Opinion
CIVIL ACTION NO. 1:03CV22
August 26, 2003
ORDER
Pending before the Court is the motion to dismiss of defendants Viacom, Inc. and VH-1 Music First. For the reasons that follow, the Court GRANTS the defendants' motion.
I. BACKGROUND
In 1995, Jason Henthorne ("Henthorne") shot and killed Michael Hart ("Hart"). Henthorne was convicted of murder, sentenced to life in prison and incarcerated at West Virginia's Mt. Olive Correctional Facility. Plaintiff's Linda Garrett and Misty Hart (together, "plaintiff's") are, respectively, the mother and sister of the late Mr. Hart.
Defendant VH-1 Music First ("VH-1") is a cable television network devoted primarily to music programming, including, among other things, news and documentaries relating to music, and is part of an operating division of defendant Viacom, Inc. ("Viacom"). In 2002, VH-1 aired a series of programs entitled Music Behind Bars which purports to examine prison music programs across the country. The plaintiff's characterize the Music Behind Bars series alternately as an "entertainment program," a "docu-drama," and a "television show." Defendants describe it as a documentary.
One episode of the series concerned the music program at the Mt. Olive Correctional Facility near Beckley, West Virginia. The Mt. Olive episode focused on Henthorne's attempt to earn a job in the prison's music department and included interviews with Henthorne, other inmates, the warden and jail administrators. The episode also included part of a musical performance by Henthorne in which he sings a song about his crime. Henthorne sings:
See a man in his grave . . . And it's hard to hold on . . . So I'm asking you now . . . Begging you please . . . Won't you chase away this monster in me. . . .
Elsewhere in the episode Henthorne expresses a desire to establish a trust fund for his victim's family. The plaintiff's do not appear in the episode, nor are they named. The late Mr. Hart similarly is not named in the episode, nor is he visually depicted.
The plaintiff's learned of the episode prior to its telecast and attempted unsuccessfully to prevent it from being shown to the public. According to the complaint, the defendants ignored Misty Hart's telephone and email requests. Similar attempts by others, including a letter written by Governor Bob Wise of West Virginia, also apparently went unheeded. The episode aired nationally on November 1, 2002.
The plaintiff's filed a complaint in this Court on February 19, 2003 claiming that the defendants inflicted emotional distress on them by airing the episode. In particular, the plaintiff's allege that they "experienced shock, humiliation and outrage, and suffered severe emotional distress" when they watched the episode involving Henthorne. The plaintiff's contend further that the defendants' conduct in broadcasting the episode was "extreme and outrageous" and caused them "severe emotional distress and physical manifestations of the same." The plaintiff's seek compensatory and punitive damages for their harm, as well as an order enjoining the defendants from any future airing of the episode and also enjoining the defendants from posting any content about the episode on their website. The plaintiff's did not name Henthorne as a defendant to their action.
Jurisdiction in this Court is proper based on the parties' diversity of citizenship. 28 U.S.C. § 1332. The plaintiff's are citizens of West Virginia and defendant Viacom is a Delaware corporation. Defendant VH-1 is a registered trademark of Viacom. The plaintiff's allege that the amount in controversy exceeds the jurisdictional minimum of $75,000.
On May 20, 2003, the defendants filed a motion to dismiss the complaint pursuant to Fed.R. CIV. P. 12(b)(6). The defendants argue, in general, that the plaintiff's cannot properly state claims under West Virginia law for infliction of emotional distress because (1) the television program at issue cannot reasonably be construed as "extreme and outrageous" as a matter of law, and (2) it is privileged as a truthful report on a matter of public interest under the First Amendment to the United States Constitution and Article 3, Section 7 of the West Virginia Constitution. The parties briefed the motion and argued it before the Court on August 14, 2003. After considering the parties' arguments, the Court GRANTED the defendants' motion and also indicated that the instant Order would follow, further delineating the reasons for its decision.
II. STANDARD OF LAW
In the Fourth Circuit, a motion to dismiss under Rule 12(b)(6) should only be granted in "very limited circumstances." Rogers v. Jefferson-Pilot Life Ins. Co., 883 F.2d 324, 325 (4th Cir. 1989). Dismissal is appropriate, however, if it appears that the plaintiff "would not be entitled to relief under any facts which could be proved in support of their claim." Schatz v. Rosenberg, 943 F.2d 485, 489 (4th Cir. 1991) (citation omitted). When reviewing the legal sufficiency of a complaint, the court must "accept as true all well-pleaded allegations and must construe the factual allegations in the light most favorable to the plaintiff." Randall v. United States, 30 F.3d 518 (4th Cir. 1994) (citation omitted). The court is not, however, "so bound by the plaintiff's legal conclusions, since the purpose of Rule 12(b)(6) is to test the legal sufficiency of the complaint." Id. (citation omitted).
As an exhibit to their motion to dismiss, the defendants submitted a videotape copy of the Music Behind Bars episode at issue in this case. Generally, material submitted to the court that was not attached to the complaint will transform a motion to dismiss to one for summary judgment. Fed.R. CIV. P. 12(b). An exception exists, however, for material referred to in the complaint and relied upon by the plaintiff. Biospherics, Inc. v. Forbes, Inc., 989 F. Supp. 748, 749-50 (D. Md. 1997) (citations omitted). Here, inasmuch as the plaintiff's have not challenged the authenticity of the Music Behind Bars episode submitted by the defendants, the Court will consider it when evaluating the defendants' motion to dismiss, and will not convert the motion to a motion for summary judgment. See id.
III. DISCUSSION A. The Elements of Intentional Infliction of Emotional Distress
The West Virginia Supreme Court of Appeals first recognized a claim for the intentional infliction of emotional distress, also known as the "tort of outrage," in Syllabus Point 6 of Harless v. First Natl. Bank in Fairmont, 289 S.E.2d 692 (W.Va. 1982), where the court stated:
One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.
To recover on a claim for infliction of emotional distress, a plaintiff must establish:
(1) that the defendant's conduct was atrocious, intolerable, and so extreme and outrageous as to exceed the bounds of decency; (2) that the defendant acted with the intent to inflict emotional distress, or acted recklessly when it was certain or substantially certain emotional distress would result from his conduct; (3) that the actions of the defendant caused the plaintiff to suffer emotional distress; and, (4) that the emotional distress suffered by the plaintiff was so severe that no reasonable person could be expected to endure it.Travis v. Alcon Laboratories, Inc., 504 S.E.2d 419, 425 (W.Va. 1998). The Supreme Court of Appeals based its formulation of the tort on that set forth in the Restatement (Second) of Torts § 46(1) (1965). Comment (d) of § 46(1) describes the conduct giving rise to the cause of action as being:
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. Generally, the case is one in which 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!"
The tort of outrage is a difficult fact pattern to prove and "[t]he law will intervene only where the distress is so severe that no reasonable [person] could be expected to endure it." Nines v. Hills Department Stores, Inc., 454 S.E.2d 385, 389, 395 (W.Va. 1994) (quoting Restatement (Second) of Torts § 46(1), cmt. (j) (1965)). Courts demand such "strict proof of unprecedented and extreme misconduct" in these cases because, "where no physical injury accompanies the wrong, the tort of outrage is a slippery beast, which can easily get out of hand without firm judicial oversight." Tanner v. Rite Aid of West Virginia, Inc., 461 S.E.2d 149, 157 (W.Va. 1995) (quoting Keyes v. Keyes, 392 S.E.2d 693, 696 (W.Va. 1990)).
In light of the need for judicial oversight, the Supreme Court of Appeals has explained that:
[I]n evaluating a defendant's conduct in an intentional or reckless infliction of emotional distress claim, the role of the trial court is to first determine whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to constitute the intentional or reckless infliction of emotional distress. Whether conduct may reasonably be considered outrageous is a legal question, and whether conduct is in fact outrageous is a question for jury determination.Travis, 504 S.E.2d at 428. The Supreme Court of Appeals has indicated that it is "almost impossible to define what will make a case of outrageous conduct. Instead, [the court] will define what is not on a case-by-case basis." Hines, 454 S.E.2d at 390. After examining the conduct in the present case, the Court finds, as a matter of law, that the defendants' conduct is not so extreme and outrageous as to permit recovery.
The plaintiff's rely primarily on Travis to establish their claim. In Travis, the West Virginia Supreme Court of Appeals answered four certified questions presented to it in a case involving a plaintiff who sued his former employer alleging that it did nothing to stop his former supervisor from inflicting emotional distress upon him. Id. at 423. In answering the federal district court's certified questions, the court of appeals discussed the law of the tort of outrage and an employer's liability for the outrageous conduct of its employees. Id. at 433-34. It did not, however, consider whether the plaintiff had established a claim of outrage. Id. Thus, although the plaintiff's analogize their situation to that of the plaintiff in Travis, the case offers little support to their argument that the defendants have acted outrageously.
Despite the inapplicability of the facts of Travis, the court in that case did recognize that "[t]he extreme and outrageous character of "conduct may arise from the actor's knowledge that the other is peculiarly susceptible to emotional distress . . . and "[t]he actor proceeds in the face of such knowledge. . . ." Id. at 426 (quoting Restatement (Second) of Torts § 46(1), cmt. (f) (1965)). Here, the plaintiff's claim that they were peculiarly susceptible to emotional distress and that the defendants abused their position of authority over them. Assuming that the plaintiff's' objections put the defendants on notice does not, however, necessarily raise their conduct to the level of outrageousness. Indeed, it can be presumed that in many outrage cases defendants are aware that plaintiff's object to the conduct at issue. Nevertheless, courts routinely dismiss plaintiff's' claims. See discussion infra. Travis also recognized that extreme and outrageous conduct may arise from the defendant's abuse of a position of authority or special relationship with the plaintiff. 504 S.E.2d at 426, 426 n. 6. Application of this theory, however, appears limited to employer-employee situations. See id.
In contrast, the defendants can point to a long line of West Virginia cases consistently holding that defendants' conduct did not rise to the level of outrageousness. See, e.g., Johnson v. Hills Department Store, 488 S.E.2d 471, 475 (W.Va. 1997) (store's conduct toward mother accused of shoplifting was not sufficiently extreme and outrageous to support claim of outrage brought by her young daughter); Dzinglski v. Weirton Steel Corp., 445 S.E.2d 219, 227 (W.Va. 1994) (employer's investigation of management employee accused of taking kickbacks was appropriate and not outrageous); Hines, 454 W.E.2d at 390 (employer's conduct in prosecuting cashiers who purchased items at erroneously discounted price instead of merely discharging them was not outrageous); Keyes, 392 S.E.2d at 696 (defendants' attempts to prevent plaintiff from participating in his father's funeral and from sharing in proceeds of father's estate held insufficiently outrageous to state a claim); Harless, 289 S.E.2d at 705 (retaliatory discharge of employee who reported employer's illegal practices did not reach level of outrageous conduct to support a claim for the tort of outrage).
The defendants further direct the Court to several persuasive cases from other jurisdictions holding that it is not outrageous for the media to publish articles about newsworthy events that may be upsetting to some individuals. See, e.g., Briggs v. Rosenthal, 327 S.E.2d 308, 312 (N.C.Ct.App. 1985) (affirming dismissal of outrageous conduct claim brought by parents of son killed in automobile accident against newspaper for publishing unflattering article about him); Barger v. Courier-Journal, 20 Med. L. Rptr. 1189, 1191 (Ky.Ct.App. 1991) (unpublished) (affirming dismissal of outrageous conduct claim brought by members of murder victim's family against newspaper for publishing photograph of victim as he lay dead).
Indeed, few courts have found that a plaintiff has met the "extreme and outrageous" standard under West Virginia law. In Miller v. SMS Schloemann-Siemag, Inc., 203 F. Supp.2d 633 (S.D. W. Va. 2002), the court held that a wife had sufficiently alleged a claim of outrage where the defendant employer's offer to transport her severely injured husband to a medical facility was conditioned on her promise not to treat the transport as an admission of liability for his injuries. Id. at 636, 640. In Bell v. National Republican Congressional Committee, 187 F. Supp.2d 605 (S.D. W. Va. 2002), the defendant falsely labeled the plaintiff as a child molester and rapist. Id. at 618. The court found that the defendant's conduct may reasonably be considered outrageous and therefore presented a question for the jury as to whether it was in fact outrageous. Id.
The cases set forth above illustrate the type of conduct that is sufficiently outrageous to permit recovery, and the type of conduct that is not. Here, although the Court does not doubt that the plaintiff's suffered genuine pain watching Henthorne perform his song, this simply is not a case where the plaintiff's suffered emotional distress "so severe that no reasonable [person] could be expected to endure it." Hines, 454 S.E.2d at 395 (quoted authority omitted).
The defendants' conduct, for example, is far less egregious than the actions in Miller where the employer allegedly withheld medical care from a severely injured man. Nor does their broadcast compare to the statements in Bell that were so materially harmful to reputational interests as to be per se defamatory. Significantly, unlike the defendants in Miller and Bell, these defendants did not direct their allegedly unreasonable conduct toward the plaintiff's. Instead, the plaintiff's voluntarily chose to watch the offending program. Moreover, the plaintiff's have been unable to direct the Court to a single West Virginia case recognizing a claim for outrage where, as here, the allegedly outrageous conduct was not directed at them.
Additionally, the broadcast cannot reasonably be construed as harassment. Henthorne is shown expressing remorse for his crime, stating: "I feel terrible about the crimes that I've committed." Although the plaintiff's may doubt the sincerity of the remorse expressed, the broadcast contained no threatening or harassing statement directed toward them. On the contrary, the episode appears to be an accurate portrayal of Henthorne's attempt to earn employment in the music program at Mt. Olive. Neither he nor prison life is glamorized. Although Henthorne is shown performing his song for other inmates, the episode also videotaped him cleaning toilets. The episode concludes with a statement that prison officials had not yet determined whether to offer Henthorne employment in the music program.
Because the defendants' conduct in broadcasting the Music Behind Bars episode cannot reasonably be regarded as "extreme and outrageous," the plaintiff's have failed to establish the first element of a claim of outrage. Consequently, the Court GRANTS the defendants' motion to dismiss the complaint.
B. First Amendment Protection
The Court has concluded that the defendants' conduct could not reasonably be regarded as "extreme and outrageous" and, therefore, it does not need to reach the defendants' argument that broadcast of the Music Behind Bars episode was constitutionally privileged. See Bell Atlantic Maryland, Inc. v. Prince George's County, 212 F.3d 863, 865 (4th Cir. 2000) ("courts should avoid deciding constitutional questions unless they are essential to the disposition of a case") (citation and quoted authority omitted).
IV. CONCLUSION
For the reasons stated, the Court GRANTS the defendants' motion to dismiss the complaint (docket, no. 9) and directs the Clerk to remove this matter from the Court's docket.
It is so ORDERED.
The Clerk is directed to mail copies of this Order to counsel of record.