ON THE NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

"As such, we now hold that extreme and outrageous conduct is not an essential element of a cause of action to recover damages for negligent infliction of emotional distress."

Brown v. New York Design Ctr., Inc., 2023 NY Slip Op 1228 - NY: Appellate Div., 1st Dept. 2023:

"Contrary to defendant's argument, the record supports a determination that plaintiffs sustained emotional injuries which are compensable in their negligence cause of action. Emotional injury is generally compensable only when it is the direct, rather than consequential, result of the breach of a duty owed (see Kennedy v McKesson Co., 58 NY2d 500, 506 [1983]; Probst v Cacoulidis, 295 AD2d 331, 332 [2d Dept 2002]). While there may be recovery for emotional trauma in the absence of physical injury, evidence must be produced that is sufficient to guarantee the genuineness of the claim (see Johnson v State of New York, 37 NY2d 378 [1975]; Kaufman v Physical Measurements, 207 AD2d 595 [3d Dept 1994]). Here, plaintiffs testified to humiliation, embarrassment, feelings of being violated, and paranoia. Their fears are certainly reasonable since it is not known whether additional copies of the videos exist, who may be in possession of the videos and whether the videos may ultimately be posted on any number of Internet sites.

Plaintiffs' psychological traumas are readily and unquestionably understandable, evidencing "an especial likelihood of genuine and serious mental distress, arising from the special circumstances" (Johnson v State of New York, 37 NY2d at 382 [internal quotation marks omitted]; see also e.g. Landon v Kroll Lab. Specialists, Inc., 22 NY3d 1, 7-8 [2013]; Martinez v Long Is. Jewish Hillside Med. Ctr., 70 NY2d 697, 699 [1987]; Lando v State of New York, 39 NY2d 803 [1976]). Relying upon this Court's decision in Sheila C. v Povich (11 AD3d 120, 130-131 [1st Dept 2004]), Supreme Court dismissed plaintiffs' claims for negligent infliction of emotional distress. In Sheila C., this Court concluded that the existence of extreme and outrageous conduct is a necessary element for a claim of negligent infliction of emotional distress. Other courts also adopted this conclusion.

Under New York law, a cause of action alleging intentional infliction of emotional distress "has four elements: (i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress" (Howell v New York Post Co., 81 NY2d 115, 121 [1993]; see Klein v Metropolitan Child Servs., Inc., 100 AD3d 708, 710 [2d Dept 2012]; see also 2A NY PJI2d 3:6 at 54-55 [2014]).

While the Court of Appeals initially denied recovery for negligent infliction of emotional distress (Mitchell v Rochester Ry. Co., 151 NY 107, 110 [1896]), the Court overruled Mitchell, stating that "a rigorous application of [the] rule [prohibiting recovery for negligently caused emotional distress] would be unjust, as well as opposed to experience and logic" (Battalla v State of New York, 10 NY2d 237, 239 [1961]). The Court reasoned that Mitchell departed from the fundamental axiom of the common law that "a wrong-doer is responsible for the natural and proximate consequences of his misconduct" and that "one may seek redress for every substantial wrong" (Battalla at 240 [internal quotation marks omitted]).

Although it has been recognized that there may be recovery for negligent infliction of emotional distress, the elements necessary for recovery has developed through case law. This Department's case law has held that both intentional infliction of emotional distress and negligent infliction of emotional distress require a showing of extreme and outrageous conduct.

A review of Sheila C. as well as the authorities relied upon for this stated proposition, reveal that they all ultimately rely, either directly or indirectly, upon cases that deal exclusively with intentional infliction of emotional distress or where there are allegations of both (Murphy v American Home Prods. Corp., 58 NY2d 293, 303 [1983]; Acquista v New York Life Ins. Co., 285 AD2d 73, 83 [1st Dept 2001]; Dillon v City of New York, 261 AD2d 34, 41 [1st Dept 1999]). There is no stated rationale as to why extreme and outrageous conduct would be a required element for both an intentional act as well as a negligent act.

As such, we now hold that extreme and outrageous conduct is not an essential element of a cause of action to recover damages for negligent infliction of emotional distress.

This holding is in line with recent decisions of the Second, Third and Fourth Departments.^[1] In Taggart v Costabile (131 AD3d 243 [2d Dept 2015]), the Second Department clarified that extreme and outrageous conduct is not a necessary element to recover damages for negligent infliction of emotional distress. There, the plaintiffs argued that they sustained emotional distress when two masked intruders broke into their home, threatened the plaintiff-husband causing plaintiff husband to shoot the two intruders and accidentally shoot the plaintiffs' dog. The plaintiffs commenced action against the owner of the adjacent property to recover damages for nuisance and negligent infliction of emotional distress, inter alia, arguing that the property owner created the nuisance or should have known that objectionable activities would take place on the property when they rented the property to others.

In Stephanie L. v House of the Good Shepherd (186 AD3d 1009 [4th Dept 2020]), the Fourth Department, relying in part on Taggart, stated that extreme and outrageous conduct is not an essential element of a cause of action to recover damages for negligent infliction of emotional distress.

There, the plaintiffs commenced action against the defendant foster child placement program administrator alleging negligent infliction of emotional distress based upon the program's alleged failure to disclose to the plaintiffs, the complete behavioral history of a foster child, whom the plaintiffs accepted into their home and who subsequently, allegedly abused the plaintiffs' biological child.

More recently, in Doe v Langer (206 AD3d 1325 [3d Dept 2022]), the Third Department affirmed the motion court's decision denying dismissal of the plaintiff's cause of action for negligent infliction of emotional distress due to the plaintiff's failure to allege extreme and outrageous conduct. In doing so, the Court noted that "[o]ther courts have now clarified that extreme and outrageous conduct is not an essential element of a cause of action to recover damages for negligent infliction of emotional distress" (Doe v Langer, 206 AD3d at 1331 [internal quotation marks omitted]).

Finally, this holding is also consistent with the Court of Appeals decision in Ornstein v New York City Health & Hosps. Corp. (10 NY3d 1 [2008], revg 27 AD3d 180 [1st Dept 2006]). There, the defendant hospital's alleged negligent disposal of hypodermic needles caused the plaintiff, a nurse, to be stuck by a hypodermic needle and exposed to human immunodeficiency virus (HIV). The plaintiff claimed negligent infliction of emotional distress as a result of an unknown future diagnosis for the virus. The defendants moved to dismiss that part of the plaintiff's claim that sought damages for emotional distress the plaintiff suffered more than six months after the needle-stick incident. The Court of Appeals reversed this Court's decision limiting damages to six months, since testing negative for HIV at the six-month mark would be scientifically conclusive evidence that the plaintiff did not contract the disease from the event complained of. In its decision, the Court of Appeals made no mention of a requirement that the plaintiff show extreme and outrageous conduct on the part of the defendant hospital. Notably, it is doubtful that under this Department's case law, the plaintiff would have been found to have established extreme and outrageous conduct on the part of the defendant hospital.

We now clarify that a breach of a duty of care resulting directly in emotional harm is compensable even though no physical injury occurred (Kennedy v McKesson Co., 58 NY2d at 504; see Ornstein,10 NY3d at 6; Baumann v Hanover Community Bank, 100 AD3d 814, 816 [2d Dept 2012]; Cleary v Wallace Oil Co., Inc., 55 AD3d 773, 775 [2d Dept 2008]). However, the mental injury must be "a direct, rather than a consequential, result of the breach"(Kennedy v McKesson Co., 58 NY2d at 506), and the claim must possess "some guarantee of genuineness" (Ferrara v Galluchio, 5 NY2d 16, 21 [1958]; see Ornstein, 10 NY3d at 6; Karin K. v Four Winds Hosp., 64 AD3d 686, 687 [2d Dept 2009], lv denied 13 NY3d 711 [2009]; DiStefano v Nabisco, Inc., 2 AD3d 484, 485 [2d Dept 2003]).

To the extent that a number of this Court's past decisions have indicated that extreme and outrageous conduct is a required element in order to sustain a cause of action for negligent infliction of emotional distress, those cases should no longer be followed."