Appeal from so much of a judgment of the United States District Court for the Southern District of New York, Griesa, J., as permitted plaintiffs to recover damages for emotional distress recklessly caused by defendant's extreme and outrageous conduct. Judgment, insofar as appealed from, reversed.
Kaufman, Pratt, and Gibson,*fn* Circuit Judges.
The issue on appeal in this diversity action is whether under New York law parents may recover damages for emotional distress resulting from extreme and outrageous conduct that caused the death of their child. The district court, 554 F. Supp. 308, surveyed New York case law and concluded that, if presented with this case, the New York Court of Appeals would allow recovery. We can understand the district court's perception that justice should permit recovery in a case such as this. However, a Judge Kaufman observed in Hausman v. Buckley, 299 F.2d 696, 704-05 (2d Cir.), cert. denied, 369 U.S. 885, 8 L. Ed. 2d 286, 82 S. Ct. 1157 (1962):
The proper function of this Court is to ascertain what New York law is, and not to speculate about what it will be, or in Learned Hand's felicitous phrase, "to embrace the exhilarating opportunity of anticipating a doctrine which may be in the womb of time, but whose birth is distant." Spector Motor Service v. Walsh, 139 F.2d 809, 823 (2d Cir. 1943) (dissent), vacated 323 U.S. 101, 65 S. Ct. 152, 89 L. Ed. 101 (1944). It is certainly not our function to apply the rule we think better or wiser. (citation omitted).
As we read the applicable law, plaintiffs in New York cannot recover for the severe emotional distress their child's death caused them.
In July 1977 appellant Richard Herrin, a disappointed suitor, bludgeoned plaintiffs' daughter, Bonnie Joan Garland, with a hammer as she slept in her bedroom. Although her parents were sleeping in a room nearby, they were not awakened by Herrin's murderous assault on Bonnie. Battered but still alive, Bonnie was discovered by her mother the following morning and was rushed to a hospital where she died later that evening.
After Herrin was convicted of first degree manslaughter, Bonnie's parents brought this action to recover for emotional distress and for pecuniary injuries under New York's wrongful death statute, as well as for certain property damages.
By pretrial motions and stipulations, many of the claims were resolved prior to jury selection: the court dismissed two of the eight cases of action; plaintiffs withdrew two others; on two more, defendant consented to summary judgment for stipulated amounts of property damage; and defendant consented to partial summary judgment of liability on the statutory wrongful death claim. This left for trial the amount of damages for pecuniary injuries on the wrongful death claim, and issues of both liability and damages on plaintiffs' claims for infliction of emotional distress.
On the wrongful death claim the parties stipulated at trial to the amounts of medical and funeral expenses, and left to the jury the general pecuniary loss suffered by plaintiffs as a result of the death of their daughter, an amount the jury fixed at $10,000. Neither side has appealed that determination.
On their claims for severe emotional distress, the focal point of this appeal, plaintiffs grounded their position on § 46 of the Restatement (Second) of Torts (1965), which provides in part that "one who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress * * *." At trial defendant conceded that he had engaged in "extreme and outrageous conduct". He also conceded that he had "recklessly" caused plaintiffs "severe emotional distress", but he denied that he had done so "intentionally".
While the district judge recognized that plaintiffs' right to recover was "very debatable", in the interest of sound judicial administration he decided to have the jury find the necessary facts by special verdicts, subject to his later review of the law. Therefore, in addition to the damages for pecuniary injuries under the wrongful death statute, the court had the jury determine whether defendant had acted "intentionally" toward each plaintiff, as well as the amount of damages resulting from the "severe emotional distress" to each plaintiff. The jury found that defendant had not acted intentionally, and it fixed $15,000 as the amount of damages for each plaintiff's emotional distress following the death of their daughter.
On plaintiffs' motion for entry of judgment, the court called for full briefing on the issue of defendant's liability for plaintiffs' emotional distress. In its decision authorizing entry of judgment, the court ignored defendant's contention that plaintiffs' claim is barred by New York's wrongful death statute, N.Y. Est. Powers & Trusts Law (EPTL) § 5-4.1 et seq. (McKinney 1981), and instead confined its discussion to the issue of whether New York recognizes, as an independent tort, extreme and outrageous conduct toward one individual that recklessly causes severe emotional distress to another. The district court concluded that New York does recognize such a cause of action. We think the district court erred in its interpretation of New York law on at least three critical points.
First, in reaching its conclusion, the court below extended the New York rule, which does permit recovery for "intentional" infliction of emotional distress, to include "reckless" infliction of emotional distress. It is true that § 46(1) of the Restatement describes the principle alternatively by permitting recovery when extreme and outrageous conduct "intentionally or recklessly" causes severe emotional distress. But those cases in New York with which we are familiar have permitted such a claim only when the harm was caused intentionally. Neither the court below nor plaintiffs' ...