breach of a duty owed directly to him by the Vista.
Defendants' reliance upon Johnson v. Jamaica Hospital, 62 N.Y.2d 523, 478 N.Y.S.2d 838, 467 N.E.2d 502 (1984), is similarly misplaced. In Jamaica Hospital, the New York Court of Appeals held that the parents of a newborn infant abducted from a hospital nursery may not recover for their own emotional distress resulting from the hospital's negligence in the care of the infant or in the management of its nursery. In so holding, however, the Court of Appeals merely held that a plaintiff, to whom no direct duty is owed, may not recover for emotional distress. Jamaica Hospital, 62 N.Y.2d at 528-30, 478 N.Y.S.2d at 840-41. This decision left in tact the rule that a defendant who owes a duty directly to a plaintiff will be held liable for the emotional distress which he proximately causes. See Johnson v. State, 37 N.Y.2d at 383, 372 N.Y.S.2d at 643 (breach of duty to transmit truthful information about a relative's death or funeral actionable).
Accordingly, the Court holds that the complaint contains allegations sufficient to state a claim for negligent infliction of emotional distress. Consequently, defendants' motion to dismiss Perrin's negligence claim is denied.
B. Middleton's Negligence Claim
Middleton similarly claims that defendants are liable for negligent infliction of emotional distress. According to the complaint, Middleton suffered outrage, extreme mental anguish, severe anxiety, disruption of her personal life, and loss of enjoyment of the ordinary pleasures of life, as a result of a breach of duty owed to her as a Vista guest. Complaint, at P52.
The common law has consistently imposed a duty upon innkeepers to exercise reasonable care for the protection of guests and patrons. See, e.g., Vale v. Yawarski, 78 Misc. 2d 522, 523-24, 357 N.Y.S.2d 791, 793 (N.Y. Sup. Ct. 1974) (innkeepers must exercise reasonable care to protect patrons on the premises). However, as a defendant is liable only for injuries which he proximately causes, see supra pp. 5-6, an innkeeper will not be held responsible for every consequence, no matter how remote, of its failure properly to register a guest. See Vale, 78 Misc. 2d at 523-24, 357 N.Y.S.2d at 793.
In the present case, Middleton's emotional distress was not foreseeable as a matter of law and was merely a consequential result of the Vista's conduct. There is no question that defendants owed a duty to Middleton as soon as she arrived at the Vista. This duty, however, did not extend to ensuring that she was not emotionally harmed as a result of emotional distress suffered by a third party seeking to locate her there. Defendants could not be expected to foresee that the emotional distress suffered by Perrin would have an impact on Middleton. Additionally, as in Kennedy, supra, any injury to Middleton was not a direct, but merely a consequential result of defendants' conduct. Since Middleton's injury was not proximately caused by defendants' negligence as a matter of law, defendants' motion to dismiss Middleton's negligent infliction of emotional distress claim is granted.
IV. Perrin's Claim for Intentional Infliction of Emotional Distress
Perrin also seeks to recover for intentional infliction of emotional distress ("IIED"). The complaint alleges that defendants "engaged in extreme and outrageous conduct through their acts and omissions and abusive, belligerent and hostile conduct toward Mr. Perrin." Complaint, at P61.
The law governing IIED claims in New York is well-settled. An action for IIED may lie "for conduct exceeding all bounds usually tolerated by decent society." Fischer v. Maloney, 43 N.Y.2d 553, 557, 402 N.Y.S.2d 991, 992, 373 N.E.2d 1215 (1978) (quoting Prosser on Torts § 12, at 56 (4th ed. 1971)). The plaintiff must show that the defendant either intentionally or recklessly caused the plaintiff's emotional suffering. Freihofer v. Hearst Corp., 65 N.Y.2d 135, 143, 490 N.Y.S.2d 735, 741, 480 N.E.2d 349 (1985); Fischer, 43 N.Y.2d at 557, 402 N.Y.S.2d at 992-93. This rule is adopted from the Second Restatement of Torts which provides: "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, and to be regarded as atrocious, and utterly intolerable in a civilized community." Restatement (Second) of Torts § 46 subd. cmt. d. (1977).
Applying the law of IIED to the present case, plaintiff fails to meet the required standard. Although defendants' inability to locate Middleton on the Vista's registration list was arguably negligent, there is no allegation in the complaint that would permit a reasonable jury to find that defendants' conduct was "beyond all possible bounds of decency" or "atrocious and utterly intolerable in a civilized community." See Fischer, 43 N.Y.2d at 557, 402 N.Y.S.2d at 992.
V. Consortium Claims
Loss of consortium is a derivative claim and is based on an injury suffered by the claimant's spouse. Liff v. Schildkrout, 49 N.Y.2d 622, 632, 427 N.Y.S.2d 746, 749, 404 N.E.2d 1288 (1980) (citing Millington v. Southeastern Elevator Co., 22 N.Y.2d 498, 507-08, 293 N.Y.S.2d 305, 312-13, 239 N.E.2d 897 (1968)). Since the Court has denied defendants' motion to dismiss Perrin's negligence claim, Middleton's cause of action for loss of consortium survives as a derivative of this claim.
Perrin, however, may not maintain his claim for loss of consortium. As a claim for loss of consortium cannot be derived from a spouse's breach of contract claim, see Odell v. Dalrymple, 156 A.D.2d 967, 549 N.Y.S.2d 260 (4th Dept. 1989), the dismissal of Middleton's only tort claim precludes Perrin's claim for loss of consortium.
For the reasons set forth above, defendants' motion is granted in part and denied in part. Specifically, defendants' motion, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, for an order dismissing plaintiff Middleton's claim for negligent infliction of emotional distress (Fourth Claim for Relief), plaintiff Perrin's claims for loss of consortium (Third Claim for Relief) and intentional infliction of emotional distress (Second Claim for Relief), is granted, and those claims are hereby dismissed with prejudice. Defendants' motion to dismiss plaintiff Perrin's claim for negligent infliction of emotional distress (First Claim for Relief) and plaintiff Middleton's claim for loss of consortium (Fifth Claim for Relief) is denied. Defendants shall interpose an answer to the complaint within twenty days of the date of this Memorandum Opinion and Order.
SHIRLEY WOHL KRAM
UNITED STATES DISTRICT JUDGE
Dated: New York, New York
July 7, 1992