Practice point: This action for negligent infliction of emotional distress arose from defendant newspaper's publication of an article reporting on the
death of a three-year old girl who was allegedly beaten by her father. The article attributed certain statements regarding the child's
appearance the day before her death to plaintiff, who was a neighbor.
Plaintiff denies making the statements and commenced
this action claiming that following the article's publication, a street
gang, to which the father and his brother belonged, began to harass
and threaten her, causing her to fear for her safety and to change her
residence on several occasions.
The complaint failed to state a cause of action as it fails to allege conduct that
is extreme and outrageous Plaintiff fails to allege that defendants'
conduct was "so outrageous in character, and so extreme in degree, as to
go beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community."
Plaintiff similarly failed to properly plead a claim for prima
facie tort as the complaint fails to allege that defendants' sole
motive in publishing the article was disinterested malevolence, and fails to allege special damages. The complaint merely alleges that
plaintiff suffered damages in an amount exceeding the monetary jurisdictional
limits of the lower courts which would otherwise have jurisdiction, without specifying or detailing her loss. Although plaintiff's affidavit in
opposition stated that she incurred moving expenses in
excess of $15,000, the court held that such a round figure, without itemization, must be considered to represent general
damages.
Student note: Plaintiff was not accorded an opportunity to discover if defendants had knowledge and
an intent to injure her, as this addresses only one of the elements
of a claim for prima facie tort and
cannot cure the defects in the complaint.
Case: Phillips v. New York Daily News, NY Slip Op 07269 (1st Dept. 2013).
Here is the decision.
Monday's issue: Common-law negligence and Labor Law § 200.
