OPINION
This is - а case about an unwelcome visitor to an unfriendly nursing home. At least this is how the parties perceived each other. Although the defendant nursing home dubbed itself “The Friendly Home, Inc.” (home), this euphonic appellation proved to be a particularly galling misno
In February 1993, approximately one month after he was given the boot, Jalowy filed a Superior Court lawsuit against thе home and its administrator, defendant Angelo Rotella (collectively, defendants). He alleged that, in barring him from the premises, defendants had retaliated against him in violation of the Abuse in Health Care Facilities Act, G.L.1956 chapter 17.8 of title 23 (the act). Eventually, he also accused defendants of intentional and negligent infliction of emotional distress. After hearing the evidence at trial, a Superior Court jury answered the court’s written interrogatories concerning these claims. The jury found in favor of defendants on the retaliation claim, but for Jalowy on his emotional-distress claims. Although the jury awarded him no compensatory damages, it found defendants hable for $50,001 in punitive damages on Jalowy’s claim for intentional infliction of emotional distress. Thereafter, Jalowy moved for judgment notwithstanding the verdict or for a new trial on the retaliation claim, and for an additur and a new trial on the emotional-distress claims. The defendants responded by moving for judgment as a matter of law on the claim of intentional infliction of emotional distress. The trial justice denied Jalowy’s motions, but, notwithstanding the jury’s verdict, he granted defendants judgment as a matter of law on the claim of intentional infliction of emotional distress. Jalowy has appealed from that judgment.
Facts and Travel
Jalowy’s mother, Stacia Jalowy, became a resident of the home in 1992. She lived there until her death in 1997. Jalowy had wanted her to move into his own house with him, but his brother, Joseph, who was their mother’s legal guardian, decided instead to move her into the home.
2
During 1992, Jalowy regularly visited with his mother at the home, seeing her there several times each week. While visiting, he observed how certain members of the home’s nursing staff were disporting themselves on the premises, concluding that their behavior was unprofessional and harmful to the residents. This led him to discharge a volley of verbal and written complaints concerning the home and its nurses. Initially, on May 5,1992, he wrote a lеtter to the home’s management, con
On December 31, 1992, as Jalowy was departing the home, he encountered the two nurses that he had complained about previously. He suspected that they had been following him around the premises and making fun of him. The particulars of this incident were sharply disputed at trial, but from defendants’ standpoint, it climaxed when Jalowy angrily confronted the nurses, swore at one of them, then brandished his fist in the face of the other. In any event, this New Year’s Eve imbroglio proved to be the final straw that broke defendants’ willingness to allow Jalowy to continue visiting his mother at the home. Thus, the next day, on January 1, 1993, Rotella told Jalowy:
“You аre no longer welcome [at the home]. Go out and get a court order. Do whatever you need to. You can visit your mother at your brother’s house, sister’s house. We can’t allow you to be here. It’s not a safe situation.”
Approximately one month later, on February 2, 1993, Jalowy took up Rotella on his suggestion and went to Superior Court seeking injunctive relief and damages. There, he obtained the court order that Rotella indicated would be required for his readmission to the home as a visitor. His complaint alleged that Rotella and the home violated § 23-17.8-5 by retaliating against him for reporting instances of abuse and nеglect at the home. He also alleged that they violated his “Constitutional Freedom of Association.” A Superi- or Court justice issued an order temporarily enjoining defendants from barring Jalowy from visiting with his mother at the home. With the cooperation of counsel for the parties, the court set up an agreed-upon schedule allowing Jalowy to visit his mother in the home’s lobby three days a week for one hour each visit. The parties amended this schedule of visits several times, but it remained substantially the same throughout the pendency of the lawsuit, until Jalowy’s mother died in 1997.
In 1995, the Superior Court entered summary judgment for defendants on Ja-lowy’s сonstitutional claim. Four years later, in 1999, Jalowy moved to amend his complaint to include claims for intentional and negligent infliction of emotional distress against both defendants, which the court granted.
As previously stated, the parties eventually tried the statutory retaliation and the common-law emotional-distress claims before a jury. In response to written interrogatories, the jury found for defendants on the retaliation charge, but for Jalowy on both emotional-distress claims. The jury awarded Jalowy no compensatory damages, but it held defendants liable for punitive damages on the intentional-infliction-of-emotional-distress claim in the amounts of $25,000 against the home and $25,001 against Rotella.
Thereafter, Jalowy moved for judgment notwithstanding the verdict or for a new trial on the retaliation claim, and for an additur and a new trial on the emotional-distress claims. The defendants filed a
Retaliation Under the Abuse in Health Care Facilities Act
Jalowy first argues that the trial justice erred in refusing to grant him judgment notwithstanding the verdict or a new trial with respect to his claim that defendants retaliated against him for filing a report alleging a violation of the act. The trial justice denied Jalowy’s motion on two grounds: (1) that Jalowy never filed a report containing sufficient information to warrant statutory protection under the act from retaliation; and (2) that, even if he did file such a report, the evidence adduced at trial was such that reasonable jurors could differ on whether Jalowy’s banishment was the product of retaliation for his complaints to governmental authorities, or whether it was simply a legitimate response — however wrong-headed and heavy-handed — to what the home perceived to be Jalowy’s threatening and disruptive behavior when he was on the premises as a visitor. In other words, the trial justice believed that a reasonable jury could conclude from the evidence introduced at the trial that the home had imposed the banishment sanction in quеstion for reasons other than to retaliate for Ja-lowy’s complaints about the nurses.
Jalowy contends that, as a person who was not required to file a report under the act, he was not obliged to provide all the information that the act requires in a report to obtain the statutory protection from retaliation. Further, he argues, he was entitled to a rebuttable presumption that defendants’ actions were retaliatory, and that defendants failed to rebut that presumption.
We agree with Jalowy that the trial justice erred in finding that the act did not entitle him to assert a claim for retaliation merely because his complaints did not meet all the statutory requirements that a report to the Department of Health must contain, as outlined in § 23-17.8-2. Section 23-17.8-5(b) of the act provides protection against retaliation even to those who were merely “about to make a report.” In this case, Jalowy introduced enough evidence that a jury could have found that he was, at a minimum, about to make a report. He testified that he wrote a letter to the home voicing concern that the nurses were neglecting their duties, telephoned the Departments of Health and Elderly Affairs to report an incident of alleged neglect at the home, and even sent a letter addressing this incident to the Department of Elderly Affairs. Thus, the act provided him with protection against retaliation for these acts, despite the fact that he never filed a formal report that included all the statutorily specified information that such reports must contain.
We also agree with Jalowy’s contention that, having filed one or more reports under the statute — however incomplete they may have been — he was thereby entitled to sue for relief under the statute and to obtain the benefit at trial of a rebuttable presumption that his banishment from the home аmounted to retaliation.
See
§ 23-17.8-5(b) (‘Where a facility
But even if Jalowy had requested an appropriate jury instruction on the statutory presumption and had objected on a timely basis to the court’s proposed instructions that failed to instruct the jury accordingly — and even if the court thereafter had instructed the jury about the statutory presumption of retaliatiоn — such a presumption would have been rebuttable by defendants. See § 23 — 17.8—5(b). And here, most tellingly, defendants introduced sufficient evidence for the jury to find that, presumption or no, defendants’ actions toward Jalowy were not in fact taken in retaliation for his complaints about the nurses. For instance, Maureen Stone, one of the home’s nurses, testified that Jalowy “would insult the aides,” and was uncooperative with the staff during his visits to the home. Stone further testified that, on the night before defendants terminated his visitation privileges, Jalowy had called one nurse a “pencil-pushing bitch” and then put his fist to Stone’s face and said “And you, too.” Rotella testifiеd that he had received complaints from the staff that, while visiting his mother, Jalowy had attempted to feed another resident and was, in general, “running rampage around the facility.” Thus, “[biased upon the information that was given to [him] by [his] staff,” Rotella “felt [plaintiff] was a threat to the safety and welfare of the patients and employees.” The jury could have relied upon such evidence in concluding that defendants’ decision to exclude Jalowy from the home was not triggered by a retaliatory motive keyed to his complaints about the home’s supposedly lazy and heartless nurses, but rather by defendants’ legitimate concern for the safety and security of the home’s staff and residents — irrespective of whether Jalowy had complained to various authorities about some of the nurses’ conduct.
Furthermore, as the trial justice correctly noted, this evidence was such that reasonable minds could differ on whether the home’s action in barring Jalowy from the premises was in retaliation for Jalowy’s reporting activity or was merely a legitimate administrative response designed to
With regard to the trial justice’s decision denying Jalowy’s alternate motion for a new trial, we conclude that by rejecting it cursorily in a few scant, conclu-sory sentences, he failed to independently weigh the evidence, to pass on the credibility of witnesses, and to draw reasonable inferences therefrom, as we require. See,
e.g., Long v. Atlantic PBS, Inc.,
Intentional and Negligent Infliction of Emotional Distress
In deciding that defendants were entitled to judgment notwithstanding the verdict with respect to Jalowy’s claims for intentional infliction of emotional distress, the trial justice ruled that:
“In reviewing the evidence in the light most favorable to [plaintiff) and in providing him with the benefit of all reasonable and legitimate inferences, this Court determines that the jury’s finding * * * fails to respond truly to the merits of the controversy and is against the fair preponderance of the evidence. This Court finds that based upon the evidence offered by both sides at trial, the conduct of defendants was not ‘so outrageous in character and so extreme in degree’ to warrant a finding for intentional infliction of emotional distress. Here, defendants’ practice of monitoring and limiting Jalowy’s visits may have been inconvenient and offensive to him, [but] it is ‘a far stretch * * * to characterize it as so extreme and outrageous as to be atrocious and utterly intolerable in a civilized community.’ Swerdlick v. Koch,721 A.2d 849 , 863 (R.I.1998).” (Emphases added.)
In granting defendants’ motion for judgment as a matter of law, the trial justice erred by effectively treating it as a new-trial motion and concluding that Jalowy’s case was “against the fair prеponderance of the evidence.” He also erred when he characterized defendants’ banishment of Jalowy from the premises as merely “defendants’ practice of * * * limiting Ja-lowy’s visits.” The banishment here amounted to much more than just “limiting Jalowy’s visits.”
When ruling on a motion for judgment as a matter of law after the close of the evidence, the trial justice “should consider the evidence presented at trial in the light most favorable to the nonmoving party,
without weighing the evidence
or evaluating the credibility of witnesses, and should draw all reasonable inferences from the evidence to support the position of the nonmoving party.”
Swerdlick v. Koch,
To prevail on a claim for intentional infliction of emotional distress, a plaintiff must show “extreme and outrageous conduct on the part of the defendant.”
DiBattista v. State,
“It has not been 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. Liability 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. Gеnerally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’” Swerdlick,721 A.2d at 863 (quoting Restatement (Second) Torts, § 46 cmt. d at 73).
Whether conduct “may reasonably be regarded as so extreme and outrageous as to permit recovery” for intentional infliction of emotional distress is a matter of law to be decided by a court, and if the court answers that question in the negative, it should grant judgment as a matter of law and dismiss such a claim.
See
Restatement (Second)
Torts,
§ 46 cmt.
h.
In deciding this question of law, however, a court may need to rely on the jury to determine whether the party bearing the burdеn of proof has proven the existence of certain duty-triggering facts.
See Kuzniar v. Keach,
The most compelling evidence Jalowy introduced to satisfy the outrageous-conduct element of his intentional-infliction claim was Rotella’s decision on January 1, 1993, to bar Jalowy from visiting with his mother at the home. As Jalowy testified at trial, when he met with Rotella on January 1, he did not even let Jalowy finish explaining what had happened during his most unpleasant New Year’s Eve encounter with the home’s nurses when Rotella peremptorily informed him of his immedi
The key question for this Court on appeal is whether defendants’ nonretaliatory banishment of Jalowy from the home— thereby preventing him from visiting there with his mother for an approximate six-week period in 1993 — together with defendants’ antecedent and subsequent monitoring conduct, including allegedly ordering the nursing staff to closely follow Jalowy when he was on the premises — were acts that, as a matter of law, a jury could find
“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.” Swerdlick,
Likewise, under the circumstances of this case, defendants’ withdrawal of their consent for Jalowy to visit with his mother at the nursing home and their other alleged misdeeds- — including close monitoring of him while he was on the premises — were no doubt stress-inducing. Perhaps, when viewed most favorably to Jalowy, they even could be characterized as a most unnecessary and heavy-handed overreaction on defendants’ part to Jalowy’s sometimes fractious forays into the alien world of this nursing-home’s administration. Yet, whether viewed in isolation or in the aggregate, defendants’ nonretaliatory actions were not so extreme and atrocious a response to Jalowy’s perceived intemperate behavior that a reasonable jury could find them to be “
‘utterly intolerable in a civilized community.’
”
Swerdlick,
Significantly, Jalowy did not allege or prove that the home breached any contractual commitment by the actions it took against him. And despite the fact that the nursing-home business is heavily regulated by state and federal authorities, Jalowy did not direct the home, the Superior Court, or this Court to any statute or regulation that prevented defendants from excluding him from the home. Nor has he pointed us to any other official policy that outlaws such no-visitation orders in these circumstances. Indeed, nursing homes and assisted-living facilities may have legitimate reasons for restricting or preventing would-be visitors from obtaining unfettered access to residents. This is especially true under circumstances in which the home perceives that the visitor has been abusive to its staff, and continued visits might cause the environment at the home to deteriorate into one that was
Legislatures in Rhode Island and other states, as well as the United States Congress, have addressed the question of how best to balance the legitimatе concerns of nursing-home owners and operators in protecting their residents’ and staff members’ health and safety with the interest of residents and their visitors in obtaining reasonable if not unrestricted access to each other on the premises of these facilities. Thus, both state and federal authorities have passed laws and regulations that define a resident’s rights to obtain access to certain visitors on the premises of those facilities that are subject to federal and state regulation. See, e.g., 42 C.F.R. § 483.10(j)(l) (2003); G.L.1956 § 23-17.4-16; Ohio Rev.Code Ann. § 3721.13(A)(21) (2002); Wash. Rev.Code § 70.129.09(1)© (1994). And even though these laws differ in the balances they strike between the right of the residents to have unrestricted access to visitors and the right of the nursing home to restrict or prevent such access, none of them expressly confer enforceable rights on visitors to obtain unrestricted access to relatives or to other residents of such facilities. Thus, in Rhode Island, residents in assisted-living homes enjoy a conditional statutory right to “[h]ave visitors of their choice without restrictions so long as those visitors do not pose a health or safety risk to other residents, staff, or visitors, or a risk to property, and comply with reasonable hours and security procedures.” Section 23-17.4-16(a)(2)(viii).
Federal regulations grant residents in facilities that are subject to these strictures an even broader right to have relatives visit with them. Thus, 42 C.F.R. § 483.10(j)(l)(vii), provides that a “resident has the right and the facility must provide immediate access to any resident by * * * immediate family or other relatives” — subject “to the resident’s right to deny or withdraw consent at any time.” A resident’s right to have access to unrelated visitors is further “[sjubject to reasonable restrictions.” 42 C.F.R. § 483.10(j)(l)(viii).
But none of these laws, rules, and regulations expressly confer rights of access upon visitors — only upon the residents themselves. Much less do they expressly endow visitors with the right to maintain a civil lawsuit for damages or for equitable relief if they can establish one or more violations of these provisions.
Viewed in the light most favorable to Jalowy, but taking into account the jury’s finding that defendants’ actions were not retaliatory, defendants’ decision to institute a total ban on his visits with his mother at the home was a drastic overreaction to his attempts to identify and remediate what he perceived to be lackadaisical and uncaring practices on the part of certain members of the home’s nursing staff. Arguably, such a ban even may have been illegal vis-á-vis Jalowy’s mother (if she or her legal guardian had complained about it to the appropriate authorities, which, аpparently, they did not). Nevertheless, we cannot say that, under the circumstances, defendants’ nonretalia-tory decision to banish Jalowy from the home could be described as conduct that was
“beyond all possible bounds of decency,
[so us]
to be regarded as atrocious, and utterly intolerable in a civilized community." Swerdlick,
We have held that a party may not be liable for intentional infliction of emotional distress “when [a defendant] has done no more than insist on [its] legal rights in a permissible way, even though such insistence is likely or even certain to annoy, disturb, or inconvenience [plaintiff] or even
In summary, then, although the trial justice erred in balancing the evidence adduced by defendants against the evidence introduced by Jalowy in ruling on defendants’ motion for judgment as a matter of law, we agree with his ultimate conclusion that defendants in this case were entitled to judgment as a matter of law with respect to plaintiff’s claim of intentional infliction of emotional distress.
Finally, Jalowy argues that the trial justice erred in denying his motion for an additur or a new trial on his claim for negligent infliction of emotional distress. We reject this argument because defendants were entitled to judgment as a matter of law on the negligent-infliction claim. Only two classes of persons may bring claims for negligent infliction of emotional distress: those within the “zone-of-danger” who are physically endangered by the acts of a negligent defendant, and bystanders related to a viсtim whom they witness being injured.
Marchetti v. Parsons,
Because we hold that the defendants were entitled to judgment as a matter of law on both emotional-distress claims, we need not address plaintiffs arguments (1) that he was entitled to an additur or a new trial on his emotional-distress claims; (2) that the trial justice erred in refusing to let him testify about his alleged economic damages; and (3) that the trial justice erred when he allowed his attorney only forty minutes for closing arguments, even
Conclusion
For these reasons, we deny the appeal and affirm the judgment of the Superior Court to which we return the papers in this case.
Notes
. William Shakespeare, Macbeth, act. 1, sc. 5 (Lady Macbeth: “[Y]et do I fear thy nature; It is too full o’ th' milk of human kindness / To catch the nearest way.”).
. Jalowy had challenged Joseph’s appointment as their mother’s guardian in 1991 court proceedings, and later filed objections in the probate court concerning Joseph’s accounting with regard to his mother’s estate.