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GARLAND v. HERRIN

January 7, 1983

PAUL GRIFFITH GARLAND, as Administrator of the Estate of Bonnie Joan Garland, Deceased; PAUL GRIFFITH GARLAND and JOAN B. GARLAND, Individually, Plaintiffs,
v.
RICHARD J. HERRIN, Defendant



The opinion of the court was delivered by: GRIESA

GRIESA, J.

 Plaintiffs have made a motion pursuant to Fed. R. Civ. P. 58 for entry of judgment.

 Certain of the issues were previously disposed of on cross-motions for summary judgment. Certain issues were stipulated. Others were tried to a jury. The trial took place on October 12-19, 1982.

 The action arises out of the killing of Bonnie Joan Garland on July 7, 1977, by defendant Richard J. Herrin, who was prosecuted in Supreme Court, Westchester County, and was convicted on June 18, 1978 of first degree manslaughter. He is now serving a prison sentence.

 The present action is brought by Bonnie's mother and father, Joan B. Garland and Paul Griffith Garland, and by Paul Griffith Garland as administrator of Bonnie's estate. Plaintiffs' complaint originally contained eight causes of action. On October 24, 1979 the court granted summary judgment dismissing the second and eighth causes of action, and the fourth and sixth causes of action have been withdrawn. Defendant consented to summary judgment in favor of plaintiffs on the fifth and seventh causes of action for property damage. The amount of such damages is stipulated. Defendant consented to partial summary judgment on the first cause of action -- for wrongful death -- on the issue of liability, leaving damages for trial. As to the third cause of action -- the claims for infliction of emotional distress -- these claims remained for trial on both liability and damages.

 At the trial certain elements of damages with respect to the wrongful death claim were stipulated -- the amounts relating to medical expenses and funeral expenses. Since liability was conceded on the wrongful death claim, the only issue submitted to the jury related to the general pecuniary loss suffered by plaintiffs as a result of the death of their daughter. The amount of such damages found by the jury was $10,000.

 Defendant has no objection to the entry of judgment in favor of plaintiff Paul Garland as administrator of the estate, based upon the $10,000 wrongful death damage verdict and the other stipulated items.

 The contested issue on the present motion for judgment relates to the claims for infliction of emotional distress. Plaintiffs principally rely upon Restatement of Torts (2d), § 46, which states:

 
"§ 46. Outrageous Conduct Causing Severe Emotional Distress
 
(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.
 
(2) Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress
 
(a) to a member of such person's immediate family who is present at the time, whether or not such distress results in bodily harm, . . ."

 It was conceded by defendant at trial that his actions constituted "extreme and outrageous conduct" within the meaning of § 46. With regard to the issue of intention, plaintiffs conceded that defendant did not intend to cause emotional distress to plaintiffs in the sense of desiring to do so. However, plaintiffs contended that defendant had a conscious awareness and knowledge of the severe emotional distress which would be caused to them and that he committed the killing with this state of mind. Plaintiffs contended that this was intentional conduct within the meaning of § 46. Defendant denied such conscious awareness and knowledge. This issue was submitted to the jury, which was asked to answer the following interrogatories:

 
"1. Do you find that the defendant intended to cause severe emotional distress to plaintiff Paul Griffith Garland -- in the sense of knowing that such severe emotional distress would be certain, or substantially certain, to result from his killing of Bonnie Joan Garland?
 
2. Do you find that the defendant intended to cause severe emotional distress to plaintiff Joan B. Garland -- in the sense of knowing that such severe emotional distress would be certain, or substantially certain, to result from his killing of Bonnie Joan Garland?"

 With regard to the issue of reckless conduct, it was conceded by defendant that he was guilty of acting recklessly vis-a-vis plaintiffs within the meaning of § 46. However, defendant contends that, as a matter of law, such recklessness is not a basis for imposing judgment against him for the tort of infliction of emotional distress.

 In addition to the interrogatories to the jury regarding defendant's knowledge, interrogatories were submitted as to the amount of damages sustained by each plaintiff as a result of emotional distress following Bonnie's death. The interrogatories were:

 
"3. What amount of damages do you find that plaintiff Paul Griffith Garland sustained as a result of emotional distress following the death of Bonnie Joan Garland?
 
4. What amount of damages do you find that plaintiff Joan B. Garland sustained as a result of emotional distress following the death of Bonnie Joan Garland?"

 With regard to Interrogatories 1 and 2, dealing with defendant's knowledge, the jury answered in the negative. On the damage issue the jury found the amount of $15,000 for each plaintiff, in response to Interrogatories 3 and 4.

 The issue to be decided on the present motion is whether reckless misconduct can be the basis for a judgment against defendant on plaintiffs' claims ...


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