Apostle v. Booth Newspapers, Inc.
| Decision Date | 31 January 1983 |
| Docket Number | No. G82-721.,G82-721. |
| Citation | 572 F. Supp. 897 |
| Parties | George APOSTLE and Joan Apostle, Plaintiffs, v. BOOTH NEWSPAPERS, INC., Defendant. |
| Court | U.S. District Court — Western District of Michigan |
Paul M. Ladas, Muskegon, Mich., John A. Burgess, Berkeley, Cal., for plaintiffs.
William M. Newman, Landman, Luyendyk, Latimer, Clink & Robb, Muskegon, Mich., for defendant.
On September 17, 1982, Plaintiffs filed this diversity action against Defendant Booth Newspapers, Inc., alleging that two newspaper articles had falsely implied that Plaintiffs and their businesses were connected with prostitution in the Muskegon Heights business district. The articles in question appeared on page 1B of the September 20, 1981 edition of the Muskegon Chronicle, a newspaper owned and published by Defendant.
The two articles appeared with accompanying headlines, photographs and captions; all address a purported problem of prostitution in Muskegon Heights. Certain statements quoted in the articles identified the Gay Nineties Bar as the center of that activity. Both Plaintiffs are identified in the articles, Mr. Apostle as the owner and operator of the Gay Nineties Bar and the Balbirnie-Apostle Funeral Home, and Ms. Apostle as the wife of Mr. Apostle and an "occasional bartender" at the Gay Nineties. The second of the two articles is written as an exposition of Plaintiffs' reaction on the subject of the prostitution problem and statements about the Gay Nineties, and contains several quotations attributed to Plaintiffs.
Plaintiffs' Complaint contains four counts, denominated as: defamation, republication, negligent infliction of emotional distress, and intentional infliction of emotional distress. Defendant has filed an Answer as to the first two counts; presently before the Court is Defendant's Motion to Dismiss the count for negligent infliction of emotional distress, and for summary judgment on the claim of intentional infliction of emotional distress.
Defendant argues that, for several reasons, Plaintiffs' Count III for negligent infliction of emotional distress fails to state a claim and should be dismissed pursuant to Federal Rules of Civil Procedure (FRCP) 12(b)(6). Because Count III of the Complaint incorporates by reference the allegations of Count I (defamation), the Court must examine both Counts to determine if together they state a claim for negligent infliction.
Count I states that Mr. Apostle is the owner of the State Cafe and Gay Nineties Bar, and the Balbirnie-Apostle Funeral Home, and that he was identified as such in the newspaper articles. Plaintiffs allege that Defendant harbored ill will toward the Plaintiffs and intended to harm them emotionally and in their reputations and businesses, by unnecessary reference to the funeral home and by unnecessarily identifying Ms. Apostle as an occasional bartender at the Gay Nineties. Plaintiffs further point to specific portions of the articles, headlines and captions which they allege were meant to and do imply that Plaintiffs and their businesses are involved in prostitution activities in Muskegon Heights.1 Plaintiffs claim that any implication that Plaintiffs or their businesses are associated with or involved in immoral and criminal acts, is untrue. Count I further alleges that prior to publication, Defendant knew or should have known the injurious effect the articles would have on Plaintiffs, their reputations, and their businesses; that Defendant intended such effect; that the Defendant knew that the articles and inferences to be drawn therefrom were false, and published them with reckless disregard for the truth; and that Defendant refused to retract or apologize for the articles. Plaintiffs aver that they had previously enjoyed a good reputation, and that as a result of the publication, Mr. Apostle suffered damage to his businesses, a reduction in property values, and emotional and physical distress.
Count III alleges in addition that Defendant refused Plaintiffs' offer of an opportunity to conduct a fair and thorough investigation of the facts. Plaintiffs claim that Defendant had a legal duty to exercise reasonable care in its investigation so as to uncover all the facts; to verify the accuracy of quotations and the fairness and accuracy of its articles generally; and to follow "accepted journalistic standards" in preparing, editing and publishing the articles. According to Plaintiffs, Defendant negligently and carelessly failed to exercise the due care required by this legal duty. As a result, Plaintiff suffered emotional distress, emotional suffering, and emotional injury and damage which were or should have been reasonably foreseeable by the Defendant.
Defendant argues that the tort of negligent infliction of emotional distress is confined to those instances when Plaintiff suffers an emotional shock as the result of witnessing the negligent injury of a close relative; since this case does not fit the "third party injury" mold, Defendant argues, Plaintiffs' allegations fail to state a claim. Furthermore, Defendant claims that the Michigan courts have indicated a reluctance to extend the tort beyond these narrow limits.
The majority of Michigan cases dealing with the tort of negligent infliction of emotional distress do involve the third party injury situation. See, e.g., Toms v. McConnell, 45 Mich.App. 647, 207 N.W.2d 140 (1973); Gustafson v. Faris, 67 Mich.App. 363, 241 N.W.2d 208 (1976); and Perlmutter v. Whitney, 60 Mich.App. 268, 230 N.W.2d 390 (1975). However, the Michigan Supreme Court has clearly recognized that when emotional shock is inflicted on the plaintiff by negligent conduct of the defendant which is felt directly by the plaintiff, a cause of action may lie for emotional distress. Daley v. LaCroix, 384 Mich. 4, 179 N.W.2d 390 (1970); and see, Allinger v. Kell, 102 Mich.App. 798, 302 N.W.2d 576, modified on other grounds, 411 Mich. 1053, 309 N.W.2d 547 (1981). In Daley the court held that plaintiffs stated a claim for negligent infliction of emotional distress, even though no third party was involved. Plaintiffs alleged that they suffered an emotional shock when defendant's car negligently struck a utility pole, which brought down electrical lines and caused an electrical explosion at plaintiffs' house when they were inside. While the instant case presents a factual context distinct from that of Daley, the underlying claim of emotional injury felt as the direct result of Defendant's conduct, is the same.
Defendant's argument that the courts are reluctant to apply this tort to new cases is not persuasive in this instance. Michigan courts have been willing to impose limitations on the tort in the third party injury context, where there would otherwise be potentially unending liability for the "shock waves" which flow outward infinitely from an injury. The same analysis does not apply when no third party is involved, as here. Furthermore, in at least one case, the Court has noted in the third party injury context that the courts of this state are always ready to give a remedy where a wrong has been committed, and that a "floodgates" argument will not dissuade them from that result. Toms v. McConnell, supra.
I find that Plaintiffs' allegations fall within the scope of the tort of negligent infliction of emotional distress, as defined by the Michigan courts.
One of the required elements of the tort of negligent infliction of emotional distress in this state is "a definite and objective physical injury ... produced as a result of emotional distress proximately caused by defendant's negligent conduct. ..." Daley v. LaCroix, supra, 384 Mich. at 12, 179 N.W.2d 390. By contrast, when the infliction of emotional distress is intentional, no physical injury is required. See, e.g., Warren v. June's Mobile Home Village and Sales, Inc., 66 Mich.App. 386, 239 N.W.2d 380 (1976). Defendant argues that Plaintiffs' Complaint fails to state a claim because physical injury is not alleged. Paragraph 33 of Count III states, in pertinent part:
33. ... the plaintiffs herein were, by the publication directly and proximately caused intense and severe emotional distress, emotional suffering, emotional injury and damage;
Paragraph 21 of Count I, incorporated by reference into Count III, alleges:
21. As a result of such defamatory statements and the aforementioned imputations directed at George Apostle, George Apostle suffered a loss of business in both his bar business and funeral business, a reduction in his property values, emotional and mental distress, anxiety, aggravation, physical distress, pain and suffering, embarrassment, mental anguish, and humiliation, past, present, and future.
While a "definite and objective physical injury" is required, the courts are very lenient in finding allegations sufficient in this regard. In Daley v. LaCroix, supra, the court held that an allegation of nervousness caused by the emotional shock was a borderline allegation, but that it presented a jury question on the issue of physical injury when viewed in the light most favorable to plaintiff. The other plaintiff in the Daley case had allegedly suffered weight loss, inability to perform ordinary household duties, extreme nervousness and irritability, and traumatic neurosis; this was held to clearly satisfy the leading requirements of physical injury. Similarly, in Toms v. McConnell, supra, the court held that allegations that plaintiff could not function and was in a continued state of depression were sufficient to state a claim. Of course, as the court pointed out in Daley, even given this lenient standard, a plaintiff still has to show that the physical harm is the natural result of the emotional shock proximately caused by defendant's conduct.
Plaintiffs' allegations, at least as to Ms....
To continue reading
Request your trial
-
Decker v. Princeton Packet, Inc.
...to find defamation. See Hustler Magazine v. Jerry Falwell, 485 U.S. 46, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988); Apostle v. Booth Newspapers, Inc., 572 F.Supp. 897 (W.D.Mich.1983); Parnell v. Booth Newspapers, Inc., 572 F.Supp. 909 (W.D.Mich.1983); Tumminello v. The Bergen Evening Record, Inc.,......
-
Vogelaar v. US
...302 N.W.2d 576. Michigan courts are very lenient in finding allegations of physical injury to be sufficient. Apostle v. Booth Newspapers, Inc., 572 F.Supp. 897, 901 (W.D.Mich.1983) (allegations of weight loss, extreme nervousness, or inability to function day to day have been held Plaintiff......
-
Carthan v. Snyder Case No. 16-CV-10444 (In re Flint Water Cases)
...*3, 1998 Mich. App. LEXIS 2506 at *7-8 (Mich. Ct. App. Mar. 13, 1998).Plaintiffs rely on two other cases, Apostle v. Booth Newspapers, Inc. , 572 F.Supp. 897, 900 (W.D. Mich. 1983) and Maldonado v. Nat. Acme Co. , 73 F.3d 642, 645-46 (6th Cir. 1996), to argue that Daley did establish a tort......
-
Carthan v. Snyder (In re Flint Water Cases)
...*3, 1998 Mich. App. LEXIS 2506, at *7–8 (Mich. Ct. App. Mar. 13, 1998).Plaintiffs rely on two other cases, Apostle v. Booth Newspapers, Inc. , 572 F.Supp. 897, 900 (W.D. Mich. 1983) and Maldonado v. Nat. Acme Co. , 73 F.3d 642, 645–46 (6th Cir. 1996), to argue that Daley did establish a tor......