Howell v. New York Post Co., Inc.

• Decision Date: 05 April 1993
• Citation: 596 N.Y.S.2d 350,81 N.Y.2d 115,612 N.E.2d 699
• Parties: , 612 N.E.2d 699, 61 USLW 2626, 21 Media L. Rep. 1273 Pamela J. HOWELL et al., Appellants, v. NEW YORK POST COMPANY, INC., et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 350

596 N.Y.S.2d 350

81 N.Y.2d 115, 612 N.E.2d 699, 61 USLW 2626,

21 Media L. Rep. 1273

Pamela J. HOWELL et al., Appellants, v. NEW YORK POST COMPANY, INC., et al., Respondents.

Court of Appeals of New York.

April 5, 1993.

[81 N.Y.2d 116] Schiavetti, DeVito, Begos & Nicholson, New York City (Padraic D. Lee, Lori Ann Marano, Jacqueline Mandell and Peter Brown, of counsel), for appellants.

[81 N.Y.2d 117] Stroock & Stroock & Lavan, New York City (Laurence Greenwald, William A.

[612 N.E.2d 700] Rome and Randy L. Shapiro, of counsel), for respondents.

OPINION OF THE COURT

KAYE, Chief Judge.

This appeal, involving a newspaper's publication of plaintiff's photograph without her consent, calls upon us to consider the relationship between two separate but potentially overlapping torts: intentional infliction of emotional distress, and invasion of the right to privacy. ¹

In early September 1988, plaintiff Pamela J. Howell was a patient at Four Winds Hospital, a private psychiatric facility in Westchester County. Her complaint and affidavit (accepted as true on this appeal) allege that it was imperative to her recovery that the hospitalization remain a secret from all but her immediate family.

Hedda Nussbaum was also at that time a patient at Four Winds. Nussbaum was the "adoptive" mother of six-year-old Lisa Steinberg, whose November 1987 death from child abuse generated intense public interest (see, e.g., Matter of New York Times v. Rothwax, 143 A.D.2d 592, 533 N.Y.S.2d 73 [vacating Trial Judge's order barring counsel from discussing case with news media]; see also, People v. Steinberg, 79 N.Y.2d 673, 584 N.Y.S.2d 770, 595 N.E.2d 845).

On September 1, 1988, a New York Post photographer trespassed onto Four Winds' secluded grounds and, with a telephoto lens, took outdoor pictures of a group that included Nussbaum and plaintiff. That night, the hospital's medical director telephoned a Post editor requesting that the paper not publish any patient photographs. Nevertheless, on the front page of next day's edition two photographs appeared--one of Nussbaum taken in November 1987, shortly after her arrest in connection with Lisa's death, and another of Nussbaum walking with plaintiff, taken the previous day at Four Winds.

In the earlier photograph, Nussbaum's face is bruised and disfigured, her lips split and swollen, and her matted hair is covered with a scarf. By contrast, in the photograph taken at Four Winds, Nussbaum's facial wounds have visibly healed, her hair is coiffed, and she is neatly dressed in jeans, a sweater and earrings. Plaintiff, walking alongside her, smiling, is in tennis attire and sneakers. The caption reads: "The battered face above belongs to the Hedda Nussbaum people remember--the former live-in lover of accused child-killer, Joel Steinberg. The serene woman in jeans at left is the same Hedda, strolling with a companion in the grounds of the upstate psychiatric center where her face and mind are healing from the terrible wounds Steinberg inflicted."

The accompanying article centers on Nussbaum's physical and mental rehabilitation and quotes her as saying: "I feel good. I'm healthy * * * They're good to me here. The People are nice and I do my photography." The article concludes by noting that several issues still haunt Nussbaum, including whether she should cooperate with the prosecution and testify against Steinberg.

Although plaintiff's name was not mentioned in the caption or article, her face is readily discernible. Alleging she experienced emotional distress and humiliation, plaintiff commenced an action against the Post, the photographer and two writers, seeking multimillion dollar damages for alleged violations of Civil Rights Law §§ 50 and 51, intentional and negligent infliction of emotional distress, trespass, harassment and prima facie tort. Plaintiff's husband, by the same complaint, brought a derivative claim for loss of consortium.

Supreme Court granted in part defendants' CPLR 3211(a)(7) motion by dismissing all causes of action except for intentional infliction of emotional distress and the derivative claim, and denied plaintiff's motion for summary judgment. ² On the parties' cross appeals, the Appellate Division modified by dismissing the entire complaint, 181 A.D.2d 597, 581 N.Y.S.2d 330. This Court granted plaintiff's motion for leave to appeal to consider the dismissal of her claims for violation of the right to privacy and intentional infliction of emotional distress. We now affirm.

The Legal Backdrop

This appeal brings together two separate bodies of tort law, each with a long history that is relevant to resolution of the issues before us.

Intentional Infliction of Emotional Distress

Historically, the common law of this State did not recognize emotional injury--even with physical manifestations--as an independent basis for recovery. In Mitchell v. Rochester Ry. Co., 151 N.Y. 107, 45 N.E. 354 [1896], for example, a pregnant woman nearly hit by defendant's horses suffered a miscarriage. The Court noted that since there was no cause of action for fright, "it is obvious that no recovery can be had for injuries resulting therefrom. That the result may be nervous disease, blindness, insanity, or even a miscarriage, in no way changes the principle." (151 N.Y., at 109-110, 45 N.E. 354.) The Court expressed two concerns, present even today, with permitting emotional distress damages: (i) the potential "flood of litigation," and (ii) the ease with which emotional injury "may be * * * feigned without detection" (id., at 110, 45 N.E. 354).

Nevertheless, emotional distress damages as an adjunct, or "parasitic," to recognized torts were allowed (see, e.g., Garrison v. Sun Print. & Publ. Assn., 207 N.Y. 1, 8, 100 N.E. 430 [1912] [defamation]. Indeed, courts often struggled to find an established cause of action upon which to base an award of emotional distress damages to a deserving plaintiff. This is exemplified by a line of cases allowing victims of unacceptable behavior to recover under a breach of contract theory (see, e.g., Boyce v. Greeley Sq. Hotel Co., 228 N.Y. 106, 126 N.E. 647; Aaron v. Ward, 203 N.Y. 351, 96 N.E. 736; De Wolf v. Ford, 193 N.Y. 397, 86 N.E. 527).

The Restatement of Torts, first adopted in 1934, generally insulated an actor from liability for causing solely emotional distress: "conduct which is intended or which though not so intended is likely to cause only a mental or emotional disturbance to another does not subject the actor to liability * * * for emotional distress resulting therefrom" (Restatement of Torts § 46[a]. Shortly thereafter, in an influential article surveying the field--including the New York cases--Calvert Magruder concluded that courts were already giving extensive protection to feelings and emotions, showing an "adaptability of technique" in redressing the more serious invasions (Magruder, Mental and Emotional Disturbance in the Law of Torts, 49 Harv.L.Rev. 1033, 1067 [1936].

Building on the Magruder article, Professor Prosser argued that, without expressly saying so, courts had actually created a new tort consisting of the intentional, outrageous infliction of mental suffering in an extreme form (Prosser, Intentional Infliction of Mental Suffering: A New Tort, 37 Mich.L.Rev. 874, 874 [1939]. "Out of the array of technical assaults, batteries, imprisonments, trespasses, 'implied contracts,' invasions of 'privacy' or of doubtful 'property rights,' the real interest which is being protected stands forth very clearly." (Id., at 886-887.) Prosser suggested that there was no longer a reason or necessity for resorting to such "subterfuges," and that it was "high time to abandon them, and to rest the action upon its real ground." (Id., at 881.)

Responding to these and similar importunings, ³ the Restatement in 1948 abandoned its earlier position and declared that "[o]ne who, without a privilege to do so, intentionally causes severe emotional distress to another is liable * * * for such emotional distress" (Restatement of Torts § 46[a] [1948 Supp.].

While working on the Second Restatement of Torts, its Reporter, Dean Prosser, noted that the 1948 version was so broad as to suggest the need for further limitation (Prosser, Insult and Outrage, 44 Cal.L.Rev. 40, 41 [1956]. The requirement of "extreme and outrageous conduct" was the apparent solution. As the Second Restatement reads: "One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress" (Restatement [Second] of Torts § 46[1] [1965]. This Court subsequently adopted the Restatement formulation (see, Fischer v. Maloney, 43 N.Y.2d 553, 557, 402 N.Y.S.2d 991, 373 N.E.2d 1215; Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 303, 461 N.Y.S.2d 232, 448 N.E.2d 86; Freihofer v. Hearst Corp., 65 N.Y.2d 135, 143, 490 N.Y.S.2d 735, 480 N.E.2d 349).

The tort has four elements: (i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress. The first element--outrageous conduct--serves the dual function of filtering out petty and trivial complaints that do not belong in court, and assuring that plaintiff's claim of severe emotional distress is genuine (see, Prosser, Insult and Outrage, 44 Cal.L.Rev., at 44-45; compare, Mitchell v. Rochester Ry. Co., 151 N.Y., at 110, 45 N.E. 354). In practice, courts have tended to focus on the outrageousness element, the one most susceptible to determination as a matter of law (see, Restatement [Second] of Torts § 46, comment h; Givelber, The Right to Minimum Social Decency and the Limits of Evenhandedness: Intentional Infliction of Emotional Distress by Outrageous Conduct ["Social Decency"], 82 Colum.L.Rev. 42, 42-43 [1982].

Unlike other intentional torts,...