On the argument of this motion it was agreed that it was to be deemed a motion to dismiss the complaint for insufficiency.
The complaint alleges that on April 6, 1958 the plaintiff received a letter from defendant stating he desired to make her acquaintance and requesting her to meet him at a time and place designated therein. Plaintiff ignored this letter. On April 8, 1958 he phoned her and requested that she meet him for immoral purposes. She thereupon contacted the police. On April 13, 1958 he mailed to her photographs of himself with his private parts exposed and thereafter phoned her again, suggesting she meet him for immoral purposes. During the same week he again phoned her and on the advice of the police she agreed to meet him on April 18, 1958 in the lobby of the St. George Hotel, where she in fact did meet him, at which time he was taken into custody by the police. As a result of these events defendant was tried in the Court of Special Sessions for violating section 1141 of the Penal Law and pleaded guilty to the charge of attempting to show obscene prints. He was fined $100 and given a three months' suspended sentence in the Workhouse.
Plaintiff further alleges that she did not solicit or encourage defendant to "perpetrate the unlawful, wilful or malicious trespass of her person, character and reputation," that as a result of defendant's act she was brought to public disgrace, her reputation damaged and she was caused to suffer humiliation, mental, nervous and bodily distress, as a result of which she was forced to abstain herself from her usual vocation.
Defendant, to sustain his claim that the complaint is insufficient, cites the case of Prince v. Ridge (32 Misc. 666), where the court held that the illicit solicitation of sexual intercourse was not actionable on the theory that damages from mental suffering, unaccompanied by physical injuries, were not compensable. The holding in that case conforms with those in some other jurisdictions. Prosser in his Law of Torts states ([2d ed.], p. 45): "Thus far it has been held that no action will lie for the insult involved in inviting a woman to illicit intercourse" (citing cases) and then, quoting from Harvard Law Review (Vol. 49, pp. 1033, 1055), "the view being, apparently that there is no harm in asking." There are, however, authorities to the contrary. (See cases collated in 1936 Report of N. Y. Law Rev. Comm., p. 437.)
It will accordingly be for the trier of the facts to determine whether the conduct of defendant was "outrageous" and whether in fact it was the proximate cause of the mental disturbance and physical injuries claimed by her.
The basic concept of the Prince case (32 Misc. 666, supra), cited by defendant, is faulty. The immunity from liability for damages caused by emotional disturbance unassociated with physical injuries, as illustrated by Mitchell v. Rochester Ry. Co. (151 N.Y. 107), has been strictly limited to negligence actions and does not apply to cases of willful tort. This rule of law is brought sharply into focus by the opinion of Mr. Justice KAPPER in Beck v. Libraro (220 App. Div. 547, 548-549): "Ignoring the allegation of assault, the other acts charged in the complaint are sufficient to constitute a cause of action, in my opinion. The defendant relies on the well-known case of Mitchell v. Rochester Railway Co. (151 N.Y. 107), where it was held that a recovery of damages may not be had for injury sustained by fright occasioned by the negligence of another where there is no immediate personal injury. * * * That case obviously was one of negligence in the want of ordinary prudence as ordinarily understood and accepted in law, and
There is a wealth of authority for the principle that a defendant is liable for the mental and emotional consequences of his willful act. (See reprint of "Intentional Infliction of Harm" from Va. L. Rev., editorial p., N. Y. L. J., Jan. 24, 1952; 1936 Report N. Y. Law Rev. Comm., p. 435 et seq.) Actual intent to cause emotional disturbance is not necessary since the willful wrongdoer may be charged with the duty of foreseeing the mental and emotional consequences that would naturally flow from his conduct (Bergman v. Rubenfeld, 66 N.Y.S.2d 895; see authorities collated 1936 Report N. Y. Law Rev. Comm., p. 438).
Moreover, there appears to be a receding from the principle of immunity for liability from injuries resulting from emotional disturbance unaccompanied by physical contact even in the field of negligence. This is evidenced by the opinion of the court in the famous "cancerophobia" case of Ferrara v. Galluchio (5 N.Y.2d 16), where the court stated (p. 21): "Freedom from mental disturbance is now a protected interest in this State. `[T]he only valid objection against recovery for mental injury is the danger of vexatious suits and fictitious claims, which has loomed very large in the opinions as an obstacle. The danger is a real one, and must be met. Mental disturbance is easily simulated, and courts which are plagued with fraudulent personal injury claims may well be unwilling to open the door to an even more dubious field. But the difficulty is not insuperable. Not only fright and shock, but other kinds of mental injury are marked by definite physical symptoms, which are capable of clear medical proof. It is entirely possible to allow recovery only upon satisfactory evidence and deny it when there is nothing to corroborate the claim, or to look for some guarantee of genuineness in the circumstances of the case. The problem is one of adequate proof, and it is not necessary to deny a
It must be recalled that the philosophy underlying the ruling in Mitchell was the danger of vexatious suits and fictitious claims. This has been repudiated as the basis for denying relief in Ferrara.
Accordingly, the motion is denied. Defendant may answer within 20 days after service of a copy of the order with notice of entry. Submit order.