The opinion of the court was delivered by: HURD
The defendant in the above companion actions has moved for summary judgment pursuant to Fed. R. Civ. P. 56, dismissing the complaints. Oral argument was heard on November 9, 1995, in Utica, New York. Decision was reserved.
The following constitutes this court's disposition of these motions. Facts are read in the light most favorable to the nonmovant for the purposes of this motion. Project Release v. Prevost, 722 F.2d 960, 968 (2d Cir. 1983).
On Saturday night, March 2, 1991, between 6:30 p.m. and 8:00 p.m., plaintiffs Cheryl L. and Bernard J. Mortise, together with two friends, Scott and Maureen Wagner, were driving separate all terrain vehicles ("ATVs") on a logging road in the town of New London off of N.Y.S. Route 49, southwest of the city of Rome, New York. They had been informed that the land was not posted and could be used for such purposes. The four traveled approximately halfway up the trail during the course of the evening, and then turned and began traveling single file toward the entrance to the property.
Coincidentally, the Headquarters Company, Third Battalion, 108 Infantry Regiment of the Army National Guard had received permission from the County of Oneida - owners of the portion of property adjacent to Route 49 in the town of New London - to conduct military exercises on the evening of March 2, 1991. The military exercises involved occupying a wooded area adjacent to an old logging road, setting up mortar positions, and then moving out to occupy a firing position. Trip flares were set and personnel were issued M-16 rifles and .9 millimeter pistols.
Lieutenant Thomas Hanley, the mortar platoon leader, observed the four ATVs traveling up the logging road while it was still light out, and he assumed others in the platoon also saw them. It was approximately 9:30 or 9:45 p.m. when the ATVs were spotted returning down the trail.
As they passed the platoon encampment, Bernard Mortise's ATV triggered a trip flare that had been set up across the trail after the ATVs had initially passed. Debris was thrown all over. As the dust settled, five persons jumped from the cover of the woods with guns raised, screaming and hollering. Triggers of the guns were heard clicking, and one of the five fired a blank. Bernard Mortise, who was driving the first of the four ATVs, received the most direct interaction. He was told to shut up and that he was their prisoner. The guns were aimed at him and the debris of the flare fell around him. His wife, Cheryl Mortise, stopped her ATV back from the activity, screaming.
Lt. Hanley arrived at the location of the incident and began to take stock in the events that had just occurred. He informed the four ATV drivers that the five persons were members of a National Guard platoon, and explained that they were conducting military exercises. He said that it was a mistake; and that the platoon believed the ATVs could have been sent as decoys by their opposition in the exercise. After a period of time, plaintiffs and their two friends were allowed to drive away from the scene.
Neither plaintiff received any physical injuries. The claims against the defendant are for the intentional and/or negligent infliction of emotional distress allegedly caused by the National Guardsmen.
A. Intentional infliction of emotional distress.
Section 2680(h) of the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq., creates an exception to the waiver of sovereign immunity that had been executed by the Act, for any causes of action that ...