Summary
In Richard L. v. Armon, 536 N.Y.S.2d 1014, 1017 (1989), a defendant pled guilty to a sexual abuse charge against an infant.
Summary of this case from MANLEY v. BLUE CROSS/BLUE SHIELD OF CONN.Opinion
January 17, 1989
Appeal from the Supreme Court, Nassau County, John W. Burke, J.
Melvin N. Borowka for appellant.
Capetola Doddato (Patricia A. Harrington of counsel), for respondent.
On October 15, 1986, the defendant Richard Armon appeared in the County Court, Nassau County, and pleaded guilty to the crime of sexual abuse in the second degree (Penal Law § 130.60), a class A misdemeanor. He was subsequently sentenced to probation for a term of three years. The plaintiff, the father and natural guardian of an infant who was the victim of the crime, now claims, on her behalf, that as a result of the admissions made during his plea allocution Armon should be precluded from contesting his civil liability based upon the tort of intentional infliction of emotional distress. The sole question presented then is whether application of the doctrine of issue preclusion, also known as collateral estoppel, warrants the granting of partial summary judgment against Armon upon this theory of liability. We agree with the Justice who presided in the Supreme Court, and we hold that it does not.
"The elements necessary in all cases for issue preclusion are well known. It is required that an issue in the present proceeding be identical to that necessarily decided in a prior proceeding" (Allied Chem. v. Niagara Mohawk Power Corp., 72 N.Y.2d 271, 276, citing Schwartz v. Public Adm'r, 24 N.Y.2d 65, 71; Ryan v. New York Tel. Co., 62 N.Y.2d 494, 500-502). The doctrine of issue preclusion provides that "as to the parties in a litigation and those in privity with them, a judgment on the merits by a court of competent jurisdiction is conclusive of the issues of fact and questions of law necessarily decided therein in any subsequent action" (Gramatan Home Investors Corp. v. Lopez, 46 N.Y.2d 481, 485, citing Matter of Shea, 309 N.Y. 605, 616). "What is controlling is the identity of the issue which has necessarily been decided in the prior action or proceeding" (Ryan v. New York Tel. Co., supra, at 500; see also, Capital Tel. Co. v Pattersonville Tel. Co., 56 N.Y.2d 11, 17-18). Thus, the defendant Richard Armon in the present civil action will be precluded from litigating only those issues which are identical to ones necessarily resolved by virtue of the prior judgment convicting him, upon his plea of guilty, of sexual abuse in the second degree (see, Merchants Mut. Ins. Co. v. Arzillo, 98 A.D.2d 495, 504; Brennan v. Mead, 81 A.D.2d 821, affd 54 N.Y.2d 811).
The only issues of fact which were necessarily decided by virtue of the prior judgment of conviction are (1) that the defendant Richard Armon touched the "sexual or other intimate parts [of the infant] * * * for the purpose of gratifying sexual desire of either party" (Penal Law § 130.60, 130.00 Penal [3]) and (2) that the infant was, at that time, less than 14 years old (Penal Law § 130.60). The issues of fact which must be decided in the present case are (1) whether the defendant Armon engaged in conduct which went "`beyond all possible bounds of decency'" (Fischer v. Maloney, 43 N.Y.2d 553, 557, quoting from Restatement [Second] of Torts § 46, comment d; see also, Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 303), (2) whether he intended to cause distress or knew that his conduct would result in emotional distress (Restatement [Second] of Torts § 46, comment i), (3) whether the infant, in fact, suffered severe emotional distress (Restatement [Second] of Torts § 46, comment j) and (4) whether Armon's conduct, in fact, caused the distress. These are the four elements of the tort of intentional infliction of emotional distress as defined in the Restatement (Second) of Torts § 46 (1), and as defined in the substantive law of most jurisdictions, including New York (see, Annotation, Torts — Intentional [Infliction of] Mental Distress, 38 ALR4th 998). It is clear that these elements are completely different from the elements of sexual abuse in the second degree.
To begin with the most obvious factor, it is well settled that one of the elements of the tort of intentional infliction of emotional distress is that the victim be shown to have suffered severe psychological damage (see, Nader v. General Motors Corp., 25 N.Y.2d 560, 569; Kasachkoff v. City of New York, 107 A.D.2d 130, 137, affd 68 N.Y.2d 654). This element must be established to make out liability and does not go merely to damages (see, Restatement [Second] of Torts § 46, comment j; see also, Moniodis v. Cook, 64 Md. App. 1, 494 A.2d 212, 219-220, cert denied 304 Md. 631, 500 A.2d 649; Sale v. Allstate Ins. Co., 126 Ill. App.3d 905, 467 N.E.2d 1023, 1035; Bridges v Winn-Dixie Atlanta, 176 Ga. App. 227, 335 S.E.2d 445, 448; Ludwick v. This Minute of Carolina, 283 S.C. 149, 321 S.E.2d 618, 621; Rooney v. National Super Markets, 668 S.W.2d 649, 650 [Mo]; Anthan v. Professional Air Traffic Controllers Org., 672 F.2d 706, 711 [8th Cir 1982]; Moolenaar v. Atlas Motor Inns, 616 F.2d 87, 90 [3d Cir 1980]; see also, 7A [part 2] Warren, New York Negligence — Damages, ch 10, § 3.04 [4]; Prosser and Keeton, Torts § 12, at 60 [5th ed]). Most courts, following the rule announced in the Restatement (Second) of Torts § 46, comment j, hold that an objective standard applies in determining whether the emotional distress suffered by the victim is sufficiently severe to warrant imposition of liability and state that, in order to give rise to liability, the distress inflicted must be "so severe that no reasonable man could be expected to endure it" (Restatement [Second] of Torts § 46, comment j; see, e.g., Girard v. Ball, 125 Cal.App.3d 772, 178 Cal.Rptr. 406; see also, Minzer, Damages in Tort Actions, § 6.12 [4], at 6-83 — 6-93). "[D]isputes over the severity of plaintiff's emotional distress are generally resolved by the jury" (7A [part 2] Warren, New York Negligence — Damages, ch 10, § 3.04 [4], at 490).
The evidence in the present record as to the criminal conviction which primarily consists of a transcript of the defendant Armon's plea allocution does not reveal that the infant suffered severe psychological injuries — or, for that matter, any injury, psychological or otherwise — as the result of his sexual contact with her. This is not surprising, since proof of such injury is totally unnecessary in order to sustain a conviction of sexual abuse in the second degree. There is no sound basis, as a matter of law or as a matter of equity, to preclude the defendant Richard Armon from litigating this issue.
Further, the record is similarly devoid of evidence that Richard Armon, who admitted to having touched the intimate parts of the infant in order to gratify his own sexual desire, intended to cause distress. As noted above, a second element of the tort of intentional infliction of emotional distress is that the defendant be proved to have intended to cause emotional distress, or to have acted with conscious disregard of a substantial risk that such distress would result from his conduct (see, Restatement [Second] of Torts § 46, comment i; Nader v. General Motors Corp., 25 N.Y.2d 560, 569, supra; Adams Importers v. Dana, 121 A.D.2d 279, 281; see also, Hearon v. City of Chicago, 157 Ill. App.3d 633, 510 N.E.2d 1192, 1195; Tommy's Elbow Room v Kavorkian, 727 P.2d 1038, 1044 [Alaska]; Pierce v. Penman, 357 Pa. Super. 225, 515 A.2d 948, 951, n 2, lv denied 515 Pa. 608, 529 A.2d 1082; Singer v. Wadman, 595 F. Supp. 188, 298, affd 745 F.2d 606, cert denied 470 U.S. 1028; Plocar v. Dunkin' Donuts 103 Ill. App.3d 740, 431 N.E.2d 1175, 1179-1180; Vicnire v. Ford Motor Credit Co., 401 A.2d 148 [Me]; Vance v. Vance, 286 Md. 490, 408 A.2d 728, 736; Gellert v. Eastern Air Lines, 370 So.2d 802, 808, cert denied 381 So.2d 766 [Fla]; Briggs v. Rosenthal, 73 NC App 672, 327 S.E.2d 308, 312, cert denied 314 N.C. 114, 332 S.E.2d 479). "Intent is not established merely because an individual has suffered severe emotional distress as the proximate result of another's actions" (Minzer, Damages in Tort Actions, § 6.12 [1], at 6-45).
We recognize, of course, that the very nature of a defendant's act may lead a fact finder to infer that the act was done with intent (see, e.g., Long v. Beneficial Fin. Co., 39 A.D.2d 11; Lane v. Marine Midland Bank, 112 Misc.2d 200, 203; see also, 7A [part 2] Warren, New York Negligence — Damages, ch 10, § 3.04 [1], at 465). As a practical matter, it is rare that a defendant will admit that his misconduct was intended to cause the victim to become distraught, or that he consciously disregarded a risk that distress would result. Certainly, the present record contains no such admission and this again is to be expected, since intent to cause distress is not an element of the crime to which the defendant Armon pleaded guilty. Whether to draw an inference that he intended to cause distress from the nature of his act alone is, of course, a determination to be made by the trier of fact.
Finally, there is the question of whether the defendant Richard Armon's conduct was so outrageous as to warrant the court's determination of this issue as a matter of law. In the case of Doe v. Esposito ( 114 A.D.2d 992), this court held that a defendant who was guilty of several acts of incestuous rape was, as matter of law, subject to civil liability for the intentional infliction of emotional distress. The plaintiff argues on appeal that the rule of the Doe case (supra) should be extended so as to apply to the present case involving the misdemeanor of sexual abuse.
The plaintiff's argument in this respect constitutes an invitation to this court to hold, in effect, that where a defendant in a civil action for damages admits under oath — in a plea allocution or (presumably) elsewhere — that he committed conduct considered by the court to be outrageous, then the inconvenience of submitting the issue of outrageousness to the jury may be dispensed with. Of course, the plaintiff offers no standard by which the courts are to distinguish between that sort of conduct which is so atrocious as to warrant the imposition of civil liability and the sort of conduct which, while offensive, is not so atrocious. While we might have no difficulty in agreeing in the particular case now before us that the defendant Richard Armon's conduct was truly beyond the bounds of decent society, we believe it far more appropriate to permit a jury to draw that conclusion.
It would constitute a significant intrusion into the province of the jury to hold, as the plaintiff urges, that in this case the defendant's conduct may be considered outrageous as a matter of law so as to establish a predicate for summary judgment. NY Constitution, article I, § 2 guarantees the defendant Richard Armon the right to a jury trial (see, Martin v. City of Albany, 42 N.Y.2d 13, 18-19; Blum v. Fresh Grown Preserve Corp., 292 N.Y. 241). However tempted we might be to declare what seems to be obvious, that is, that his conduct exceeded all bounds of decency, we must defer to his constitutional right to have a jury of his peers, rather than Judges, decide this essentially factual question. While it is properly for the court to determine, as a question of law, whether the alleged misconduct of the defendant Richard Armon may reasonably be considered so extreme as to permit recovery, so as to permit submission of the issue to the jury in the first instance (e.g., Novak v. Rubin, 129 A.D.2d 780, lv denied 133 A.D.2d 223; Green v. Leibowitz, 118 A.D.2d 756; Robinson v. Paramount Pictures Corp., 122 A.D.2d 32), it is not for the court completely to usurp the function of the jury and to decide itself that his conduct is in fact so extreme. The holding of the court in Doe v Esposito (supra) should therefore be confined to the particularly abhorrent facts of that case.
For the foregoing reasons, the order appealed from should be affirmed.
KUNZEMAN, EIBER and KOOPER, JJ., concur.
Ordered that the order is affirmed, without costs or disbursements.