Clift v. Narragansett Television L.P.

A. al. Judith CLIFT et L.P. TELEVISION

NARRAGANSETT 94-594-Appeal.

No.

Supreme Island. Court of Rhode

Dec. Schreiber, Cranston, for Plaintiffs.

Ira L. Joseph Jr., Providence, Cavanagh, V. police barrier. A State Police officer trained Defendant. hostage to deal with situations was sum- scene, telephoned

moned to the and he attempt decedent in an to him dissuade from OPINION committing During suicide. the sensitive ne- BOURCIER, Justice. gotiation period followed, exponen- an This case appeal comes before us on tially growing press from contingency began to final Superior gather Court fol- kept the scene but was back from lowing summary judgment in police later, favor of Narra- the house barrier. Hours gansett Television, L.P. shortly p.m., enterprising reporter after 5 an Television, (Narra- Narragansett L.P. gansett), doing business here in Rhode Is- I through station, land its local television

Facts and Travel 12, telephoned Channel the Clift home. She 17, 1993, morning May On the tragic having did so without po- first informed the began series of Eаrly family intentions, events to unfold. lice or the Clift of her morning, from his in Chepaehet spoke decedent, home she agreed who then Glocester, (decedent) town of Bruce E. telephone Clift a recorded interview. The re- telephoned wife, (Clift), his porter Judith A. Clift told taped the decedent that the inter- who was at later, work to tell played her that “it’s over” view would be during sometime and that going he was p.m. to commit the 6 suicide. television station news broadcast. p.m. reporter, At 6:04 while still at the appears it was known that her scene, appeared p.m. on the 6 news telecast mentally person, husband was a ill and so that, reported the scene workplace home, Clift left her and returned dealing very “it’s obvious we’re with a which single family was to a small house on right spoke troubled man I now. When Route 44 in the town of Glocester. When Bruce Clift on the hе sounded arrived, she perched she saw her husband very disoriented. I him if asked he want- upstairs gas window. He had on a turned ed us message to broadcast a for him. He jet house, intending inside the thereby to agreed. you’re What about to hear is a carry out previously his announced intention angry man who is at the world and could to commit suicide. He was at that time also verge be on the of suicide. It’s an inter- firing guns kept which he in the house. Clift you’ll view see on Channel 12.” unsuccessfully tried to convince her husband put guns down stop his and to his self- telephone colloquy reported after that destructive behavior and threats of introduction was as follows: but to no Ignoring requests, avail. his wife’s your watching “REPORTER: If wife is and, he continued his threats of suicide in an now, you say your what would apparent attempt to convince his wife of the wife so she would understand? threats, sincerity proceedеd of his he then her, Only “DECEDENT: that I love cut glass his throat with a shard from a * * anything apologize she I has done* window, causing broken gush blood to out. my Hey, you I ‘cause know it’s fault. point, police At that up vehicle drove to the know, yards, right. the whole nine This house, causing him to especially become is suicide. irate, whereupon again began firing he you go- “REPORTER: Do realize what is weapons shrubbery surrounding into the your on outside house? house as ceilings. well as into the house His Yeah, everything. “DECEDENT: I know wife, fear, immediately exited the house and waited outside police you for further assis- “REPORTER: And what do think tance to arrive. about this? really “DECEDENT: don’t care what’s thereafter, Within a short Chepa- time going my on outside house.

chet Police and the State Police surrounded off, the house and setting up you cordoned it “REPORTER: Are scared? statutes, wrongful tress,” death “violation [beep insert- give I don’t “DECEDENT: consоrtium,” companion- “loss of “loss of Guard 12] ed the National Channel ship.” out here. comes your you mean to hold

“REPORTER: Did com- responded to Clift’s Narragansett hostage? you. Did wife to Rule pursuant by motion to dismiss plaint

12(b)(6) of Rules Civil Superior Court of Procedure, asserting a failure therein No, my I don’t want wife “DECEDENT: relief could be upon which state a claim hostage. objection response to granted. Clift’s harm her you want to “REPORTER: Did affidavit of supported that motion was any way? (Dr. Cath), Cath, Massachu- Stanley M.D. No. “DECEDENT: purposes of psychoanalyst retained setts you harm her “REPORTER: Did Narragansett’s motion litigation Clift. way? affidavit, then, treated because- of No. “DECEDENT: motion for sum- hearing justice as a by the thereon, you have you hearing Are sick? Do mary judgment.1 “REPORTER: After justice some kind of sickness? a written decision hearing rendered granted in which she September on No, help no don’t want “DECEDENT: September Narragansett’s motion. On help. trying play I’m no morе. done dismissing judgment was entered final you give your- going Are “REPORTER: appeal followed. complaint. This Clift’s try up sir and to work. self No, myself giving I’m not “DECEDENT: II anywhere. is it. This is the up This final stand. Negligence he would “REPORTER: Mr. Clift told me as Blackstone describes suicide surrender, and he made that after heroism, “Self-Murder, pretended me, hung up the very clear he cowardice, philoso the stoic ” but real ‘phone.’ destroyed themselves to avoid phers, who previous carried out his sui- The decedent not the fortitude had those ills which approximately p.m. 6:07 cide threats at endure, attempting it seems though the home, immediately police entered the Clift law, yet civil to be countenanced in the home * * and noted that the television sets *. Athenian law punished tuned to Channel operating were and were wisely England And also the law just previously had the channel considers, man hath a that no religiously rеport- report of the broadcast the exclusive life, by commission destroy but power to telephone call to decedent. er’s and, God, it: as the the author of offense; one 14,1994, Clift, guilty double suicide February as administra- On prerogative of the estate; herself, invading spiritual, as trix of her husband’s immediate rushing into his widow; Almighty, and surviving parent of surviving and as for; temporal, children, the other presence uncalled commenced three minor decedent’s an interest defendant, king, who hath against the against Narra- a civil action subjects; preservation of all finally amend- complaint, gansett. her among the ranked this 1,1994, has therefore alleged nine causes law March she ed on spe crimes, making peculiar it a highest action, designated therein as which were one’s misconduct,” felony, felony committed on “wilful, cies “negligence,” wanton judges, very ratiоnally The law “right priva- self. trespass,” tort of “intentional fit hypoehondriác every melancholy or dis- cy,” “negligent infliction of emotional capacity of deprive a man of does not tress,” of emotional dis- “intentional infliction and the eventual call effect of both Although addresses the effect the affidavit mental call. telephone call on the decedent’s broadcast of that state, complaint refers to the and emotional discerning right wrong; which is nec See also Brown v. American Steel and Wire essary, (1909); as was chap Ind.App. observed a former 88 N.E. 80 ter, legal Freyermuth to form a Lutfy, excuse. And therefore 376 Mass. (1978); Metz, a real lunatic kills himself in a lucid N.E.2d 1059 Cauverien v. De interval, he ais felo de se as much as 20 Misc.2d (N.Y.Sup. 188 N.Y.S.2d 627 Canonica, 1959); Bismarck, man.” another Tate v. City Cal. Falkenstein v. (N.D.1978). App.2d N.W.2d 787 The Daniels rule Blackstone, (quoting 4 upon in Bogust emerged Commentaries on relied later in the (8th (Second) Torts, England, the Laws ch. 14 at ed. Restatement 1778)). which states: “If brings the actor’s conduct so Island, state, Rhode common law also con- insanity the about delirium or of another B., felony. siders a suicide In re Marlene it, as to make the actor liable for the actor (R.I.1988). 540 by is also liable for harm done the other to country The first civil action cases insane, himself while delirious or if his involving allegedly resulting suicide claims insanity delirium or negligent from a defendant’s act were (a) prevents realizing him from the na- strongly by influenced the common law clas- certainty ture of his act and the or risk of result, felony. sification of suicide as a As a therein, harm involved or the courts in those earlier cases found that (b) impossible him makes it to resist terminated, normally the act of suicide all impulse by an insanity caused his ‍​‌‌‌‌‌‌‌​​‌​‌‌‌​​​‌‌‌‌‌‌​‌​​​‌‌​​​‌‌‌​‌​​​‌​‌​​‌‍which (cid:127) judicial civil of a defendant. The deprives capacity him govern of his reasoning being was that a criminal conduct in with reason.” accordance act, typically was not the foreseeable result any alleged negligence. right recovery negligent. to civil See v. Scheffer (15 Otto) 249, allegedly resulting Railroad 105 U.S. suicide was considered, early L.Ed. 1070 From this and some contend restrict- further ex- however, emerged, panded,2 by ed view there a the California court in 1960. line of recognize right cases that came to a of recov- Tate, 40, CaLRptr. perhaps the ery in certain limited factual instances. issue, most cited case on the that court held developed The new rule that in those cases negligent wrong only

was that act “where the permit the of suicide could causes injured damages per- civil mental condition in which only partic- action for but if the ulаr son is suicide was the able realize the nature of the act power of suicide and has the it if to control impulse, “result-of an uncontrollable or is desires, he so the act then becomes an accomplished frenzy in delirium or caused independent intervening force and the act], negligent [defendant’s wrongdoer cannot be held liable for the produce and without conscious volition to hand, death. On the other death, having knowledge wrong causes mental illness which results consequences

nature and of the act. An in an uncontrollable to commit sui- resulting moderately act of suicide cide, wrongdoer may then the be held lia- choice, intelligent power though even ble for the death.” the choice is determined disordered mind, should be deemed a new and additionally inde- The California court noted pendent, efficient cause of the death that that there could be even if the de- Iverson, immediately is, Bogust ensues.” doing, ceased knew what he was 129, act, 10 Wis.2d 102 N.W.2d 232 when he knew the nature of his but did (1960)(quoting ability against Daniels v. New York N.H. not have the to decide R., & H.R. killing 183 Mass. 67 N.E. 424 suicide and to refrain from himself. (1903)). essentially Id. That California rule is Toed, Rapid adopts 2. See Tucson Transit Co. v. 3 Ariz. court a rule that is more 'liberal' than the (1966)(“the Restatement”). App. P.2d [Tate ] rule of the plaintiffs necessary elements adopted as the the other same view courts been with Because negligence other that have confronted claim were satisfied. civil-liability-for-suicide permits issue. from a upon appeal that ease centered recovery court, when a deceased knew and in sus summary grant, aware of nature of his her act but appeal, to dis taining the did undertake completely unable to abandon оr overcome the case but deter cuss the merits of impulse” carry it out. the “uncontrollable pleadings affidavits mined that case Tocci, 3 Rapid Tucson Co. v. See Transit hearing justice raised considered (1966).3 Ariz.App. P.2d prevented should question of fact that have reasoning of Tate has been followed summary judgment. No later many of the Exxon later decisions. See Jersey prece in New has followed that case Brecheen, Corp. v. S.W.2d dent, adopted has such a and no other state im (Tex.1975)(interpreting uncontrollable recovery suicide cases. liberal pulse applying rule as situations in which have, however, indicated a later cases Some knowledge deceased nature of had but, as in willingness adopt such a rule control his his suicidal act but was unable to Tate, only expressed willingness actions); Spokane County, 58 Orcutt v. Jersеy Rail dicta. See Halko v. New Transit P.2d Wash.2d (S.D.N.Y. Inc., Operations, (1961)(where test uncon medical establishes Preis, 1987); Fuller 35 N.Y.2d 363 v. impulse to commit it is of no trollable N.E.2d 263 N.Y.S.2d 322 Cf. consequence the na that the deceased knew Services, Ltd., Transport Pigney v. Pointer’s reasoning ture of the act or used to accom (1957)(an English 1121 case allow 1 W.L.R. act). plish the v. See also Jamison Storer recovery prelimi without a for a suicide Broadcasting impulse, nary showing uncontrollable of an S.D.1981). (E.D.Mich., delirium). insanity, or Although holding in not ex- the Tate did beyond point in important uncontrolla- to note that to this tend the well-established It is rule, did, however, impulse the court ble those our we have addressed dicta, in in proceed question, upon whether solely concerning claims based cases voluntary involving a suicide not com- cases and not negligence principles law common under of mitted thе influence an uncontrolla- con- that intentional acts or cases involved “ intervening third impulse ble act of a ‘the that intended by a civil defendant were duct wrong- person original the relievefs] bring final act of suicide. That about the liability intervening doer of if the act was negligent of a the action distinction between reasonably original result the foreseeable of of a intentional action defendant the Tate, Cal.Rptr. wrongdoing.’” actor’s in- in those significant because defendant However, specifical- 42. the California court cases, entirely tentionally an caused suicide ly not now stated and do “need play. into rule comes different of question. decide” that Id. addressing case-fact also not herein We are relationship special exist- wherein a instances yet The closest court has come a suicide-de- ed between defendant the adopting suggested view broad later in a civil action commenced ceased Zygmaniak dicta in Tate v. Kawasaki was those deceased. In representatives of the Corp., N.J.Super. Motors courts, cases, of the because particular (1974), dismissed, 68 N.J. factor, uniformly relationship special (1975), Jersey New court re- which the ordinary duty of a of the existence grant summary noted favor versed cases, could be In such a defendant care. That court in that case of the defendant. suicide, notwithstanding liable impulse held finding that a of an irresistible held impulse, any uncontrollable long as unnecessary so the absence to commit suicide was of his prevented of the nature why Tate realization court felt state It is not clear Tucson prevented mental if the deceased's state expanded forth in act or the rule set impulse overcoming irresistible his the Restate- him from since permits recovery commit suicide. if the deceased’s mental the suicide was a stemming foreseeable risk his her condition or impossible makes it negligent from the defendant’s acts. for him impulse See or her to resist the suicidal Zezulka, Hickey depriving person 439 Mich. capacity 106, 119 (prisoner reasonably holding N.W.2d in a control or her conduct and not his hanged carry impulse. cell himself out and court held that the suicidal duty ordinary defendant owed a care to believe We that the un- application give aid protect prisoner to and especially controllable rule is com- harm special relationship because pelling present to the facts in this jailer existed prisoner between and his appeal because addition to the prisoner’s brought by legal claim his issue, there is interwoven into those representatives premised upon the theo facts fundamental First Amendment consid- ry that failing the defendant was erations. prevent prisoner’s or in suicide creat DeFilippo Broadcasting v. National ing a stimulus for the commission of his Co., (R.I.1982), 446 A.2d 1036 we there held act, suicidal and the suicide was not a su that a television station was not liable perseding intervening injury); cause of his hanging allegedly inspired by death of a child Bismarck, City Falkenstein v. 268 N.W.2d showing “Tonight of a stunt on the Show” (N.D.1978)(inmate jail city com similar to the hang one used the child to mitted suicide and court held that “notice of establishing himself. After the First propensity to commit suicide would result applies through Amendment to the states obligation greater pre to exercise care Amendment, began Fourteenth legal we our suicide”). venting the See also Meier v. Ross analysis in that сase with a discussion Hospital, General 69 Cal.2d extent to rights may which First Amendment 903, 445 (1968)(a P.2d hospital poten proscribed. only speech We found that tially hospital patient hable because a who falling specifically into certain defined areas high was at a placed risk for suicide was near could be controlled. Those controllable areas open window from which later she words, obscenity, fighting included defamato- jumped). ry privacy, likely invasions of and words to With alleging, to civil claims (incite- as a produce imminent lawless action liability, negligence ment). basis for the of a defen- In DeFilippo pro- we considered the being proximate dant as the cause of a dece- gram-stunt-descriptive-speech leading to the suicide, dent’s the rule that has hanging speech. suicide to be incitement Id. special evolved is that rеlationship unless a Although subject at 1040. potentially reg- ulation, existed between the defendant and the de- speech we nonetheless held that the ceased higher displayed that created an increased or “Tonight on the Show” did not duty protect potentially permit recovery care to a negligence suicidal under either a or person injury, theory from foreseeable the recklessness because Restate- (1965) § ment rule is the exception applied “the incitement must be most applied.4 recog- favored and That rule with extreme care since the criteria under- liability negligent nizes for that lying application Further, vague. its are brings insanity about delirium or in another allowing recovery exception under such an if while that condition of delirium inevitably or self-censorship would lead to on insanity exist, prevents broadcastеrs, continues to it part the depriving thus person realizing affected the nature of both broadcasters and viewers of freedom field, Falkenstein, Tate, compensation Bogust, In the workers’ for forth in and the Re- “ (Second) Torts, (1965). decedent's suicide has been found when ‘the statement Howev- that, er, compensation analysis incontrovertible evidence shows without the the workers' has not injury, by any would there have been no suicide.’" been embraced court outside the workers' Manufacturing. compensation concept, Graver Tank & Co. v. Industrial field because fault so Commission, 256, cases, negligence 97 Ariz. 399 P.2d central in is absent and not (1965); Burnight v. Rapid Industrial Accident Commis essential in such cases. See Tucson Tran- sion, Cal.App.2d supra, (rejecting analysis sit in workers’ rule, essentially compensation adopting That rule is a "but-for" cases and instead the ir- significantly rule). impulsе more liberal rule than that set resistible iak, else, unfairly choice, create a dual for all the First would our view ‘above actually impinge care that standard of government means that has Amendment rights of on First Amendment fundamental power expression no to restrict because of press. ideas, subject message, its its its matter or (citing its content.’” Id. at 1042 Police light of con scientific advances Chicago Mosley, Department 408 U.S. study of stantly being made in the the cause 92 S.Ct. 88 L.Ed.2d prevention we conclude and the (1972)). though press is not entitled to that even noted, previously gener- As has courts been any greater protection than that afforded ally expand right have refused of re- rule, it is impulse the uncontrollable likewise covery a suicide to have for been deserving ap anything not less. That beyond negligently caused the uncontrollable propеr proach strikes the we believe balance explained Bogust rule and Tate. right of for person recover between right recovery certainly That should allegedly negligence a suicide caused expanded in fact situations when funda- be press require constitutional rights the press mental First Amendment chilling protect press from the involved, are in this case and are overly regulations speech. effect of broad appeal. say press That not to that we believe is negligence for its immune right publish “[T]he is central to the impenetra that First is an Amendment First Amendment and basic to the exis claim. To the ble shield from democracy. tence of constitutional notwithstanding contrary, that we believe important to No less the news dissemina protections, First Amendment constitutional process gathering tion is the of informa everyone, including prеss, should be an unnecessarily tion. News must not cut unprivileged actions swerable source, off at its without freedom to proximately result in suicide. real We acquire publish information expressing ize belief there are compromised.” impermissibly

would be press-media those in and out the field both 665, 727-28, Hayes, Branzburg v. 408 U.S. the First Amendment is an who insist 2646, 2672-73, 92 S.Ct. 33 L.Ed.2d impenetrable press shield criticism from both (1972)(Stewart, J., dissenting). liability. also realize that First civil We “ press special Although the ‘has no immu- rights press are much Amendment as ” nity laws,’ application general from the by its critics. endangered zealots its 2657, id. at at 92 S.Ct. 33 L.Ed.2d at impulse Accordingly, the uncontrollable rule certainly adopt, we should not where all, as explained to be fair to we believe involved, rights press fundamental are earlier, applied in Rhode will hereinafter rule than followed in broader negligence seeking to all actions re Island overwhelming majority juris- of other state of who defen covery regardless for suicide subject dictions. For us to do so would press is in might dant be or whether press, Rhode members of the Island as well volved. Island, citizenry greater as the of Rhode liability impulse press persons Applying civil than uncontrollable other appeal, we conclude citizens in the our sister rule the facts this states. justice impermissibly granting in sum Such rule would inhibit the that the trial erred mary negligence press in on the count. gather Rhode Island its efforts in the affi that There were facts medical disseminate news. We believe Cath, rule, gen- plaintiffs’ ex the uncontrollable which is davit of Dr. medical erally involving pert, suggest suicide applied ‍​‌‌‌‌‌‌‌​​‌​‌‌‌​​​‌‌‌‌‌‌​‌​​​‌‌​​​‌‌‌​‌​​​‌​‌​​‌‍in cases that the decedent’s involved, impulse that press from an uncontrollable suicide in which the is resulted insanity brought rule in was about a delirium or should also be the in casеs which the ap Any Narragansett’s negligence. press is expanding involved. rule liabili- caused justice ty involving sug- pears trial undertook to eval press, in such as that the cases Tate, Halko, Fuller, gested Zygman- opinions expressed uate the Dr. Cath permitted his affidavit. He was not ing Synthesis Psy to do so. Suicide: A Law and (1971). chiatry, That fact evaluation constituted a matter that Vand.L.Rev. 217 Thus intentionally subjected defendant jury. “[a] is reserved for the trial who role of the hearing justice summary intending another to mental distress without judgment pro bodily to cause harm would nevertheless be ceedings finding is limited to issue and not resulting bodily liable harm if he should issue determination. Saltzman v. Atlantic might foreseen that the mental distress Co., (1981). Realty 434 A.2d Tate, Cal.Rptr. cause such harm.” at 34 case, justice permitted the trial was not (citing State Rubbish Collectors Ass’n v. Sil opinions evaluate Dr. Oath’s in but was (1952)). iznoff, 38 Cal.2d 240 P.2d 282 required light stead to view them in the most See also Restatement plaintiffs, accepting favorable as true (1965). However, foreseeability not, in and the medical that the call itself, sufficient establish already existing exacerbated the “self-de involving cases suicide. There must in addi impulses” structive of the decedent and that proof tion be that a defendant’s intentional reporter’s telephone absent call it was bring “substantial factor” in “unlikely” that the decedent would have com certainly about the a more strin mitted suicide “when he did.” That affidavit gent employed typical test than that inten presented an issue of material fact ear tional infliction of emotional distress cases. jury marked for the trial to decide. See Marder, F.Supp. Rowe v. Mills, Holliston Inc. v. Citizens Trust (W.D.Pa.1990), (3d aff'd, 935 F.2d 1282 Cir. (R.I.1992); Rustigian 604 A.2d Tate, 1991); Kimberlin, 36; Celona, (R.I.1984); 478 A.2d 127; Mayer 637 N.E.2d at Hamp v. Town of State, (R.I. Steinberg v. ton, 127 N.H. 497 A.2d 1206 1981). inherently stricter substantial factor rule is necessary in suicide cases because “the final III always appears indepen cause death as an Wrongful Death, Consortium, will, separate always Loss of dent raising act of a Companionship very possibility

Loss of real the suicide was truly unrelated to the defendant’s actions.” summary judgment Because improper Rowe, Additionally, at 724. count, plaintiffs’ negligence on the it was proved there must be an intent to cause accordingly improper wrong- to the injury just Thus, and not an intent to act. death, consortium, ful loss of and loss of can be found where “the actor companionship claims and counts. injury, injury intended to cause and the is a bringing substantial factor about the sui IV Tate, Cal.Rptr. cide.” at 36. Intentional Infliction of Notwithstanding acknowledgment our Emotional Distress rule, of the substantial factor as well as our (Second) analysis prior of adoption whether a defen of Restatement Torts, (1965), dant is allegedly § liable for a suicide caused in Champlin Washing 46 v. analy Westerly, intentional conduct differs from the ton Trust Co. 478 A.2d of liability negligent (R.I.1984), sis for conduct because the instant ease is not a substan case, superseding-cause concept appli there is no plaintiffs tial factor and the have failed allege cable to intentional complaint necessary torts. Kimberlin v. De- to in their (Ind.1994). Long, 637 N.E.2d 121 See also elements of a claim for intentional infliction Schwartz, Liability E. Victor Civil Caus- of emotional distress.5 That failure entitled explanation required plaintiff 5. A concise elements must establish intentional and outra- defendant, geous proximate for an intentional infliction of severe emotional Paschal, cause, Burbridge distress claim is found in v. Initially, and distress that is severe. (A.D.1990). N.J.Super. 570 A.2d 1250 plaintiff prove must that the dеfendant acted "Generally speaking, intentionally recklessly. a For an establish claim for intentional distress, liability, intentional infliction of emotional act to result in the defendant must genuine alone to a Narragansett summary judgment. pleadings In or- establish Mercy fact.” v. sum- of material plaintiffs for the to have avoided issue Sisters der Wilkie, (R.I.1996)(citing they allege A.2d mary judgment, required to were In- complaint not Nichola v. John Hancock Mutual in their and demonstrate Life (R.I.1984)). Co., outrageous part and conduct on the surance extreme to this and submitted Narragansett, but the existence The memoranda briefs also Superior did resulting physical Reilly v. and to the Court below symptomatology. Court States, (R.I.1988). meaning to the as- Oth- add substantive United It plaintiffs’ complaint. in in the general conclusory made er than statement sertions allege.no intentional complaint, to state a viаble claim for the plaintiffs amended fails motion caused con- infliction of emotional distress. The physical ills the defendant’s fact, summary justice granting not err in ignore Rhode Island’s did duct. for the defendant on count physical symptomatology requirement Court first instance instead in their to this Court for the cite brief merely requires case that severe men- determine whether defendant’s Maine Co., conduct, in the could rea- complaint, set out pain. tal Vicnire Ford Motor Credit (Me.1979). out- sonably regarded court as so extreme and 401 A.2d 148 The Maine be liability. distinguished negligent rageous and inten- to result between § claims h tional infliction of emotional distress Torts comment by holding physical symptoms are neces- York Post As the Court Howell v. New sary only when the emotional infliction of 81 N.Y.2d N.Y.S.2d However, negligent. is this Court distress stated: N.E.2d specifically has that in Rhode Island stated expressly pro- “The 1948 Restatement no difference exists between not be privileged conduct could vided infliction intentional of emotional distress (Restatement the basis for respect physical claims the need for Supp.]), § the com- [1948 symptomatology. recognized “the We have signify an ments to the current version has damages to recover one who privileged-conduct to continue intent subjected negli- to the intentional or the been conduct, although it would exception: ‘The long gent infliction of mental as distress may outrageous, be extreme and otherwise * * * accompanied by phys- [is] the distress privileged under the circumstances. added.) (Emphasis Reilly, ical ills.” liable, example, never The actor is A.2d at 896. has than to actor] done no more [the where legal rights upon [or her] insist unsupported conclusory asser way, though she] even is permissible [or he plain tions of ills contained in the such is certain aware that insistence well complaint were in our view tiffs’ insufficient (Restatement to cause emotional distress.’ successfully defendant’s resisted the g.) of Torts comment [Second] summary oppos judgment. motion for “The publication a news- summary judgment newspaper’s “A party [to motion] upon worthy photograph an act within may allegations not rest contained produce expected endure to do emo- man could be intend both the act and to reasonable Liability distress. attach when circumscribing tional will also By with the cause of action it.’ recklessly defendant acts deliberate dis- dam- threshold for an elevated high degree probability legitimate ages, claims courts have authorized distress emotional will follow. eliminating not be while those that should "Second, must be defendant’s conduct compensable. outrageous. and must be extreme The conduct severity of the emotional distress raises "The character, outrageous in so extreme in ‘so Thus, questions of both law and fact. degree, go beyond possible as to bounds ah such whether as a matter of law court decides atrocious, decency, regarded ‍​‌‌‌‌‌‌‌​​‌​‌‌‌​​​‌‌‌‌‌‌​‌​​​‌‌​​​‌‌‌​‌​​​‌​‌​​‌‍and to be found, jury can and the emotional distress community.' utterly intolerable in a civilized proved.” whether it has in fact been decides Third, the have been defendant’s actions must Id., Buckley (quoting v. 570 A.2d proximate plaintiff’s cause emotional Soc., Saving 544 Fourth, Fund 111 N.J. Trenton distress suf- distress. the emotional (1988)). by plaintiff ‘so severe that no fered must be 814 (i)

contemplation ‘privileged-conduct’ of the publication there has been some of a fact; exception (compare, Mag. private Hustler v. Falw ell, 46, 56, 876, 882, 485 U.S. 108 S.Ct. 99 (ii) public fact The which hаs been made 41.[sic]) Thus, L.Ed.2d even if defen must be one which would be offensive or publication dants were aware that would objectionable to a man reasonable of ordi- (see, plaintiff cause emotional distress Re sensibilities; nary § statement [Second] Torts com (B) The fact has which been disclosed f), publication more —could —without any need not be of benefit to the discloser ordinarily lead to for intention of such fact. al infliction of emotional distress. We do (4)The right publicity to be secure however, suggest, plain not mean to that reasonably places in a false another tiff privilege could never defeat the light public.” before the state a claim for intentional infliction of (1) portion Subsection of that statute is the Howell, emotional distress.” 596 N.Y.S.2d appeal. relevant to this 350, 612 N.E.2d at 705. respect privacy to the invasion of decеdent, claim asserted on behalf of the we

Y conclude that that claim is without merit Privacy Invasion of right privacy since the per dies with the Webb, R.I. 13, Henry Cherry An action for privacy invasion of was not son. v. & 73 (1909). law, A. maintainable at common v. See also Providence Kalian Journal PACE, 429, 431, Investigation, R.I. Co. Federal Bureau (1979), (D.R.I.1978), F.Supp. available mechanism rev’d on other (1st Cir.1979), may grounds, which such an action be maintained is F.2d 1010 cert. denied, § provides G.L.1956 9-1-28.1. That statute U.S. S.Ct. (1980); L.Ed.2d 752 a, comments b “every person in this state shall have right privacy which shall be defined to pertains privacy As to the invasion of any following rights include individ- claim family, asserted the Clift con we ually: telephone clude that the one call (1) right The to be secure from unreason- reporter did not invade area of the fami able upon intrusion one’s solitude ly’s reasonably seclusion that could have seclusion; or exрected private. Certainly been to remain (A) In order to recover for violation of question no one can the newsworthiness of right, it must be established that: public Only the sad but incident. one tele (i) phone during publicity-charged call inci something invasion of reporter, dent was made and that private is entitled to be or be ex- single telephone call was insufficient pected private; to sus to be privacy tain an invasion of claim. See Burris (ii) Such invasion was or is offensive Telephone v. South Central Bell objectionable man; to a al- reasonable (S.D.Mss.1982); Lynn v. Allied though, Carp., App.3d 41 Ohio 536 N.E.2d 25 (B) person The who discloses such infor- (1987). Moreover, conversation mation need not benefit from such disclo- reporter person voluntarily with a in which a sure. participated has been held insufficient to sus right appro- to be secure from an privacy tain an invasion of claim. v.Wolf likeness; priation of one’s name or Regardie, (D.C.App.1989). 553 A.2d 1213 nothing telephoning There was the act of to be secure from unreason- the decedent in this case that revealed to the life; publicity given private able to one’s anything public that would not come to (A) In public’s irrespective order to recover for violation of attention of the tele right, phone already public knowledge this it must be established that: call. It was

815 Justice, part FLANDERS, concurring in threatening decedent was to commit the had the suicide and that his wife been inside dissenting part. and day attempting home that fateful to earlier join aspects I of the court’s all doing The dissuade the decedent so. TV, the except part for which affirms trial reporter by inquiring de- defendant’s of the the intentional-infliction- court’s dismissal of improperly cedent if hе was “sick” did not respectfully I claim. of-emotional-distress family’s privacy invade it was the Clift since because, in the part dissent from IV circum- only to the decedent. In to directed case, proof of I do not believe of report stances this the later television eventual broadcast call, of the it was well the physical symptoms within of emotional distress reporter report a of news such necessary of this cause should be element newsworthy story. perhaps lacking in While disagree with the court’s of action. also taste, good reporter’s the conversation with is conclusion “the instant case not a not, however, did to the decedent rise question The of substantial factor case.” level of intrusion an actionable into the Clift intentional whether defendant’s family’s seclusion, summary judgment and bring- factor in misconduct a substantial was granted pri- on the properly invasion of is a ing about the decedent’s suicide factual Howell, vacy supra.; claim. See Restate- determined, issue that should not be as it (Second) Torts, 46, § g comment here, summary-judgment on motion.6 reasons, Accordingly, for all the above A the courts that have ad- of 1, plaintiffs’ appeal as to counts is 8 and 9 physical symptoms issue allow dressed appeal sustained. Their as to counts and recovery of infliction emotion- intentional respect is denied. With counts 3 and notwithstanding al of distress absence plaintiffs appeal. have waived their As re- Annotation, any physical injuries. See Mod- willful, gards claiming count mis- wanton em Status Intentional Men- damages, punitive conduct and note that we of of Infliction Tort; Independent “Outrage,” tal Distress as disposition plaintiffs’ because of our of the cases). (1985) (collecting appeal 4 and 6 and 38 A.L.R.4th 998 on counts their waiver of appeal so, punitive damages doing jurisdictions on count adopted would these (Second) inappropriate on the counts remanded position Restatement Accordingly plaintiffs’ trial. appeal on § who extreme “[o]ne judgment count 2 dismissed. is likewise outrageous intentionally or reck- is, thus, part part. affirmed in vacated lessly causes severe emotional distress subject is for such emo- another papers this case are remanded distress, bodily tional harm to the Superior proceedings Court for further it, bodily opinion. this other results for such harm.”7 accordance with * * Page Ironically, *.” W. appropriate two the cases with of relied on instructions (5 majority support proposition. See Rowe v. et Torts 45 at 321 th Keeton The Law al.. Morder, (W.D.Pa.1990) 1984). ed. (suggesting "juiy” for the that it is to decide Mississippi Edgeworth, See also 214 So.2d “ wrong was whether an intentional 'substan (Miss. 1968) (when "a defendant has commit suicide”), causing aff'd, tial factor' in tort, questions an of whether the ted intentional Canonica, (3d Cir.1991); F.2d Tate v. take his life deceased was ‍​‌‌‌‌‌‌‌​​‌​‌‌‌​​​‌‌‌‌‌‌​‌​​​‌‌​​​‌‌‌​‌​​​‌​‌​​‌‍induced to (hold Cal.App.2d ing irresistible and whether intentional (a) be liable if that "defendants causing was a factor in the sui tort substantial they intentionally physical caused severe or men jury”). ordinarily are cide issues for decedent, (b) tal distress to notes that 7. One recent review be, law article enough was severe in the mental distress recognize forty-eight that now tort of states fact, a the trier substantial factor distress, suicide”) added). all but intentional infliction of emotional (emphasis bringing about the Keeton, adopted three have the Restatement’s articula- according And to Prosser and this cause of action. See tion of thе elements of differ, might persons either be- “if reasonable Weiner, Violence and the Per Merle H. Domestic dispute relevant facts are or because cause application Maryland Outrage, 54 L.Rev. (such Se Standard legal concept as a 'sub- (1995) (discussing formulation) factor' an evaluative stantial Shahvari, (1965)); § 46 see also Mandana persons Torts Comment, as to which reasonable determination differ, jury Aids as Cause might Fear the issue is submitted to the Afraids: Indeed, event, Champlin Washington any in Trust tend to resolve would doubts Co., (R.I.1984), Westerly, 478 A.2d about the bona fides of emotional adopted § this court 46 of the Restatement injuries by letting in intentional-tort cases (Second) Torts as the standard to be used in accept the factfinder decide whether to or to determining of a creditor accused reject injured party such evidence as the intentionally inflicting severe emotional trial, may present at rather than allow the on distress a debtor. wrongdoer prevent accused intentional being such claims at the outset from ever sure, To be in there are dicta some of our bodily considered unless there is evidence of support physical injury decisions that re- Indeed, injuries. States, those cases which the quirement. E.g., Reilly v. United physical injuries symptoms only of emotional (R.I.1988); Depart- Curtis v. State appear Families, after the treatment of a “rare and Children and Their for (R.I.1987). major required A.2d serious condition which Reilly But in court sur- answering question gery,” certified to it from intentional tort victims would face a evidentiary United States District Court for the proving Dis- double hurdle in whatev- trict of Rhode having Island a case to do they may er emotional trauma have suffered: only %ey%ewi-infliction-of-emotional- with a establish that distress сlaim. And in language Curtis the physical symptoms exist to recover their for pertaining necessity proof physi- to the injuries symptoms emotional but such could symptoms unnecessary cal to the court’s presented not even be to the factfinder with- holding that maintenance of an intentional- support expert out the medical-causation requires infhction-of-emotional-distress claim Tomaselli, testimony. Compare Marshall v. outrageous evidence of extreme conduct. 190, 196-98, R.I. 1284-85 Fay, Chief Justice the author of the court’s (1977) (requiring expert medical witness Curtis, opinion very point made this in his medical-malpractice support in a case to Reilly dissent case: plaintiffs allegation injured that she was as a “Although opinion the Curtis refers to old- physician’s negligence result of the defendant required er physical symptoma- cases that performing major surgery on her or in tology injury, holding per- emotional its treating her “rare and serious condition” af- necessity proving tains to the extreme (1) operation ter the because the treatment outrageous conduct. Such sufficiently was “neither common nor suffi- eliminates the need man- ciently layman nontechnical that a could be added.) (Emphases Reilly, ifestation.” expected appraise it” and the attribu- C.J., (Fay, dissenting). 547 A.2d at 902 relationship tion of a causal between the

For plaintiffs injuries the reasons stated Chief Justice and the defendant doctor’s Fay dissenting with Justice Kelleher in Reil- alleged negligence beyond “was the ken of an ly, high I would not set the bar so as to layman”) average Stuckey with v. The Rhode require those victimized another’s outra- 450, 453, Island 42 R.I. A. geous physical-injury misdeeds to vault (citing approval with cases and author- hurdle before their foreseeable mental an- distinguishing incompetent ities medical guish compensable can be least not in opinions by lay witnesses from such wit- —at which, intentional-tort cases like this one in testifying appearance nesses to the external all, plaintiff order for a to recover at injuries of their own “ as well as to their outrageous defendant’s conduct must be so ‘feelings, pains symptoms, as well as to go beyond decency.” “as to all bounds of injury, all the characteristics of the external 46 cmt. d. ”); and internal’ see also 31A Am.Jur.2d Ex- pert Opinion §§ Evidence 199-210 presumption

In such cases that some (1989); Annotation, Admissibility type of severe emotional distress will occur is death, disease, great, consequently evidence as there is less chance to cause disingenuous. injury, such claim will be 66 A.L.R.2d Action, (1994) (observ- Temp. requirement L.Rev. abandon the that emotional distress develop physical injury”). that the "trend” in these cases “has beеn to into Finally, privilege First Amendment preclude plaintiffs’

does not intentional-inflic- Kayla et al. BUJA For all the tion-of-emotional-distress claim. set forth court’s con-

reasons why privilege cerning the First Amendment MORNINGSTAR, M.D., et al. Howard W. plaintiffs’ preclude not claim does 11-14), (Maj. op. privilege at such fortiori No. 96-76-M.P. plaintiffs’ bar does not intentional-infliction- Howell v. of-emotional-distress claim. See Supreme Court of Rhode Island. Post, 115, 596 New York 81 N.Y.2d 350, 612 N.Y.S.2d N.E.2d Jan. says as Howell decision much: * * * suggest not mean to that a “We do privilege plaintiff could never defeat the state a claim for intentional infliction

of emotional distress. ‡ ‡

« $ recognized news-gath- “Courts have * * * and, may

ering methods be tortious journalist engages that a

to the extent atrocious, utterly despi-

such indecent and rigorous

cable conduct as meet the re- of an

quirements infliction intentional claim, recovery may

emotional distress Id.,

available.” N.Y.S.2d Onassis, at 705 (citing

N.E.2d Galella v. (2d Cir.1973)).

487 F.2d court more point

The Galella made this even

emphatically. In rejecting the contention

that the First of immu- Amendment is wall

nity protecting any liability, media the court said: “Crimes and torts committed gathering are protected. news not press requir-

There is no threat to a free agents to act its within the law.” Galel-

la, 487 F.2d at 995-96.

Moreover, hardly “publication— ‍​‌‌‌‌‌‌‌​​‌​‌‌‌​​​‌‌‌‌‌‌​‌​​​‌‌​​​‌‌‌​‌​​​‌​‌​​‌‍this is “privileged case.

without more” Thus the exception

conduct” cited prevent not have been as to applied

should so plaintiffs prosecuting their claim

these

for intentional infliction of distress. emotional

Accordingly, I sustain the

plaintiffs’ appeal challenging the dismissal mtentional-infhction-of-emotional-dis-

their claim but would also remand

tress case, negli-

aspect together with the claim, includ-

gence proceedings, for further necessary, a

ing, if trial.

Case Details

Case Name: Clift v. Narragansett Television L.P.

Court Name: Supreme Court of Rhode Island

Date Published: Dec 23, 1996

Citation: 688 A.2d 805

Docket Number: 94-594-Appeal

Court Abbreviation: R.I.