Briggs v. Rosenthal , 73 N.C. App. 672 ( 1985 )

327 S.E.2d 308 (1985)

Warren BRIGGS and wife, Gloria Briggs
v.
John ROSENTHAL and the Sun Publishing Co., Inc.

No. 8415SC497.

Court of Appeals of North Carolina.

April 2, 1985.

Alexander & Associates by Sydenham B. Alexander, Jr. and H. William Miller, Jr., Chapel Hill, for plaintiffs-appellants.

Smith, Patterson, Follin, Curtis, James & Harkavy by Donnell Van Noppen III, Raleigh, and Northern & Little by J. Anderson Little, Chapel Hill, for defendants-appellees.

PARKER, Judge.

The sole issue before us is whether the trial judge erred in dismissing plaintiffs' complaint pursuant to G.S. 1A-1, Rule 12(b)(6). A complaint should not be dismissed for failure to state a claim, unless it appears beyond doubt that plaintiff can prove no set of facts which would entitle him to relief. Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970). A complaint must be dismissed when on its face it appears that no law supports it, that some essential fact is missing, or that some disclosed fact defeats it. Mumford v. Hutton & Bourbonnais Co., 47 N.C.App. 440, 267 S.E.2d 511 (1980). The question before us is whether plaintiffs' complaint is sufficient on its face to withstand defendants' motion. We hold that it is not.

Here the only conduct alleged was publication of the article attached as Exhibit A and incorporated by reference into the complaint.

While North Carolina has recognized the tort of intentional infliction of mental distress, our research does not disclose a reported decision in this jurisdiction arising out of publication of an article. In Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d 325 (1981), defendant brutally assaulted plaintiff and threatened death if plaintiff did not move out-of-state; in Stanback v. Stanback, 297 N.C. 181, 254 S.E.2d 611 (1979), defendant breached his agreement to pay taxes in a marital dispute property settlement; in Woodruff v. Miller, 64 N.C.App. 364, 307 S.E.2d 176 (1983), defendant, in an overt hate campaign, posted wanted signs publicizing an old teenage criminal charge against plaintiff, a prominent citizen in the community; and in Morrow v. Kings Dept. Store, 57 N.C.App. 13, 290 S.E.2d 732, review denied, 306 N.C. 385, 294 S.E.2d 210 (1982), this court upheld dismissal of plaintiff's action for intentional infliction of mental distress arising out of defendant's detention of plaintiff for shoplifting.

The elements of the tort are: (i) extreme and outrageous conduct, (ii) which is intended to cause and does cause (iii) severe emotional distress to another. Dickens v. Puryear, supra.

In ruling on defendants' Rule 12(b)(6) motion, the initial question is whether the determination of extreme and outrageous conduct is a question of fact for the jury or a question of law for the court. We hold that in an action for intentional infliction of mental distress arising out of a publication, whether the article may reasonably be regarded as extreme and outrageous is initially a question of law for the court. If the court determines that it may reasonably be so regarded, then it is for the jury to decide whether under the facts of a particular case, defendants' conduct in publishing the article was in fact extreme and outrageous. See, e.g., Casamasina v. Worcester Telegram & Gazette, Inc., 2 Mass.App. 801, 307 N.E.2d 865 (1974) where defendant newspaper published an article concerning the death of plaintiff's daughter which included a statement by the medical examiner that she had a long history of involvement with drugs; the court held defendant's conduct was neither extreme nor outrageous, and affirmed the trial court's sustaining of defendant's demurrer. See also Fry v. Ionia Sentinel-Standard, 101 Mich.App. 725, 300 N.W.2d 687 (1980). See generally Restatement (Second) of Torts (hereinafter "Restatement") § 46, Comment h.

As to what is sufficiently outrageous to give rise to liability, the comments in the Restatement are instructive.

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.

....

The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. The rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. There is no occasion for the law to intervene in every case where some one's feelings are hurt. There must still be freedom to express an unflattering opinion....

Restatement § 46, Comment d.

The extreme and outrageous character of the conduct may arise from the actor's knowledge that the other is peculiarly susceptible to emotional distress, by reason of some physical or mental condition or peculiarity. The conduct may become heartless, flagrant, or outrageous when the actor proceeds in the face of such knowledge, where it would not be so if he did not know. It must be emphasized again, however, that major outrage is essential to the tort; and the mere fact that an actor knows that the other will regard the conduct as insulting, or will have his feelings hurt, is not enough.

Restatement § 46, Comment f.

We find, after reading "Saying Goodbye to Warren," that the article may not be reasonably regarded as extreme or outrageous. Although perhaps not flattering, the article was honest, sincere and sensitive. Although we recognize that to plaintiffs, grieving parents bereft of their son, the article was offensive, we find that the article does not reach the level of extreme and outrageous conduct necessary to sustain a cause of action.

Moreover, in the instant case, unlike previous cases decided by our appellate courts, defendants' action, publication of the article, was not specifically directed toward plaintiffs. The tort of intentional infliction of mental distress imports an act which is done with the intention of causing emotional distress or with the reckless indifference to the likelihood that emotional distress may result. Restatement § 46, Comment i. As this is an intentional tort the actor must act with reckless disregard or the intent to cause severe emotional distress to the victim.

Defendants' article was published in a periodical magazine intended for the public. Plaintiffs were not the subject of the article. Their claim is that of third party family members distressed because they feel their deceased son is disparaged in defendants' article. Prosser and Keeton, in the Law of Torts, § 12 (5th ed. 1984), observe that recovery to third parties "is clearly limited to the most extreme cases of violent attack, where there is some especial likelihood of fright or shock." In the instant case there was no physical act committed against plaintiffs' son, nor was the article directed to the parents.

After careful analysis of decisions of our Supreme Court relating to the tort of intentional infliction of mental distress, and guided by the Restatement, we do not believe application of the tort of intentional infliction of mental distress should be extended, under the facts alleged in plaintiffs' complaint, to allow recovery by a third party in the context of the published article presented here. The trial court's dismissal of the complaint pursuant to G.S. 1A-1, Rule 12(b)(6) is

Affirmed.

HEDRICK, C.J., and WHICHARD, J., concur.