Opinion
C.A. No. 06C-07-031.
Date Submitted: February 24, 2010.
Date Decided: May 3, 2010.
On Defendants' Joint Motion for Summary Judgment: GRANTED.
Sherry Ruggiero Fallon, Esquire, Tybout, Redfearn Pell, Wilmington, Delaware, Brian Thomas McNelis, Esquire, Young McNelis, Dover, Delaware.
Mr. Mark D. Waterhouse, Seaford, Delaware.
Dear Mr. Waterhouse and Counsel:
Pending before the Court is Defendants' Joint Motion for Summary Judgment. For the reasons set forth below, the Motion is granted.
STATEMENT OF THE CASE
A. Procedural Background
Plaintiff Mark Waterhouse filed this action in his capacity as an individual and on behalf of his daughter, Jane Doe, seeking recovery in tort for the alleged sexual molestation of Jane Doe. Jane Doe's mother, Stacey Hollingsworth (now Stacey LaMotta), and Jane Doe's stepfather, Kenneth Hollingsworth, M.D., are the named Defendants. Plaintiffs sought damages from both Defendants for negligent infliction of emotion distress ("NIED"), intentional infliction of emotional distress ("IIED"), and outrage. Jane Doe also asserted a claim for sexual assault and battery against Dr. Hollingsworth. The sexual abuse at the heart of this case was alleged to have occurred between August 2004 and February 2006, when Jane Doe was between the ages of 10 and 11.
A pseudonym is used to protect the young woman's privacy.
At the time this action was filed, proceedings were also underway in Family Court on related matters. The Superior Court appointed H. Clay Davis, III, Esquire, as Guardian ad litem of Jane Doe in an effort to avoid any potential conflict of interest between Mr. Waterhouse's personal interests and those of his daughter's. By way of order dated November 2, 2009, this Court ordered the claims brought on behalf of Jane Doe voluntarily dismissed, without prejudice. Doe v. Hollingsworth, C.A. No. S06C-07-031 (Del. Super. Nov. 2, 2009) (ORDER). The primary basis for this Order was Jane Doe's desire, as expressed to Mr. Davis, Jane Doe's Guardian ad litem, to not participate in the litigation. When Jane Doe was dismissed, the claims brought on her behalf were likewise dismissed. Accordingly, a number of the counts of the Complaint are no longer before the Court: Count 1 (a NIED claim brought by Jane Doe against Dr. Hollingsworth); Count 3 (an IIED claim brought by Jane Doe against Dr. Hollingsworth); Count 5 (an outrage claim brought by Jane Doe against Dr. Hollingsworth); Count 7 (a sexual assault and battery claim brought by Jane Doe against Dr. Hollingsworth); Count 8 (a NIED claim brought by Jane Doe against her mother); Count 10 (an IIED claim brought by Jane Doe against her mother); and Count 12 (an outrage claim brought by Jane Doe against her mother). Mr. Waterhouse's claims for NIED, IIED, and outrage against each of the Defendants are still pending before the Court. The Defendants have filed a Motion for Summary Judgment on these remaining claims, together with a Joint Opening Brief in Support of their Motion for Summary Judgment. Mr. Waterhouse filed an Answering Brief and the Motion is now ripe for decision.
B. Factual Background
On April 11, 2006, Jane Doe reported to her math teacher that she had been raped by her stepfather, Dr. Hollingsworth. The teacher then took Jane Doe to the school nurse, who interviewed Jane Doe. After speaking with Jane Doe, the nurse called the Division of Family Services to report the matter. On April 12, 2006, Ralph Richardson interviewed Jane Doe at the Children's Advocacy Center of Delaware ("CAC"). Ultimately, the Delaware State Police and the Delaware Department of Justice decided not to prosecute Dr. Hollingsworth. On January 25, 2008, a substantiation hearing regarding Dr. Hollingsworth was held in Family Court. The Family Court dismissed the claims against Dr. Hollingsworth at the conclusion of that hearing.
The basis of the present action is Dr. Hollingswoth's conduct as reported by Jane Doe in her CAC interview on April 12, 2006, and the statements she made to others regarding alleged sexual abuse on the part of Dr. Hollingsworth.
DISCUSSION
A. Standard of Review
This Court will grant summary judgment only when no material issues of fact exist, and the moving party bears the burden of establishing the non-existence of material issues of fact. Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979). Once the moving party has met its burden, the burden shifts to the non-moving party to establish the existence of material issues of fact. Id. at 681. Where the moving party produces an affidavit or other evidence sufficient under Superior Court Civil Rule 56 in support of its motion and the burden shifts, the non-moving party may not rest on its own pleadings, but must provide evidence showing a genuine issue of material fact for trial. Super. Ct. Civ. R. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986). If, after discovery, the non-moving party cannot make a sufficient showing of the existence of an essential element of his or her case, summary judgment must be granted. Burkhart v. Davies, 602 A.2d 56, 59 (Del. 1991), cert. denied, 504 U.S. 912 (1992); Celotex Corp., 477 U.S. 317. If, however, material issues of fact exist, or if the Court determines that it does not have sufficient facts to enable it to apply the law to the facts before it, summary judgment is inappropriate. Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962).
B. Merits 1. Must Mr. Waterhouse's claims of IIED and outrage be merged because the essential elements of the claims are the same?
Defendants argue Mr. Waterhouse's claims of outrage and IIED must be merged because the elements of the offenses are the same. Count 4 of the Complaint, a claim of IIED, alleges Dr. Hollingsworth "engaged in extreme and outrageous conduct that he knew would cause [Jane Doe] severe emotional distress. Alternatively, he was recklessly indifferent to the likelihood that his conduct would cause her severe emotional distress." Count 6 of the Complaint, a claim of outrage, alleges "[t]he acts and actions of and by Defendant K. Hollingsworth were so outrageous in character and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Count 11, a claim of IIED, alleges Mrs. LaMotta "engaged in extreme and outrageous conduct" and Count 13, a claim of outrage, alleges Mrs. LaMotta engaged in behavior that was "so outrageous in character and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community."
The Delaware Courts adopted the Restatement (Second) of Torts' definition of IIED in Mattern v. Hudson, 532 A.2d 85, 85 (Del. Super. 1987). That definition provides as follows: "One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm." Restatement (Second) of Torts § 46(1). The torts of IIED and outrage have been considered one and the same by the Delaware Courts. McCulley v. Home Indem. Co., 1987 WL 19727, at * 5 (Del. Super. Nov. 4, 1987) ("The plaintiff has also alleged the tort of outrage, better known as intentional infliction of emotional distress."); Doe v. Green, 2008 WL 282319, at *3 (Del. Super. Jan. 30, 2008); Jones v. McCarnan, 1993 WL 19675, at *5 (Del. Super. Jan. 13, 1993).
Here, the core allegation contained in both the outrage claims and the IIED claims is that the Defendants engaged in outrageous conduct that caused injury in the form of distress to Mr. Waterhouse. The claims are substantively the same. Moreover, the precise language used by Mr. Waterhouse in setting out his outrage claims against the Defendants is used by the authors of the Restatement to identify an an IIED claim. "Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Restatement (Second) of Torts § 46 cmt. d; see also Mattern, 532 A.2d at 85. Mr. Waterhouse's IIED and outrage claims are repetitive and must be merged for consideration before the Court. For the purpose of evaluating the remainder of Defendants' arguments, Mr. Waterhouse's outrage claims are hereby merged into his IIED claims — thus, the remaining claims are Count 2 (NIED against Dr. Hollingsworth), Count 4 (IIED against Dr. Hollingsworth), Count 9 (NIED against Mrs. LaMotta), and Count 11 (IIED against Mrs. LaMotta).
2. Are Mr. Waterhouse's claims for emotional distress derivative of Jane Doe's dismissed claims, thereby requiring a showing of presence and zone of danger for IIED and NIED, respectively?
Mr. Waterhouse alleges he is entitled to relief for his emotion distress caused by Dr. Hollingsworth's conduct done unto his daughter, Jane Doe. Because Mr. Waterhouse's claim is based upon conduct directed toward Jane Doe, Defendants assert it is derivative in nature and, therefore, must be dismissed because derivative IIED and NIED claims require physical presence pursuant to Delaware law. The Court agrees.
a. IIED
In Cooper v. Board of Education, 2009 WL 2581239 (Del. Super. Aug. 20, 2009), the Superior Court analyzed the elements of an IIED claim under the Restatement (Second) of Torts' definition. The Restatement (Second) of Torts defines two "types" of IIED claims:
§ 46 Outrageous Conduct Causing Severe Emotional Distress
(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.
(2) Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress
(a) to a member of such person's immediate family who is present at the time, whether or not such distress results in bodily harm, or
(b) to any other person who is present at the time, if such distress results in bodily harm.
The Superior Court commented:
Notably, the Restatement imposes different requirements depending upon whether the defendant's conduct was "directed at" the plaintiff or a third person. Subsection 1 applies to plaintiffs who were directly targeted by the defendant's conduct, whereas subsection 2 applies to so-called bystander or third-party plaintiffs. If the party bringing a claim was not directly targeted by the tortious conduct but is an immediate family member of a direct victim, the plaintiff generally must show that he or she was present when the conduct occurred in order to recover.Cooper, 2009 WL 2581239, at *3.
The Court concludes Mr. Waterhouse's IIED claim is derivative in nature because the outrageous conduct of which he complains, the alleged sexual abuse, was directed toward Jane Doe. Because the claim is derivative and falls within subsection 2 of the Restatement definition of IIED, Mr. Waterhouse must show he was physically present at the time the abuse occurred in order to recover under the theory of IIED.
b. NIED
3. Does Mr. Waterhouse fail to show necessary elements of all claims involved? Tort claims, and those grounded in allegations of negligence, in particular, are generally not susceptible to summary adjudication. That said, a plaintiff "must set forth specific facts in [his] opposition to [a] motion for summary judgment which go beyond the bare allegations of [his] complaint." Manucci v. Stop n' Shop Companies, Inc.,1989 WL 48587, at *3 (Del. Super. May 4, 1989) (granting summary judgment where the plaintiff failed to supply any evidence supporting the elements of her negligence claim). The standard approach to a summary judgment motion may be altered somewhat when the non-moving party has failed to meet a very low burden:
Snavely v. Wilmington Med. Ctr. 1985 WL 552277Doe v. Green 2008 WL 282319 Robb v. Pennsylvania R.R. Co.210 A.2d 709714
Ordinarily, the moving party has the burden of coming forward with facts which demonstrate that there is no material question of fact and that it is entitled to judgment as a matter of law. However, where the non-moving party bears the ultimate burden of proof on an issue at trial, the moving party may instead demonstrate that a complete failure of proof concerning an essential element renders all other facts immaterial.Kanoy v. Crothall Am., Inc. 1988 WL 15367 See also Hazel v. Delaware Supermarkets, Inc. 953 A.2d 705709
The only question before the Court at this juncture is whether Mr. Waterhouse has met his burden with respect to the claims that remain after the voluntary dismissal of Jane Doe from the lawsuit. That is, the Court must decide whether Mr. Waterhouse has sufficiently alleged the elements of the IIED and NIED claims. The claims will be discussed in turn.
a. IIED
The elements of IIED have been set forth, supra. Physical presence on the part of Mr. Waterhouse is necessary for his IIED claims to survive the Motion for Summary Judgment. Mr. Waterhouse makes no claim he was present for the alleged abuse. Mr. Waterhouse also does not dispute Defendants' assertion that he did not learn of any misconduct until April of 2006, after the abuse had stopped.
Additionally, to survive a motion for summary judgment where the injury complained of is emotional distress, some proof as to an actual medical or psychiatric condition must be offered:
Physical manifestations of emotional distress that are recoverable include all forms of emotional disturbance, including temporary fright, nervous shock, nausea, grief, rage, and humiliation. However, those physical complaints cannot be transitory, nonrecurring phenomena to be a legally recognized physical injur[y] caused by emotional distress. A plaintiff's injuries must rise to the level in which they become a medical or psychiatric problem, rather than one of law.Rhinehardt v. Bright, 2006 WL 2220972, at *5 (Del. Super. July 20, 2006) (internal quotation marks and citations omitted). In this case, Mr. Waterhouse merely alleges he has suffered emotional distress but does not specify the nature of any such injury.
Because Mr. Waterhouse fails to show he was present for the alleged abuse and because he does not allege a medical or psychiatric problem that resulted from his distress, Mr. Waterhouse's IIED claims against both Mrs. LaMotta and Dr. Hollingsworth must be dismissed.
b. NIED
The elements of NIED are set out supra. In order to recover under the theory of NIED, Mr. Waterhouse must be able to show he was within the "zone of danger" when the outrageous conduct occurred. As discussed above in relation to Mr. Waterhouse's IIED claims, Mr. Waterhouse fails to allege any facts sufficient to support a finding that he was physically present when the alleged abuse occurred.
Also, as discussed previously in relation to the IIED claims, some physical manifestation of Mr. Waterhouse's emotional distress, or "present physical injury", must be shown in order for Mr. Waterhouse to recover under a NIED theory. Mergenthaler v. Asbestos Corp., 480 A.2d 647, 651 (Del. 1984). Mr. Waterhouse has failed to offer any proof or even allege with any specificity what type of physical injury he suffered as a result of the Defendants' conduct. For the same reasons Mr. Waterhouse's IIED claims must be dismissed, his NIED claims against Mrs. LaMotta and Dr. Hollingsworth must also be dismissed.
CONCLUSION
If the underlying claim of sexual abuse of Jane Doe at the hands of Dr. Hollingsworth is true, this case is horrific in nature and the Court sympathizes with Mr. Waterhouse's desire to "do something" to "make things better". Nevertheless, the fact remains that Jane Doe is permitted a say in the proceedings brought on her behalf and she has indicated that she does not wish to pursue any civil action against Dr. Hollingsworth and her mother. Accordingly, she has been dismissed from the case, pursuant to the Court Order dated November 2, 2009. Mr. Waterhouse is simply unable to maintain this action under the theories presented. Defendants' Joint Motion for Summary Judgment is GRANTED.
IT IS SO ORDERED.