Nancy P. v. D'Amato

• Decision Date: 13 January 1988
• Citation: 401 Mass. 516,517 N.E.2d 824
• Parties: NANCY P. et al. 1 v. Angelina D'AMATO, administratrix. 2
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 824

517 N.E.2d 824

401 Mass. 516

NANCY P. et al. ¹ v. Angelina D'AMATO, administratrix. ²

Supreme Judicial Court of Massachusetts Worcester.

Argued Sept. 10, 1987.

Decided Jan. 13, 1988.

D. Alice Olsen, Boston, for plaintiffs

Kenneth H. Tatarian, Boston, (Patricia C. Ma, Arlington, with him), for defendant.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS and LYNCH, JJ.

WILKINS, Justice.

In March, 1981, a nine-year-old girl, whom we shall call Nancy, told her mother that, on several occasions in 1979 and 1980 Vincenzo D'Amato, a neighbor in his sixties who died after this action was commenced, forced sexual contact on her. This action was brought to recover for harm done to Nancy and for harm sustained by her mother and her brother, whom we shall call Owen. The plaintiffs were awarded judgment on liability pursuant to Mass.R.Civ.P. 33(a), as amended, 368 Mass. 906 (1976). A judge then decided the issues of damages.

The judge found that on at least two occasions D'Amato touched Nancy's breasts and vagina. At a family birthday party in 1980, D'Amato arranged to be alone with Nancy, exposed himself, "touched her vaginal area," and made Nancy promise not to tell anyone what had happened.

In 1980, Nancy told her twelve-year-old brother Owen that D'Amato had done something wrong. Owen thought she was talking about hugging and kissing. He promised not to tell their mother, a divorced parent. Both children, fearing reprisal or feeling guilt, did not disclose D'Amato's conduct for some time.

After Nancy finally did tell of D'Amato's conduct and D'Amato was confronted with her accusations, a series of events followed that had emotionally traumatic effects on Nancy. Because the defendant does not challenge the amount of damages ($100,000) awarded to Nancy on her claims for assault and battery and for intentional and negligent infliction of emotional distress, we need not recite the effects of D'Amato's conduct on Nancy. It is enough to note that she became alienated from her mother and went to live with a relative.

It is, however, important to the issues before us to recite the judge's findings as to the effect of D'Amato's misconduct on Nancy's mother and on Owen. He found The judge denied recovery to the mother and to Owen on counts alleging extreme and outrageous conduct causing physical harm and emotional distress. He found no physical injuries and denied recovery for emotional distress because the mother and Owen were not present at the time of D'Amato's extreme and outrageous conduct.

that the mother was understandably angry and felt guilty because she did not protect her daughter. Owen felt guilty because he was unable to disclose the sexual abuse to any adult. Although the judge found each was obviously traumatized emotionally, he also found that neither suffered physically from the events.

The mother and Owen appeal from a judgment denying them recovery for the effects of D'Amato's misconduct on them. The mother also challenges the judge's denial of her postjudgment attempt to assert claims for loss of consortium and for medical expenses. The defendant in turn appeals from the judgment for Nancy, challenging various evidentiary rulings.

We affirm the judgment.

APPEALS BY MOTHER AND OWEN

We consider first the claims of the mother and Owen for the infliction of emotional distress. The mother claims both intentional and negligent infliction of emotional distress. On appeal, Owen claims solely an intentional infliction of emotional distress. When, as here, a defendant is defaulted, well-pleaded facts are deemed to be admitted, but a plaintiff may recover only to the extent the complaint states a claim for relief. See Productora e Importadora de Papel, S.A. de C.V. v. Fleming, 376 Mass. 826, 834-835, 383 N.E.2d 1129 (1978). Thus the plaintiffs had the burden at trial of proving damages incurred as a result of wrongs within the scope of the claims alleged for which the law provides a remedy. ³

We first dispose of the mother's claim asserting negligent infliction of emotional distress. We have indicated that a plaintiff may not recover for negligent infliction of emotional distress unless she has suffered physical harm. Payton v. Abbott Labs, 386 Mass. 540, 555, 437 N.E.2d 171 (1982). The judge found that the mother suffered no physical consequences from the events, and he was not clearly erroneous in so finding. Certain members of this court have been willing to acknowledge that objective corroboration of a plaintiff's emotional distress may sometimes be shown in the absence of physical injury. See DiGiovanni v. Latimer, 390 Mass. 265, 273-274, 454 N.E.2d 483 (1983) (Liacos, J., concurring); Payton v. Abbott Labs, supra 386 Mass. at 579, 437 N.E.2d 171 (Wilkins, J., dissenting in part, with whom Liacos and Abrams, JJ., joined). We have all agreed, however, that a parent claiming emotional distress caused by negligently inflicted injuries to her child must witness the injury or come upon the injured child promptly after the injury. See Stockdale v. Bird & Son, 399 Mass. 249, 251-252, 503 N.E.2d 951 (1987); Cohen v. McDonnell Douglas Corp., 389 Mass. 327, 341-343, 450 N.E.2d 581 (1983); Dziokonski v. Babineau, 375 Mass. 555, 568, 380 N.E.2d 1295 (1978). Cf. Ferriter v. Daniel O'Connell's Sons, 381 Mass. 507, 518, 413 N.E.2d 690 (1980) (wife and children who see injured employee at hospital immediately after the accident state a claim). Here the mother did not learn of the harm inflicted on her daughter until many months after the last incident of sexual abuse. The judge, therefore, properly denied the mother recovery on the theory of negligent infliction of emotional distress.

The question of the intentional infliction of emotional distress raises somewhat different considerations. We have placed reckless and intentional infliction of emotional distress in the same category. See Payton v. Abbott Labs, supra 386 Mass. at 547, 437 N.E.2d 171; Simon v. Solomon, 385 Mass. 91, 95, 431 N.E.2d 556 (1982). We have not made physical harm an essential element of such a claim. See Simon v. Solomon, supra; Agis v. Howard Johnson Co., 371 Mass. 140, 144, 355 N.E.2d 315 (1976). If a defendant intended to inflict emotional distress or knew or should have known that emotional distress was a likely consequence of his conduct, if his conduct was extreme and outrageous (as our cases have defined it, Foley v. Polaroid Corp., 400 Mass. 82, 99-100, 508 N.E.2d 72 [1987] ), and if his conduct caused the plaintiff severe emotional distress, we would impose liability. See Simon v. Solomon, supra; Agis v. Howard Johnson Co., supra 371 Mass. at 144-145, 355 N.E.2d 315. The focus of our cases, ⁴ and of cases elsewhere, dealing with intentional infliction of emotional distress has been on the emotional distress of a person against whom the extreme and outrageous conduct was directed. Here D'Amato did not intend to cause emotional distress to the mother and Owen. It was his hope that they would never learn of his misconduct. Yet it would be a question for the trier of fact whether D'Amato acted recklessly, indifferent to the likely effect of his conduct on family members who would be apt in time to learn of his outrageous conduct. Surely a trier of fact would have been warranted in concluding that D'Amato's conduct was extreme and outrageous and that he acted with reckless indifference to the likely effect of his conduct on the mother and on Owen.

The judge did not reach these questions because he concluded that the mother and Owen could not recover because they were not present at the time of D'Amato's misconduct. The prevailing view among courts which have considered the question is that an absent family member may not recover for severe emotional distress caused by extreme and outrageous conduct directed at another family member. See, e.g., H.L.O. v. Hossle, 381 N.W.2d 641, 644-645 (Iowa 1986) (parents not present at the time of the defendant's tortious acts may not recover for emotional distress caused by neighbor's sexual abuse of their children); Miller v. Cook, 87 Mich.App. 6, 11, 273 N.W.2d 567 (1978) (plaintiff not present when child was beaten may not recover); Calliari v. Sugar, 180 N.J.Super. 423, 429, 435 A.2d 139 (1980) (purchasers of real property may not recover for emotional distress resulting from discovery of body of vendor's wife buried in back yard); Lund v. Caple, 100 Wash.2d 739, 741, 675 P.2d 226 (1984) (husband not present when defendant had sexual relations with wife may not recover); W.L. Prosser & W.P. Keeton, Torts § 12, at 65 (5th ed. 1984). ⁵

The Restatement (Second) of Torts § 46(2) (1965), set forth in the margin, ⁶ recognizes liability for intentionally or recklessly caused severe emotional distress of a family member who is present when extreme and outrageous conduct is directed at another family member. By a caveat, ⁷ the Restatement leaves entirely open the possibility in other instances of liability for the intentional or reckless infliction of emotional distress.

As noted above, this court has recognized the possibility of liability for harm caused to a parent who was not present at the time of negligent conduct causing injury to a child. Where the wrongful conduct is intentional or reckless, we might be even less inclined to make a parent's physical presence an essential element of liability. A custodial parent of a young child sexually abused by a trusted adult neighbor might present a particularly appealing case for not imposing a presence requirement. We do not, however, decide the point.

Even if the family member's presence were not a condition of liability, we would normally require both (a) substantially contemporaneous knowledge of the outrageous conduct and (b) a severe emotional response. Neither is present here. Because D'Amato told Nancy not to tell anyone about the incidents and it may be inferred that she was, therefore, afraid to tell her mother about...