EDWARD P. FOLEY & another vs. POLAROID CORPORATION.
Supreme Judicial Court of Massachusetts
Middlesex
September 12, 1986. - May 21, 1987.
400 Mass. 82
Present: HENNESSEY, C.J., WILKINS, LIACOS, ABRAMS, NOLAN, LYNCH, & O‘CONNOR, JJ.
1 Mary Foley.
At the trial of an employee‘s false imprisonment claim against his employer, the defendant was not entitled to a directed verdict, where its proof depended upon oral evidence and where it had the burden of proving that its confinement of the plaintiff, in the course of its investigation of an accusation against him, had been undertaken in a reasonable manner and continued for no longer than a reasonable time. [89-90]
At the trial of an employee‘s false imprisonment claim against his employer, the judge erred in instructing the jury, in effect, that an employee at will who relinquishes his right to move about freely, as the only available alternative to losing his employment, is restrained or imprisoned in the sense that imprisonment is an element of the tort of false imprisonment. [90-92] LIACOS, J., dissenting.
At the trial of an employee‘s false imprisonment claim against his employer, the defendant was entitled to have the jury instructed that, on all the evidence, it was for them to say whether the confinement of the plaintiff exceeded the limits of reasonableness. [92]
In a false imprisonment action by an employee against his employer, the employee was not precluded from recovering damages for any emotional distress suffered as a result of the employer‘s conduct, on the ground that such harm is compensable exclusively under provisions of the Workmen‘s Compensation Act,
At the trial of an employee‘s defamation claim against his employer, and his wife‘s claim for loss of consortium resulting from the defamation, the plaintiffs had the burden of proving that the defendant had abused its common law conditional privilege to disclose defamatory information concerning the employee, and the jury were not warranted in returning verdicts for the plaintiffs where there was no evidence that any of the allegedly defamatory statements, made among employees of the defend
At the trial of a wife‘s claim against her husband‘s employer seeking damages for loss of consortium arising from its intentional infliction of emotional distress on him, the evidence was insufficient to warrant the jury‘s finding that the employer‘s conduct toward the husband, following his acquittal on a charge that he had sexuаlly assaulted a coworker on company premises, had risen to the level of “extreme or outrageous conduct” requisite to the tort of intentional infliction of emotional distress. [96-100] LIACOS, J., & ABRAMS, J., dissenting.
At the trial of an employee‘s claim of malicious prosecution arising from his employer‘s allegedly instituting criminal proceedings against him after a coworker accused him of sexually assaulting her on company premises, the evidence was insufficient to permit the jury to find malice on the part of the employer, that is, that the employer knew there was no probable cause for the prosecution and that it acted with an improper motive. [100-101]
CIVIL ACTION commenced in the Superior Court Department on September 26, 1978.
After a judgment of dismissal was reversed by this court, 381 Mass. 545 (1980), the case was tried before Rudolph F. Pierce, J.
The Supreme Judicial Court granted a request for direct appellate review.
Stephen B. Deutsch (Robert L. Cowdrey with him) for the defendant.
Robert Emmet Dinsmore (Lester M. Gold with him) for the plaintiffs.
O‘CONNOR, J. In 1978, the plaintiffs Edward P. Foley (Foley) and his wife, Mary Foley, filed a complaint in the Superior Court against the defendant Polaroid Corporation (Polaroid). Foley was an employee of the defendant. The Foleys sought recovery, on a variety of theories, for damages allegedly resulting from Polaroid‘s actions beginning in June, 1976, when a coworker accused Foley of sеxually assaulting her on company premises.
Polaroid moved to dismiss the action for lack of subject matter jurisdiction, arguing that Foley‘s injuries were compens
The Foleys later amended their complaint by adding claims for false imprisonment and related loss of consortium. Polaroid then moved for summary judgment, which was denied except for the claims predicated on a violation of civil rights.
The case was tried before a jury, and the jury returned verdicts for the Foleys. Foley was awarded $1,500,000 on his malicious prosecution claim, $1,000,000 on his defamation claim, and $500,000 on his false imprisonment claim. Mary Foley was awarded $1,500,000 for loss of consortium arising out of intentional infliction of emotional distress, and $500,000 for loss of consortium arising out of defamation. The trial judge granted Polaroid‘s motion for judgment notwithstanding the verdict on Foley‘s malicious prosecution claim, but otherwise denied Polaroid‘s posttrial motions for judgment notwithstanding the verdict and a new trial or remittitur, and entered separate judgments in accordance with the verdicts.
Polaroid appealed from the judgments entered for the plaintiffs on the claims of false imprisonment, defamation, and loss of consortium, and Foley appealed from the allowance of Polaroid‘s motion for judgment notwithstanding the verdict on his claim for malicious prosecution. We allowed Polaroid‘s application for direct appellate review.
We reverse the judgments for the plaintiffs, and we affirm the judgment for Polaroid on Foley‘s claim for malicious prosecution. Judgment is to enter for Polaroid on all claims except Foley‘s claim for false imprisonment. The case is remanded for a new trial solely on the false imprisonment claim.
Wе summarize selected portions of the evidence most favorable to the plaintiffs. In early June, 1976, Phyllis Simon, a computer operator employed by Polaroid, reported to a supervisor that Foley, the lead operator on her shift, had sexually assaulted her in a conference room at Polaroid‘s Waltham facility. The supervisor informed his superiors of the charge. Polaroid management personnel discussed the matter, and then arranged a meeting with Simon for June 22. In addition to Simon and the supervisor to whom she had reported her charge, Raymond Belle, personnel manager for Polaroid‘s corporate
Two days after this meeting, Rutter approached Foley near the end of Foley‘s 11 P.M. to 7 A.M. shift, and asked Foley to accompany him to his office. Foley had bid on a promotion to supervisor of his shift, and had been told that he was a finalist in the competition for the promotion. He thought that Rutter was going to give him a “pep talk” regarding the promotion. When the two men reached Rutter‘s office, Shea was inside. Rutter introduced Shea and told Foley that Shea was Polaroid‘s top security officer. Rutter then told Foley that Shea had some questions for him, and that he was sure Foley would cooperate. Foley responded, “Sure, I sure will, no problem.” Rutter then left the room and Shea closed the door.
Shea motioned Foley to sit in the chair behind Rutter‘s desk. Foley was surprised at this and sat down instead in one of the chairs facing the desk. Shea picked up the other chair, positioned it between Foley and the door, and sat down. After Shea explained his responsibilities as security director for Polaroid, Foley asked why Shea wanted to talk to him. Foley thought that perhaps some payroll checks had been stolen or that some other breach of security had occurred. Shea then asked Foley whether and how he knew Phyllis Simon. After Foley responded, Shea informed Foley that Simon had made a serious charge against him involving an incident in a conference room. Foley stated that he was shocked and that he did not know what Shea was talking about. Shea said that he wanted Foley to tell him about the incident. Foley repeated that he did not know what Shea was talking about, and repeated that statement after Shea referred to the incident as a sexual assault. When Foley denied Simon‘s accusation, Shea told him to admit what he had done. Shea “accused [Foley] of doing it,” but told him that it did not have to be a police matter. Shea said three or four times that Polaroid would prosecute Foley if he did not admit to what had happened. Foley said that he would “never admit to something I didn‘t do like that.”
On a number of occasions during this interview Shea approached Foley‘s chair. Foley testified that “[Shea] would walk around the room, and he would clench his fist, and he would stare at me and tell me to come clean.” A few times Foley stood up “because it was easier for [him] to talk while [he] was standing.” On these occasions Shea told him to “sit back down” and at all times positioned himself between Foley and the door. At times, while Foley was sitting down, Shea “came and he stood right over [Foley],” and yelled at Foley while the two were thus situated. Foley testified that “I felt I was under arrest, and I thought the only way to get out of that room would be to have a fight with Jim Shea.”
At one point in the interview, Foley told Shea that he felt he was going to be sick to his stomach and wanted to use the restroom. Shea told him not to leave, and when Foley began to walk toward the door, Shea pushed his chair against the door. Shea said, “If you go out that door the job goes with you.” In the next hour Foley made two or three more requests to use the restroom, after which Shea acceded, telling Foley to come right back and not to talk to anyone. At this time Foley repeated his earlier request to see an employee representative. Approximately two hours had elapsed since Foley first entered Rutter‘s office.
When Foley returned from the restroom, he was told that Shea had called the Employees’ Committee and that William Graney, an employee representative, would arrive as soon as
Foley and Graney conversed privately for approximately one hour. A three-way conversation followed when Shea returned to the room. This continued until some time between 11 A.M. and 11:30 A.M., approximately four hours from the time Foley first entered Rutter‘s office. These events in Rutter‘s office form the basis of Foley‘s false imprisonment claim.
Events before and after this interview constitute the basis of Foley‘s malicious prosecution claim. When Simon first rеported her charge to Polaroid officials, she said she did not want to relate in detail the alleged incident in the conference room. In particular, she did not indicate the date on which the incident occurred. Even at the June 22 meeting between Simon, Jones, Rutter, Belle, and Shea, Simon did not elaborate on the incident. Simon told Polaroid officials that she did not want to bring criminal charges against Foley, that she wanted only that Foley be fired from his job, and that she wanted Polaroid to handle the matter internally. Shea had reported to the Waltham police department that there was an allegation of rape at the Polaroid facility.
Later on the same day that Shea interviewed Foley, Shea met with Simon and informed her that Foley had denied the allegations. Four days later Shea met with Simon and discussed with her the procedure she would have to pursue in filing a criminal complaint. Shea then drove Simon to the Waltham police department and introduced her to police personnel. He had talked with one of the police officers earlier.
During Simon‘s interview with the police, she was asked why she did not report the incident immediately. Simon respоnded that “Polaroid was handling it” and that “Jim Shea wanted to handle it within the department.” There was evidence that Simon had testified before the grand jury that “[t]he corporation said it was a criminal charge and should be outside,
Simon provided a statement to the police, which Shea read and witnessed with his signature. Criminal complaints issued the next day from the Waltham District Court charging Foley with assault and battery and rape by virtue of an unnatural act. Probable cause was found by a judge of the District Court, and a grand jury indicted Foley for rape and assault and battery. In June, 1977, a criminal trial was held in the Superior Court. The trial lasted approximately two weeks. The jury returned verdicts of not guilty.
Events occurring after Foley‘s acquittal form the basis of his defamation claim and Mary Foley‘s claims for loss of consortium arising from defamation and from intentional infliction of emotional distress. The evidence pertinent to these events will be discussed at appropriate points later in this opinion.
1. False Imprisonment.
Polaroid argues that it had a duty to investigate Simon‘s allеgations and that, because of that duty, it had a right to confine Foley in a reasonable manner and for a reasonable time for investigative purposes. Proulx v. Pinkerton‘s Nat‘l Detective Agency, 343 Mass. 390, 392-393 (1961) (“If the circumstances are such that an investigation is warranted, a person may be detained for a reasonable length of time and in a reasonable way“). Polaroid further argues, in effect, that it was entitled to a directed verdict in its favor on the false imprisonment claim because the evidence did not warrant a finding that it detained Foley unreasonably. We do not agree. Polaroid‘s argument must fail because Foley did not have the burden to prove that the detention was unreasonable. Rather, Polaroid had the burden to prove reasonableness. With limited exceptions not present here, a verdict dependent on oral evidence cannot be directed in favor of the party with the burden of proof. Companion v. Colombo, 338 Mass. 620, 623 (1959). MacKinnon v. Medford, 330 Mass. 70, 71 (1953). That the
Polaroid‘s next argument relative to Foley‘s claim of false imprisonment is that the judge erred by instructing the jury that “physical force, placement of physical barriers, threats of physical harm, or threats of other harm” may be the means of effectuating an unlawful confinement. Polaroid argues that, on the evidence presented, “threats of other harm” could only refer to a threat of discharge from employment. Foley does not appear to dispute this assertion. We therefore discuss whether a threat of discharge can be the basis of a false imprisonment claim. More particularly, we consider whether a threat of discharge can constitute the imprisonment required to establish such a claim.
We have said that ” ‘[i]f a man is restrained of his personal liberty by fear of a personal difficulty, that amounts to a false imprisonment’ within the legal meaning of such term.” Coblyn v. Kennedy‘s, Inc., 359 Mass. 319, 321 (1971), quoting Jacques v. Childs Dining Hall Co., 244 Mass. 438, 438-439 (1923). In Jacques, the plaintiff was a patron of the defendant‘s restaurant. As she was leаving the restaurant with her guest, who had not eaten, an employee motioned her to come back and asked her why she had paid only one check. The plaintiff answered that her guest had not eaten, and started to go out, but she was told to wait. Following another employee‘s directions, the plaintiff went to the rear of the restaurant, and an investigation ensued. After a delay of approximately thirty minutes, the manager of the restaurant told the plaintiff, “You may go now.” The court concluded that the plaintiff had presented sufficient evidence for the jury to find false imprison-
In Coblyn, the plaintiff was a customer of the defendant‘s clothing store. Mistakenly suspecting the plaintiff of thievery, a store employee ordered the plaintiff to stop as he was leaving the store, firmly grasped his arm, and said, “You better go back and see the manager.” A second employee and several other people were standing by, staring at the plaintiff. Id. at 320. In rejecting the defendants’ argument that no restraint had been shown, the court not only pointed to the employee‘s grasp of the plaintiff‘s arm, but also relied on the quotation from Jacques, set forth above, concerning the public challenge to the plaintiff‘s honesty.
The lesson of Jacques and Coblyn is that a plaintiff who relinquishes his right to move about freely as the only available alternative to relinquishment of another right, such as the right to an unsullied reputation, is restrained, or imprisoned, in the sense that imprisonment is an element of tortious false imprisonment. That is the type of “restrain[t] ... by fear of personal difficulty” to which the court referred in those cases. But an employee at will who relinquishes his right to move about in return for continued employment, to which he is not entitled, is not imprisoned. He has a free choice.
We know of no case that holds that a threat of discharge from employment at will can effect imprisonment for tort purposes. The Reporter‘s Note to Restatement (Second) of Torts § 892B (1982 App.) expressly states that threats of discharge from employment are not sufficient to invalidate the consent that contradicts imprisonment. We agree, and our position finds support in cases from other jurisdictions. See Faniel v. Chesapeake & Potomac Tel. Co., 404 A.2d 147, 152 (D.C.
We conclude that the judge erred by instructing the jury, at least implicitly, that a threat that Foley would be discharged from employment could be a means of false imprisonment. A new trial on that claim is necessary because the jury may have based their verdict on that threat alone.3
There is another reason to remand the false imprisonment claim for a new trial. As we have said, Polaroid argues, and Foley concedes, that Polaroid had a right to confine Foley for a reasonable timе and in a reasonable manner in order to inquire about Simon‘s allegations. It was for the jury to say on all the evidence whether Polaroid exceeded the limits of reasonableness. Polaroid was entitled to an instruction to that effect, but, despite Polaroid‘s request, it did not receive such an instruction. That was reversible error.
Because the false imprisonment claim will be the only claim litigated at the new trial, we discuss at this point an issue raised by Polaroid concerning the proper jury instructions on damages. Polaroid argues that the trial judge erroneously instructed the jury that Foley could recover emotional distress damages resulting from false imprisonment. It does not dispute that ordinarily one who has been falsely imprisoned may recover “such dam-
Polaroid does not contend that Foley‘s false imprisonment claim was barred by the Workmen‘s Compensation Act,
However, Foley I did contemplate such recovery. Our inquiry in that case was structured in terms of what claims an employee could assert against his employer in an action at law — not in terms of the injuries for which the employee could seek recompense. We did not intend that, even though his legal action could proceed, an employee would not be entitled to compensation for those items of loss that are compensable outside the employer-employee setting. Although we expressly “recognize[d] the conceptuаl problem inherent in the employee‘s including physical and mental injury as elements of damage in the [legal] claim,” Foley I, supra at 552, we did not state or imply that the scope of recovery in an appropriate legal action should be restricted, and we are unwilling to say so now.
2. Defamation.
The jury returned verdicts for Foley on his claim for defamation and for Mary Foley on her claim for loss of consortium
The Foleys’ defamation claim is grounded on four statements allegedly made by Polaroid executives. Each statement was made after Foley was acquitted of the criminal charges arising from Simon‘s complaint. The four statеments were: (1) a statement made by Ann Leibowitz, in-house labor counsel for Polaroid, to William Graney, the employee representative who had earlier represented Foley in connection with Simon‘s accusations, that “being found not guilty doesn‘t mean you are innocent“; (2) a statement by John Rutter, director of Polaroid‘s corporate systems division, made to James Ambrose, manager of computer and telecommunications operations at Polaroid, that Rutter believed “something occurred” between Foley and Simon but “[w]hat it was he didn‘t know“; (3) Rutter‘s statement to John Harlor, a vice president or assistant vice president at Polaroid, that “there were continuing allegations that Mr. Foley was approaching other women“; and (4) Rutter‘s statement in a confidential memo addressed to Harlor and other Polaroid executives that “Foley is beginning to evidence emotional stress in the form of drinking, non attendance, etc.” We need not and do not decide whether a jury would have been warranted in finding that these were defamatory statements of fact.
In Bratt v. International Business Machs. Corp., 392 Mass. 508, 509 (1984), we said that “[a]n employer has a conditional privilege to disclose defamatory information concеrning an employee when the publication is reasonably necessary to serve the employer‘s legitimate interest in the fitness of an employee to perform his or her job.” McCone v. New England
Three of the statements on which the plaintiffs rely were made by one Polaroid executive, Rutter, to other Polaroid executives. The plaintiffs properly do not contend that those statements were excessively published. Rather, the plaintiffs’ contention is that there was evidence that they were made with reckless disregard for their truth or falsity. But there was no such evidence. There was no evidence that Rutter did not believe that “something occurred” or that his belief was not reasonably grounded. There was no evidence, for instance,
The evidence most favorable to the plaintiffs bearing on the statement made by Leibowitz to Graney, on which the plaintiffs rely, was as follows. Leibowitz met Graney, who had originally acted as Foley‘s representative in connection with Polaroid‘s investigation of Simon‘s charges, by chance after Foley had been acquitted. Graney raised the subject of Foley‘s employment, and asked Leibowitz whether she had heard about the results of the trial. Graney‘s purpose in raising the subject was to begin the process of “getting [Foley] back” with Polaroid. He asked Leibowitz about the propriety of Foley‘s being returned to his job in Waltham. Leibowitz told Graney that “being found not guilty doesn‘t mean you are innocent.” Even if Leibowitz‘s statement could reasonably be interpreted as a statement of her belief that Foley had assaulted Simon, a matter we need not decide, the evidence did not warrant a finding that Leibowitz knew that Foley was innocent or that she lacked reasonable basis for thinking he was guilty. Furthermorе, the jury would not have been warranted in concluding that making the statement to Graney constituted excessive publication.
Because every alleged defamatory statement made by Polaroid was protected by a conditional privilege, and that privilege was not lost by abuse, Polaroid is entitled to judgment on the defamation claim and the related loss of consortium claim.
3. Loss of Consortium Arising from Intentional Infliction of Emotional Distress.
The jury returned a verdict for Mary Foley on her claim for loss of consortium arising from Polaroid‘s alleged intentional infliction of emotional distress on Foley. The judge denied Polaroid‘s motion for judgment notwithstanding the verdict
Mary Foley asserts that Polaroid‘s conduct following Foley‘s acquittal constituted intentional infliction of emotional distress. We set forth the evidence most favorable to that claim. There was evidence that while the criminal charges were pending, James Ambrose wrote Foley a letter in which he said that “[i]f in our judgment the allegations are without foundations and/or the associated actions did not take place, you will return to your present position.” Ambrose testified that he understood from his letter that Foley would be placed back in his prior position if he were found not guilty. After being acquitted, however, Foley was not returned to his former position at Polaroid‘s Waltham facility, but was instead assigned to another facility in Needham. At Needham, Foley was stationed at a desk in a hallway. Foley testified that this was an inappropriate area for a desk, and that other employees would continuously walk back and forth by his desk throughout the day. During the four months Foley was at Needham, he was not given work to do, and Foley told Ambrose and other Polaroid officials that he wanted assignments. Foley testified that the only assignment he was given at Needham was to clean and inventory an area in the warehouse.
Other allegedly tortious conduct involved Foley‘s attempts to secure another position within the company. Foley attended twelve to fifteen interviews for jobs within Polaroid during the period he remained at Needham. Raymond Belle told Foley
In support of her claim, Mary Foley also calls our attention to evidence of expressions of belief, by Polaroid officials, that Foley was guilty of the charges of which he had been acquitted by a jury. When Foley told Rutter that he was unhappy with the way Polaroid had handled the Simon matter, Rutter responded that he thought Foley was guilty. Rutter added that “upper management thinks you‘re guilty.” According to Foley‘s testimony, Rutter then “taunted” Foley with the idea of suing Polaroid, but also told him that Polaroid was “too big a company for you to sue ... we will wear you out, wear you down.” Ambrose also told Foley that he thought him guilty, noted that “that seems to be the feeling,” and told Foley that he was “lucky [that Polaroid] brought you back at all.” All of the foregoing statements were made to Foley at private meetings.
In February, 1978, Foley was returned to the Waltham facility after a medical leave of absence. At Waltham, according to Foley, Rutter and Ambrose would not talk to him, even to say hello. When Foley and other employees were gathered in
In Agis v. Howard Johnson Co., 371 Mass. 140 (1976), we accepted as part of the tort law of the Commonwealth a rule of liability for outrageous conduct causing severe emotional distress, even without manifestation of bodily harm. Cf. George v. Jordan Marsh Co., 359 Mass. 244 (1971) (recognizing liability for like conduct where bodily harm could be shown). We warned in Agis, however, that “the door to recovery should be opened but narrowly and with due caution.” Agis, supra at 144, quoting from Barnett v. Collection Serv. Co., 214 Iowa 1303, 1312 (1932). A principal bulwark against excessively broad recovery is the requirement that the defendant must have engaged in “extreme and outrageous” conduct. See Agis, supra at 144-145. Thus, liability cannot be predicated upon “mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities,” nor even is it enough “that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by ‘malice,’ or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort“; rather, “[l]iability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Restatement (Second) of Torts § 46 comment d (1965). Massachusetts cases have similarly described the limitations upon what can constitute “extreme and outrageous” conduct. See, e.g., Agis v. Howard
In considering whether a plaintiff has made out a claim for intentional infliction of emotional distress, we have said that the trier of fact “would be entitled to put as harsh a face on the [defendant‘s actions] as the basic facts would reasonably allow.” Richey v. American Auto. Ass‘n, 380 Mass. 835, 839 (1980). Even if it viewed the evidence in this light, however, no reasonable jury could conclude that Polaroid engaged in the “extreme and outrageous” conduct necessary for recovery. Indeed, much of the evidence on which Mary Foley relies is consistent with Polaroid having made a good faith effort to maintain Foley‘s employment in a manner consistent with Polaroid‘s legitimate business concerns. Contrary to Mary Foley‘s argument, the evidence does not warrant a finding that Polaroid engaged in a pattern of conduct constituting a concerted effort to drive Foley out of the company.
4. Malicious Prosecution.
The jury returned a verdict for Foley on his claim for malicious prosecution. Foley appeals from the judge‘s allowance of Polaroid‘s motion for judgment notwithstanding the verdict and the resulting entry of judgment for Polaroid. There was no error.
“The standard to be used on a motion for judgment notwithstanding the verdict is the same as that on a motion for a directed verdict.” D‘Annolfo v. Stoneham Housing Auth., 375 Mass. 650, 657 (1978). To prevail on his claim for malicious prosecution, Foley was required to show that he suffered damage because Polaroid instituted criminal proceedings against him with malice and without probable cаuse, and that the proceedings terminated in his favor. See Beecy v. Pucciarelli, 387 Mass. 589, 593 (1982). We need not consider whether Polaroid instituted the proceedings or lacked probable cause, because, in any event, the evidence did not warrant a finding of malice.
To show malice, the burden was on Foley to demonstrate that Polaroid knew there was no probable cause for the prosecution, and that Polaroid acted with an improper motive. Beecy
The judgments for the plaintiffs are reversed. The judgment for Polaroid on Edward P. Foley‘s claim for malicious prosecution is affirmed. Judgment is to enter for Polaroid on all claims except Edward P. Foley‘s claim for falsе imprisonment. The case is remanded for a new trial solely on Edward P. Foley‘s false imprisonment claim.
So ordered.
LIACOS, J. (concurring in part and dissenting in part). I agree with the court‘s analysis of all but two of the issues raised by these cross appeals. I strongly disagree, however, with the court‘s treatment of the jury‘s verdict for Mary Foley on her loss of consortium claim arising from Polaroid‘s intentional infliction of emotional distress on her husband. Additionally, I do not agree that a threat of discharge from employment cannot support a claim of false imprisonment. In my view, the opinion of the court, and authorities cited therein, are simply unrealistic in their underestimation of what employment, and the threat of its loss, means to an individual in this society. Accordingly, I dissent.
I. Loss of consortium arising from intentional infliction of emotional distress. In reviewing the judge‘s denial of a motion for judgment notwithstanding the verdict, the issue before this court is whether “anywhere in the evidence, from whatever source derived, any combination of circumstances could be
On the facts of this case, it is inconceivable that the court can conclude that nowhere in the evidence, from whatever source derived, any combination of circumstances could be found from which inferences could be drawn in favor of Mary Foley. “This court should not invade the province of the jury by substituting its judgment on questions of fact.” Commonwealth v. Bianco, 388 Mass. 358, 375 (1983) (Liacos, J., dissenting). Other courts have abided by this fundamental principle on similar facts. In Armano v. Federal Reserve Bank, 468 F. Supp. 674, 676 (D. Mass. 1979), for example, the plaintiff alleged that his employer “undertook a planned and systematic program to harass him in an attempt to force him to voluntarily terminate his employment.” He alleged harassment including “transferring him to a less responsible position, assigning him to work which was substantially below his grade and pay level, circulating rumors ... that plaintiff was caught or suspected of stealing money and directing supervisory per-
In the instant case, there was evidence that Edward Foley was banished from his regular place at work, and was denied the fruits of what had been a promising career. He was placed at a desk in an open corridor, and he was treated as a pariah by his superiors. His personnel files disappeared. He was taunted and humiliated in front of his fellow employees. He was given no responsibility and was assigned no work. He was subjected not to rumors but to direct accusations of conduct far more serious than stealing money, and was given one assignment, i.e., to clean out and inventory a dirty area of a warehouse. I cannot join an opinion which so oversteps the proper role of this court as to conclude summarily that such allegations do not even raise a question for the jury.
It seems important to note, although the opinion of the court ignores the rule, that the same rule governs cases alleging infliction of emotional distress as applies whenever a party to a civil proceeding moves for a directed verdict or for judgment notwithstanding the verdict. Where “reasonable men may differ” as to whether a plaintiff has alleged facts and circumstances which reasonably could lead the trier of fact to conclude that the defendant‘s conduct was extreme and outrageous, the question should go to the jury. See Restatement (Second) of Torts § 46 comment h (1965). Moreover, as we stated in Agis v. Howard Johnson Co., 371 Mass. 140 (1976), “The jury is ordinarily in a better position to determine whether outrageous conduct results in mental distress than whether that distress in turn results in physical injury. From their own experience jurors are aware of the extent and character of the disagreeable emotions that may result from the defendant‘s conduct....” Id. at 144, quoting State Rubbish Collectors Ass‘n v. Siliznoff, 38 Cal. 2d 330, 338 (1952).
In my view, the flaw in the court‘s analysis is that it isolates individual incidents and “ignores the fact that the jury are
The court errs by invading the province of the jury and substituting its judgment for that of the jury on questions of fact. “Jurors saw the witnesses, and their judgment of the credibility of the witnesses, of the comparable strength of the conflicting evidence, and of the factual validity of the contentions put forth by each side should be immune from attack.” Bonin v. Chestnut Hill Towers Realty Corp., 392 Mass. 58, 77-78 (1984) (Abrams, J., dissenting). It is jurors, not judges, who decide questions of fact and who apply the law to the facts. “[W]e have no authority to take upon ourselves the duties of a tribunal of fact, and to determine what verdicts should have been rendered by the jury.” Electric Welding Co. v. Prince, 200 Mass. 386, 392 (1909). What is extreme and outrageous conduct should be left to the judgment of a jury who represent the values of the community.
The facts in this case easily support a conclusion that “[m]ore than one decision was possible to honest and reasonable men, and, therefore, the jury was the tribunal to determine which [decision should be reached].” Hicks v. H.B. Church Truck Serv. Co., 259 Mass. 272, 277 (1927). The jury‘s verdict in favor of Mary Foley was warranted by the evidence, and the judgment on this claim should be affirmed.
II. False imprisonment. The court concludes that the judge erred by implicitly instructing the jury that a threat that Foley
The court states that “an employee at will who relinquishes his right to move about in return for continued employment ... has a free choice.” Ante at 91. Judges, secure in their position, are free to make such statements, but such a statement must appear to a worker to be what it is, pure poppycock. Fortunately, this court has not always disregarded the reality of the workplace. In other contexts, we have recognized the illusory nature of such a “free choice.” In Uloth v. City Tank Corp., 376 Mass. 874, 880 (1978), for example, we observed that “a user may not have a real alternative to using a dangerous product, as where a worker must either work on a dangerous machine or leave his job.”
The United States Supreme Court has stated that “[i]t requires no argument to show that the right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity that it was the purpose of the [Fourteenth] Amendment to secure” (citations omitted). Truax v. Raich, 239 U.S. 33, 41 (1915).
As Justice Douglas put it, “it does a man little good to stay alive and free and propertied, if he cannot work.” Barsky v. Board of Regents, 347 U.S. 442, 473 (1954) (Douglas, J., dissenting). Justice Douglas wrote: “The right to work, I had assumed, was the most precious liberty that man possesses. Man has indeed as much right to work as he has to live, to be free, to own property. The American ideal was stated by Emerson in his essay on Politics, ‘A man has a right to be employed, to be trusted, to be loved, to be revered.’ ... To work means to eat. It also means to live. For many it would be better to
It is difficult to overstate the importance of the employment relationship as a focus of security and standing in our society. See, e.g., Glendon & Lev, Changes in the Bonding of the Employment Relationship: An Essay on the New Property, 20 B.C.L. Rev. 457 (1979). “Empirical studies indicate that discharge from employment affects the self-esteem of employees no less severely than it affects their economic well-being. Work serves not only a useful economic purpose but plays a crucial role in the individual‘s psychological identity and sense of order. The growing recognition of the centrality of work in a person‘s life, together with an awareness of the severe economic consequences resulting from arbitrary treatment in the employment relationship, supports [the] assertion that employer control over the job means that ‘the substance of life is in another man‘s hands.’ ” (Footnotes omitted.) Note, Implied Contract Rights to Job Security, 26 Stan. L. Rev. 335, 339 (1974). In my view, the threat of physical force is less significant than the threat of losing one‘s employment and career as an invalidation of the consent that contradicts imprisonment for purposes of this tort.
Accordingly, while I agree that the false imprisonment claim should be remanded for a new trial because of the judge‘s failure to give Polaroid‘s requested instruction regarding the reasonableness of Foley‘s confinement, I do not join the court‘s discussion regarding the threat of discharge from employment.
ABRAMS, J. (concurring in part, dissenting in part). While I concur in the reasoning of the court concerning defamation, false imprisonment, and malicious prosecution, I believe the court errs in its analysis of the intentional infliction of emotional distress. The court invades the jury‘s fact-finding province by concluding that the evidence is consistent with Polaroid‘s hav-
After the jury returned its verdict finding Polaroid liable for intentional infliction of emotional distress, the judge denied Polaroid‘s motion for judgment notwithstanding the verdict. In our review of the judge‘s action, we must consider whether “[c]rediting all the evidence favoring the non-moving party, and allowing him all reasonable inferences from such evidence, would the jury be warranted in finding for that party?” J.W. Smith & H.B. Zobel, Rules Practice § 50.2, at 197 (1977). It is clear that if the evidence of intentional infliction of emotional distress is viewed in the light most favorable to the plaintiff, a jury question is presented. See Hartmann v. Boston Herald-Traveler Corp., 323 Mass. 56, 59 (1948). The court states that the trier of fact is entitled to put “as harsh a face on the [defendant‘s actions] as the basic facts would reasonably allow,” ante at 100, quoting Richey v. American Auto. Ass‘n, 380 Mass. 835, 839 (1980), yet the court then proceeds to state the evidence in a light more favorable to Polaroid than that to which it is entitled.
As the court notes, ante at 97, there was evidence that Polaroid informed the plaintiff that if he were found not guilty, he would be returned to his former position. Yet, after the plaintiff was acquitted, the plaintiff was not returned to his former position. Instead, there was evidence that he was assigned to a different facility where there was no area for him to work and where there was no work for him to do. The plaintiff was seated at a desk in the corridor where he was stared at, talked about, and harassed by other workers.1 The plaintiff had virtually nothing to do for four months. He was ordered to clean and inventory a dirty corner of a warehouse, a task not within his training or ability nor assigned to other
Based on this evidence, I think the judge properly submitted the issue of intentional infliction of emotional distress to the jury.3 See, e.g., Boyle v. Wenk, 378 Mass. 592, 597 (1979);
The court makes a factual determination that Polaroid‘s actions were made in good faith.4 On the evidence admitted at trial, the jury could find that Polaroid acted in good faith or the jury could find that Polaroid‘s conduct was extreme and outrageous and designed to humiliate Foley publicly. The jury could properly conclude that such conduct was unjustified and, as a result, impose liability. The jurors who saw the witnesses
Although it is not explicitly stated, in my view, the court is concerned with the amount of the jury verdict. The remedy for that defect is not to invade the province of the jury, but to remand the case for remittitur or new trial. See
“The jury system [which] has for some hundreds of years been constantly bringing the rules of law to the touchstone of contemporary common sense[,]” 1 W. Holdsworth, A History of English Law 348-349 (3d ed. 1922), requires judges be respectful of the jurors’ factual determinations. Because this court usurps the jury‘s fact-finding function, I respectfully dissent.