RIMSCHA v. SUPRENANT (2008)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

1. Background. The plaintiff, Adam Rimscha, filed a complaint against his brother-in-law, defendant Napoleon Suprenant, asserting a claim for intentional infliction of emotional distress allegedly caused by the defendant's active concealment of the fact of the plaintiff's brother's (the defendant's spouse) death. Pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 755 (1974), a Superior Court judge granted the defendant's motion to dismiss for failure to state a claim, on the ground that the facts alleged by the plaintiff were insufficient as to the issue of the defendant's intent. We reverse.

2. Discussion. When reviewing the disposition of a motion to dismiss, “we take the well-pleaded allegations in the complaint as true and must make all reasonable inferences in favor of the plaintiff.” Okerman v. VA Software Corp., 69 Mass.App.Ct. 771, 774, 871 N.E.2d 1117 (2007). Under Mass.R.Civ.P. 12(b)(6), the motion to dismiss must be denied unless it appears certain “that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Nader v. Citron, 372 Mass. 96, 98, 360 N.E.2d 870 (1977), quoting from Conley v. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).¹ Our review of an allowed motion to dismiss is de novo. See, e.g., Warner–Lambert Co. v. Execuquest Corp., 427 Mass. 46, 47–50, 691 N.E.2d 545 (1998).

In order to prevail on a claim for intentional infliction of emotional distress, a plaintiff must establish: “(1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct ․; (2) that the conduct was ‘extreme and outrageous,’ was ‘beyond all possible bounds of decency’ and was ‘utterly intolerable in a civilized community’ ․; (3) that the actions of the defendant were the cause of the plaintiff's distress ․; and (4) that the emotional distress sustained by the plaintiff was ‘severe’ and of a nature ‘that no reasonable man could be expected to endure it.’ ” Agis v. Howard Johnson Co., 371 Mass. 140, 144–145, 355 N.E.2d 315 (1976) (citations omitted). Thus, we look to the facts alleged within the four corners of the plaintiff's complaint to determine if each of these elements  ² has been sufficiently pleaded to satisfy the lenient standard by which a complaint is measured on a motion to dismiss for failure to state a claim.

A. Intent. The motion judge determined that the plaintiff failed to properly plead that the defendant's conduct was carried out with the intention of inflicting emotional distress upon the plaintiff. We disagree. Although the judge was not bound to accept the plaintiff's conclusory allegation that the defendant acted “intent[ionally] for the purpose of causing plaintiff deep emotional pain” (A.5–6), she was required to take as true the well-pleaded facts alleged in the complaint.

The plaintiff set out in his complaint that the defendant knew he and his brother enjoyed a close personal relationship, which included speaking on the telephone every evening. (A.3). The plaintiff's brother provided emotional support and a home for the plaintiff, who was recovering from liver cancer and was confined to a wheelchair. (A.3–4). The plaintiff's brother promised the plaintiff that he could live in the brother's house for the rest of his life if he so wished.

After the plaintiff moved in, the plaintiff's brother was admitted to the hospital due to an infection. (A.4). The day after his brother entered the hospital, the plaintiff claimed that the defendant filed an intention of marriage. The following day, utilizing the durable power of attorney authority the plaintiff's brother gave him two years prior, the defendant deeded the plaintiff's brother's home to himself. On the same day, the defendant married the plaintiff's brother in the hospital. The plaintiff's brother died the next day. (A.4).

The plaintiff alleged that the defendant did not inform him of his brother's death, funeral, or burial location, and that he actively concealed such information by falsely indicating on two separate occasions, subsequent to the brother's death, that the brother was still alive and getting better. (A.4–6). In addition, the plaintiff claimed that the day after his brother's death, the defendant abruptly removed him from his brother's house, where he had been staying, and put him on a plane to Florida, where he could stay with his son. (A.4).

Applying, as we must, the lenient standard for review of a motion to dismiss, the plaintiff has pleaded facts which, if proved at trial, would permit the inference that the defendant “intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct.” Agis v. Howard Johnson Co., 371 Mass. at 144–145, 355 N.E.2d 315. At this stage of the proceedings, this is sufficient.³

B. Extreme and outrageous conduct. The defendant also argues that we should affirm the order dismissing the complaint on the ground that the alleged conduct does not rise to the level of outrageousness required for a claim of intentional infliction of emotional distress. Because reasonable minds could differ on this issue, we disagree. Cf. id. at 145, 355 N.E.2d 315.

When intentional infliction of emotional distress is alleged, “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, [as] to be regarded as atrocious, and utterly intolerable in a civilized community.” Foley v. Polaroid Corp., 400 Mass. 82, 99, 508 N.E.2d 72 (1987), quoting from Restatement (Second) of Torts § 46 comment d (1965). In this context “[o]utrageous ․ mean[s] more than workaday insults, annoyances, or even threats and petty oppressions. It means, for example, a high order of reckless ruthlessness or deliberate malevolence that ․ is simply intolerable.” Conway v. Smerling, 37 Mass.App.Ct. 1, 8, 635 N.E.2d 268 (1994) (citations omitted). Although a jury might agree with the defendant that his behavior was not so intolerable as to constitute extreme and outrageous conduct, we cannot say as matter of law that this conduct is insufficiently egregious to meet that standard.

In reaching this conclusion we are mindful of the alleged facts concerning the plaintiff's physical and mental condition and close relationship with his brother.⁴ “Conduct otherwise reasonable may become tortious when directed at an individual known to be particularly susceptible to infliction of emotional distress.” Boyle v. Wenk, 378 Mass. 592, 596, 392 N.E.2d 1053 (1979), citing Restatement (Second) of Torts § 46 comment f, illustrations 9–11 (1965). In Boyle, the Supreme Judicial Court explained, “the issue whether [the defendant's] conduct was extreme and outrageous is raised by his continued harassment of [the plaintiff, who had recently given birth] after he knew that she had just returned from the hospital․ [That knowledge] put him on notice that she might be more vulnerable to harassment or verbal abuse.” Ibid. Thus, a trier of fact would be entitled to consider the plaintiff's alleged peculiar susceptibilities, if known by the defendant, in determining whether the conduct was extreme and outrageous.

We also note that in determining whether the conduct was extreme and outrageous, the jury may look to the combined effect of the defendant's actions. In Boyle, the court stated “[t]he flaw in [the defendant's] argument is that he isolates each individual incident and ignores the fact that the jury are entitled to draw reasonable inferences from the totality of circumstances.” Id. at 595, 392 N.E.2d 1053. Although the individual acts alleged by the plaintiff might not seem flagrant when each is viewed separately, it is possible that the cumulative effect of all of those acts might convince a jury otherwise.

The plaintiff “has alleged facts and circumstances which reasonably could lead the trier of fact to conclude that [the] defendant's conduct was extreme and outrageous, having a severe and traumatic effect upon plaintiff's emotional tranquility.” Agis v. Howard Johnson Co., 371 Mass. at 145, 355 N.E.2d 315 (citation omitted). Thus, because the plaintiff has stated a claim for which relief may be granted, he is entitled to an opportunity to prove the allegations he has made.

C. Duty. Finally, although not a basis for the judge's order, the defendant argues that the complaint was properly dismissed because there is neither a statutory nor a common law duty which requires an individual to notify his in-laws of the death of a spouse or of the funeral arrangements. The defendant's focus on duty is, however, misplaced. The question is not whether a spouse has a duty to notify in-laws, but rather whether the defendant had a duty under these circumstances to refrain from intentionally inflicting emotional distress on the plaintiff. We resolve that question as matter of law, see Wallace v. Wilson, 411 Mass. 8, 12, 575 N.E.2d 1134 (1991); Doe v. Moe, 63 Mass.App.Ct. 516, 518–519, 827 N.E.2d 240 (2005), and conclude that he clearly did. Indeed, everyone has a duty to refrain from intentional and unprivileged  ⁵ infliction of serious emotional harm on others. See George v. Jordan Marsh Co., 359 Mass. 244, 255, 268 N.E.2d 915 (1971).

Our decision in Conley v. Romeri, 60 Mass.App.Ct. 799, 806 N.E.2d 933 (2004), on which the defendant relies, is not to the contrary. In Conley, one count in the complaint alleged intentional infliction of emotional distress, but our discussion of the parameters of a duty of care in a dating relationship related only to a separate count of negligent infliction of emotional distress. In the context of the negligence claim, we noted that duty was an element of that cause of action. Id. at 801, 806 N.E.2d 933.  ⁶ Conley does not affect the outcome here.

3. Conclusion. The judgment dismissing the plaintiff's complaint is vacated, and the case is remanded to the Superior Court for further proceedings consistent with this opinion.

So ordered.

FOOTNOTES

1.  The defendant's motion to dismiss was filed on October 5, 2006, and allowed by the judge on October 25, 2006. On May 21, 2007, the United States Supreme Court issued its decision in Bell Atl. Corp. v. Twombly, 550 U.S. 544, –––– – ––––, 127 S.Ct. 1955, 1968–1969, 167 L.Ed.2d 929 (2007), which overruled the “no set of facts” standard from Conley v. Gibson, supra. A more appropriate inquiry, the Court suggested, is whether facts alleged in the complaint “raise a right to relief above the speculative level ․ on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atl. Corp. v. Twombly, supra at 1965, citing 5 Wright & Miller, Federal Practice and Procedure § 1216, at 235–236 (3d ed.2004). The Supreme Judicial Court has yet to decide whether it will adopt the Bell Atlantic standard for purposes of motions to dismiss brought pursuant to Mass.R.Civ.P. 12(b)(6). Eigerman v. Putnam Invs., Inc., 450 Mass. 281, 286 n. 7, 877 N.E.2d 1258 (2007). However, the court did determine that the Bell Atlantic case would not affect the resolution of a case like this one, because the decision followed the dismissal of this plaintiff's complaint. Ibid. See Nguyen v. William Joiner Center for the Study of War and Social Consequences, 450 Mass. 291, 296 n. 7, 877 N.E.2d 1266 (2007).

2.  As the defendant does not challenge the sufficiency of the complaint with respect to the third and fourth of these elements, we limit our discussion to the first and second, and to a corollary discussion of duty.

3.  We note that in this respect, “[a] trier of fact would be entitled to put as harsh a face on the actions of the [defendant] as the basic facts would reasonably allow.” Vittands v. Sudduth, 49 Mass.App.Ct. 401, 411, 730 N.E.2d 325 (2000), quoting from Richey v. American Auto. Assn., 380 Mass. 835, 839, 406 N.E.2d 675 (1980). Indeed, although the jury might find credible the defendant's innocent explanation for his actions, they might also accept the plaintiff's position that such conduct was carried out with deliberate malevolence.

4.  The plaintiff has alleged that he was recovering from cancer of the liver, had recently been discharged from a rehabilitation and nursing facility, and was confined to a wheelchair. (A.3).

5.  On a related note, the defendant argues that spousal privilege insulates him from liability for not disclosing the plaintiff's brother's demise and his attendant funeral arrangements. Even if true (and we do not so decide), such a claim does not render legally insufficient the allegation that the defendant affirmatively represented to the plaintiff that his brother was “doing better” when he had in fact died.

6.  Even in the context of a claim for negligence, our cases hold that “everyone has a duty to refrain from affirmative acts that unreasonably expose others to a risk of harm.” Yakubowicz v. Paramount Pictures Corp., 404 Mass. 624, 629, 536 N.E.2d 1067 (1989).