Does a complaint alleging that a defendant engaged in an extramarital affair in order to injure a plaintiff spouse
These are the allegations in the complaint. Quinn and Susan Bloomstein were married on July 17, 1977. Their only child, Michael, was bom on March 30, 1982. In January, 1994, and continuing thereafter for a period of time not specified in the complaint, Susan Bloomstein-Quinn engaged in an extramarital affair with Joseph Walsh. Walsh knew that Bloomstein-Quinn was "married and engaged in the affair openly and in a manner such that it became known to the plaintiffs and to the community at large. The purpose of the affair was, “in part,” to injure Quinn.3 By November, 1994, Walsh’s conduct had caused Quinn’s marriage of nearly twenty years to end, and he filed for divorce. The plaintiffs suffered severe emotional distress and Walsh knew or should have known that his conduct would result in such emotional distress.
The two-count complaint was filed on September 11, 1997. Walsh filed a motion to dismiss the plaintiffs’ complaint on the grounds that it failed to state a claim upon which relief could be granted and that the claims were barred by the applicable statute of limitations. The motion to dismiss was allowed after hearing.
1. Statute of limitations. The motion judge concluded that the plaintiffs’ complaint was barred by the three-year statute of limitations applicable to tort claims. “A three-year limitation period applies to [a] plaintiff’s claims in tort for intentional infliction of emotional distress.” Mellinger v. West Springfield, 401 Mass. 188, 191 (1987). In order that the complaint not be time-barred, the plaintiffs’ injury must have occurred after September 11, 1994. Here, the allegedly injurious conduct consisted of the affair and its publication to “the plaintiffs and to the community at large,” which resulted in their suffering “severe emotional distress.”
The time when a cause of action accrues has not been defined by statute but has been the subject of judicial interpretation. See Riley v. Presnell, 409 Mass. 239, 243 (1991). The general rule
In cases where the emotional injury is said to have been caused by a defendant’s negligence, our courts have imposed the even narrower requirement that “[a] plaintiff’s emotional distress must follow ‘closely on the heels of’ the negligent act.” Miles v. Edward O. Tabor, M.D., Inc., 387 Mass. 783, 789 (1982), quoting from Ferriter v. Daniel O'Connell's Sons, Inc., 381 Mass. 507, 518 (1980). We see no reason to apply a different rule to the claim made here. This is because we recognize the need to impose limits on the scope of liability with respect to claims involving emotional injuries, whether negligently or intentionally caused.4 See, e.g., Migliori v. Airborne Freight Corp., 426 Mass. 629, 631-633 (1998) (“[wjhere the mechanism by which injury comes about includes the psychological, both the class of plaintiffs and kinds of claims are greatly and predictably expanded. . . . We have imposed relational, temporal, and spatial limits on the scope of liability for emotional harm . . . [which are] grounded in [the] practical need to draw a determinate line against excessive liability. . . . [W]e must acknowledge that these requirements of proximity are based more on the pragmatic need to limit the scope of potential li
We therefore conclude that, unless the circumstances are such that the resulting damage is “inherently unknowable,” Friedman v. Jablonski, 371 Mass. 482, 485 (1976), and the statute of limitations is therefore tolled until “a plaintiff discovers, or reasonably should have discovered, that she has been harmed,” Phinney v. Morgan, 39 Mass. App. Ct. 202, 204 (1995),5 the manifestation of intentionally inflicted emotional injury must be substantially contemporaneous with the outrageous conduct. Thus, to survive dismissal based on the claim that the action was time-barred, the inferences to be drawn from the allegations in the complaint must encompass both the requirement that the plaintiffs suffered emotional distress soon after learning of the alleged outrageous conduct and that their distress was manifested after September 11, 1994.
Under Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), “the allegations of [a] complaint, as well as such inferences as may be drawn therefrom in the plaintiff’s favor are to be taken as true.” Nader v. Citron, 372 Mass. 96, 98 (1977). “There is no requirement that the plaintiff’s complaint. . . state the relevant facts with completeness or precision.” Ahern v. Warner, 16 Mass. App. Ct. 223, 226 n.2 (1983). Our analysis must be based upon an indulgent reading of the complaint, Haggerty v. Globe Newspaper Co., 383 Mass. 406, 409 (1981), including indulgence for the period of limitations. Friedman v. Jablonski, 371 Mass. at 487-488. Although the plaintiffs did not specifically al
We agree that it is possible to infer from their allegations that the plaintiffs did not learn of the affair until after September 11, 1994, either because the “ongoing” affair continued throughout the summer or, if it ended soon after it began, that this did not become immediately known to the plaintiffs. On this basis we conclude that the plaintiffs have adequately, if barely, pleaded the minimally necessary facts to survive the bar of the statute of limitations.6
2. Failure to state a claim upon which relief may be granted. Walsh also sought to dismiss the plaintiffs’ complaint on the ground that it failed to state a claim upon which relief could be granted. Mass.R.Civ.P. 12(b)(6). The issue before us is one of first impression: Does an adulterous affair that was openly conducted and initiated “in part” to injure a plaintiff7 preclude at this stage a ruling as matter of law that there is “no set of facts in support of [the plaintiffs’] claim[s] which would entitle [them] to relief?” Nader v. Citron, 372 Mass. at 98. The motion judge concluded that the plaintiffs’ complaint was essentially a claim for alienation of affection or criminal conversation, forms of action which have been abolished by statute in Massachusetts,8 and for this reason dismissed the complaint. We agree with the motion judge that, with respect to Quinn, the
(a) Alienation of affection and criminal conversation. The common-law torts of alienation of affection and criminal conversation compensated a spouse10 for intentional interference with the marital relationship by a third party.11 These actions are similar in that both “compensate[] the plaintiff for impairment of consortium,” Clark, Law of Domestic Relations § 12.3, at 662 (2d ed. 1987), and both are “intentional” torts, Nolan & Sartorio, Tort Law §§ 152, 153, at 261-265 (1989); Nolin v. Pearson, 191 Mass. 283, 289 (1906), but they may be distinguished.
To recover for criminal conversation12 there had to be proof “that the defendant had adulterous relations with the plaintiff’s spouse.” Clark, Law of Domestic Relations § 12.3, at 662. See Restatement (Second) of Torts § 685 (1977). The tort involved adultery with one spouse “whether with or against her will.” Bigaouette v. Paulet 134 Mass. 123, 126 (1883). Loss of consortium was the only necessary component of damage, but
Early decisions did not recognize alienation of affection as a substantive cause of action in Massachusetts. Neville v. Gile, 174 Mass. at 306 (“[i]n this Commonwealth, alienation of affections alone is not a substantive cause of action”). But see Tasker v. Stanley, 153 Mass. 148, 148 (1891) (in which “[t]wo actions of tort... for alienating the affections of the plaintiff’s wife and enticing her to leave him” are considered). Decisions subsequent to Neville purporting to rely on the court’s articulation of the law in that case did not, however, require dismissal of actions alleging alienation of affection if the claim was, in effect, for loss of consortium resulting from maliciously motivated enticement. See Webber v. Benbow, 211 Mass. 366, 368 (1912); Cutter v. Cooper, 234 Mass. 307, 316 (1920); Gahagan v. Church, 239 Mass. 558, 559 (1921).
Over time, the distinction between alienation of affection as an aggravation of damages and the variously described actions for loss of consortium (based either on enticement by improper motive or on debauchery) blurred and were ultimately reconstituted as a single tort, alienation of affection. The elements of this tort included aspects of the torts from which it was derived — debauchery or enticement by improper motive, resulting in loss of consortium and loss of affection. See, e.g., Longe v. Saunders, 246 Mass. 159, 160-161 (1923); Bradstreet v. Wallace, 254 Mass. 509, 511-512 (1926); Sherry v. Moore, 258 Mass. 420 (1927), S.C., 265 Mass. 189 (1928); Labrie v. Midwood, 273 Mass. 578, 579 (1931); Lizotte v. Warren, 302 Mass. 217 (1939); McCracken v. Cohen, 322 Mass. 12, 12-13 (1947);
By the mid-1950’s, the common-law “heart balm” torts were generally expressed in only two causes of action,13 the tandem torts of alienation of affection and criminal conversation. See, e.g., Ross v. Nourse, 330 Mass. 666 (1953); Perry v. Carter, 332 Mass. 508 (1955); Nigrosh v. Daniels, 349 Mass. 777 (1965); Andrews v. Andrews, 350 Mass. 781 (1966); Saeli v. Mangino, 353 Mass. 591 (1968). In Doe v. Doe, 378 Mass. 202, 203 (1979), “the continuing validity of the torts of alienation of affections and criminal conversation” by judicial determination was left to another day, which never dawned. The torts were abolished by statute six years later.
As provided in 1985 by G. L. c. 207, § 47B, a plaintiff may no longer recover, and “no action, suit or proceeding shall be maintained,” for alienation of affection, or for criminal conversation.14 The plaintiffs contend that their action is not one for alienation of affection or criminal conversation, but for
The plaintiffs argue that it is incidental that the vehicle used to cause them emotional distress was an adulterous affair, and note that they have made no claim for loss of consortium.15 Loss of consortium was a significant, but not exclusive, element of the abolished torts. We do not agree that the allegations in the plaintiffs’ complaint — that they suffered severe emotional harm as a result of Walsh’s openly conducted affair with Bloomstein-Quinn and that this injury was intentionally inflicted — describe circumstances that meaningfully differentiate them from those previously compensable through claim of alienation of affection and criminal conversation. We have noted that intent was also an element of the torts no longer recognized (see, e.g., Nolin v. Pearson, 191 Mass. at 289), and the plaintiffs’ claim cannot therefore be distinguished on this basis. We recognize that, although referred to as intentional torts, the label was “not always quite deserved, for a defendant charged with criminal
Further, damages based on emotional distress caused by a sexual affair were also available to a plaintiff claiming criminal conversation or alienation of affection. By abolishing these common-law torts, the Legislature has registered its intent to preclude recovery for emotional distress resulting from adultery. See, e.g., Gasper v. Lighthouse, Inc. 73 Md. App. 367, 372 (1987) (“[w]hat is precluded ... is the refitting of the abolished actions into other forms. One cannot sue to recover for injuries arising from ‘defilement of the marriage bed’ or from an interference with the marriage by simply casting the defendant’s conduct as . . . some other intentional tort” [emphasis original]); Weicker v. Weicker, 22 N.Y.2d 8 (1968); Strock v. Presnell, 38 Ohio St. 3d 207, 215-216 (1988), and cases cited (“ ‘the resurrection of these interests under a different name is fallacious and improper.’ . . . [0]ther states that have abolished amatory actions agree that any attempt to recover for those actions under a different label is prohibited” [citations omitted]). Contrast Van Meter v. Van Meter, 328 N.W.2d 497 (Iowa 1983); Speiss v. Johnson, 89 Or. App. 289, aff'd, 307 Or. 242 (1988).
Based on our analysis of the abolished amatory torts, we conclude that the plaintiffs’ allegations amount to nothing more than “heart balm” by another name. Because we do not intend by this decision to preclude all claims for intentional infliction of emotional distress solely because sexual misconduct in a marital context figures as part of the conduct complained of, and to address Michael’s argument that his claim survives even if Quinn’s is deemed abolished, we briefly review the evolution of this tort in Massachusetts.
Although denominated an “intentional” tort, a review of decisions in which the cause of action has survived a motion to dismiss indicates that the majority of such actions are based, not on conduct engaged in for the purpose of causing distress, but on conduct that the actor should have known would result in distress.17 That the plaintiffs have alleged that Walsh engaged in the affair in order to injure them does not distinguish this action from the amatory actions abolished by G. L. c. 207, § 47B. See discussion, supra. The plaintiffs’ claim must fail, even if not abolished, because the conduct complained of was not outrageous.
An affair of the sort alleged here would by most in our society
This is not to say that there are no claims for intentional infliction of emotional distress which may be maintained because the conduct complained of involves sexual misconduct in a marital context. See Lusby v. Lusby, 283 Md. 334 (1978) (defendant husband raped wife and assisted two others in attempt to rape her); Figueiredo-Torres v. Nickel, 321 Md. App. 642 (1991) (claim stated against defendant psychiatrist who engaged in affair with his patient’s wife); Speiss v. Johnson, 89 Or. App. 289 (claim stated against psychiatrist who treated husband’s wife and engaged in sexual relationship with her); Twyman v. Twyman, 855 S.W.2d 619 (Tex. 1993) (emotional
In sum, the complaint fails to state a cause of action entitling the plaintiffs to relief and properly was dismissed.
Judgment affirmed.
2.
G.L. c. 207, § 47B, inserted by St. 1985, c. 74, § 1.
3.
With respect to Michael, the complaint does not specifically allege that the conduct was intended to injure him but only that “[Walsh’s] conduct was intended and, in fact, became known to Michael.”
4.
An additional limitation was suggested in Nancy P. v. D'Amato, 401 Mass. 516, 522 (1988). There the court concluded that a mother who learned that her daughter had been molested several months earlier could not recover on her claim for intentional infliction of emotional distress. The court went on to state that, “[e]ven if the family member’s presence were not a condition of liability [for intentional infliction of emotional distress], we would normally require both (a) substantially contemporaneous knowledge of the outrageous conduct and (b) a severe emotional response.”
5.
We have recognized limited circumstances in which the discovery rule applies. See, e.g., Phinney v. Morgan, 39 Mass. App. Ct. at 203-204 (applying discovery rule to claim of negligent and intentional infliction of emotional distress arising out of incestuous child abuse); Riley v. Presnell, 409 Mass. at 246 (action arising out of emotional distress claim against psychotherapist alleged to have induced plaintiff, his patient, to engage in various sexual acts; this was injury which “by its very nature prevents discovery of its cause”). See also Hendrickson v. Sears, 365 Mass. 83 (1974) (attorney malpractice); Friedman v. Jablonski, 371 Mass. at 485 (deceit in sale of real estate); Franklin v. Albert, 381 Mass. 611, 619 (1980) (medical malpractice); Mohr v. Commonwealth, 421 Mass. 147, 155-156 (1995) (wrongful adoption); Lijoi v. Massachusetts Bay Transp. Authy., 28 Mass. App. Ct. 926 (1990) (loss of spousal and parental consortium following a physical injury). The plaintiffs in the within action allege that the defendant’s conduct was intended to be known to the plaintiffs and that it did in fact become known to them. Thus, principles supporting a discovery rule are inapplicable here.
6.
Having concluded that the plaintiffs’ claim is not barred by the statute of limitations, we need not address Michael’s argument that, as to him, the claim is tolled by virtue of his minority.
7.
We note the claim that Walsh engaged in the affair in order to cause harm is specifically made only with respect to Quinn, see note 3, supra. The plaintiffs allege that “Walsh knew, or reasonably should have known, that his outrageous conduct would result in” Michael’s distress. As we discuss, infra, the claims thus stated are legally indistinguishable.
8.
“Alienation of affection and criminal conversation shall not constitute an injury or wrong recognized by law, and no action, suit or proceeding shall be
9.
Damages in connection with such actions as criminal conversation and alienation of affection have “derisively been called ‘heart balm.’” Prosser & Keeton, Torts § 124, at 929 (5th ed. 1984).
10.
See 706 & note 16, infra.
11.
In Blackstone’s Commentaries, three invasions of a husband’s right to the wife’s conjugal fellowship, or consortium, were described: “abduction, or taking away a man’s wife; adultery, or criminal conversation with her; and beating or otherwise abusing her.” 3 Blackstone, Commentaries *139. Prosser and Keeton describe three types of interference: (1) enticement of the other spouse (which evolved out of “an early writ of ‘ravishment’ which listed the wife with the husband’s chattels . . . [and] was ultimately recognized [to] . . . involve[] a loss of consortium”); (2) criminal conversation; and (3) alienation of affection. Prosser & Keeton, Torts § 124, at 917-919 (5th ed. 1984). The right to maintain such actions was eventually extended to married women. Nolin v. Pearson, 191 Mass. 283 (1906). Bradstreet v. Wallace, 254 Mass. 509, 511 (1926).
12.
“‘Criminal’ because it was an ecclesiastical crime; ‘conversation’ in the sense of intercourse.” Prosser & Keeton, Torts § 124, at 917 n.17 (5th ed. 1984).
13.
Whittet v. Hilton, 335 Mass. 164 (1956), is an exception in that it appears to revive the early tort of enticement relying, however, on decisions that had already begun to view wrongful enticement and alienation of affection as elements of a single tort, alienation of affection.
14.
By 1984, “half the states ha[d] abolished or severely limited the action for alienation of affections or the action for criminal conversation or both.” Prosser & Keeton, Torts § 124, at 930 (citing statutes abolishing such torts at n.93). Since 1984, Massachusetts and several other states have followed suit. See, e.g., Padwa v. Hadley, 127 N.M. 416, 421-422 (Ct. App. 1999) (citing cases). See also Alexander v. Inman, 825 S.W.2d 102, 105 (Tenn. Ct. App. 1991). The impetus for this, as suggested by Prosser and Keeton, may well have been that such actions are “peculiarly susceptible to abuse .... [I]t is notorious that they have afforded a fertile field for blackmail and extortion by means of manufactured suits in which the threat of publicity is used to force a settlement.” Prosser & Keeton, Torts § 124, at 929. See Diaz v. Eli Lilly &
15.
Not all claims based on loss of consortium, either of a spouse or parent, have been abolished by G. L. c. 207, § 47B. We recognize the right of a wife or a husband to recover damages for the loss of his or her spouse’s consortium resulting from a third party’s negligent injury. Diaz v. Eli Lilly & Co., 364 Mass. at 167-168. See Vassallo v. Baxter Healthcare Corp., 428 Mass. 1, 3 (1998). In addition, “a minor child has a strong interest in his parent’s society.” Ferriter v. Daniel O'Connell's Sons, Inc., 381 Mass. at 510. Angelini v. OMD Corp., 410 Mass. 653 (1991).
16.
In George v. Jordan Marsh Co., 359 Mass. 244, 255 (1971), the court first recognized that “one who ... by extreme and outrageous conduct intentionally causes severe emotional distress to another, with bodily harm resulting from such distress, is subject to liability” (emphasis supplied).
17.
See, e.g., Agis v. Howard Johnson Co., 371 Mass. 140 (1976) (complaint should not have been dismissed where it was alleged that the defendant, which employed the plaintiff as a waitress, held a meeting at which a supervisor stated that someone had been stealing and that he would begin firing all the waitresses, in alphabetical order, until the identity of that person could be established; he then summarily fired the plaintiff, as a result of which she sustained emotional distress); Boyle v. Wenk, 378 Mass. 592 (1979) (private investigator, seeking information about a neighbor, repeatedly contacted the plaintiff who had asked him not to call and informed him that she had recently been discharged from the hospital; the allegations of repeated harassment, in light of the plaintiff’s known susceptibility to infliction of emotional distress, stated a claim); Harrison v. Loyal Protective Life Ins. Co.,, 379 Mass. 212, 213-214, 219-220 (1979) (employer, aware that decedent had terminal cancer and was therefore unable to continue working for employer, threatened that if decedent filed for his physical disability benefits he would not be allowed to return to his job when he regained his health); Brown v. Nutter, McClennen & Fish, 45 Mass. App. Ct. 212, 213-214, 218-219 (1998) (a legal secretary, compelled and manipulated to notarize a forged document prepared by the attorney for whom she worked, on threats that he would commit suicide if she did not, suffered anxiety attacks; a cognizable claim for intentional infliction of emotional distress was stated). See also Simon v. Solomon, 385 Mass. 91, 95-98 (1982) (judgment properly entered on evidence that plaintiff suffered emotional distress as a result of the defendant landlord’s failure to address repeated flooding, with water and sewage, of her basement apartment); Bresnahan v. McAuliffe, 47 Mass. App. Ct. 278, 283 (1999) (on summary judgment, plaintiff’s submissions “showed a reasonable expectation of proving that the defendant’s conduct was extreme and outrageous,” where defendant funeral home, inter alia, gave erroneous information that an important religious ceremony could not be conducted for plaintiff’s stillborn child, that an autopsy left the child’s appearance mutilated and gruesome, and that the child’s coffin was too small for his teddy bear).
18.
Nelson v. Richwagen, 326 Mass. 485, 486-487 (1950). Ronan v. Briggs, 351 Mass. 700, 700 (1966) (“[n]o cause of action exists for the alienation of the affections of children”). Restatement (Second) of Torts § 702, at 510 (1977) (child “has no cause of action for the alienation of its parents[’] affections”).