KELLY, Associate Judge:
Appellant Chandra W. Waldon appeals the dismissal on August 22, 1977, of her complaints against appellees Ann Covington, Eugene Wiggins, Julius Mack, Ronald Williams, Wendell Russell, and the District of Columbia Board of Higher Education (BHE), now the Trustees of the University of the District of Columbia, for libel and slander, breach of contract, tortious interference with contract, intentional infliction of emotional distress, and wrongful death. We affirm.
The record shows that Edgar F. Waldon had been a professor in the Department of Communications Sciences at Federal City College (FCC) and its successor, the University of the District of Columbia (UDC), for six years, when Ann Covington was appointed chairperson of the department in 1972. Covington was apparently dissatisfied with Waldon's instructional abilities and recommended that he not be appointed to teach during the 1974 summer session. Waldon then obtained a temporary restraining order from the Superior Court requiring that the college allow him to teach that summer.
In late August, Waldon was notified by appellee Wendell Russell, the president of FCC, that his contract, scheduled to expire in June 1975, would not be renewed.
On July 3, 1975, Waldon notified Russell, the BHE, and the District of Columbia Corporation Counsel that he intended to seek judicial review of his employment termination.
Covington and Eugene Wiggins, the clinical coordinator of the Communications Sciences Department, balked at full compliance with the terms of the August agreement, apparently for both jurisdictional and professional reasons,
A temporary restraining order was issued by Judge Penn the same day. It was initially due to expire on November 4, but was extended several times, until a partial preliminary injunction was issued by Judge Fauntleroy on December 23. However, before any hearing on the actions for damages, Waldon suffered an irreversible cardiac arrest and died on April 29, 1976.
Appellant Chandra Waldon, his widow and executrix, moved to be substituted as a party plaintiff on October 22, 1976, and filed an amended complaint requesting four million dollars in compensatory and punitive damages, captioned: "for wrongful death, tortious interference with contract, breach of contract, libel, slander and defamation of character." She alleged that her husband's "cardiac arrest and failure of his other body functions resulting in his death were the direct result of the wrongful acts of the defendants." The only specific overt acts alleged to have been committed by Covington and Wiggins, other than "conspiratorial actions," were acts of "direct and deliberate interference with [decedent's] contract rights," unspecified "physical interference with [his] rights to use [the physical facilities] . . . at [FCC],"
On March 17, 1977, appellant filed a Memorandum of Law
On April 21, 1977, appellant filed a response to appellees' motion to dismiss for
On August 22, 1977, after granting her motion to file a second amended complaint and considering appellant's aforementioned allegations, Judge Fauntleroy granted appellees' motions to dismiss.
The trial court concluded that (1) neither the libel and slander nor the tortious interference with contract claims survive under D.C.Code 1973, § 12-161;
Since our review of the record shows no genuine issue as to any material fact that could establish appellees' liability under any of the theories of recovery argued by appellant, we affirm the trial court's dismissal on all counts. See Super.Ct.Civ.R. 56(c).
Appellant's contention that she stated sufficient grounds for a cause of action against Covington and Wiggins
Unlike the action for negligent infliction of extreme emotional distress, a tort long recognized in the District of Columbia, Perry v. Capital Traction Co., 59 App.D.C. 42, 32 F.2d 938, cert. denied, 280 U.S. 577, 50 S.Ct. 31, 74 L.Ed. 627 (1929), an action for intentional infliction may be made out even in the absence of physical injury or impact.
Under the Restatement (Second) of Torts § 46 (1965), liability may be imposed for "extreme and outrageous conduct intentionally or recklessly [causing] severe emotional distress to another. . ." See Prosser, supra, § 12, at 55-56. This liability "clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities;" it is imposed only when the conduct goes "beyond all possible bounds of decency and [is] regarded as atrocious and utterly intolerable in a civilized community." Restatement, supra at § 46, comment d.
Clark, the landmark case in this jurisdiction, follows the historical model. As is implicit in the aforementioned cases, the intent to "purposely cause a disturbance of another's mental or emotional tranquility of so acute a nature that harmful physical consequences might be not unlikely to result" is an essential prerequisite to liability. Clark v. Associated Retail Credit Men, supra 70 App.D.C. at 186, 105 F.2d at 65.
Of course, subjective intent can rarely be proven directly; therefore, the requisite intent must be inferred, either from the very outrageousness of the defendant's acts or, for example, when the circumstances are such that "any reasonable person would have known that [emotional distress and physical harm] would result," Wood v. United Air Lines, Inc., 404 F.2d 162, 165 (10th Cir. 1968) (citing Samms v. Eccles, 11 Utah.2d 289, 358 P.2d 344, 346-47 (1961)), or when the defendant has information that plaintiff's health is being adversely affected by his actions and nonetheless fails to desist, as in Clark v. Associated Retail Credit Men, supra; accord, George v. Jordan Marsh Co., 359 Mass. 244, 268 N.E.2d 915 (1971), or from accompanying threats of physical violence, see State Rubbish Collectors Ass'n v. Siliznoff, 38 Cal.2d 330, 240 P.2d 282 (1952); Ruiz v. Bertolotti, 37 Misc.2d 1067, 236 N.Y.S.2d 854 (1962).
The actor's lack of privilege (of "just cause or excuse") is another element that must be assessed in determining whether his acts are so outrageous that harmful intent can be presumed.
In reviewing the record in this case to determine whether there is any material fact alleged and in dispute which could support a finding that appellees intentionally inflicted extreme emotional distress on their colleague, the decedent, we find only the following acts (other than those sounding in defamation, which does not survive decedent's death, see note 10 supra): (1) a refusal to give decedent the keys to an
None of these allegations appears unconscionable or calculated to cause emotional distress and a concomitant risk of physical injury. "Embarrassment and difficulty" do not approach the level of foreseeable harm essential to establish appellees' intentional tort liability. Nor does a mere failure to act in accordance with the terms of an agreement to which appellees were not even parties appear to be sufficient, particularly in light of appellees' strong social policy grounds for resisting its imposition, i. e., that the quality of the students' education and the profession's ability to maintain essential standards would thereby be threatened.
Furthermore, it is clear that at least some of the continuing disputes between these parties were initiated by decedent himself. Applying a balancing test, as did the court in Clark, we find that "the advantage to society of preventing such harm" as appellees are here alleged to have inflicted on decedent is minimal when compared with the chilling effect of imposing liability in this kind of situation. Clark v. Associated Retail Credit Men, supra 70 App.D.C. at 186, 105 F.2d at 65. Cf. Greenya v. George Washington University, 167 U.S.App.D.C. 379, 386, 512 F.2d 556, 563, cert. denied, 423 U.S. 995, 96 S.Ct. 422, 46 L.Ed.2d 369 (1975): "It is well accepted that officers and faculty members of educational institutions enjoy a qualified privilege to discuss the qualifications and character of [colleagues] if . . . pertinent to the functioning of the . . . institution."
Although intent is normally a factual question for the jury, a court must determine whether the plaintiff's allegations, viewed in the light most favorable to the plaintiff, are minimally sufficient to show the existence of such intent. See Harper and James, supra at 876. The court must "set outer limits" on what may go to the jury. Id. at 881. This determination necessarily involves some degree of judicial line drawing. See supra note 18, at 1075.
Having considered the facts in the record before us, we conclude that appellant's claim for wrongful death damages based on intentional infliction of extreme emotional distress
On August 25, the Department sent a memorandum noting that the "agreement [was] most unusual in that the department which evaluated Dr. Waldon's performance . . . was not consulted" and stating its concern "about the implications" of such an agreement. On September 26, Covington sent a letter to Ronald Williams, the Provost of FCC, and Julius Mack, the Dean of FCC's School of Applied and Health Related Sciences, objecting to "the devastating results" of the agreement, "namely, that the education of the students would be seriously impaired," that Waldon's assignment to two critical courses "jeopardiz[ed] the students' chances of passing the [National American Speech and Hearing Association] examination. . . [and] their chances of gaining employment." She said that it was her "deepest conviction that as academicians of higher education [they] should meet with the President and impress upon him the urgent need to rectify this situation."
On forwarding this correspondence to the President, the Provost admitted that "[a]s a result of changing instructors . . . to conform to the agreement . . . students have been greatly inconvenienced."
However, ". . . double recovery for the same elements of damage should of course be avoided." Runyon v. District of Columbia, 150 U.S.App.D.C. 228, 230, 463 F.2d 1319, 1321 (1972) (quoting Hudson v. Lazarus, supra 95 U.S.App.D.C. at 21, 217 F.2d at 349) (recovery for equal amounts of $63,000 under both statutes permitted when the total was less than the decedent's probable future net income, discounted to present worth).
D.C.Code 1973, § 12-101 states:
D.C.Code 1973, § 16-2701 states, in pertinent part:
The damages shall be assessed with reference to the injury resulting from the act, neglect, or default causing the death, to the spouse and the next of kin of the deceased person . . .
The damages recoverable in a survival action are usually statutorily prescribed and are limited, particularly in those jurisdictions that also permit wrongful death actions, to compensation for the pecuniary expenses, such as medical costs and lost wages, actually accruing before death, for which the decedent himself could have recovered had he lived. Hudson v. Lazarus, supra (survival action recovery limited to damages for physical injury; facts showed substantial time lapse between injury and death). E. g., State ex rel. Smith v. Greene, 494 S.W.2d 55, 60 (Mo.1973) (wrongful death damages begin with the death of the person wronged; the survival action damages end with the death of the person wronged). See McCormick on Damages § 94 at 337 et seq. (1935); J. Stein, Damages and Recovery: Personal Injury and Death Actions § 270 at 610-11 (1972): "[M]ost jurisdictions limit the recovery for loss of earnings in the survival action to that which occurred prior to the death." But cf. Hughes v. Pender, D.C.App., 391 A.2d 259, 261 (1978) (trial court's denial of new trial on grounds of inadequate recovery affirmed when "prospective net lifetime earnings discounted to present worth" in the amount of $5200 were awarded in a survival action in which plaintiffs waived wrongful death damages).
Although a few jurisdictions allow non-pecuniary survival action damages, the District of Columbia statute expressly limits the right of action to "damages for physical injury" and excludes recovery for "pain and suffering." (The rationale for excluding emotional damages was stated by this court in Bogen v. Green, D.C.App., 239 A.2d 154, 155 (1968): "The deceased bore the pain and suffering and he is the only one who should be compensated. He can't take it with him.") (Citations omitted.)
As derogations from the common law, which barred the survival of tort actions after either the tortfeasor's or the victim's death and prohibited the spouse or next of kin from recovering damages arising from the death of their relative, the survival and wrongful death statutes must be strictly construed. Pitts v. District of Columbia, D.C.App., 391 A.2d 803, 807 (1978).
Since we find that Mrs. Waldon failed to plead any damages for the only physical injury other than death that could have been caused by the appellees' conduct — her husband's hypertension — her cause of action would ordinarily be barred under the survival act. See Super.Ct.Civ.R. 9(g). However, in light of the concurrent cause of action for wrongful death based on the same allegedly tortious conduct, we decline to dispose of this action on these grounds alone. See infra note 24, at 1078.
This characterization of the grounds for limiting liability betrays a fairly common judicial misunderstanding. See 2 Harper and James, The Law of Torts 1108 et seq. (1956).
Both a liability-producing act (a breach of duty: negligent, intentional, or statutory) and a proximately-caused injury are necessary to impose liability. Both determinations are grounded in social policy considerations — "the practical need to draw the line somewhere." Id. at 1132. Furthermore, both inquiries must assess the "source and range of harm reasonably to be anticipated from the act." Id. at 1136. Both in finding adequate proximate cause, and in determining the desirability of imposing liability for the initial, allegedly wrongful, act, particularly in cases such as this, where foreseeability of harm is an element of intent, the court must look to whether the injury was foreseeably within the risk incident to the act or omission. Id. at 1151. However, whereas the inquiry into liability producing intent is subjective: i. e., did appellees intend to cause severe emotional distress including the risk of physical injury; the inquiry as to proximate cause is objective: i. e., was the "source and range of harm reasonably to be anticipated from the act." Id. at 1136.
The problem is further complicated when appellees' intent must be inferred from the nature of their acts and from the objective standard of whether a reasonable man performing these given acts could be presumed to have foreseen causing emotional distress and the risk of physical injury. See Knierim v. Izzo, 22 Ill.2d 73, 174 N.E.2d 157, 164 (1961), quoting Slocum v. Food Fair Stores of Florida, Inc., 100 So.2d 396, 398 (Fla.1958): "[I]t is uniformly agreed that the determination of whether words or conduct are actionable in character is to be made on an objective rather than a subjective standard, from common acceptation." Cf. Dunn v. Marsh, 129 U.S.App.D.C. 245, 249, 393 F.2d 354, 358 (1968) (Leventhal, J., dissenting) (failure to comply with automotive right of way statute analyzed as proximate cause question rather than as negligence per se); Ross v. Hartman, 78 U.S.App.D.C. 217, 139 F.2d 14 (1943), cert. denied, 321 U.S. 790, 64 S.Ct. 790, 88 L.Ed. 1080 (1944) (violation of safety statute requiring automobile ignitions to be securely locked characterized as "proximate cause" of appellant's decedent's death when unknown person drove appellee's truck away and ran over decedent), for examples of judicial confusion between the liability producing act and the proximate cause of the harm.
Perhaps the most appealing and logical solution to the problem of overlapping survival and wrongful death actions is that adopted, either statutorily or by judicial construction, in those states that only allow the survival of torts not resulting in instantaneous death; torts in which death is the only physical result must, in those states, be brought under the wrongful death death statute. See Stein, supra, § 266, at 600-03.