Summary
finding “no reason to apply” IIED where damages for emotional distress were available under New York Human Rights Law
Summary of this case from Turley v. ISG Lackawanna, Inc.Opinion
December 29, 1998
Appeal from the Supreme Court, New York County (Lorraine Miller, J.).
Plaintiff was awarded compensatory and punitive damages on each of three causes of action for sexual harassment, retaliatory discharge and intentional infliction of emotional distress. (The award of back wages in the amount of $53,000 is not at issue on appeal.) Plaintiff received compensatory awards for emotional suffering in the amounts of $100,000 for past emotional suffering on the sexual harassment claim, $500,000 for past and future emotional suffering on the retaliatory discharge claim and $700,000 for past and future emotional suffering on the claim for intentional infliction of emotional distress. These awards were reduced by Supreme Court to $81,250, $162,500 and $406,250, respectively. Plaintiff was awarded exemplary damages on her three causes of action in the amounts of $1 million for sexual harassment, $1.5 million for retaliation and $2.5 million for intentional infliction of emotional distress. The punitive damages were reduced by Supreme Court to $600,000, $900,000 and $1,500,000, respectively.
This Court finds the award for emotional suffering as the result of intentional infliction of emotional distress to be duplicative of the awards for emotional suffering for sexual harassment and for retaliatory discharge. We consider the other amounts of compensatory damages awarded by the jury to be appropriate in view of the evidence. However, we find the jury's assessment of punitive damages to be excessive to the extent indicated.
The tort of intentional infliction of emotional distress is a departure from the common law ( see, Howell v. New York Post Co., 81 N.Y.2d 115, 119-122). Under the traditional rule, conduct "`likely to cause only a mental or emotional disturbance to another does not subject the actor to liability * * * for emotional distress resulting therefrom'" ( supra, at 120, quoting Restatement of Torts § 46 [a]). Development of the tort reflects the acknowledgment by the courts of the need to afford relief where traditional theories of recovery do not ( see, Howell v. New York Post Co., supra, at 120-121). Because it "imposes liability based on after-the-fact judgments about the actor's behavior * * * the actor may not have notice of the precise conduct proscribed" ( supra, at 122), with the consequence that otherwise lawful conduct may be rendered actionable ( supra). Thus, intentional infliction of emotional distress is a theory of recovery that is to be invoked only as a last resort. In the matter under review, emotional damages are available under the theories of sexual harassment and retaliatory discharge pursuant to the New York City Human Rights Law (Administrative Code of City of N Y § 8-107 [a]; § 8-502). Precluded where the offending conduct is embraced by a traditional tort remedy ( see, Fischer v. Maloney, 43 N.Y.2d 553, 557-558; Sweeney v. Prisoners' Legal Servs., 146 A.D.2d 1, 7, lv denied 74 N.Y.2d 842), there is no reason to apply the theory where an applicable statute expressly provides for the recovery of damages for emotional distress ( see, Herlihy v. Metropolitan Museum of Art, 214 A.D.2d 250, 263 [defamation]; Silberstein v. Advance Mag. Publs., 988 F. Supp. 391, 392-393 [S.D.N.Y.] [gender discrimination]).
The United States Supreme Court has observed that the amount of the exemplary award "`has always been left to the discretion of the jury, as the degree of punishment to be thus inflicted must depend on the peculiar circumstances of each case'" ( Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 16, quoting Day v. Woodworth, 13 How [54 U.S.] 363, 371 [1851]). The punitive damages awarded by the jury in this case for sexual harassment and retaliation total $2,500,000, an amount that does not exceed the limits of what constitutes a "`reasonable relationship'" to the amount of compensatory damages ( BMW of N. Am. v. Gore, 517 U.S. 559, 581 [suggesting 10 to 1 as an outside ratio]). While no punitive damages are recoverable under the comparable New York State Human Rights Law (Executive Law art 15) pursuant to Executive Law § 297 Exec. (9) ( Thoreson v. Penthouse Intl., 179 A.D.2d 29, affd 80 N.Y.2d 490), as plaintiff acknowledged by consenting to dismissal of so much of her action as sought recovery under the State statute, this Court has ruled that the State legislation does not operate to preclude recovery of exemplary damages under the City ordinance ( Bracker v. Cohen, 204 A.D.2d 115; see also, Hirschfeld v. Institutional Investor, 208 A.D.2d 380).
The wealth of a defendant is material to the assessment of punitive damages ( Rupert v. Sellers, 48 A.D.2d 265, 271-272). As a dealership wholly owned by Ford Motor Company, Supreme Court did not err in instructing the jury that the size of the parent corporation, and not defendant dealership, provides the appropriate measure of the organization's resources. In view of the egregiousness of defendant's misconduct and the wealth of defendant's corporate parent, we regard $1,500,000 to be a reasonable sum that is sufficient to punish defendant and to deter future misconduct.
Concur — Milonas, J. P., Ellerin, Rubin and Mazzarelli, JJ.