. Howard Johnson Co.

• Citation: 371 Mass. 140,355 N.E.2d 315
• Parties: Debra AGIS et al. 1 v. HOWARD JOHNSON COMPANY et al. 2
• Decision Date: 01 October 1976
• Court: United States State Supreme Judicial Court of Massachusetts

Page 315

355 N.E.2d 315

371 Mass. 140

Debra AGIS et al. ¹

v. HOWARD JOHNSON COMPANY et al. ²

Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 3, 1976.

Decided Oct. 1, 1976.

Dante G. Mummolo, Boston, for plaintiffs.

John P. Ryan, Dorchester (John C. Lacy, Boston, with him), for defendants.

Before REARDON, QUIRICO, BRAUCHER and WILKINS, JJ.

QUIRICO, Justice.

This case raises the issue, expressly reversed in George v. Jordan Marsh Co., 359 Mass. 244, 255, 268 N.E.2d 915 (1971), whether a cause of action exists in this Commonwealth for the intentional or reckless infliction of severe emotional distress without resulting bodily injury. Counts 1 and 2 of this action were brought by the plaintiff Debra Agis against the Howard Johnson Company and Roger Dionne, manager of the restaurant in which she was employed, to recover damages for mental anguish and emotional distress allegedly caused by her summary dismissal from such employment. Counts 3 and 4 were brought by her husband, James Agis, against both defendants for loss of the services, love, affection and companionship of his wife. This case is before us on the plaintiffs' appeal from the dismissal of their complaint.

Briefly, the allegations in the plaintiffs' complaint, which we accept as true for purposes of ruling on this motion, Hub Theatres, Inc. v. Massachusetts Port Authority, --- Mass. ---, --- ^a, 346 N.E.2d 371 (1976), are the following. Debra Agis was employed by the Howard Johnson Company as a waitress in a restaurant known as the Ground Round. On or about May 23, 1975, the defendant Dionne notified all waitresses that a meeting would be held at 3 P.M. that day. At the meeting, he informed the waitresses that 'there was some stealing going on,' but that the identity of the person or persons responsible was not known, and that, until the person or persons responsible were discovered, he would begin firing all the present waitresses in alphabetical order, starting with the letter 'A.' Dionne then fired Debra Agis.

The complaint alleges that, as a result of this incident, Mrs. Agis became greatly upset, began to cry, sustained emotional distress, mental anguish, and loss of wages and earnings. It further alleges that the actions of the defendants were reckless, extreme, outrageous and intended to cause emotional distress and anguish. In addition, the complaint states that the defendants knew or should have known that their actions would cause such distress.

The defendants moved to dismiss the complaint pursuant to Mass.R.Civ.P. 12(b) (6), 365 Mass. 755 (1974), on the ground that, even if true, the plaintiffs' allegations fail to state a claim upon which relief can be granted because damages for emotional distress are not compensable absent resulting physical injury. The judge allowed the motion, and the plaintiffs appealed.

1. Our discussion of whether a cause of action exists for the intentional or reckless infliction of severe emotional distress without resulting bodily injury starts with our decision in George v. Jordan Marsh Co., 359 Mass. 244, 268 N.E.2d 915 (1971). While in that case we found it unnecessary to address the precise question raised here, we did summarize the history of actions for emotional distress and concluded that the law of the Commonwealth should be, and is, 'that one who, without a privilege to do so, by extreme and outrageous conduct intentionally causes severe emotional distress to another, with bodily harm resulting from such distress, is subject to liability . . .' (emphasis supplied). 359 Mass. at 255, 268 N.E.2d at 921. The question whether such liability should be extended to cases in which there is no resulting bodily injury was 'left until it arises,' ibid., and that question has arisen here.

In the George case, we discussed in depth the policy considerations underlying the recognition of a cause of action for intentional infliction of severe emotional distress with resulting physical injury, and we concluded that the difficulties presented in allowing such an action were outweighed by the unfair and illogical consequences of the denial of recognition of such an independent tort. In so doing, we examined the persuasive authority then recognizing such a cause of action, and we placed considerable reliance on the Restatement (Second) of Torts § 46 (1965). Our examination of the policies underlying the extension of that cause of action to cases where there has been no bodily injury, and our review of the judicial precedent and the Restatement in this regard, ³ lead us to conclude that such extension is both warranted and desirable. See Baldassari v. Public Fin. Trust, --- Mass. ---, ---, --- ^b, 337 N.E.2d 701 (1975).

The most often cited argument for refusing to extend the cause of action for intentional or reckless infliction of emotional distress to cases where there has been no physical injury is the difficulty of proof and the danger of fraudulent or frivolous claims. There has been a concern that 'mental anguish, standing alone, is too subtle and speculative to be measured by any known legal standard,' that 'mental anguish and its consequences are so intangible and peculiar and vary so much with the individual that they cannot reasonably be anticipated,' that a wide door might 'be opened not only to fictitious claims but to litigation over trivialities and mere bad manners as well,' and that there can be no objective measurement of the extent or the existence of emotional distress. Harned v. E-Z Fin. Co., 151 Tex. 641, 649, 254 S.W.2d 81, 86 (1953). There is a fear that '(i)t is easy to assert a claim of mental anguish and very hard to disprove it.' Id. at 650, 254 S.W.2d at 86, citing Gardner v. Cumberland Tel. Co., 207 Ky. 249, 254, 268 S.W. 1108 (1925). See Bartow v. Smith, 149 Ohio 301, 78 N.E.2d 735 (1948); Hetrick v. Willis, 439 S.W.2d 942 (Ky.1969). See also Magruder, Mental and Emotional Disturbance in the Law of Torts, 49 Harv.L.Rev. 1033 (1936); W. Prosser, Torts § 12 (4th ed. 1971).

While we are not unconcerned with these problems, we believe that 'the problems presented are not . . . insuperable' and that 'administrative difficulties do not justify the denial of relief for serious invasions of mental and emotional tranquility . . ..' State Rubbish Collectors Ass'n v. Siliznoff, 38 Cal.2d 330, 338--339, 240 P.2d 282, 286 (1952). 'That some claims may be spurious should not compel those who administer justice to shut their eyes to serious wrongs and let them go without being brought to account. It is the function of courts and juries to determine whether claims are valid or false. This responsibility should not be shunned merely because the task may be difficult to perform.' Samms v. Eccles, 11 Utah 2d 289, 293, 358 P.2d 344, 347 (1961). See George v. Jordan Marsh Co., 359 Mass. 244, 251, 268 N.E.2d 915 (1971). See also Sorensen v. Sorensen, --- Mass. ---, --- ^c, 339 N.E.2d 907 (1975).

Furthermore, the distinction between the difficulty which juries may encounter in determining liability and assessing damages where no physical injury occurs and their performance of that same task where there has been resulting physical harm may be greatly overstated. 'The jury is ordinarily in a better position . . . to determine whether outrageous conduct results in mental distress than whether that distress in turn results in physical injury. From their own experience jurors are aware of the extent and character of the disagreeable emotions that may result from the defendant's conduct, but a difficult medical question is presented when it must be determined if emotional distress resulted in physical injury. . . . Greater proof that mental suffering occurred is found in the defendant's conduct designed to bring it about than in physical injury that may or may not have resulted therefrom.' State Rubbish Collectors Ass'n v. Siliznoff, supra, 38 Cal.2d at 338, 240 P.2d at 286. We are thus unwilling to deny the existence of this cause of action merely because there may be difficulties of proof. Instead, we believe 'the door to recovery should be opened but narrowly and with due caution.' Barnett v. Collection Serv. Co., 214 Iowa 1303, 1312, 242 N.W. 25, 28 (1932).

In light of what we have said, we hold that one who, by extreme and outrageous conduct and without privilege, causes severe emotional distress to another is subject to liability for such emotional distress even though no bodily harm may result. However, in order for a plaintiff to prevail in a case for liability under this tort, four elements must be established. It must be shown (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct, Restatement (Second) of Torts § 46, comment i (1965); Savage v. Boies, 77 Ariz. 355, 272 P.2d 349 (1954); Samms v. Eccles, 11 Utah 2d 289, 293, 358 P.2d 344 (1961); (2) that the conduct was 'extreme and outrageous,' was 'beyond all possible bounds of decency' and was 'utterly intolerable in a civilized community,' Restatement (Second) of Torts § 46, comment d (1965); George v. Jordan Marsh Co., 359 Mass. 244, 254--255, 268 N.E.2d 915 (1971); (3) that the actions of the defendant were the cause of the plaintiff's distress, Spackman v. Good, 245 Cal.App.2d 518, 54 Cal.Rptr. 78 (1966); Womack v. Eldridge, 215 Va. 338, 341, 210 S.E.2d 145 (1974); and (4) that the emotional distress sustained by the plaintiff was 'severe' and of a nature 'that no reasonable man could be expected to endure it.' Restatement (Second) of Torts § 46, comment j (1965); Womack v. Eldridge, supra. These requirements are 'aimed at limiting frivolous...