Quinn v. Turner, 155 Ariz. 225, 227-28, 745 P.2d 972, 974-75 (App. 1987); Restatement (Second) of Torts § 313 cmt. d (1965) (hereafter "Restatement"). A plaintiff may not recover on a claim for negligent infliction of emotional distress, however, unless the mental anguish resulting from the defendant's conduct is accompanied by, manifests as, or develops into bodily harm. Keck v. Jackson, 122 Ariz. 114, 115-16, 593 P.2d 668, 669-70 (1979); Monaco v. HealthPartners of S. Ariz., 196 Ariz. 299, 302, ¶ 7, 995 P.2d 735, 738 (App. 1999); Gau v. Smitty's Super Valu, Inc., 183 Ariz. 107, 109, 901 P.2d 455, 457 (App. 1995); DeStories v. City of Phoenix, 154 Ariz. 604, 608, 744 P.2d 705, 709 (App. 1987). Transitory physical phenomena, such as crying, nightmares, insomnia, and headaches, that are themselves inconsequential and do not result in substantial bodily harm, cannot support a claim for negligent infliction of emotional distress.
A cause of action for negligent infliction of emotional distress requires that the "shock or mental anguish is accompanied by or manifested as a physical injury." Gau v. Smitty's Super Valu, Inc., 901 P.2d 455, 457 (Ariz.Ct.App. 1995). Teeth grinding and bed wetting have been held sufficient physical injuries to state a cause of action, Quinn v. Turner, 745 P.2d 972, 973 (Ariz.Ct.App. 1987), whereas transitory weeping and insomnia, standing alone, cannot sustain a cause of action for negligence. Gau, 901 P.2d at 457.
"'Transitory physical phenomena' such as weeping and insomnia 'are not the type of bodily harm which would sustain a cause of action for emotional distress.'" Gau v. Smitty's Super Valu, Inc., 183 Ariz. 107, 901 P.2d 455, 457 (Ct. App. 1995) Id. (citations omitted). See generally Dehart v. Johnson & Johnson, 562 F. Supp. 3d 189, 196-97 (D. Ariz. 2022) ("[T]he rule in Arizona is that when an NIED plaintiff seeks recovery for an emotional injury unaccompanied by a physical injury, the plaintiff must show that the emotional injury eventually resulted in some form of bodily harm, such as a physical injury or a long-term physical illness or mental disturbance.")
Examples of damages given for pain and suffering ‘parasitic’ to physical injury include emotional damage awards based on ... compensation for fear of developing cancer when the plaintiff suffered a physical injury leading to that fear .... These parasitic damages do not concern courts in the same way as stand-alone emotional claims, perhaps because courts are less concerned that parasitic emotional claims are fraudulent ....") (citations omitted).See alsoGau v. Smitty's Super Valu, Inc. , 183 Ariz. 107, 901 P.2d 455, 457 (Ariz. Ct. App. 1995) (rejecting NIED claim, where a four-year-old child suffered "transitory nightmares and sleep disturbance" after his mother was falsely accused of shoplifting and the mother and child were detained and separated, because the child "suffered no physical injury" and the emotional injuries "subsided without medical treatment"). Put another way, the rule in Arizona is that "there can be no recovery for mental disturbance unless physical injury, illness or other physical consequence accompany it, or physical harm develops as a result of the plaintiff's emotional distress."
To be found liable, each defendant need not have physically confined the other person, themselves. Rather, a defendant is subject to liability for false imprisonment if (1) the defendant acted with the intent to confine another person within boundaries fixed by the defendant; (2) the defendant's act resulted in such confinement; and, (3) the other person was conscious of the confinement or was harmed by it. Gau v. Smitty's Super Valu, Inc., 901 P.2d 455, 458 (Ariz. App. 1995). At oral argument, Defendants conceded that they each intentionally caused the Boys to be taken into custody without consent, and that the Boys were conscious of the confinement or harmed by it. (Doc. 152.)
"Absent a physical injury, Arizona law does not recognize a cause of action for negligent infliction of emotional distress." Id. (citing Gau v. Smitty's Super Valu, Inc., 901 P.2d 455, 457 (App. 1995)); see also HM Hotel Props. v. Peerless Indem. Ins. Co., 874 F.Supp.2d 850, 853 (D. Ariz. 2012) ("Negligent infliction of emotional distress requires an additional showing of physical injury or substantial, long-term emotional disturbances." (internal quotation marks and citation omitted)).
And negligent infliction of emotional distress is not actionable in Arizona without an allegation of accompanying physical injury, which Gallagher does not make. See Gau v. Smitty's Super Valu, Inc., 901 P.2d 455, 457 (Ariz. Ct. App. 1995). Finally, the Court will not speculate as to the meaning of unspecified "adverse effects."
Keck v. Jackson, 593 P.2d 668, 669-70 (Ariz.1979); Glau v. Smitty's Super Valu, Inc., 901 P.2d 455, 457 (Ariz.App.1995) (same); but see, Harris v. Maricopa County Superior Court, 631 F.3d 963, 978 (9th Cir.2011) (Court noted that while Arizona law requires that emotional distress result in "illness or bodily harm" in order to recover for the tort of negligent infliction of emotional distress, "bodily harm" includes "substantial, long-term emotional disturbance unaccompanied by any physical injury.") (some internal quotation marks omitted). The allegations in the FAC regarding the physical impact of the defendant's conduct on the plaintiff are too conclusory to withstand the motion to dismiss.
"Transitory physical phenomena such as weeping and insomnia are not the type of bodily harm which would sustain a cause of action for emotional distress." Gau v. Smitty's Super Valu, Inc., 183 Ariz. 107, 109, 901 P.2d 455, 457 (Ct. App. 1995). However, "long-continued nausea or headaches may amount to physical illness, [as well as] long continued mental disturbance . . . notwithstanding their mental character."
As to CFC's slander of title claim, CFC has not cited to, and the Court is not aware of, any Arizona state law decision setting the appropriate measure of damages in an action for slander of title. "Arizona courts generally follow the RESTATEMENT in the absence of controlling Arizona authority." Gau v. Smitty's Super Valu, Inc., 901 P.2d 455 (Ariz. Ct. App. 1995) (citing Dixon v. City of Phoenix, 845 P.2d 1107, 1116 (Ariz. Ct. App. 1992)).