371 Mass. 140 (1976), Agis v. Howard Johnson Co.

Citation371 Mass. 140, 355 N.E.2d 315
Party NameDebra AGIS et al. [ 1] v. HOWARD JOHNSON COMPANY et al. [ 2]
Case DateOctober 01, 1976
CourtSupreme Judicial Court of Massachusetts

Page 140

371 Mass. 140 (1976)

355 N.E.2d 315

Debra AGIS et al. 1

v.

HOWARD JOHNSON COMPANY et al. 2

Supreme Judicial Court of Massachusetts, Suffolk.

October 1, 1976

Argued March 3, 1976.

[355 N.E.2d 316] 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.

Page 141

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 [355 N.E.2d 317] (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

Page 142

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

Page 143

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 [355 N.E.2d 318] 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 ....

To continue reading

Request your trial
594 practice notes
  • 183 F.Supp.2d 344 (D.Mass. 2002), Civ. A. 00-12186, Grant v. John Hancock Mut. Life Ins. Co.
    • United States
    • Federal Cases United States District Courts 1st Circuit District of Massachusetts
    • 8 Enero 2002
    ...it.' " Caputo v. Boston Edison Co., 924 F.2d 11, 14 (1st Cir. 1991) (quoting Agis v. Howard Johnson Co., 371 Massachusetts 140, 355 N.E.2d 315 (1976)).12 As the court held in Foley v. Polaroid, 400 Massachusetts 82, 508 N.E.2d 72 (1987): [L]iability cannot be predicated upon "mere......
  • 486 B.R. 221 (Bkrtcy.D.Mass. 2013), 09-45463-HJB, In re Lopez
    • United States
    • Federal Cases United States Bankruptcy Courts First Circuit
    • 3 Enero 2013
    ...in comparison " to the facts of those cases where the claim is properly asserted." Id. (citing Agis v. Howard Johnson Co., 371 Mass. 140, 145, 355 N.E.2d 315 (1976) (public humiliation); Simon v. Solomon, 385 Mass. 91, 95, 431 N.E.2d 556 (1982) (sewage overflow into tenant's apart......
  • 741 F.2d 1503 (7th Cir. 1984), 82-2490, Dr. Franklin Perkins School v. Freeman
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Seventh Circuit
    • 14 Agosto 1984
    ...outrageous; (3) it must cause the plaintiffs emotional stress; and (4) the emotional distress must be severe. Agis v. Howard Johnson Co., 371 Mass. 140, 355 N.E.2d 315, 318-19 (1976). Upon review of the record, it becomes apparent that the evidence is insufficient to prove the necessary ele......
  • 741 F.Supp. 306 (D.Mass. 1990), Civ. A. 83-4214, Pierre v. United States
    • United States
    • Federal Cases United States District Courts 1st Circuit District of Massachusetts
    • 11 Julio 1990
    ...and of such a nature "that no reasonable man could be expected to endure it". Agis v. Howard Johnson Company, 371 Mass. 140, 355 N.E.2d 315, 319 (1976). A defendant's failure to act may support liability. Where there is a duty to act, extended inaction may constitute such a "......
  • Request a trial to view additional results
590 cases
  • 183 F.Supp.2d 344 (D.Mass. 2002), Civ. A. 00-12186, Grant v. John Hancock Mut. Life Ins. Co.
    • United States
    • Federal Cases United States District Courts 1st Circuit District of Massachusetts
    • 8 Enero 2002
    ...it.' " Caputo v. Boston Edison Co., 924 F.2d 11, 14 (1st Cir. 1991) (quoting Agis v. Howard Johnson Co., 371 Massachusetts 140, 355 N.E.2d 315 (1976)).12 As the court held in Foley v. Polaroid, 400 Massachusetts 82, 508 N.E.2d 72 (1987): [L]iability cannot be predicated upon "mere......
  • 486 B.R. 221 (Bkrtcy.D.Mass. 2013), 09-45463-HJB, In re Lopez
    • United States
    • Federal Cases United States Bankruptcy Courts First Circuit
    • 3 Enero 2013
    ...in comparison " to the facts of those cases where the claim is properly asserted." Id. (citing Agis v. Howard Johnson Co., 371 Mass. 140, 145, 355 N.E.2d 315 (1976) (public humiliation); Simon v. Solomon, 385 Mass. 91, 95, 431 N.E.2d 556 (1982) (sewage overflow into tenant's apart......
  • 741 F.2d 1503 (7th Cir. 1984), 82-2490, Dr. Franklin Perkins School v. Freeman
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Seventh Circuit
    • 14 Agosto 1984
    ...outrageous; (3) it must cause the plaintiffs emotional stress; and (4) the emotional distress must be severe. Agis v. Howard Johnson Co., 371 Mass. 140, 355 N.E.2d 315, 318-19 (1976). Upon review of the record, it becomes apparent that the evidence is insufficient to prove the necessary ele......
  • 741 F.Supp. 306 (D.Mass. 1990), Civ. A. 83-4214, Pierre v. United States
    • United States
    • Federal Cases United States District Courts 1st Circuit District of Massachusetts
    • 11 Julio 1990
    ...and of such a nature "that no reasonable man could be expected to endure it". Agis v. Howard Johnson Company, 371 Mass. 140, 355 N.E.2d 315, 319 (1976). A defendant's failure to act may support liability. Where there is a duty to act, extended inaction may constitute such a "......
  • Request a trial to view additional results
2 books & journal articles
  • Workplace Investigations in Ohio
    • United States
    • Capital University Law Review Nbr. 30-1, May 2002
    • 1 Mayo 2002
    ...131 (Or. 1981). [614] Id. [615] Leahy v. Fed. Express Corp., 609 F. Supp. 668, 672 (E.D.N.Y. 1985). [616] Agis v. Howard Johnson Co., 355 N.E.2d 315, 319 (Mass. 1976). [617] Tandy Corp. v. Bone, 678 S.W.2d 312, 315 (Ark. 1984). [618] Smithson v. Nordstrom, Inc., 664 P.2d 1119, 1121 (Or. Ct.......
  • From Remembering to Analyzing: Using Mini Mock Arguments to Deepen Understanding and Increase Engagement
    • United States
    • Journal of Legal Studies Education Nbr. 37-1, December 2020
    • 1 Diciembre 2020
    ...students to focus their argumentssolely on the infliction of emotional distress claim.Intentional TortsAgis v. Howard Johnson Co., 355 N.E.2d 315 (Mass. 1976) (considering claim for inflic-tion of emotional distress)Balas v. Huntington Ingalls Indus., 711 F.3d 401 (4th Cir. 2013) (providing a......