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New Jersey Appellate Division Case Upholding Award of Negligent Infliction of Emotional Stress Damages Illustrative As to the Issue of Marital Torts

In the landmark case of Merenoff v. Merenoff, 76 N.J. 535 (1978), the New Jersey Supreme Court overturned the doctrine of interspousal immunity, which prevented one from suing one’s spouse for injuries proximately caused by the conduct of that spouse.  Later, in the case of  Tevis v. Tevis, 79 N.J. 422,(1979), the Supreme Court held that “that the abolition of the doctrine [of interspousal immunity] pertained to tortious conduct generally encompassing not only conventional negligence but also intentional acts, as well as other forms of intentional behavior such as gross negligence, recklessness, wantonness, and the like.”  The law on interspousal torts further was developed in the case of  Giovine v. Giovine, 284 N.J.Super. 3, 13 (App.Div. 1995), where the Appellate Division recognized the right of a spouse to sue the other spouse under the tort of intentional infliction of emotional distress where the measure of damages was not dependent upon physical injury to the plaintiff, but could be established through competent evidence showing the perpetrator’s’s outrageous or otherwise actionable conduct.  The Appellate Division ultimately concluded “that the plaintiff must be permitted to present proofs of all acts of cruelty which occurred during the course of her marriage to the defendant.  Those prior acts may be offered to prove plaintiff’s cause of action for divorce predicated on the grounds of extreme cruelty,  or they may be offered as relevant evidence in conjunction with Plaintiff’s claim for damages attributable to battered women’s syndrome, intentional infliction of emotional distress and negligence.”  Id. at 22.

In order to establish a claim for damages, the injured spouse must show “that the act was the proximate result of the distress, and that the distress is severe”. Buckley v. Trenton Savings Fund Soc’y, 111 N.J. 355, 366 (1988). In Buckley, the court determined that  an act meets the threshold necessary to be “outrageous” when the conduct is “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.  Generally, the case is one where the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim ‘Outrageous!'”  Id. (Quoting Restatement (Second) of Torts (1965), Section 46). The Court further explained that the distress must be “so severe that no reasonable man could be expected to endure it.” Id.  Also, for liability to attach, one must prove that the perpetrator acted intentionally or recklessly both in committing the act of emotional distress and in producing said distress. Id.  Liability will also attach when perpetrator acts recklessly in deliberate disregard of a high degree of probability that emotional distress will follow.  Id.

In Segal v. Lynch 413 N.J. Super. 171 (App. Div. 2010), the Appellate Division saw no “legal impediment in permitting one spouse to bring an action against the other which asserts only emotional distress as the measure of damages.” Id. at 186    In Segal, a father brought a claim of intentional infliction of emotional distress against his children’s mother,  citing parental alienation, because she relocated and cut off communication between him and the children.  Id. at 177.  The court found that the father’s action for intentional distress on behalf of himself and his two minor children was “objectively reasonable” and that his claim of parental alienation raised “profound public policy questions.”  Id. at 194.  Ultimately, however, the Appellate Division affirmed the trial court’s decision to dismiss the complaint, reasoning that as a matter of public policy, the father’s grievances should have been brought as an action for custody or parenting time, where the governing principle would be the best interests of the children. Id. at 192.  The Court found that the Plaintiff’s complaint failed to allege conduct under Buckley that was “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.”  The Court’s decision in Segal did note that “cases involving prolonged parental child abduction, where children are intentionally removed to foreign jurisdictions for the purpose of frustrating an innocent parent’s custodial rights, is one example of a factual scenario “that may satisfy the outrageous conduct requirement under Buckley. Id. 

On April 7, 2014, the Appellate Division approved for publication the case of Innes v. Marzano-Lesnevich.  The case was part of a continuing litigation surrounding the case of Innes v. Carrascosa, 391 N.J. Super. 453 (App.Div. 2007), in which parents separated in 2004 when their child, Victoria, was one and a half years old.   The child and her mother were citizens of both the United States and Spain. Soon after the separation, the parties entered into an agreement regarding custody and parenting time, where one of the provisions required the mother’s attorney to hold the child’s passport in trust.   The mother hired new counsel and had her file transferred to her new lawyer’s office.  Upon transfer of the file, and unbeknownst the father, the mother gained access to the child’s passport, left the United States with the child on January 13, 2005 and refused to return the child to the U.S. since that time despite both criminal and civil orders requiring her to do so.  The child, now fourteen, remains living with her maternal grandparents in Spain outside the reach of her father. The mother, while visiting the United States, was arrested and incarcerated in 2006 for violation of court orders and interference with child custody.  She remains jailed in New Jersey while serving out at 14 year jail term.

In the present case, the Innes court ultimately upheld a count of negligent infliction of emotional distress against the Marzano-Lesnevich law firm for their negligent release the child’s passport to the mother in violation of the Agreement, finding that the mother’s actions in abducting the child had been “egregious” and “extraordinary.”  The Court affirmed the trial court’s reliance on the Segal.  The court also found that the father’s “testimony was sufficient to permit the jury to award him emotional distress damages proximately caused by the defendants’ breach of their duty.” The Court reversed the jury’s speculative award of damages to the parties’ child, who did not testify and who could not be examined by the father’s expert.

Raising and defending the marital tort claim of intentional and/or negligent infliction of emotional distress is a complex process.  The attorneys and James P.Yudes, P.C. are here to assist you in all facets of family law litigation.