*1 Justice PORITZ For reversal and remandment—Chief ZAZZALI, VERNIERO, LaVECCHIA, ALBIN and Justices WALLACE—6.
Opposed—None. v. BOB AND CIASULLI PLAINTIFF-RESPONDENT, CAROL TARR, DEFENDANTS- MALL, BOB MACK AUTO INC., CIASULLI’S MON- BOB AUTO GROUP, INC., AND CIASULLI APPELLANTS, JOHN MOUTH HONDA JEEP PATRICK EAGLE, GRIMALDI, AND JOSEPH FUENTAS, STEVEN ANGELINI DESANTIS, JOHN THROUGH DEFENDANTS. TEN, DOE ONE Decided August Argued March *3 argued Bradley T. M. the cause Resa Drasin Wilson (Woehling Freeman Nowell Amoroso Klein appellants & Bierman, attorneys). (Mr. argued respondent L. Lueddeke the cause for
Ronald Lee, Lynda attorneys). Lueddeke and Dunnigan A. submitted a brief on behalf of amicus
Kathleen
curiae,
Lawyers
Jersey
Employment
Association of New
National
attorneys;
J.
(Dwyer
Dunnigan,
Dunnigan,
Ms.
Frederic
&
brief).
Griffin,
Nancy E.
on the
Gross and
opinion of the Court.
Justice
delivered the
WALLACE
claims of hostile work environment
This case involves
Jersey’s
Against
Law
Discrimina-
harassment under New
sexual
*4
(LAD),
complaint
a
10:5-1 to -49. Plaintiff filed
tion
N.J.S.A.
(Ciasulli)
wholly-owned
against
and various of his
Bob Ciasulli
trial,
employees.
all defendants
corporations and their
Prior
(Auto
Ciasulli,
Group
except
Auto
were dismissed
Bob Ciasulli
Mall).
(Mack
Mall,
Mack Auto
Inc.
Auto
Group), and Bob Ciasulli’s
trial,
plaintiffs claim for emotional distress
At
the court dismissed
individually.
jury
against
The
damages and the claim
Ciasulli
harassment
in the work-
found Mack Auto Mall liable for sexual
any
place,
plaintiff
damages.
but did not find that
suffered
De
spite
prove damages,
attorney
her failure to
the court awarded
prevailing party.
Appellate
fees to
as a
Division
part,
in
part.
reversed
and affirmed in
v.
Tarr
Bob Ciasulli’s
Mall, Inc.,
(2003).
N.J.Super.
Mack Auto
I. began working Plaintiff July for Mack Auto Mall in late 1994 as manager. supervi- finance and insurance Plaintiffs immediate sor, Kelly Bragg, reported Grimaldi, general to Patrick man- ager Bragg of Mack Auto Mall. Plaintiff space shared office located near the sales floor. Plaintiff worked at Mack Auto Mall left, July until allegedly when she because of sexual harass- workplace. Nevertheless, in job ment returned to the August April 1995 and remained until again 1996 when she resigned because of the asserted sexual harassment. trial, plaintiff
At pervasive described the extensive and sexual group particularly harassment she endured from a offen- employees. times, employees sive male At various those would demeaning refer to gutter slang women repeat we need not Plaintiff employee here. testified that porno- one would leave desk, graphic sexually explicit pictures material on his draw envelopes, open legs deal organ his and describe his sexual detail, women, escapades and discuss his sexual with various some very young. of whom employee regularly were Another com- *5 with a encounter to have sexual his wishes mented to her about closet.” in a “broom her, have sex propositioned her to regularly employee who another to deal with Plaintiff also had strang- presence of in the comments to her sexual made offensive sexually her. stimulate ers, presence would intimating that his con- much of the abusive heard stated that Grimaldi Plaintiff made a occasion he duct, stop it. On one no effort but made him. something in front of dropped when comment sexual her blouse Also, she should loosen told once Grimaldi warranty to a customer. help a sell ex- made her feel constant abuse Plaintiff testified However, July quit in 1995. her to tremely and led uncomfortable job and needed the because she a short time later she returned harassment, subjected to sexual Bragg, was also who because testimo- improve. Plaintiff’s would that the situation assured her witnesses, by various corroborated ny harassment was of sexual Bragg two other coworkers. including by the constantly embarrassed that she was Plaintiff stated employees. She the male and conduct of disgusting comments her desk. Her crawl under wanted to explained that she often point reached work environment with the abusive frustration Plaintiff way from work. home regularly cried on her where she eventually quit April direct involve- of Ciasulli’s limited evidence presented
Plaintiff testified that Auto Mall. She management of Mack ment with personnel. meetings all sales monthly attended Ciasulli held supervisor, and her considered Ciasulli Bragg that she testified supervisor could directly when her immediate him that she called also Auto Mall manager at Mack A former problem. not resolve following salesperson fire a told him to once Ciasulli testified had threat- the victim because allegations of sexual harassment office. Attorney General’s complaint with to file ened plain- case, dismissed trial court plaintiff’s close of At the that the elements court ruled claim. The tiffs emotional of emotional distress are the same both discrimination cases *6 cases, and in tort plaintiff and that the tempo- evidence that rarily upset was insufficient to establish her claim.
Ciasulli also testified. He stated that he was the sole owner of Group dealerships the Auto and that employee there was a direct through employees hotline could call his office. He added if corporate problem, officer could not employ- resolve a an ee could come to him for a final resolution. He remarked that employees other claims, female had filed sexual noting harassment that their complaints embellished Hollywood were suitable for a script. evidence,
At the close all the the trial court dismissed the complaint against Ciasulli, individually, Group. and Auto The case jury solely was submitted to against plaintiffs employer, Mack Auto Mall. special answer to interrogatories, jury found plaintiff was the victim of sexual harassment the work- place, but that she suffered no economic loss. The court conclud- ed that attorney was entitled to a prevailing party fees as jury because the found favor on the sexual harass- workplace ment and hostile claims. appealed
Plaintiff the dismissals of her emotional distress dam ages claim and of complaint against her Group. Auto All three cross-appealed defendants awarding from the order counsel fees. Appellate Division dismissing reversed the order the emotion al damages distress complaint against and the Ciasulli individually. Tarr, supra, N.J.Super. 280-81, Appel A.2d 647. The panel late remanded for a determination of Ciasulli’s individual liability, ordered a new trial damages, both punitive, and dismissing affirmed the complaint orders against Group Auto awarding plaintiff. counsel fees to Ibid.
II. The resolution of the emotional damages distress claim requires us to consider permits whether the LAD a lower eviden tiary recovery threshold for such necessary than is for infliction of emotional a cause of action intentional sustain distress.
A.
begin by reviewing
of a
law
We
the elements
common
To
of action
intentional infliction of emotional distress.
cause
for
prevail on such
claim
must establish intentional
“[t]he
defendant,
cause,
proximate
outrageous
conduct
Buckley
Saving
Soc’y,
Fund
that is severe.”
v. Trenton
distress
(1988).
Generally,
conduct
Beyond a
of action for emotional
courts
cause
damages
component
of
long recognized
distress
as
emotional
See, e.g.,
breach
contract claims.
intentional torts and
of
various
399, 416,
Agency, 62 N.J.
301
v.
Fitt Real Estate
Zahorian Russell
(1973)
damages
(awarding compensatory
pain
and
A.2d 754
apartment
suffering
upon plaintiff in
of
rental
inflicted
denial
MacNab,
status);
v.
25
of her
and marital
Morris
because
sex
(1957)
280,
271,
recovery
(permitting
for wife’s
B. Legislature recovery The amended LAD to authorize damages emotional distress for discrimination L. c. claims. 12, § 1. now provisions The LAD mandates to construe courts its broadly: Legislature The further finds that because of discrimination, suffer people personal grievous The include: and the suffers a personal hardships State harm. hardships, loss; loss; stress; economic time physical and in some cases severe resulting emotional trauma, illness, homelessness or other harm from irreparable moving the strain of relocation, search and controversies; difficulties; employment planning caused lack of anxiety resultant by information, difficul- uncertainty, adjustment ty; career, and social education, family disruption; problems, have, Such harms [A]ct. those this particularly impact protected by given legal including under law, the common rise remedies, damages. Legislature damages
punitive
intends that such
be
to all
available
[A]ct
persons
[A]ct
this
and that this
shall be
protected
construed in
liberally
combination with other
protections available under
laws
this State.
added).]
[N.J.S.A. 10:5-3
(emphasis
A post-amendment
permitted
case
emotional distress
under the LAD in the
expert testimony.
absence of
Rendine v.
Pantzer,
N.J.Super.
(App.Div.1994),
damages supported solely employee’s in Title claim VII spouse’s testimony sleeplessness, anxiety, humiliation, about stress Inc., depression); 1211, Hospitality, Turic v. Holland 85 F.3d (6th Cir.1996) (“A plaintiffs testimony, 1215 along own with case, particular circumstances of a can suffice to sustain the plaintiffs distress].”); prove burden [to v. Bolden Auth., (3d Cir.1994) Transp. 29, Southeastern Pa. 21 F.3d 34 testimony (holding expert necessary to corroborate emotional damages action); rights Reyes, distress federal civil DeNieva v. (9th 480, Cir.1992) (affirming damages 966 F.2d 487 prem award solely plaintiffs testimony ised about physical emotional and insomnia, including dizziness, vomiting); Secretary, Dep’t Blackwell, U.S. & rel. Urban Dev. ex Herron v. 908 of Hous. 864, (11th Cir.1990) F. 2d (upholding 872-73 emotional distress housing testimony discrimination based on humiliation, insomnia, headaches). regarding
D.
preceding
The
cases illustrate that claims for emotional distress
varying degrees
recognized
wrong
have been
where
is willful.
asserting
A cause of action
discrimination is
than
willful rather
negligent. Gray,
supra,
N.J.Super.
110
We
*10
anguish,
to obtain redress for mental
embarrass-
discrimination
ment,
like,
to
or
and
without
limitation
severe emotional
the
own,
adopt
reasoning
Judge
our
the
of
physical ailments. We
as
writing
Appellate
for the
Division.
Pressler
indignity
definition to suffer
embarrassment
and
is
humiliation,
by
To suffer
the
in that manner by
distress. Emotional distress
suffered
actually
emotional
is
without corroborative proof,
of
discrimination
compensable
victim
proscribed
rendering
psychological
of
or other
or
symptoms
physical
permanency
response,
or
of
which
compensation,
distress severe
substantial.
quantum
the emotional
is
we
the relevant
described,
upon
be nominal in the terms
have
dependent
may
including
of
its
discriminatory conduct,
we
duration
the
factors
have identified
of
and
enhanced
such additional
nature, and its content
be
may
by
proofs
public
suffering
and the
We add
that the duration
may
indicia of
as
adduce.
only
plaintiff
in our
warrants an award
of the
asserted here clearly,
view,
content
conduct
have
can be
to
endured
amount. No reasonable woman
expected
some
demeaning
degrading
barrage
prolonged
of the
constant and
extraordinarily
subjected
embar-
humiliation,
to which this
was
without
sexual harassment
dignity
to which
that was
emotional distress
rassment and loss of
personal
to
finder.
of
the fact
question
she testified. We leave
quantum
647.]
at
822 A.2d
[Tarr,
276-77,
supra,
N.J.Super,
Taylor Metzger,
colleagues
dissenting
invoke
v.
Our
(1998),
concerning
contrary
490, A.2d
to
conclusion
reach
damages
for
under
proof
emotional distress
the standard
There,
workplace
the Court found sufficient evidence
LAD.
claim of LAD racial
proceed
to
her
discrimination for
Further,
test
an inten-
clarified the
discrimination.
the Court
cause
action as set forth
tional infliction of emotional
Buckley,
and found that
id. at
A.2d
well,
as
id.
support
to
that
of action
was sufficient
cause
evidence
to
There
no need for the Court
address
tional humiliation and from discriminatory conduct, require willful are far remedies less stringent proof required standard than that for a tort-based emotional distress cause of action. that in We hold discrimination cases, conduct, may definition involve willful the victim *11 consequences wrongful conduct, recover all natural of that includ- ing anguish damages arising distress and mental out of embarrassment, humiliation, intangible injuries. and other Ac- cordingly, portion Appellate we affirm that of the judg- Division’s remanding on damages. ment for new trial
III. turn now to We address whether there was sufficient evidence to the of liability submit issue Ciasulli’s individual to plaintiff for Appellate sexual harassment. The Division concluded that there was sufficient negligent evidence Ciasulli was implementing workplace programs policies prevent and sexual Id. harassment. A.2d 647. Plaintiff and amicus urge that we reach that same conclusion. Ciasulli maintains that although he supervisor, ultimate there was no harassment, evidence that he aided or abetted the sexual necessary impose requirement is a liability. individual N.J.S.A. prohibits employment practices 10:5-12a unlawful employer. unlawful discrimination employer an An “includes ____ persons all as defined in subsection unless otherwise specifically exempt LAD], under another of [the section thereof, State, any political and all includes or civil subdivision the officers, agencies, boards or bodies.” N.J.S.A. 10:5-5e. public individuals, “[p]erson” as or more a. defines “one Subsection associations, organizations, organizations, cor- partnerships, labor trustees, bankruptcy, porations, legal representatives, trustees in receivers, plain Under a and fiduciaries.” N.J.S.A. 10:5-5a. reading supervisor not defined these definitions an individual is of Nevertheless, “employer” an the LAD. it is unlawful as under not, employer employee an an or any person, whether “[f]or incite, aid, abet, doing any compel or acts coerce LAD],” 10:5-12e, and such conduct forbidden N.J.S.A. [under liability. may personal result in meaning “aiding yet have to address
We abetting” LAD. the words “aid” and “abet” under the Because Act, statutory general principles of are not defined in the statute, First, apply. interpreting we look to construction “ordinary meaning” of the words therein. well understood Trails, Furman, 467, 478, Safeway Inc. v. (1964). Also, denied, 13 L.Ed.2d84
cert. U.S. S.Ct. the words surround words in a series consistent with we construe Union, N.J. ing Gilhooley County v. them. (2000). A.2d 1137 Here, of words “aid” and “abet” are included with series dictionary “incite,” defini- “compel,” The common and “coerce.” Among things, prove helpful. other “aid” tions of these words to,” College give help or II New means assistance Webster’s “[t]o (rev. ed.2001); incite, means Dictionary updated “[t]o “abet” *12 2; assist, esp. wrongdoing,” id. at “incite” means encourage, or force, 560; action,” “compel” “to provoke to id. means “[t]o 229; drive, constrain,” means force to “[t]o or id. at and “coerce” threats, intimidation,” or given way by pressure, a act or think meaning are and All used similar in id. at 217. of the words purposeful require active conduct. predicted we would Appeals that
The Third Circuit Court of “abetting” with the “aiding” and consistent define the terms 84 (Second) (1979). 876(b) § City
Restatement Torts Failla v. of of Passaic, (1998) (“[W]e predict 146 F.3d 158 New the Jersey Supreme employee Court would find that an aids and abets knowingly gives a violation the LAD when he [or substan she] encouragement tial assistance or to the unlawful conduct of [the] employer.”); Hurley City Dep’t, see also v. Atlantic Police 174 (3d Cir.1999) (predicting Jersey F.3d that New courts impose aiding abetting liability only would supervisory on denied, employees), 786, 145 cert. U.S. S.Ct. L.Ed.2d (2000). 876(b) of imposes liability Section the Restatement concert an individual if he or she “knows that the other’s conduct duty a gives constitutes breach of substantial assistance or encouragement to the to agree other so conduct himself.” We provides proper by the Restatement the standard Also, define terms “aid” the or “abet” under the LAD. the usage Restatement definition is consistent with the common Thus, employee those terms. in order hold an liable as an aider “ abettor, ‘(1) must party show that the whom the defendant perform wrongful injury; aids must act that causes an (2) generally the defendant must be part aware his role as of an illegal activity overall or tortious provides the time that he the (3) assistance; the defendant knowingly [and] must and substan ” tially principal Hurley, assist violation.’ supra, 174 F. 3d at (citations omitted). determination, respect to With the comments to sec provide factors, tion 876 by a list of Hurley five relied on court, to assess provides whether defendant “substantial assis (1) tance” to principal violator. Those factors are: the nature (2) encouraged, of the act given the amount of assistance (3) supervisor, supervisor present whether at the time of (4) harassment, supervisor’s asserted relations (5) others, supervisor. the state of mind of the Restatement (Second) Torts, 876(b) § supra, d; Hurley, supra, comment F.3d at n. 27.
85 here, that failed Applying those factors we conclude employees in aided and abetted the present evidence Ciasulli plaintiff. There was no evidence that the sexual harassment against any wrongful plaintiff, conduct encouraged of the Ciasulli present wrongdoers, when or that he was even that he assisted the best, At wrongful occurred. the record discloses conduct dealerships, Ciasulli, supervisor in the network of auto as the supervised employees. That is insufficient to negligently his wrongdoers to the provided that he substantial assistance conclude liability Conse- under N.J.S.A. 10:5-12e. impose individual complaint dismissal of quently, we affirm trial court’s against Ciasulli.
IV. damages, although a new trial on we light of our remand for “prevail- plaintiff may be considered a need decide whether a not party” jury plaintiff was the victim of sexual ing where the finds purposes com- damages, but does award harassment following. future we add the pleteness guidance cases may prevailing party provides that “the be 10:5-27.1 N.J.S.A. attorney’s part fee of the cost.” We have a reasonable as awarded party prevailing is one approval the federal view that cited with “ litigation any significant achieves [that] who succeeds ‘on issue ” Szczep parties sought bringing suit.’ some the benefit the Ctr., 346, 355, Newcomb Med. N.J. anski v.
(1995)
Eckerhart,
424, 433,
Hensley
103 S.Ct.
v.
461 U.S.
(quoting
(1983)).
1933, 1938,
Supreme
The United States
L.Ed.2d
prevailing party
of the
has observed
touchstone
“[t]he
Court
relationship
legal
material alteration of
inquiry must be the
sought
promote
in the
parties
Congress
in a
manner which
Indep. Sch.
v.
State Teachers Ass’n Garland
fee statute.” Texas
1486, 1494, 103
Dist.,
782, 792-93, 109
L.Ed.2d
S.Ct.
U.S.
(1989)
prevailing party
plaintiff organizations
status
(awarding
public employees First Amendment
judgment vindicated
because
materially
policy).
rights
altered school district’s
Subsequently,
Hobby,
in Farrar v.
506 U.S.
113 S.Ct.
*14
(1992),
analyzed
We are reasoning of the United Supreme States Court and hold that a iswho awarded some way affirmative of an judgment relief against enforceable comparable through a settlement or or other relief defendant prevailing party is a under N.J.S.A. 10:5-27.1 consent decree Moreover, view, who is awarded LAD. our party In the damages prevailing under the LAD. nominal is however, award, to the we leave case of a nominal attorney’s minimal the trial court whether to award discretion of or no fees all. fees
V. judgment Appellate part Division affirm We damages. trial court for a new trial We that remanded liability judgment imposing upon Ciasulli individual reverse of the award of and reverse and remand for reconsideration attorney’s fees. *15 LaVECCHIA, dissenting concurring part part. in in and
Justice Against again interpret the Law requires yet us to appeal This -49(LAD). Discrimination, Specifically, we N.J.S.A. 10:5-1 to LAD its own standard of the carries must determine whether damages for emotional dis compensatory for of proof an award view, my by workplace. In harassment in tress caused sexual to entitlement a LAD claimant must demonstrate such by sexual harassment caused for infliction of emotional distress Taylor in v. requirements set forth in our decision proof under the (1998). absence of Metzger, N.J. 152 proof a standard of than support LAD for lesser textual in the Taylor law tort of in for the common which we established that setting, committed in a harassment infliction of emotional distress for proof requirements I would not lessen damages.
I. of dis for intentional infliction emotional The cause of action tress, part of our common law recognized as which we first Society, 544 Buckley A.2d Saving Fund v. Trenton 88 (1988), specific
857
was
for
reformulated
context of harass
508-21,
ment
LAD in Taylor, supra,
claims under
at
N.J.
Taylor squarely brought
A.2d 685.
before the Court the standard
applied
to be
claims
intentional
infliction of emotional dis
tress where that cause of
is
on discriminatory
action
based
con
joined
duct
with causes of action for discrimination under the
Writing
Court,
LAD.
for the
expanded
Justice Handler
the test
for intentional
infliction of emotional distress articulated in Buck
ley, supra,
required
to “establish intentional and
outrageous
defendant,
cause,
conduct
proximate
and dis
tress that is severe.” 111
at
N.J.
In decision majority and dated 1990 LAD amendments that nullity. Taylor, persuasive, be a Appellate Division find to so painstakingly analyzed circumstances which Justice Handler the LAD plaintiff brings a claim of discrimination under a both infliction of emotional claim for intentional common law discriminatory distress, claims arise from the same and both to such gone have It is curious that our Court would conduct. country concerning lengths to canvass decisions from around on of emotional distress based claims of intentional infliction it, very if causes of action then before discrimination one of LAD, analy- the entire discrimination claim under the subsumed Taylor inoperative in analysis in is now careful sis. The Court’s majority that the LAD authorizes standard holds that is far for emotional distress obtaining compensatory damages below, As this Taylor. demonstrated below that articulated by, from, our indistinguishable controlled and should be case is Taylor. holding in
II. against three Complaint included counts Plaintiff’s seven-count (Mack): Mall, for hostile Count I Mack Auto Inc. Bob Ciasulli and discrimina- created sexual harassment work environment LAD; discharge tion, II for constructive in violation of the Count discrimination, in of the violation harassment based sexual LAD; infliction emotional dis- Count for intentional VII *17 judgment count against tress. Each as “demand[ed] [Mack] fol- (1) (2) (3) Compensatory Damages[;] Damages[;] lows: Punitive LAD; (4) Equitable permitted by to relief the fullest extent the (5) Suit; Attorney’s Costs of permitted Fees to fullest extent law; (6) (7) by Interest; the LAD and the Lawful Such [and] equitable appropriate.” other relief as the Court deems trial, summary Before Mack judgment filed motion for to dismiss Count VII common intentional law infliction emo distress, compel discovery concerning tional and to the nature of plaintiffs asserted emotional oppose trauma. Plaintiff did not Thus, to motion dismiss Count VII.3 that we note the common plaintiffs action, law emotional distress claim was dismissed from proceeded only and she on I trial Counts and II. jury spanned ensuing nearly trial,
The trial During two weeks. ample testimony concerning there was outrageously hostile discriminatory business, place environment at Mack’s majority, 74-76, both 923-24, ante at and the Tarr, Appellate supra, Division have well detailed. 360 N.J.Su- per. portrayal vivid an “abusive environment” that workplace fairly endured by Appellate “despicable, described insulting, Division as crude, reprehensible, demeaning, gross, contemptible[.]” Id. Despite 822A.2d 647. portrayal, plaintiffs respecting Although her ... testimony was not extensive. she response apparent leaving had mental health ly care after ..., Mack she chose not to offer expert She testified to her testimony. [caused acute embarrassment only humiliation, co-worker’s] one remarks presence persons employed by [that] made her dealership, turn ‘beet red’ and ‘want to crawl under desk.’ my [find]. “ cry way
Plaintiff also testified she would ‘all the home from frustrated, being being intimidated, you from feeling from 3 The trial court for in camera review docu- compelled plaintiff produce relating ments medical and social worker visits to which she plaintiff's might allegation adverted when and which deposed, bear her of emotional distress. *18 yelled you gonna get were [but couldn’t breathe around there ” your you losing job].’ something or in fear of Ibid.4 for were ease-in-chief, plaintiffs of Mack moved to strike all At close the jury’s plaintiffs from the consider- of emotional distress evidence motion, granted ation LAD claims. The trial court Mack’s on the bench, part, ruling pertinent the as follows: from talking recovering ease for emotional But about in a like this I think you're more than a And if I think that need distress, you upsetment. certainly temporary injury long-term diagnosed trying to recover for you’re medically injury, something that that’s that an opinion, obviously requires expert psyche that’s not here. that But also talk the emotional distress is about, the cases example, injury. something jury the to who suffers an That’s attendant somebody naturally allegation the is that the can In this case particular plaintiff—or consider. that on she as a result of the treatment that testified occasion would plaintiff cry to the level of she I don’t know that that even rises work, really received injury being would then of that in the absence of expert testimony the type jury free an that is to assess award. treatment, indicate some other of type finding plaintiff that the victim jury The returned a verdict was harassment, including working environment of sexual “that However, jury did not intimidating, and abusive.” was hostile damages plaintiff, on its deter any compensatory based award earnings as a past no or future lost mination that she suffered Therefore, punitive no result sexual harassment. of defendant’s Tarr, supra, N.J.Super. at damages were awarded. 647; (stating punitive that generally N.J.S.A. 2A:15-5.13c see compensatory damages, rather than
damages only if are available awarded). The trial court did award damages, nominal been have 10:5-27.1, attorney’s plaintiff pursuant to N.J.S.A. “conclud fees sexually proved harassing hostile ing plaintiff had a that because prove party despite her failure to workplace, prevailing she Tarr, N.J.Super. at A.2d 647. damages.” supra, 360 4:49-1(a), pursuant for a trial to Rule In motion new compensatory damages again for emotional the issue of raised distress, asserting created a 1990 amendments the LAD that
4 material comes from trial bracketed plaintiff’s testimony. obtaining compensatory damage
lower threshold for for emotional motion, court ruling distress. The trial denied from the bench, part, in relevant as follows:
would have amake What intended make a loss. could be [T]he damages [1990] are party whole. are not intended to compensable damages amendments ... purposes somebody litigant Really, and that could be the might can whole for a I punish interpret pretty reasonably have, but litigant loss, more, damages? did not basically flow from subject no for the clearly testify recognizing an act Compensatory as not wrongdoing no as to compensatory of discrimination that less. Compensatory expanding any other but rather to damages an damages. employee types types are * * * * guess I is whether or not—I think question the amendments because use they *19 the and term, emotional and in some “physical distress,” cases, “severe emotional talking goes just that are a trauma,” about level that a they beyond temporary talking That was the term that I used. we upsetment. not be about Granted, may something showing a that medical in of treatment or medication order to requires things. analogy, the emotional meet distress I a By would that in say personal injury standing nothing generally action emotional distress alone with else is not Emotional distress attendant to compensable. other factors like an emotional injury distress that one as a of endures natural an an would be consequence damages element of because in order to reconstruct compensatory the in plaintiff, recompensing before is effect, [him the harm or a done, her] for loss. you’re case, that the loss of their emotional distress. the in this But, really, ease plaintiff go didn’t into detail really any as to whether or not her emotional if distress, any, job was caused a frustration as the of the as by result or whether it was to other being recognized or factors, whether it rose to the of level of level of type any recognized emotional that in distress we the law. I don’t think that when the Legislature the [in]tended amended law in that it to reduce bar and the say litigants going [LAD] that in cases were to be than treated other differently litigants asserting in common law claims founded emotional That distress. upon was I found no why that there was the really in case to a claim testimony support for emotional distress.
[*]
[*]
[*]
[*]
Legislature
damages
recognized
The
never intended to
a
create new form of
not
in
damages
common
did
law,
[it]
but
intend to
the
codify
of
that were
availability
injury
to
normally available
as a function of common law in
plaintiff
a personal
action,
tort or contract. The
is that
type
reason
have to
you
why
remember
they
did what
did in
was to
to
they
Shaner[
v. Horizon
respond
(1989)]
Bancorp.,
N.J.
context
LAD.
III. may seeking file under the LAD either Persons redress (1) (2) Superior complaint or in of with the Division the Court New Jersey, requested. Pursuant to by jury trial if N.J.S.A. 10:5-13. LAD, available in common law tort actions the remedies “[a]ll are parties. These remedies in prevailing shall be available to any provided by any Ibid. this act or other statute.” addition to added). for LAD (emphasis two sentences mandate that Those claims, equitable in the to addition to remedies courts available 10:5-17, prevailing parties and the Division under N.J.S.A. also may traditional tort that seek remedies. Plaintiffs thesis is language expresses legislative in 10:5-13 N.J.S.A. intent to actions, lower, proof in LAD the standard that would otherwise apply in a tort compensatory common law action to obtain dam- ages by discriminatory for emotional distress caused conduct. However, by text, theory supported is not legislative history, prior or decisional law.
A. history turn legislative first to We the the LAD to examine Legislature disputed the language whether intended apply proof 10:5-13 N.J.S.A. to standard than that lower requires which common law award for an damages by discriminatory for emotional distress caused conduct. 1945, the LAD When action enacted an under the statute brought only 1979, be could before the In Division. amendments authorized, bring judicial LAD right “[t]he action ás an 1979, Shaner, alternative to administrative relief.” L. c. 404. supra, analyzed we impact that the 1979 amendments LAD had causes of action and remedies under available Although statute. N.J. at 2dA. we ob compensatory damages served had Division awarded for losses, economic id. at (citing A.2d 1130 Jackson v. Co., 113, 126, (1969)), Concord and incidental “pain humiliation,” suffering personal ibid. Zahorian, (citing supra, 754), empha N.J. at we monetary sized that such primary awards “should not ‘abe item’ ... ancillary of relief but must grant be to and correlated with remedies, ‘reasonably of broader combination are calcu ” Ibid, lated to eliminate (quot the effects the discrimination.’ Zahorian, 754). ing supra, 62 N.J. at 301A.2d powers characterized our largely We courts’ under the LAD as with coextensive those vested in the Id. Division. *21 powers, including “an scope of those both
1130. The broad
powers,
authority
parallels
the Division’s enumerated
discrimination,”
work-place
to the rectification of
are directed
ibid.,
monetary
ability
or nominal
and the
to award incidental
ibid,
Zahorian,
awards,
(citing
supra,
301 A.2d
404),
754;
317,
Gray,
N.J.Super.
us to
supra, 110
led
equitable
LAD
power
that a court’s
to enforce the
conclude
441,
granting
Id. at
Statement on the Substitute 2872,2118 2228, provided as follows: (1989), A.2d 1130 the New In Shaner v. Horizon N.J. Jersey Bancorp, brought an action the “Law Court ruled that a who under Supreme (C. (LAD) seq.)
Against c. 169 10:5-1 et was not Discrimination”, P.L.1945, grant right jury trial. This would amend the LAD to entitled bill findings jury language of the trial. This would also add to the section bill trauma) (i.e. listing which victims of LAD economic loss, hardships language indicating might that the LAD is to be liberally discrimination suffer and including law remedies, punitive construed so that all common damages, LAD. are available to persons protected Public Statement Committee, Assembly Law and [Assembly Judiciary, Safety 2228.] Bill Nos. 2118 and encapsulates purposes of the 1990 amend- That the twin statement (1) holding in that LAD claimants ments: to overrule our Shaner (2) action; *22 jury to a trial LAD were entitled for causes of and reject monetary our dicta in Shaner awards were a secondary, co-equal, remedy than rather form LAD. under the
B. N.J.S.A. 10:5-13 ties the LAD in remedies to those available law, in common that the section authorizes that remedies “[a]ll in available common-law tort shall prevail- actions be available to ing plaintiffs,” any which “in provided by are addition to this act any or other statute.” The common law of tort allows the nominal, recovery compensatory, punitive damages, and Re- (Second) 903, 907, (1979), §§ statement Torts including both pecuniary nonpecuniary compensatory damages. §§ Id. 905- expresses legislative 06. N.J.S.A. 10:5-13 desire to allow claimants to recover those common law tort remedies—nominal damages, pecuniary nonpecuniary compensatory damages, punitive damages—under the LAD. There is no mention in 10:5-13, LAD, N.J.S.A. in elsewhere that the “common law giving tort actions” rise to such remedies should be altered. LAD, 10:5-3, The declarations section of the N.J.S.A does not contrary support a paragraph conclusion. The last of that section harms, types may discrimination, lists several accompany including “physical and emotional loss” and “severe emotional have, trauma.” Ibid. It then states: “Such harms under the law, remedies, given legal common including rise to Ibid, punitive added). damages.” (emphasis Appellate phrase Division concluded that the “emotional stress” in N.J.S.A. legislative 10:5-3 evidenced a intent to lower the standard for obtaining compensatory damages distress, based on emotional one purportedly by Tarr, endorsed Gray. supra, Zahorian and N.J.Super. at panel A.2d 647. The surmised that the Legislature could not through have intended the 1990 amendments standard, heighten Gray, enunciated in Zahorian and obtaining damages. such Ibid.
However,
the term “emotional stress”
the declarations section
part
longer phrase,
in isolation. The term
of a
was not listed
is
stress,”
“physical and emotional
that is
off
itself set
semi-colons
from other
of “harms”
10:5-3. Not
varieties
listed
N.J.S.A.
only
isolating
legisla
does
“emotional stress” mischaracterize the
tive use of the
but it also
no
context of
term
makes
sense
isolated,
paragraph
phrase
as a whole.
it is
When
“emotional stress” subsumes the later term “severe emotional
327, 336,
Hardy,
trauma.” See N.J.
Ins. Co. v.
Mfrs.
(2004) (finding preferable interpretation
gives
A.2d 231
...
“that
statute”).
meaning
employed
to all of the words
in the
Further
more,
“given
“emotional stress” alone is not a “harm” that has
rise
legal
our
remedies” under
common law. “Emotional stress”
legal
only
coupled
“phys
affords common-law
remedies
when
with
*23
stress,
Buckley, supra, 111
ical”
N.J. at
544A.2d
or when
“emotional
rises to the
trauma.”
stress”
level of “severe emotional
Ibid.;
514-15,
Taylor, supra,
accord
One construe “emotional distress” apply text to conclude that the 1990 LAD amendments meant to obtaining standard lower than the common law threshold for compensatory damages by based on emotional distress caused discrimination, Taylor which is none other than the standard. majority’s contrary appears conclusion to me to be at odds language construction of actual of the with reasonable Legislature support legislative history in and lacks of the LAD.5
C. Furthermore, part company my colleagues I must with concern- ing import Gray in and Zahorian this matter. terms; Declarations in a are not considered statutory preamble operative
however, act as an intrinsic aid to if a statute's they may operative interpretation (1950). ambiguous. Iles, 82, 91, v. A.2d 633 terms are Blackman N.J. urged here, the Court is to accord to N.J.S.A. 10:5-3 Notably, by plaintiff That it should not do. status. operative Zahorian,
In our affirmance of a Division Director’s award of monetary damages has no relevance to a claim for incidental compensatory damages type of the available emotional-distress tort, brought pursuant under the common law of to N.J.S.A. 10:5— action, not a common-law tort but a because Zahorian was monetary statutory damages action under the LAD. The awarded equitable powers “incidental” to the broad Zahorian were monetary vested in the Director under the LAD. incidental Such matter, damages request were available this but never respect Gray, supra, accepting ed such relief. even that the violating cause of action there was to be the “tort” of considered Constitution,” Jersey’s “paragraphs 1 and 5 of I of Article New N.J.Super. remedy the court’s right, nominal that reflect the violation of a constitutional 317-18, compensate but that did not actual for an loss. Id. at 404; generally (quoting see id. at Co., 90, 96-97, Spiegel Evergreen Cemetery v. 117 N.J.L. 186 A. (Sup.Ct.1936) (noting is the established rule of this “[i]t legal right, ordinarily state that ... of a [f]or the invasion the law And, loss, damage infers has ensued. the absence of actual right awarding damages”)). the law vindicates the nominal however, here, damages, Nominal are not what seeks majority seemingly and that is not what now will allow. compensatory damages Plaintiffs claim is for and all additional predicated relief that is an An such award. award of nominal damages, opposed compensatory damages, automatically as possibility awarding punitive damages. forecloses the N.J.S.A. Holding “compensatory” damages 2A:15-5.13c. for emotional *24 solely distress are now available LAD under the based on the legal right, any showing violation of constitutional or without required severe emotional distress as the common law for an claim, underscored, Taylor, supra, emotional distress and as is important Damages antithetical to that limitation in the Punitive Act, admonished, N.J.S.A. 2A:15-5.9 to -5.17. As Justice Hall legislative revamp important public policy intent such “an extremely power ... I matter is so doubtful that am convinced the should be denied Legislature unless and until the bestows it plain Zahorian, language.” unmistakable supra, 62 N.J. at (Hall, J., 301 A.2d754 dissenting).
IV.
view,
my
Legislature
did not intend to lower the thresh
recovering
old for
common-law remedies when such remedies are
sought
LAD,
under the
nor can
reasonably
that be
inferred from
Therefore,
the LAD.
in this matter I
require plaintiff
would
satisfy the
four-prong
obtaining
modified
test
compensatory
for
damages for emotional distress that
discriminatory
arises from
conduct,
Taylor, supra,
509-21,
as set forth in
N.J.
my
record,
A.2d 685.6 Based on
review of the
I would affirm the
trial
plaintiffs
court’s dismissal of
compensatory
claim for
dam
ages grounded
alleged
on her
emotional
plaintiff
distress because
prima
did not make a
showing
Taylor.
under
facie
Specifically,
respect
subjective severity
plaintiffs
alleged
distress,
emotional
correctly
the trial court
observed that
(1)
require:
the LAD does
showing
not
“a
of medical treatment or
(2)
medication in order to meet
things,”
the emotional distress
“that emotional
damages
proven by
expert
have to be
testimony,
(3)
although that
preferable,”
would be
or
“that the
sought
it,”
has to show that
anything
she
treatment or
for
Rendine,
which is consistent with our
supra,
observation
N.J. at
661 A.2d
that a claim for emotional distress
damages
LAD
require
under the
does
as a
matter
law
“expert testimony
independent
However,
corroboration.”
trial court found
“temporary upsetment” did not demon-
stress,
required
strate “severe” emotional
as
under our common
6As
stated, under that test, to recover
previously
(1)
distress,
must demonstrate:
conduct,
intentional
id. at
(2) outrageous
(3)
513-14,
100 correctly trial noted that “emotional distress law. The court compensable,” standing nothing generally else is alone with alleged that the and something just passing or a that’s than sort And what
has to be more problem. crying passing a in this case made reference to in the was [plaintiff] happened that that was related to car and there was no indicate testimony basically that it substantial, or to other that it was was incident question problems continuing significant or that it emotional distress. caused her any added.) (Emphasis substantially by proofs offered Plaintiff’s differ with those Taylor. There, plaintiffs supervisor, who was a plaintiff male, plaintiff, who an African-American white referred to the female, others, “jungle presence bunny” eliciting as a in the Taylor, supra, N.J. at laughter from one listener. 152 706 immediately plaintiff began cry A.2d 685. The and went discussing the remark co-workers bathroom. When with soon thereafter, male, Id. all of white and she was mocked. whom were 495-96, bringing light, 706 685. After the incident to A.2d coolly and were co-workers “acted toward her afraid to her.” Id. plaintiff A.2d 685. talk to The consulted a year; periodically almost a psychiatrist she was “nervous wreck”; “[s]he was afraid to leave work alone and lived in “bought Ibid. reprisal”; bullet-proof fear of vest.” constant insomnia, changes, plaintiff from suffered mood other disorder,” symptoms “post-traumatic diag stress as indicative Ibid.7 psychiatrist. nosed her 7 Although the adduced evidence that she consulted a plaintiff Taylor, supra, diagnosed her with stress psychiatrist, psychiatrist post-traumatic Court did not hold that such evidence was a to a /disorder, expert prerequisite claim for intentional of emotional infliction distress based discrimination as evidence, Rather, matter of law. N.J. at such as a might fact, matter of the conclusion that a suffered bolster "severe” Rendine, emotional distress. The Court’s of the same in observation explicit N.J. at is I with note wholly supra, compatible Taylor. addressing majority in addition that the of federal Courts of claims of Appeal damages for emotional distress in the context of 42 U.S.C.A. compensatory (Title VII), § §§ as held well as U.S.C.A. 2000e have that a recovering is not barred as a matter law from us, although the matter before a co-worker about testified *26 plaintiff, how she believed the discrimination had affected distress, herself introduced no other evidence of emotional her except testimony. her own Plaintiff tactical made the decision not to psychiatrists, psychologists, offer evidence that visited she in discriminatory social workers and around of the time and/or lawsuit, giving conduct possibly rise to this because some or all of those visits related to marital experiencing difficulties she was apparently around the same time. Plaintiff also testified at her headaches, deposition high pressure, about appetite blood and an change, potentially conduct, discriminatory all related but relating perhaps marriage, to the difficulties with associated her perhaps or other strategy undisclosed factors. Plaintiffs trial appears instead to limit have been the evidence of her emotional “bothered,” feeling crying driving distress to her and to while deposition, plaintiff home on one occasion. Unlike her did not headaches, testify high pressure, at trial about her blood of loss appetite. testify medical, Plaintiff sought did not psycho- she logical, view, my or social worker treatment. In the evidence presented prima fails of establish a case facie subjective Taylor. emotional under
Y. conclusion, I would affirm the trial court’s of dismissal compensatory damages claim for based on emotional said, join distress. That I Appellate in the Court’s of the reversal judgment imposed liability Division that had individual on defen- evidence, for emotional distress without or corroborative expert testimony goes weight that the of to the absence corroboration evidence demonstrat- ing e.g., distress. See, Patrolmen’s Benevolent Ass’n New City Cir.2002); (2d New York, 43, Co., York.v. 310 F.3d 55 v. Pa. Elec. City Gunby Cir.1988), (3d Riga, 1108, 840 F.2d 1121-22 cited in with Alexander v. approval Cir.1999); (3d 625, 208 F.3d 428 n. 6 v. Knussman F.3d Maryland, (4th Cir.2001); Justice, Thomas v. Texas Criminal 297 F.3d 368-69 Dep’t (5th Cir.2002); (6th Turic v. F.3d 1211, Holland Inc. 85 Hospitality, Cir.1996); (8th Cir.1999). Indus., Inc., v. Forshee Waterloo 178 F.3d that, to I also concur in the Court’s conclusion dant Bob Ciasulli. LAD, prevailing attorney’s party under the our fees as recover employ the standard as that used for such courts should same § ante at under 1988. See claims U.S.C.A. (quoting Hobby, v. 506 U.S. 113 S.Ct.
929-30 Farrar (1992)). 121 L.Ed.2d joins opinion. in VERNIERO this
Justice part/remandment—Chief part/reversal in For affirmance ZAZZALI, PORITZ and Justices ALBIN and Justice WALLACE—4. partldissent part—Justices VERNIERO
For concurrence and LaVECCHIA—2. *27 BRODSKY, AND ADMINISTRATRIX
GLORIA INDIVIDUALLY AS BERNARD AD OF THE ESTATE OF BROD- PROSEQUENDUM SKY, BRODSKY-SERAFIN, AND AND DAWN JILL WRIGHT PLAINTIFFS-APPELLANTS, BRODSKY, CHILDREN, COREY HAULERS, BENNETT, INC. AND JOHN DEFEN- v. GRINNELL DANTS-RESPONDENTS, HORSMAN, DEFEN- AND WILLIAM DANT.
Argued Decided August March