437 Mass. 396 | Mass. | 2002
The plaintiffs, sisters Daniella and Dominique Gutierrez, brought this action against the Massachusetts Bay Transportation Authority (MBTA), four of its officers individually, and two other individuals
A Superior Court jury found that Officer Giancarlo Cantella of the MBTA police negligently injured Daniella Gutierrez and awarded her damages in the amount of $53,000. The jury found for the defendants on all of the plaintiffs’ remaining claims that were submitted to them (certain claims not relevant to the issues before us were not submitted to the jury). Following the verdict, the judge, sua sponte, issued a posttrial ruling on Daniella Gutierrez’s civil rights claim. He concluded that he had instructed the jury incorrectly on this claim, and that the jury would have found in her favor had he given the correct instructions. As a result, the judge entered a supplemental judgment awarding Daniella the attorney’s fees and costs associated with her civil rights claim. The plaintiffs, the MBTA, and Cantella all appealed from the judgment, and we transferred the case here. We vacate portions of the judgment, affirm others, and remand the case for further proceedings.
1. Factual background. We summarize briefly the evidence at trial. On the day of the incident in question, Officer Frank Wolverton of the MBTA police was on patrol at the New England Medical Center MBTA station. Near the station entrance, he observed two young African-American males dribbling a basketball. He approached the youths, requesting that
A crowd of angry high school students, including Dominique and Daniella Gutierrez, gathered at the scene to protest Officer Wolverton’s treatment of Barrow. A number of the students requested Officer Wolverton’s badge number. Apprehensive that the situation was quickly growing out of control, Officer Wolverton radioed for assistance. Officers Moy, Lamb, Cantella, Vecchi, and Ricketts of the MBTA police responded to Officer Wolverton’s call and directed the crowd to disperse. Daniella threw a bag of com chips at Officer Wolverton as he escorted Barrow from the station, and then attempted to grab Officer Vecchi to prevent him from making an arrest.
Officer Ricketts approached Daniella, informed her that she was under arrest, and attempted to place handcuffs on her. When she began struggling to avoid arrest, Officer Ricketts took hold of her left arm and brought her to the ground. Officer Cantella approached to assist Officer Ricketts. Officer Cantella testified that Daniella continued to move while he attempted to bring her right arm around, causing him to fall forward while holding her right arm. He heard a popping sound as Daniella yelled out in pain. He released her arm and radioed for an ambulance. She was later diagnosed as suffering a fracture of her right arm. According to Daniella, the injury occurred when Officer Cantella forcefully twisted her right arm behind her back.
During this time, Dominique was grabbed by Officer Lamb, pushed to the floor, handcuffed, and taken to the police station. Dominique testified that she was attempting to leave the station as she was arrested. She stated that she repeatedly requested Officer Wolverton’s badge number, but that the officers refused to provide her with this information. Dominique was charged with
2. Daniella’s excessive force claim. After the jury returned their verdict, the judge, sua sponte, issued a posttrial ruling amending the verdict with respect to Daniella’s civil rights claim, brought under the Federal Civil Rights Act, 42 U.S.C. § 1983 (1994 & Supp. II 1996), and the Massachusetts Civil Rights Act, G. L. c. 12, § 111.
“[Ejxcessive force must be intentional or it must be reckless. If the use of excessive force is merely negligent or careless by reason of bad judgment or by reason of execution or behavior, if it is merely negligent or careless, it is not actionable and it is not liable as a matter of civil rights violation . . . .”
The judge later concluded that this instruction was improper under Graham v. Connor, 490 U.S. 386 (1989), which he interpreted as permitting an excessive force claim based on merely negligent or unreasonable conduct. He reasoned further that, correctly instructed, the jury, having found negligence by Officer Cantella, would have found in favor of Daniella on her civil rights claim.
The judge was correct that his initial instruction was
The Fourth Amendment provides the appropriate constitutional standard when the claim arises out of excessive force used during an arrest. Id. That amendment guarantees the right to be “ ‘secure . . . against unreasonable . . . seizures’ of the person.” Id. Fourth Amendment liability is possible only when a “seizure” has occurred. See Troublefield v. Harrisburg Bur. of Police, 789 F. Supp. 160, 165 (M.D. Pa.), aff’d, 980 F.2d 724 (3d Cir. 1992). A “seizure” is defined in this context as “an intentional acquisition of physical control” and “occurs only when there is a governmental termination of freedom of movement through means intentionally applied” (emphasis original). Brower v. County of Inyo, 489 U.S. 593, 596, 597 (1989). An accidental use of force, even if occurring during the course of an arrest or other physical restraint of a person, does not constitute a seizure because it is not a “means intentionally applied” to obtain control of the arrestee. Glaseo v. Ballard, 768 F. Supp. 176, 179 (E.D. Va. 1991); Troublefield v. Harrisburg Bur. of Police, supra at 165. The Fourth Amendment protects against “ ‘misuse of power,’. . . not the accidental effects of otherwise lawful government conduct.” Brower v. County of
In this case, Officer Cantella took Daniella into his control through a “means intentionally applied” — he grabbed her arm. If he broke her arm by the act of grabbing it and. pulling it behind her back (her version of events), then a reasonableness inquiry under the Fourth Amendment is warranted: the force that seized her is the force that injured her, and it would be for Daniella to demonstrate that a reasonable officer would not have used that degree of force. If, however, she was injured when Officer Cantella accidentally fell on her as she struggled to avoid arrest (his version), no Fourth Amendment rights have been trampled, because the officer did not intend to bring her under his control by falling on her; falling on her was not the means that Officer Cantella used to seize her.
The jury found Officer Cantella negligent, but we do not know the factual basis of that verdict. The jury could have found some form of negligence on either party’s version of events, and we do not know precisely what aspect of Officer Cantella’s conduct they found to be negligent. The judge, accordingly, could not properly direct a verdict on the excessive force claim based on the jury’s verdict on the negligence claim. We remand the case to the Superior Court for a new trial on Daniella’s claim that use of excessive force violated her civil rights under 42 U.S.C. § 1983.
3. Qualified immunity. The defendants claim that they are entitled to qualified immunity on all claims against them as a matter of law.
In a recent decision, the United States Supreme Court set forth certain principles governing qualified immunity in the context of an excessive force claim. Saucier v. Katz, 533 U.S. 194, 200-201 (2001). The Court emphasized the importance of deciding the qualified immunity defense “at the earliest possible stage in [the] litigation.” Id. at 201, quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam), because qualified immunity is “an entitlement not to stand trial or face the other burdens of litigation,” Saucier v. Katz, supra at 200, quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985), and the benefit is “effectively lost if a case is erroneously permitted to go to trial.” Saucier v. Katz, supra at 201. See Kent v. Commonwealth, ante 312, 316-317 (2002). Because the benefit of qualified immunity is essentially lost if not allowed prior to trial, defendants may pursue interlocutory appeals. See Fabre v. Walton, 436 Mass. 517, 521 (2002). See also Brum v. Dartmouth, 428 Mass. 684, 688 (1999) (“The right to immunity from suit would be Tost forever’ if an order denying it were not appealable until the close of litigation . . .”).
The Saucier case laid out a two-part inquiry to be applied in evaluating a claim of qualified immunity. Saucier v. Katz, supra at 200-201. A judge must first decide whether, “[t]aken in the
If it is evident from the allegations of the complaint alone that the defendant is entitled to qualified immunity, the matter may be decided by means of a motion to dismiss. Johnson v. Breeden, 280 F.3d 1308, 1317 (11th Cir. 2002). Ordinarily, the earliest stage of litigation at which qualified immunity will be decided will be summary judgment. Id. Here, the defendants raised the issue of qualified immunity in a motion in limine. However, their argument concerning qualified immunity was based on a request that the judge rule, as a matter of law, that the officers’ arrest of the plaintiffs was supported by probable cause. The judge did not explicitly rule on the defendants’ motion in limine, but his failure to rule on it prior to trial was effectively a denial of the motion. Even if the judge had allowed the motion in limine, the defendants would not have been entitled to qualified immunity on the excessive force claim; the relevant question is not whether the arrest was supported by probable cause, but whether the officers’ use of force in carrying out the arrest was objectively reasonable. Graham v. Con-nor, 490 U.S. 386, 396-397 (1989). The defendants raised the issue once again in their motion for directed verdict, arguing that the officers acted with probable cause to arrest; again they failed to address whether the force used in effecting the arrest was reasonable. Both motions were properly denied, as the defendants failed to argue that the officers’ use of force was
4. Malicious prosecution and abuse of process. The plaintiffs assert that the verdict slip was erroneously structured so as to preclude the jury’s consideration of the malicious prosecution and abuse of process claims if they found that the officers had probable cause to arrest the plaintiffs. The jury rendered their verdict on separate forms for Daniella and Dominique. The first question on both forms asked the jurors whether the MBTA police had probable cause to arrest. The slips directed the jurors to “bypass” the jury questions regarding malicious prosecution and abuse of process if they responded “yes” to the first question. The jury answered “yes” to the question on both slips, thereby eliminating the need to consider the malicious prosecution and abuse of process claims. The plaintiffs argue that, while a finding of probable cause to arrest precludes liability for false arrest, it does not automatically equate with a failure to prove the necessary elements of malicious prosecution and abuse of process.
To make out a claim for malicious prosecution, a plaintiff must prove: “(1) the institution of criminal process against the plaintiff with malice; and (2) without probable cause; and (3) the termination of the criminal proceeding in favor of the plaintiff.” J.R. Nolan & L.J. Sartorio, Tort Law § 77, at 88 (2d ed. 1989). See Beecy v. Pucciarelli, 387 Mass. 589, 593 (1982).
Generally, where there is probable cause to arrest, the plaintiff has failed to meet the probable cause element of malicious prosecution. See Bryant v. Noether, 163 F. Supp. 2d 98, 111 (D.
The defendant officers in this case did not personally file the complaints against the plaintiffs; another MBTA officer who was not present at the events did so based on the defendants’ arrest reports.
Although these discrepancies may be relevant to the officers’ motives in pursuing charges against the plaintiffs, they do not negate (or even detract from) the existence of probable cause. The officers asserted at trial that their determination of probable cause was dependent on the facts as they witnessed them, and not on the erroneous material in their arrest reports. The jury were warranted in finding probable cause to arrest based on the events as described at trial, and the subsequent errors in the police reports do not negate or detract from the probable cause that existed at the time of arrest. The mistakes in the arrest reports were not so severe that they created probable cause to prosecute where there otherwise was none. Therefore, on the evidence presented, the judge did not err by structuring the verdict slip to preclude consideration of the malicious prosecution claims should the jury find probable cause to arrest.
We reach an opposite conclusion as to the plaintiffs’ abuse of process claim. “The tort of malicious abuse of process consists in [sic] the use of lawful process primarily for a purpose for which it is not designed.” J.R. Nolan & L.J. Sartorio, Tort Law § 82, at 108 (2d ed. 1989). The elements of an abuse of process claim are that: “(1) ‘process’ was used; (2) for an ulterior or illegitimate purpose; (3) resulting in damage.” Datacomm Interface, Inc. v. Computerworld, Inc., 396 Mass. 760, 775-776 (1986), quoting Jones v. Brockton Pub. Mkts., Inc., 369 Mass. 387, 389 (1975). The plaintiffs are correct that probable cause is
The judge here, however, determined that probable cause to arrest and improper purpose were inconsistent, stating that “in order to find there was probable cause, the jury is going to have to find that the officers acted in good faith, that is, with an honest subjective belief of the existence of grounds to arrest.” But there was enough evidence for the jury to conclude that the defendant officers sought to initiate proceedings against the plaintiffs for an improper purpose. The plaintiffs allege that the defendants included false facts in their arrest reports, and that the inclusion of these facts encouraged the prosecution to bring process against the defendants. The jury could infer that the officers’ reports intentionally exaggerated the gravity of the situation so that the prosecutor would be more likely to press charges. Probable cause at the time of the arrest does not equate necessarily with subjective good faith in filling out an arrest report at a later time. By the time the arrest reports were being prepared, the officers were aware of the extent of Daniella’s injuries, and the desire to see the plaintiffs prosecuted could be interpreted as a preemptive maneuver in anticipation of tort and civil rights claims. Good faith belief at the scene as to the sisters’ involvement may have been eclipsed by other considerations that emerged after the arrests were effected. Thus, a finding by the jury of probable cause to arrest should not preclude consideration of an abuse of process claim.
The defendants maintain that process refers to “the papers issued by a court to bring a party or property within its jurisdiction,” Jones v. Brockton Pub. Mkts., Inc., supra at 390, and that there is no evidence that the individual defendants were actually involved in an activity which would fall within the definition of “process.” The plaintiffs presented evidence that the officers falsified arrest reports that served as the basis for sworn ap
5. The burden of demonstrating probable cause. The plaintiffs argue that the jury should have been instructed that, in the case of a warrantless arrest, the burden of proof shifts to the defendants to justify the arrest. In a false arrest claim, where an arrest is effected without a warrant, it is indeed the defendants’ burden to prove a justification.
6. The plaintiffs’ First Amendment claims. The judge instructed the jury that they could find a civil rights violation if they found that the officers arrested the plaintiffs without probable cause, or if the officers used excessive force in carrying out the arrest, even if they had probable cause. The plaintiffs requested an additional instruction that an officer is liable for a
The judge was correct in refusing to instruct separately on the First Amendment theory. A civil rights violation based on the First Amendment would have been redundant of the plaintiffs’ Fourth Amendment claim that the officers arrested them without probable cause. When defining probable cause to the jury, the judge framed the issue as whether the plaintiffs were arrested for their refusal to leave the station, or whether they were arrested as a pretext because the officers did not want the plaintiffs to identify their badge numbers. The jury were instructed that if the arrests were a pretext, there was no probable cause. The jury specifically found that the officers had probable cause to arrest the plaintiffs. This finding would be inconsistent with a determination that the officers arrested the plaintiffs for the purpose of suppressing their First Amendment right to request an officer’s badge number. Because the Fourth and First Amendment theories were linked, it was unnecessary for the judge to give a separate instruction on the First Amendment.
7. Public accommodation law. The plaintiffs argue that the judge should have instructed the jury that the right to be in a place of public accommodation was a civil right. Massachusetts law defines a public accommodation as “any place, whether licensed or unlicensed, which is open to and accepts or solicits the patronage of the general public.” G. L. c. 272, § 92A. General Laws c. 272, § 98, provides for the liability of a person who “makes any distinction, discrimination or restriction on account of race, color, religious creed, national origin, sex, [or] sexual orientation. . . relative to the admission of any person to, or his treatment in any place of public accommodation.” “This right is recognized and declared to be a civil right.” Id. The judge instructed:
*411 “[I]n order to have a criminal trespass, you must have somebody remaining on the property without a right to do so. The MBTA station is a place of public access and public accommodation, and we all have the right to be there [unless] we do something in violation of the law. And the police officers’ position in this case is that once they had told Daniella and Dominique to leave, they based their direction on a fear of the public safety danger [sic], and if they had probable — if that public safety concern were genuine,- and if the Gutierrez sisters continued to remain in the station thereafter, then they had lost their right to stay there and were committing a trespass.”
This instruction accords with our case law, which states that “[a] place of public accommodation . . . has an obligation to treat each member of the public equally, except for good cause.” Smith v. Suburban Restaurants, Inc., 374 Mass. 528, 530 (1978). The instruction alerted the jury to the fact that the police officers had a right to order the plaintiffs to leave only for good cause. It left the jury free to decide whether to believe the officers’ assertion that their fear of a melee in the MBTA station was the motivation behind their order to leave.
The plaintiffs also challenge the judge’s refusal to instruct the jury that they could find a separate civil rights violation based on the fact that the defendants ordered the plaintiffs to leave a place of public accommodation. This argument is without merit. The plaintiffs did not present evidence that the defendants sought to exclude them on the basis of race or any other basis prohibited by the public accommodation statute. Thus, the judge did not err by refusing to instruct the jury on a separate civil rights violation based on the public accommodation law.
8. Emotional distress.
Although the Sullivan case did reduce the showing required by a plaintiff to succeed on a claim for negligent infliction of emotional distress, Bresnahan v. McAuliffe, 47 Mass. App. Ct. 278, 283-284 (1999), the plaintiffs interpret the case too broadly. Prior to Sullivan, our case law had required that a plaintiff demonstrate: “(1) negligence; (2) emotional distress; (3) causation; (4) physical harm manifested by objective symptomatology; and (5) that a reasonable person would have suffered emotional distress under the circumstances of the case.” Sullivan v. Boston Gas Co., supra at 132, quoting Payton v. Abbott Labs, 386 Mass. 540, 557 (1982). Under the former rule, the plaintiffs had to substantiate the objective symptomatology with “expert medical testimony.” Payton v. Abbott Labs, supra at 556. We then relaxed this requirement, holding instead that plaintiffs must “corroborate their mental distress claims with enough objective evidence of harm to convince a judge that their claims present a sufficient likelihood of genuineness to go to trial.” Sullivan v. Boston Gas Co., supra at 137-138. We did not eliminate the physical harm requirement, but merely expanded the range of symptoms that may provide the type of objective evidence to prove physical harm to include symptoms that could be classified as more “mental” than “physical.” Id. at 135-139 (“we hold that both plaintiffs produced sufficient objective evidence of physical manifestation of mental distress to survive a summary judgment motion” [emphasis supplied]). In addition, we explicitly stated that “[a] successful negligent infliction of emotional distress claim. . . must do more than allege ‘mere upset, dismay, humiliation, grief and anger.’ ” Id. at 137, quoting Corso v. Merrill, 119 N.H. 647, 653 (1979).
The plaintiffs argue that Dominique’s tears on the stand
9. Request for admission. After Officer Cantella testified that Daniella’s arm was broken during the incident, the plaintiff sought to introduce the officer’s response to a request for admission in which the officer denied the allegation that he had broken her arm. The judge agreed to allow the response in evidence because he believed that it constituted, a prior inconsistent statement. However, the judge indicated that he would also give the following instruction: “Requests for admissions try to pin respondents down and make them answer questions in a very short and direct manner, and sometimes that can be very confining to those people who are answering.”
The plaintiffs’ counsel objected to the instruction and chose not to introduce in evidence Officer Cantella’s response to the request for admission. The plaintiffs argue that the judge’s instruction was improper because it would have suggested to the jury that the use of requests for admission is “improper and underhanded.”
The judge incorrectly concluded that a denial of a request for admission is admissible as a prior inconsistent statement. The purpose of a request for admission is to narrow the issues for trial by “identifying those issues and facts as to which proof will be necessary.” J.W. Smith & H.B. Zobel, Rules Practice
Further, Mass. R. Civ. P. 36 (b), 365 Mass. 795 (1974), which governs requests for admissions, does not specifically provide for the admission of denials in evidence. Although the rule states that admissions are conclusively binding on the responding party, it makes no parallel provision for the use of a denial. By contrast, Mass. R. Civ. P. 33 (b), 365 Mass. 790 (1974), governing interrogatories, states that the answers to interrogatories “may be used [at trial] to the extent permitted by the rules of evidence.” The omission of a similar provision in rule 36 (b) indicates that, although admissions have binding effect, denials do not have such an effect and cannot be introduced in evidence. Although the judge improperly conditioned the admission of the denial on his instruction, the error was harmless, as the plaintiffs declined to introduce the denial.
10. Peremptory challenges. The plaintiffs argue that the judge improperly handled their objection to the defense counsel’s use of peremptory challenges to strike African-Americans from the jury. According to the plaintiffs, the judge impermissibly supplied a race-neutral justification for the peremptory challenges when the burden is on the defense to do so. Although a peremptory challenge is presumed to be proper, this presumption can
Although the judge did not make an explicit finding that the plaintiffs had successfully rebutted the presumption, the judge made an implicit finding to this effect when he asked counsel to explain his challenges to three African-American jurors. Commonwealth v. Carleton, 418 Mass. 773, 774 (1994). The record does not support the plaintiffs’ claim that the judge, rather than counsel, supplied the justification for the defense challenges. The defense asserted that it challenged some of the jurors because they had “complaints about work” and had expressed an unwillingness to serve on a jury. The judge then reviewed each of the challenged minority jurors and, after determining that each had expressed reservations about serving relative to their work, upheld the defendants’ peremptory challenges. This procedure was not improper.
11. The plaintiffs’ conspiracy claim. The plaintiffs’ complaint alleges that the defendants conspired to deprive them of their civil rights. The judge denied the defendants’ motion for directed verdict in its entirety, but refused to instruct the jury on conspiracy. To establish a civil conspiracy, a plaintiff must demonstrate that “a combination of persons [acted] pursuant to an agreement to injure the plaintiff.” J.R. Nolan & L.J. Sartorio, Tort Law § 99, at 136 (2d ed. 1989). “It is not sufficient to prove joint tortious acts of two or more persons . ...” Id. at 134. The plaintiffs did not offer evidence that the defendants agreed together to violate the plaintiffs’ civil rights. The only evidence that could possibly support a conspiracy theory was the errors in the police reports and evidence that one officer had
12. Conclusion. We affirm the judgment below on the plaintiffs’ claims for malicious prosecution, civil rights conspiracy, and civil rights claims based on a lack of probable cause to arrest. We vacate the judgment with respect to the plaintiffs’ abuse of process claims, false arrest claims, and Daniella’s Federal civil rights claim based on excessive force. The case is remanded to the Superior Court for further proceedings consistent with this opinion.
So ordered.
An official and an attorney with the Massachusetts Bay Transportation Authority. The plaintiffs stipulated to the dismissal of the claims against these individuals.
Although the language of the plaintiffs’ complaint invoked only the Massachusetts civil rights statute, the judge interpreted the complaint as bringing claims under both 42 U.S.C. § 1983 (1994 & Supp. II 1996) and G. L. c. 12, § 111, because “Massachusetts decisions have termed them ‘coextensive’ when explicitly pleaded; and because plaintiffs’ counsel viewed § 1983 claims as asserted, and requested instructions under § 1983.” The defendants did not object.
The judge reversed the verdict on Daniella’s excessive force claim only; he did not address Dominique’s excessive force claim. The plaintiffs have
“Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State or Territory of the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” 42 U.S.C. § 1983.
In his posttrial ruling, the judge wrote that, in giving his instruction at trial, he had interpreted the requirement of “threats, intimidation, or coercion” in G. L. c. 12, § 111, as requiring a “bad or guilty state of mind in the zone extending from intentional to reckless.” Although he comments that Massachusetts appellate courts have not yet addressed the issue, his ruling appears only to apply to his instruction on § 1983 and does not seem to alter the outcome
Although the defendants claim qualified immunity as to all claims, the only remaining claim to which qualified immunity may , apply is Daniella’s excessive force claim.
Because determining the applicability of the qualified immunity defense and determining the merits of an excessive force claim both involve an inquiry into the objective reasonableness of an officer’s conduct, some courts had concluded that the two inquiries were identical. See, e.g., Katz. v. United States, 194 F.3d 962, 968 (9th Cir. 1999), rev’d, Saucier v. Katz, 533 U.S. 194 (2001). Under this rationale, there could be no qualified immunity defense if the officer were determined to have used excessive force. However, in Saucier v. Katz, 533 U.S. 194, 204 (2001), the Supreme Court rejected the idea that the inquiries for qualified immunity and excessive force are identical. While the considerations in resolving the questions are the same, they are explored at different times for different purposes.
In the civil context, probable cause is a matter for the jury if the facts are disputed. New Bedford Hous. Auth. v. Olan, 50 Mass. App. Ct. 188, 203 n.26 (2000), S.C., 435 Mass. 365 (2001). See Lewis v. Kendrick, 944 F.2d 949, 952 (1st Cir. 1991) (probable cause matter for jury in claim under 42 U.S.C. §§ 1983, 1985).
Some of the defendants’ arrest reports were “signed under the penalties of perjury,” and thus also served as affidavits. However, some of the arrest reports were not signed in this manner by the arresting officer.
A1 though the plaintiffs did not expressly limit their argument on the burden of proof to the false arrest claim, the burden of proving probable cause does not shift to a defendant in a § 1983 claim, see Rankin v. Evans, 133 F.3d 1425, 1436 (11th Cir.), cert. denied, 525 U.S. 823 (1998) (“plaintiffs had the burden of demonstrating the absence of probable cause in order to succeed in their § 1983 .claim”), nor does it shift in a claim of malicious prosecution. See R.W. Bishop, Prima Facie Case § 39.6, at 602 n.1 (4th ed. 1997), citing Keefe v. Johnson, 304 Mass. 572, 577 (1939).
The plaintiffs’ complaint alleged claims for intentional infliction of emotional distress, but did not allege claims for negligent infliction of emotional distress. However, the trial judge construed the general negligence claims as pleaded broadly enough to include negligent infliction of emotional distress. The defendants did not object. We assume, for the purposes of argument, that the plaintiffs sufficiently pleaded claims for negligent infliction of emotional distress.
Daniella prevailed on her negligence claim, and the emotional components of Daniella’s pain and suffering in connection with her broken arm were compensated under her general claim for negligence. Thus, there is no issue raised as to Daniella and we address the issue only with respect to Dominique.