Morancy v. Morancy, 90-354

Decision Date26 July 1991
Docket NumberNo. 90-354,90-354
Citation593 A.2d 1158,134 N.H. 493
PartiesJulie MORANCY v. Pamela MORANCY. Robert MORANCY v. Pamela MORANCY.
CourtNew Hampshire Supreme Court

Donald C. Koury, Lebanon, for plaintiffs.

Richards, Gawryl & MacAllister, Nashua (Janine Gawryl, on the brief), for defendant.

JOHNSON, Justice.

The defendant appeals a decision of the Lebanon District Court (Papademas, S.J.) awarding the plaintiffs recovery for intentional infliction of emotional distress. We recognize the existence of this tort under New Hampshire law, but find that the plaintiffs have failed to prove all of the essential elements of this cause of action. Thus, we reverse.

The plaintiffs individually brought actions against the defendant claiming that the defendant, the former wife of the plaintiff Robert Morancy, intentionally inflicted emotional distress upon Robert and his present wife, Julie, by a series of actions which constituted extreme and outrageous conduct. The conduct complained of included, inter alia, alleged harassing telephone calls, scratching of the paint on the plaintiffs' vehicle, and operation of the defendant's vehicle in such a manner as to harass the plaintiffs. The defendant denied these allegations, and the two cases were tried together.

The trial court found that "a tort has been committed, be it called harassment, invasion of privacy, or outrageous conduct. However, the Court finds a very limited amount of damages and awards each plaintiff the amount of $100.00." The trial court granted requests for specific findings of fact including findings that: "Julie Morancy has suffered no severe mental distress" and "Robert Morancy has suffered no severe mental distress." However, the court ruled that, "[i]f the tort of intentional infliction of emotional distress exists in New Hampshire, Plaintiffs have the burden of proving that the alleged conduct was extreme and outrageous and intentionally caused severe emotional distress."

The first issue before us is whether New Hampshire recognizes the tort of intentional infliction of emotional distress. This is the first case in which we have squarely addressed this question. In Jarvis v. Prudential Insurance Company of America, 122 N.H. 648, 652, 448 A.2d 407, 409 (1982), we stated that, "[a]ssuming arguendo that this court, in an appropriate case, would recognize the tort of intentional infliction of mental distress, this is not such a case." In Plante v. Engel, 124 N.H. 213, 217, 469 A.2d 1299, 1302 (1983), wherein this court recognized a cause of action for intentional interference with parental custody, as to the plaintiff's additional claim for damages for emotional distress we stated, "[w]e are of the opinion that a claim for the intentional infliction of emotional distress should be treated as a separate cause of action. See Restatement (Second) of Torts § 46 (1965)." Finally, in McElroy v. Gaffney, 129 N.H. 382, 386-87, 529 A.2d 889, 891 (1987), we stated, "[T]hat a cause of action for intentional infliction of emotional distress is an action at law is, we think, beyond peradventure. Such an action is a wrong that falls within the traditional definition of a tort as '[a] civil wrong for which the remedy is a common law action for unliquidated damages....' " However, in McElroy, Chief Justice Brock stated, in a concurring opinion, "Because this court has never addressed the merits of the question of whether or not the tort of intentional infliction of emotional distress should be recognized, and the question is not at issue in the present appeal, I concur only in the result reached." Id. at 391, 529 A.2d at 894. Justice Thayer joined in that concurrence.

The U.S. District Court for the District of New Hampshire stated in 1988:

"Although the New Hampshire Supreme Court has not specifically stated that it recognizes the tort of intentional infliction of emotional distress ... it has implicitly recognized the tort.... [T]his Court has previously recognized that such a claim exists under New Hampshire law. See Brown v. Allenstown, 648 F.Supp. 831, 839 (D.N.H.1986); Chamberlin v. 101 Realty, Inc., 626 F.Supp. 865, 868-69 (D.N.H.1985)."

Kassel v. U.S. Veterans Admin., 682 F.Supp. 646, 658-59 (D.N.H.1988) (citations omitted). This court has recently had the occasion, in a case involving alleged negligent infliction of emotional distress, to state that the plaintiff "is required to prove physical manifestations of his distress...." Thorpe v. State, 133 N.H. 299, 303, 575 A.2d 351, 353 (1990).

The tort of intentional infliction of emotional distress is widely recognized in other States, see Restatement (Second) of Torts § 46 app. (1984 & Supp. 1990-91), and we now recognize the tort in this State. Section 46 of the Restatement (Second) of Torts reads as follows:

" § 46. Outrageous Conduct Causing Severe Emotional Distress

(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm."

Restatement (Second) of Torts § 46 (1965). Having previously recognized the tort of negligent infliction of emotional distress, there is no logical reason why we should not now recognize the tort of intentional infliction of emotional distress. Intentional conduct which causes harm to another is certainly more blameworthy than negligent conduct which causes such harm.

Comment j. to the Restatement (Second) of Torts clarifies the requirement that there be severe emotional distress:

"j. Severe emotional distress. The rule stated in this Section applies only where the emotional distress has in fact resulted, and where it is severe. Emotional distress passes under various names, such as mental suffering, mental anguish, mental or nervous shock, or the like. It includes all highly unpleasant mental reactions, such as fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin,...

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