On 24 February 2014, plaintiff Michael C. Piro filed a complaint in Mecklenburg County Superior Court seeking relief on the basis of negligent infliction of emotional distress, intentional infliction of emotional distress, and punitive damages. Plaintiff named as defendants Rebecca Hadden McKeever, L.C.S.W.; Cynthia L. Sapp, Ph.D.; Karen Barry, M.F.T., LMFT; and Davidson Counseling Associates. Defendant McKeever is a licensed clinical social worker, defendant Sapp a licensed clinical psychologist, and defendant Barry a licensed marriage and family therapist.
In his complaint, plaintiff asserts that plaintiff and Karen Shapiro Piro (Shapiro) are the parents of three boys: Allen (then 14 years of age); Noah (then 12 years of age); and Michael (then 4 years of age). 1 On 28 June 2006, plaintiff filed a complaint raising issues of child custody, child support, equitable distribution, and interim distribution. On 16 November 2007, a custody order was entered awarding plaintiff and Shapiro joint legal and physical custody of Allen and Noah. 2
In April 2011, plaintiff's eldest child, Allen, began receiving services from defendant McKeever. Plaintiff alleges that the day after a 7 April 2011 meeting between defendant McKeever, Shapiro, and Shapiro's father, Shapiro contacted the Mecklenburg County Department of Social Services' Child Protective Services (DSS) and alleged that plaintiff had sexually assaulted Noah. DSS contacted the Huntersville Police Department (HPD), and both agencies conducted concurrent investigations into Shapiro's allegations. On 19 April 2011, HPD concluded that no probable cause existed to charge plaintiff. DSS likewise found the allegations against plaintiff to be unsubstantiated, and also closed its investigation.
On 9 June 2011, defendant McKeever conducted a forensic interview of Noah, and thereafter, Noah went to Pat's Place Child Advocacy Center, where a professional forensic
On 27 June 2011, the Honorable Christy T. Mann entered an order that granted Shapiro sole custody of the children, directed plaintiff to vacate the marital residence, and prohibited plaintiff from having any contact with Allen, Noah, and Michael. Judge Mann's order that plaintiff have no contact with Allen, Noah, and Michael remained in effect from June 2011 through November 2013.
In his complaint, plaintiff alleged that defendant McKeever's conduct and interview techniques were in contravention of the American Counseling Association Code of Ethics, and McKeever should have known that the use of such techniques substantially increased the risk of erroneous and unreliable results. Plaintiff alleges that defendant McKeever was an agent and/or servant of defendant Davidson Counseling Associates and that defendants Sapp and Barry directly participated in Noah's treatment by discussing, consulting, and supervising defendant McKeever's care of Noah. Plaintiff also asserts that "DSS, HPD, a court-appointed forensic custody evaluator, and[,] ultimately [,] the Judge presiding over the Domestic Action found the allegations of sexual abuse to be unsubstantiated," although nothing in the record before this Court supports such a finding by a judge. Plaintiff alleges that he has suffered severe emotional distress, including mental anguish, depression, stress, embarrassment, humiliation, concern for his sons, substantial monetary expenses, and other damages.
Defendants McKeever, Barry, and Sapp filed individual answers to plaintiff's complaint, including a motion to dismiss plaintiff's claims. Defendant Davidson Counseling Associates also filed a motion to dismiss. On 2 September, 28 October, and 3 November 2014, the Honorable Robert C. Ervin, Judge presiding in Mecklenburg County Superior Court, entered orders granting defendants' individual motions to dismiss plaintiff's complaint with prejudice, pursuant to Rule 12(b)(6). In pertinent part, the trial court concluded that plaintiff's complaint failed to allege the "extreme and outrageous conduct" necessary to recover for
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On appeal, plaintiff raises the following issues: whether the trial court erred by concluding (I) that defendant McKeever's alleged conduct did not meet the threshold for extreme and outrageous; and (II) that the harm caused by defendant McKeever was unforeseeable.
Standard of Review
A pleading which sets forth a claim for relief, whether an original claim, counterclaim, crossclaim, or third-party claim shall contain ... [a] short and plain statement of the claim sufficiently particular to give the court and the parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved showing that the pleader is entitled to relief[.]
N.C. Gen.Stat. § 1A-1, Rule 8(a)(1) (2013). "Under the 'notice theory of pleading' a complainant must state a claim sufficient to enable the adverse party to understand the nature of the claim, to answer, and to prepare for trial."
Ipock v. Gilmore,
Our review of the grant of a motion to dismiss under Rule 12(b)(6) of the North Carolina Rules of Civil Procedure is de novo. We consider whether the allegationsof the complaint, if treated as true, are sufficient to state a claim upon which relief can be granted under some legal theory.
Bridges v. Parrish,
I
Plaintiff argues that the trial court erred in dismissing his claim for intentional infliction of emotional distress. Plaintiff argues his complaint establishes conduct on the part of defendant McKeever that a jury could find extreme and outrageous. Specifically, plaintiff contends that defendant McKeever's conduct resulted in accusations that plaintiff sexually assaulted Noah and deprived plaintiff of companionship with his minor children for three years. We disagree.
The tort of intentional infliction of emotional distress was formally recognized by our Supreme Court in
Stanback v. Stanback,
This tort imports an act which is done with the intention of causing emotional distress or with reckless indifference to the likelihood that emotional distress may result. A defendant is liable for this tort when he desires to inflict severe emotional distress or knows that such distress is certain, or substantially certain, to result from his conduct or where he acts recklessly in deliberate disregard of a high degree of probability that the emotional distress will follow and the mental distress does in fact result.
Dickens,
[Our Supreme Court has also] stated that the severe emotional distress required for [intentional infliction of emotional distress] is the same as that required for negligent infliction of emotional distress, which is:
any emotional or mental disorder, such as, for example, neurosis, psychosis, chronic depression, phobia, or any other type of severe and disabling emotional or mental condition which may be generally recognized and diagnosed by professionals trained to do so.
Holloway v. Wachovia Bank & Trust Co.,
In his complaint, plaintiff made the following assertions:
9. Defendant McKeever is a Licensed Clinical Social Worker. Upon information and belief, Defendant McKeever was at all relevant times licensed to render services in the State of North Carolina under license/certification number C003301.
...
16. Plaintiff's oldest son, [Allen], and middle son, [Noah] received services from Defendant McKeever from approximately April, 2011 through September 2013.
17. During Defendant McKeever's treatment of [Allen] and [Noah], Defendant McKeever discussed, consulted with, and sought supervision from Defendant Sapp [, a licensed Clinical Psychologist,] and Defendant Barry[, a licensed Marriage and Family Therapist,] regarding [Defendant McKeever's] treatment of, at a minimum, [Noah].
...
27. On or about May 19, 2011, Defendant McKeever met [Noah] for the firsttime. Defendant McKeever had a therapy session with [Noah] that day.
28. On or about May 26, 2011, Defendant McKeever conducted a therapy session with [Noah].
...
32. On June 9, 2011, Defendant McKeever conducted a therapy session with [Noah].
33. Prior to June 9, 2011, [Noah] never reported to defendant McKeever that he had been the victim of any sexual abuse perpetrated by Plaintiff.
34. At that June 9, 2011 therapy session, Defendant McKeever engaged in and conducted an interview of [Noah]. Defendant McKeever conducted thatinterview in the form of a forensic interview aimed at eliciting from [Noah] a report of sexual abuse.
35. Defendant McKeever knew or should have known that she should not have conducted that June 9, 2011 forensic interview.
...
42. Defendant McKeever's conduct and interview of [Noah] inappropriately used overly suggestive questioning, made over-interpretations, and otherwise employed means and methods known or that should have been known to produce inaccurate and unreliable results. Further, the conduct and interview engaged in by Defendant McKeever specifically targeted Plaintiff and/or was overly suggestive of improper behavior by Plaintiff. Defendants' subsequent conduct exacerbated the situation.
...
46. Defendant McKeever had knowledge of the risks attendant to her conduct, including the risks that DSS and HPD would investigate and prohibit and/or limit Plaintiff's visitation, that Karen Shapiro would seek to limit and/or prohibit custody and visitation by Plaintiff, that the relationship between Plaintiff and the Boys would be adversely affected, that Plaintiff would sustain separation from the Boys, and that Plaintiff would suffer severe emotional distress and other damages.
...
53. Since and as a result of Defendants' conduct, Plaintiff has suffered severe emotional distress.
...
58. As a direct and proximate result of the acts and omissions of Defendants, Plaintiff has suffered and will continue to suffer severe emotional distress, including but not limited to mental anguish, depression, stress, embarrassment, humiliation, concern for his sons, substantial monetary expenses, and other damages to be proven at trial.
For the aforementioned reasons, we overrule plaintiff's argument.
Next, plaintiff argues that the trial court erroneously usurped the function of the fact-finder by concluding the harm caused by defendant McKeever was unforeseeable. Alternatively, plaintiff argues that the complaint establishes foreseeable harm sufficient to state a claim for negligent infliction of emotional distress. We disagree.
Our cases have established that to state a claim for negligent infliction of emotional distress, a plaintiff must allege that (1) the defendant negligently engaged in conduct, (2) it was reasonably foreseeable that such conduct would cause the plaintiff severe emotional distress (often referred to as "mental anguish"), and (3) the conduct did in fact cause the plaintiff severe emotional distress. Although an allegation of ordinary negligence will suffice, a plaintiff must also allege that severe emotional distress was the foreseeable and proximate result of such negligence in order to state a claim[.]
Ruark Obstetrics,
On appeal, plaintiff contends that his complaint makes numerous allegations that, when treated as true, establish defendant McKeever had a duty to refrain from negligently interacting with Noah and Ms. Shapiro. Defendant appears to argue, albeit indirectly, that his allegations show that it was foreseeable to defendant McKeever that plaintiff would be subject "to multiple investigations by the authorities [that] would unreasonably interfere with, and suspend for nearly three years, Plaintiff[ ]'s relationship with his children." We disagree.
There are no allegations in plaintiff's complaint which indicate that it was reasonably foreseeable that McKeever's conduct-i.e. her interview and counseling of plaintiff's child-would cause
plaintiff
severe emotional distress or mental anguish.
See
Holloway,
AFFIRMED.
Judge GEER concurs in result by separate opinion.
Judge TYSON dissents.
GEER, Judge, concurring in the result.
With regard to plaintiff's claim for intentional infliction of emotional distress ("IIED"), the majority opinion holds that
Plaintiff's complaint essentially asks the court to speculate on what action exhibited by defendant was extreme and outrageous: performing her job as a licensed clinical social worker?; or meeting with children's parent or grandparents? We note defendant does not allege any type of breach of confidentiality. Unwittingly or not, plaintiff's complaint causes one to speculate that the allegations of sexual abuse upon his children was a major concern to the trial court and led to the two year no contact order against plaintiff. From this, one could further infer that plaintiff's own actions, not those of defendant McKeever, provided the impetus for what plaintiff claims as the denial of "substantive and meaningful contact with the Boys."
In deciding a motion to dismiss, the factual allegations must be read in the light most favorable to the plaintiff. The majority opinion, however, draws an inference in favor of defendant McKeever.
I do not believe that drawing this inference is necessary given that the allegations in the complaint are not sufficient standing alone to rise to the level of IIED. "[T]he initial determination of whether conduct is extreme and outrageous is a question of law for the court:
'If the court determines that it may reasonably be so regarded,
then it is for the jury to decide whether, under the facts of a particular case, defendants' conduct ... was in fact extreme and outrageous.' "
Johnson v. Bollinger,
In deciding whether the conduct alleged here was extreme and outrageous, it is necessary to parse through our existing case law to determine exactly what kind of conduct alleged is sufficiently "atrocious" or "intolerable in a civilized community" in order to withstand a motion to dismiss for failure to state a claim for relief.
Johnson,
In
Turner,
we juxtaposed the facts of that case with the facts in
Dobson,
where a department store employee exaggerated a report of child abuse against a store customer and reported it to the Department of Social Services.
Dobson,
I find the distinction between
Turner
and
Dobson
applicable here. Defendant McKeever was not a "public officer," as were the state agents
Therefore, I agree with the majority opinion that plaintiff has failed to sufficiently allege conduct rising to the level of IIED, but I reach that conclusion based on the similarity of this case to Dobson and the material distinctions between this case and Turner and West . I cannot agree with the dissenting opinion which states that "defendant McKeever used suggestive questioning and other techniques specifically aimed at eliciting a false allegation of sexual abuse...." Although the allegations in the complaint indicate defendant McKeever's questioning was professionally negligent, the complaint does not allege facts sufficient to allow an inference that defendant McKeever's conduct was intentionally aimed at eliciting a false accusation from N.P. or that defendant McKeever willfully and knowingly disregarded facts that would exonerate plaintiff, as was alleged in Turner and West . I, therefore, would hold, as the majority does, that the trial court properly dismissed plaintiff's IIED claim as asserted against defendant McKeever.
Turning to plaintiff's claim for negligent infliction of emotional distress ("NIED"), I would hold that the trial court properly dismissed that claim on the grounds that plaintiff has failed to allege facts sufficient to show that he has suffered severe emotional distress amounting, as required by the Supreme Court, to a "type of severe and disabling emotional or mental condition which may be generally recognized and diagnosed by professionals trained to do so."
Johnson v. Ruark Obstetrics & Gynecology Assocs.,
This Court has held that in order to withstand a motion to dismiss for failure to state a claim, the allegations of distress must contain "the type, manner, or degree of severe emotional distress [the plaintiff] claims to have experienced."
Horne v. Cumberland Cnty. Hosp. Sys.,
The plurality and the concurring in the result only opinions uphold the trial court's dismissal of plaintiff's claims of intentional and negligent infliction of emotional distress for failure to state a claim pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. Their opinions hold plaintiff: (1) failed to allege sufficient facts depicting conduct by defendant McKeever to "meet the threshold of extreme and outrageous conduct;" and (2) failed to allege sufficient facts to indicate it was reasonably foreseeable to defendant McKeever that her conduct would cause Plaintiff severe emotional distress. I respectfully dissent from both conclusions.
I vote to hold plaintiff's complaint, taken as true, alleged sufficient facts under "notice pleading" to assert defendant McKeever engaged in extreme and outrageous conduct to satisfy that element of the tort of intentional infliction of emotional distress. I also vote to hold plaintiff alleged sufficient facts to assert it was reasonable for defendant McKeever to foresee her conduct could cause plaintiff severe emotional distress to satisfy that element of the tort of negligent infliction of emotional distress. I would reverse the Rule 12(b)(6) failure to state a claim dismissal by the trial court and remand for further proceedings.
The majority's plurality opinion correctly notes this Court's review of a trial court's grant of a motion to dismiss under North Carolina Rule of Civil Procedure 12(b)(6) is
de novo.
Bridges v. Parrish,
Numerous cases from our Supreme Court highlight the pleading standard a plaintiff must comply with to survive a Rule 12(b)(6) motion to dismiss: "A complaint is adequate, under notice pleading, if it gives a defendant sufficient notice of the nature and basis of the plaintiff's claim and allows the defendant to answer and prepare for trial."
Burgess v. Busby,
II. Extreme and Outrageous Conduct
Applying this standard of review as enunciated by our Supreme Court, the allegations in plaintiff's complaint are sufficient to support the "extreme and outrageous" element of an intentional infliction of emotional distress claim. This Court has held that "whether the alleged conduct on the part of the defendant 'may reasonably be regarded as extreme and outrageous' " is "initially a question of law[.]"
Burgess,
The plurality opinion concludes plaintiff has "fail[ed] to assert any facts depicting conduct[ ] that meet[s] the threshold of extreme and outrageous conduct[.]" I disagree and conclude the allegations presented in plaintiff's complaint alleged sufficient facts that, if proven, tend to show defendant McKeever's conduct "exceed[ed] all bounds usually tolerated by a decent society [.]"
DSS involved the Huntersville Police Department ("HPD"), and both agencies conducted concurrent investigations into Shapiro's allegations. On 19 April 2011, HPD concluded there was no probable cause to arrest or charge plaintiff and closed its investigation
Defendant McKeever is a licensed clinical social worker who conducted therapy sessions with plaintiff's sons, including 10-year-old Noah, beginning a month later on 19 May 2011. During all therapy sessions, Noah never displayed any signs nor reported to defendant McKeever he had ever been the victim of any sexual abuse perpetrated by Plaintiff or anyone else.
On 9 June 2011, defendant McKeever conducted a forensic interview with Noah "aimed at eliciting ... a report of sexual abuse" from him. Plaintiff alleged defendant McKeever "knew or should have known" she should not have conducted the 9 June 2011 interview in which she allegedly used "overly suggestive questioning," "over-interpretations," and other "means and methods known or that she should have known to produce inaccurate and unreliable results." Plaintiff attempted to communicate with defendant McKeever by leaving a voicemail requesting she contact him, but defendant McKeever never responded or returned plaintiff's call.
As our Supreme Court has stated, when an appellate court reviews "a motion to dismiss for failure to state a claim upon which relief can be granted, N.C. R. Civ. P. 12(b)(6), all allegations of fact are taken as true[.]"
Jackson v. Bumgardner,
Defendant McKeever is alleged to have, along with the other defendants, thereafter "engaged in further conduct that perpetuated and/or
The plurality posits: "Unwittingly or not, plaintiff's complaint causes one to speculate that the allegations of sexual abuse upon his children was a major concern to the trial court and led to the two year no contact order against plaintiff." "[O]ne could ... infer," the plurality continues, "that plaintiff's own actions, not those of defendant McKeever, provided the impetus for what plaintiff claims as the denial of 'substantive and meaningful contact with the Boys.' "
Under the required standard of review, the trial court and this Court
must
take all allegations of fact as true and cannot weigh those facts.
Jackson,
This Court "has set a high threshold for a finding that conduct meets the standard" of extreme and outrageous conduct.
Dobson v. Harris,
Our Supreme Court has held conduct to be extreme and outrageous in circumstances I find to be much less "atrocious" or "intolerable"
In
Stanback v. Stanback,
our Supreme Court held a plaintiff had properly stated a claim for intentional infliction of emotional distress sufficient to survive a Rule 12(b)(6) motion by alleging the defendant
Likewise, in
West v. King's Dept. Store, Inc.,
Mr. and Mrs. West ("the plaintiffs") traveled to a discount department store looking for bargains.
West,
The plaintiffs sued the store for,
inter alia,
intentional infliction of emotional distress.
Few things are more outrageous and more calculated to inflict emotional distress on innocent store customers that have paid their good money for merchandise and have in hand a document to prove their purchase than for the seller or his agent, disdaining to even examine their receipt, to repeatedly tell them in a loud voice in the presence of others that they stole the merchandise and would be arrested if they did not return it.
I believe the allegations that defendant McKeever used suggestive questioning and other techniques specifically aimed at eliciting a false allegation of sexual abuse by a ten-year-old boy against his father, are more "atrocious" and "intolerable" than the facts our Supreme Court found to be extreme and outrageous in Stanback and West . Plaintiff has alleged facts that, if proven, would constitute extreme and outrageous conduct and fabrication of a false history by defendant McKeever which "exceeds all bounds of decency tolerated by society[.]"
III. Reasonably Foreseeable Nature of Plaintiff's Emotional Distress
The plurality opinion also concludes plaintiff's complaint contains "no allegations ... which would indicate that it was reasonably foreseeable that McKeever's conduct-i.e. her interview and counseling of plaintiff's child-would cause plaintiff severe emotional distress and anguish." I disagree.
Sufficient allegations in plaintiff's complaint, if proven, would show plaintiff's severe emotional distress was, or should have been, reasonably foreseeable to defendant McKeever. Plaintiff alleged defendant McKeever: (1) "specifically targeted plaintiff and/or was overly suggesting of improper behavior by Plaintiff" in her questioning of Noah; (2) conducted an interview with Noah "aimed at eliciting ... a report of sexual abuse" against plaintiff; (3) had "knowledge of the risks attendant to her conduct including the risks that DSS ... would investigate and prohibit" plaintiff from visiting his sons; and (4) had knowledge that the risks were imminent and closely related to her conduct and such risks were "the reasonably foreseeable result of [her] conduct." Plaintiff further alleges defendant McKeever knew or reasonably should have known her conduct failed to follow proper policies and procedures.
IV. Conclusion
"All allegations of fact are taken as true[.]"
Jackson,
I vote to reverse the judgment of the trial court and remand for further proceedings on plaintiff's claims. I respectfully dissent.
Notes
Pseudonyms are used to protect the identities of the minor children.
At that time, Michael had yet to be born.
It is noted that both the dissent and the concurring opinion react to the above comments in this majority opinion that are essentially dicta, as they are speculative and not necessary to a proper de novo review of the complaint. The majority opinion does reason, separate and apart from the dicta, that the "facts" in the complaint, as alleged by plaintiff, when taken in the light most favorable to plaintiff, fail to support plaintiff's claim for intentional infliction of emotional distress. The dicta merely reveals how plaintiff's complaint not only fails to allege facts to establish his claim, but alleges facts that support an inference as to why relief cannot be granted.