Laurie Marie M. v. Jeffrey T.M.

• Decision Date: 18 July 1990
• Citation: 159 A.D.2d 52,559 N.Y.S.2d 336
• Parties: LAURIE MARIE M. (Anonymous), etc., Respondent, v. JEFFREY T.M. (Anonymous), Appellant.
• Court: New York Supreme Court — Appellate Division

Page 336

559 N.Y.S.2d 336

159 A.D.2d 52

LAURIE MARIE M. (Anonymous), etc., Respondent, v. JEFFREY T.M. (Anonymous), Appellant.

Supreme Court, Appellate Division Second Department.

July 18, 1990.

John J. Gochman, Croton-on-Hudson (Augusta Devnet, of counsel), for appellant.

Barry Birbrower, Peekskill (Cathy A. Taft, of counsel), for respondent.

Before RUBIN, J.P., and EIBER, ROSENBLATT and MILLER, JJ.

MILLER, Justice.

This appeal presents questions as to the appropriateness and excessiveness of the verdicts rendered in a civil action founded on intrafamilial child sex abuse. After a trial, the court granted the plaintiff's motion for judgment as a matter of law on the issue of liability with respect to the battery cause of action, and upon a jury verdict, the defendant was found liable for intentional infliction of emotional distress for sexually touching the plaintiff, his 11-year-old stepdaughter. The jury awarded the infant plaintiff $200,000 in compensatory damages and $275,000 in punitive damages. We find, contrary to the defendant's contention, that the trial court properly granted judgment as a matter of law with respect to battery, inasmuch as the defendant admitted that he sexually touched the plaintiff. The principal issues of the appropriateness of awarding punitive damages and the reasonableness of compensatory and punitive damages in the context of a civil recovery for interfamial child abuse apparently have never been directly addressed by a court of this State (see, Doe v. Esposito, 114 A.D.2d 992, 495 N.Y.S.2d 432). Mindful of the precedent which will be established, we find that the compensatory award was excessive to the extent indicated below, that the issue of punitive damages was properly submitted to the jury, and that the punitive damages award was also excessive to the extent indicated herein.

I. FACTS

The infant plaintiff was sexually abused by her stepfather, the defendant, in 1980, less than one year after he married her divorced mother and adopted the plaintiff and her younger brother. The defendant admitted rubbing and touching the plaintiff's breasts and genital area and having her rub and touch his genitals. He disputed only the duration of his behavior. According to plaintiff, 20 incidents occurred over a period of two months in 1980. According to defendant, there were four to six incidents in the space of five to six weeks, after which he stopped his behavior because he knew "it was wrong".

Five years passed before the plaintiff reported the incidents to her mother. Confronted by his wife, the defendant first denied, then quickly admitted the occurrences. His wife refused to talk to him and directed him to leave the marital home, which he did, returning to live with his parents. The incident was reported to Child Protective Services and the defendant appears to have cooperated with its investigation. However, the marriage, which was apparently in trouble before the plaintiff reported the abuse, disintegrated. All parties entered therapy. The defendant never saw the plaintiff or her brother again.

The plaintiff commenced this action against the defendant in January 1987. At the trial two years later, the plaintiff (who was by then 19 years old), her mother, and the plaintiff's therapist, a licensed clinical social worker, testified, as well as the defendant and his expert, a psychiatrist who had interviewed the plaintiff for two and one-half hours. Both experts diagnosed the plaintiff as suffering from a post-traumatic stress disorder caused by the defendant's sexual activities with her when she was 11 years old and testified she would continue to suffer from nightmares, fears, anxiety, dependency and difficulties with relationships with men caused by the incidents. Although the defendant's expert believed the plaintiff's difficulties also stemmed from a developmental personality disorder originating in her earlier childhood prior to the incidents, he could not apportion causation factors. Both experts agreed that the plaintiff had improved by age 19 and had made a reasonable adjustment, although she needed further counseling. However, and most significantly, they both articulated that there were limits to the plaintiff's full recovery even with therapy, and both gave guarded prognoses.

The plaintiff submitted no proof of special damages, not even, for example, the costs incurred for therapy, past or future, although at the time of the trial, she had been in therapy for three years and her therapist believed she would need continuing counseling. The only evidence as to the cost of therapy was provided by the defendant's expert, who recommended intensive treatment with a psychiatrist twice a week for three years, at an estimated cost of $30,000.

II. LIABILITY FOR BATTERY

A plaintiff, to recover damages for battery founded on bodily contact, must prove that there was bodily contact, that the contact was offensive, and that the defendant intended to make the contact (see, Lambertson v. United States, 528 F.2d 441, 444, cert. denied 426 U.S. 921, 96 S.Ct. 2627, 49 L.Ed.2d 374; see also, Maines v. Cronomer Val. Fire Dept., 50 N.Y.2d 535, 546, 429 N.Y.S.2d 622, 407 N.E.2d 466; Masters v. Becker, 22 A.D.2d 118, 254 N.Y.S.2d 633). "Upon a motion for a judgment as a matter of law, the trial court's function is not to weigh the evidence, but rather, in taking the case from the jury, to determine, 'that by no rational process could the trier of the facts base a finding in favor of the defendant upon the evidence * * * presented' (Blum v. Fresh Grown Preserve Corp., 292 NY 241, 245 ; see, Lipsius v. White, 91 AD2d 271, 276-277 " (Dooley v. Skodnek, 138 A.D.2d 102, 529 N.Y.S.2d 569).

Where the defendant in prior proceedings acknowledged under oath that he had raped his daughter, this court determined that the plaintiff daughter was entitled to summary judgment as to liability for causes of action sounding in assault and intentional infliction of emotional distress (see, Doe v. Esposito, 114 A.D.2d 992, supra, 495 N.Y.S.2d 432).

In the instant case, the defendant admitted in his trial testimony that he touched the plaintiff's breasts and vagina, an admission that he was guilty of sexual abuse in the second degree (see, Penal Law § 130.60). Accordingly, we find that the trial court properly granted the plaintiff judgment as a matter of law on the battery cause of action (see generally, Blum v. Fresh Grown Preserve Corp., 292 N.Y. 241, 245, 54 N.E.2d 809; Dooley v. Skodnek, 138 A.D.2d 102, supra, 529 N.Y.S.2d 569).

III. COMPENSATORY AND PUNITIVE DAMAGES

The defendant was found liable for battery and intentional infliction of emotional distress. His conduct fits within the rule stated in the Restatement (Second) of Torts § 46(1) that: "One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress" (see also, Fisher v. Maloney, 43 N.Y.2d 553, 557, 402 N.Y.S.2d 991, 373 N.E.2d 1215). It has been held that general and special damages need not even be pleaded or shown to make out a cause of action sounding in intentional infliction of emotional distress (see, 2 PJI 3:6; see also, Halperin v. Salvan, 117 A.D.2d 544, 499 N.Y.S.2d 55).

Nonpecuniary damages, the key component in the tort of intentional infliction of emotional distress, are, by their nature, not susceptible to mathematical computation (see, McDougald v. Garber, 73 N.Y.2d 246, 257, 538 N.Y.S.2d 937, 536 N.E.2d 372). The plaintiff's subjective testimony of pain may be sufficient to establish an injury for which he or she is entitled to some compensation, but the proof must satisfactorily establish that the injury is more than minimal (see, Levine v. Abergel, 127 A.D.2d 822, 824, 512 N.Y.S.2d 218). Verdicts awarding compensatory damages will be upheld, unless it can be said that the award "deviates materially from what would be reasonable compensation" (CPLR 5501[c].

There are few reported cases in New York involving civil actions to recover damages for sexual abuse. In Roy v. Hartogs, 85 Misc.2d 891, 381 N.Y.S.2d 587, where the jury determined that the defendant-psychiatrist induced the plaintiff-patient to have sexual relations with him, the Appellate Term, First Department, in 1976 reduced the jury award of $50,000 in compensatory damages to $25,000 and struck the punitive damages award (without mentioning the amount) on the basis of the plaintiff's longstanding prior psychiatric condition. However, the trial court in Micari v. Mann, 126 Misc.2d 422, 481 N.Y.S.2d 967, granted a new trial as to punitive damages unless the defendant stipulated to punitive damages of $5,000 per plaintiff, concluding that the defendant teacher's deplorable, outrageous conduct in sexually abusing his students warranted those awards of punitive damages. The Court of Appeals in Public Serv. Mut. Ins. Co. v. Goldfarb, 53 N.Y.2d 392, 442 N.Y.S.2d 422, 425 N.E.2d 810, was principally concerned with the obligations of a dentist's insurer, forced to anticipate the likelihood of future jury awards of compensatory and punitive damages, in a case where the dentist had been convicted of sexually abusing his patient. Similarly in Doe v. Esposito (supra), this court anticipated damage awards after liability for sexual assault was established (see also, L. [Richard] v. Armon, 144 A.D.2d 1, 536 N.Y.S.2d 1014).

In one unreported case, where a stepfather sexually abused each of his three stepchildren over a period of four years, the jury awarded each child and the mother substantial compensatory damages ranging from $100,000 to $150,000 and also punitive damages ranging from $75,000 to $175,000 (Fischer v. Fischer, Supreme Court, Monroe County, Dec. 12, 1989 [Galloway, J.].

Reported cases in other jurisdictions offer scant guidance. In Elkington v. Foust, 618 P.2d 37 [Utah], $12,000 in compensatory damages and $30,000 in punitive damages were...