weapons raised in a firing position aimed at Bernard Mortise a foot from his face, and began pulling their triggers as if to fire. There was an obvious apprehension on the part of plaintiffs, and the acts that occurred normally connote the existence of an assault, such as the pointing of a gun or the jumping out at someone.
Intentional infliction of emotional distress requires "(1) an extreme and outrageous act by the defendant, (2) an intent to cause severe emotional distress, (3) resulting severe emotional distress, (4) caused by the defendant's conduct." Burba v. Rochester Gas and Elec. Corp., 90 A.D.2d 984, 984, 456 N.Y.S.2d 578 (4th Dep't 1982). While the claims of assault and intentional infliction of emotional distress are separate and distinct, in the factual scenario present herein, one encompasses the other.
Even the plaintiffs argue that "what makes the conduct of the National Guard so extreme and outrageous is that they knew or should have known that persons on ATV vehicles with their headlights on could not have been the 'enemy.'" (Pl.'s Mem. Law at 10.) For the purposes of this motion, this allegation is accepted as true. However, such knowledge would satisfy the intent necessary to prove assault.
Assuming the facts regarding the intent of the National Guardsmen are true as alleged by the plaintiff, the claims of intentional infliction of emotional distress and assault are one and the same. See Lambertson v. United States, 528 F.2d 441, 443 (2d Cir.)("[A] court must look, not to the theory upon which the plaintiff elects to proceed, but rather the substance of the claim which he asserts."), cert. denied, 426 U.S. 921, 49 L. Ed. 2d 374, 96 S. Ct. 2627 (1976). The defendant has not waived sovereign immunity to this underlying assault claim, and thus, this court has no jurisdiction. Id. As a result, these claims must be dismissed in both cases.
In addition, the facts themselves do not support a claim of intentional infliction of emotional distress upon Cheryl Mortise. She was removed from the contact and conversation sparking this action. She was driving her ATV well behind Bernard Mortise when his vehicle tripped one of the flares. She was at a distance when the National Guardsmen came out of the woods and approached Bernard Mortise. The focus of their actions was directed at Bernard Mortise. There was no intent, whether to assault or to cause emotional distress, directed at Cheryl Mortise. As a result plaintiff Cheryl Mortise's claim of intentional infliction of emotional distress must also be dismissed for those reasons.
B. Negligent infliction of emotional distress.
Remaining are plaintiffs' claims of negligent infliction of emotional distress. The defendant has waived sovereign immunity for claims sounding in negligence. See 28 U.S.C. §§ 2671 et seq. ; Ricca v. United States, 488 F. Supp. 1317, 1325 (E.D.N.Y. 1980). In applying New York law, such claims arise "only in unique circumstances." Gluckman v. American Airlines, Inc., 844 F. Supp. 151, 157 (S.D.N.Y. 1994) (citations omitted). When there is no physical injury to a plaintiff, the New York Court of Appeals has "revealed three distinct lines of cases." Kennedy v. McKesson Co., 58 N.Y.2d 500, 504, 462 N.Y.S.2d 421, 448 N.E.2d 1332 (1983).
One category involves a scenario where defendant breaches a duty owed to plaintiff which causes plaintiff to directly suffer emotional harm. In limited instances, New York law allows for recovery of emotional damages caused by negligence where a specific duty owed to the plaintiff is breached, thus resulting in emotional injury from defendant unreasonably jeopardizing the surety of plaintiff's physical well being. Id. (citing Ferrara v. Galluchio, 5 N.Y.2d 16, 176 N.Y.S.2d 996, 152 N.E.2d 249 (1958); Battalla v. State, 10 N.Y.2d 237, 219 N.Y.S.2d 34, 176 N.E.2d 729 (1961)). Plaintiff may recover damages for the emotional harm directly caused by such a breach despite the absence of physical injury. Kennedy, 58 N.Y.2d at 504-05 (citing Battalla, 10 N.Y.2d 237); Johnson v. State, 37 N.Y.2d 378, 372 N.Y.S.2d 638, 334 N.E.2d 590 (1975); Lando v. State, 39 N.Y.2d 803, 385 N.Y.S.2d 759, 351 N.E.2d 426 (1976)).
A second category involves situations relating to the "zone of danger rule." The zone of danger denotes an area in close proximity to the point where the tortious activity occurred. The rule is triggered when plaintiff witnesses, from within the boundaries of this "zone," the commission of a tort against a third party. New York law allows for recovery of emotional damages caused by negligence where the plaintiff was threatened with bodily harm as a result of the defendant's negligence, and suffered "serious and verifiable" emotional injury from "the observation of the serious injury or death of a member of his or her immediate family," Bovsun v. Sanperi, 61 N.Y.2d 219, 232-32, 473 N.Y.S.2d 357, 461 N.E.2d 843 (1984).
A third classification encompasses those instances when defendant breaches a duty owed to plaintiff resulting in physical injury to a third party, but only emotional and/or pecuniary harm to plaintiff. Becker v. Schwartz, 46 N.Y.2d 401, 413 N.Y.S.2d 895, 386 N.E.2d 807 (1978); Howard v. Lecher, 42 N.Y.2d 109, 111, 397 N.Y.S.2d 363, 366 N.E.2d 64 (1977).
Under such circumstances, plaintiff may recover only when the emotional harm suffered results directly, rather than consequentially, from defendant's breach. Kennedy, 58 N.Y.2d at 506. Thus, if the harm inflicted is a consequential (rather than direct) result of the breach, plaintiff may not recover for such damages. Id.
The facts as presented by either plaintiff herein, do not support a cognizable claim under any of the above three approaches for negligent infliction of emotional distress.
In the first category, even though plaintiffs were both placed in fear of their physical safety, there was no specific duty owed to either plaintiff by the defendant. The parties had no special relationship. The National Guardsmen only owed a general duty to exercise care toward all motorists or pedestrians in the area including the plaintiffs and their friends. Without physical contact or injury, a general duty of care is insufficient to support a claim for emotional injuries only. In re Air Crash Disaster at Cove Neck, Long Island, 885 F. Supp. 434, 439 (E.D.N.Y. 1995); Lancellotti v. Howard, 155 A.D.2d 588, 589-590, 547 N.Y.S.2d 654 (2d Dep't 1989); Battalla, 10 N.Y.2d at 239-42; Thomas v. Supermarkets General Corp., 154 Misc. 2d 828, 831, 586 N.Y.S.2d 454 (Sup. Ct. 1992). Examples of direct special or unique duties owed to a plaintiff are found in Perrin v. Hilton Int'l, Inc., 797 F. Supp. 296, 300 (S.D.N.Y. 1992) (specific duty to hotel guest to exercise reasonable care in conveying accurate information to husband concerning his wife's whereabouts); and Martinez v. Long Island Jewish Hillside Medical Center, 70 N.Y.2d 697, 699, 518 N.Y.S.2d 955, 956, 512 N.E.2d 538 (1987) (breach of duty owed directly to plaintiff in rendering erroneous advice about abortion options). The other two categories involve direct emotional distress as the result of a physical injury, damage, or condition to third parties, a fact not present in these cases.
"Although plainly an unfortunate and unpleasant experience, simply stated, the law does not provide a remedy for every wrong." Thomas, 154 Misc. 2d at 833.
Accordingly, it is
1. Defendant's motion for summary judgment is GRANTED, and the action of plaintiff Cheryl Mortise is dismissed without costs; and
2. Defendant's motion for summary judgment is GRANTED, and the action of plaintiff Bernard Mortise is dismissed without costs.
The Clerk is directed to enter judgment accordingly.
IT IS SO ORDERED.
David N. Hurd
U.S. Magistrate Judge
Dated: December 26, 1995
Utica, New York.