Summary
In Tserkonis, the defendant was "holding up his hedge clippers and throwing plants in [the] direction" of his neighbors' two children, and also made "intimidating gestures" at the children.
Summary of this case from Wood v. NeumanOpinion
NO. 2003-1546-C
October 27, 2003
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S MOTION TO DISMISS COUNTS III AND IV OF PLAINTIFFS' COMPLAINT PURSUANT TO MASS.R. CIV. P. 12(b)(6)
The plaintiffs brought this action against the defendant on April 4, 2003, alleging trespass (Count I), malicious destruction of property (Count II), assault (Count III), and intentional infliction of emotional distress (Count IV). The defendant has now moved, pursuant to Mass.R.Civ.P. 12(b)(6), to dismiss Counts III count IV of the complaint for their failure to state a claim upon which relief can be granted. For the following reasons, the defendant's motion to dismiss is denied.
BACKGROUND
The facts are summarized as they appear in the plaintiffs' complaint, with all reasonable inferences construed in favor of the plaintiff at this stage of the litigation. In August 1996, plaintiffs Ruby and Anastasios Tserkonis purchased property at 12-14 School Street in Arlington, Massachusetts. The plaintiffs reside at this property with their two children, Anastasia (age 13) and Korina (age 7). The defendant, Thomas Notis ("Notis"), owns the property at 16-18 School Street. Prior to the plaintiffs purchasing their property, Notis erected a fence between the properties at 16-18 School Street and 12-14 School Street.
After purchasing the property at 12-14 School Street, the plaintiffs maintained a garden on the side of the fence that faced their property. Prior to the date of the incident from which this action arises, Notis asserted that the fence was on his property. On March 25, 2003, Notis took down the fence without notifying the plaintiffs. On March 27, 2003, Notis entered the plaintiffs' property and proceeded to destroy their garden and tear up the plaintiffs' solar lights. Anastasia and Korina were home and observed Notis destroying the garden. They were frightened by Notis' aggressive actions and called their father, Anastasios, who drove home immediately.
Before her father arrived, Anastasia went outside and asked Notis why he was destroying the plaintiffs' garden. Anastasia felt threatened by Notis' harsh tone of voice as he responded that he was clearing debris from his land. Notis then made Anastasia nervous by holding up his hedge clippers and throwing plants in her direction. She told Notis that she would call the police if he did not leave. Notis responded, "Go ahead. That's exactly what I want you to do." Anastasia ran to the house, called the police, and told them that there was an intruder in the yard. She saw Notis drive away. The police arrived and Anastasia told them what had happened. When the police left, Anastasia and Korina locked the door and waited for their parents to arrive.
Anastasia and Ruby arrived home and went into the backyard to see the damage done by Notis. While they were in the backyard, Notis twice yelled at the plaintiffs, "You, owners of this house, come here." The plaintiffs called the Arlington police who told Notis that he had vandalized the plaintiffs' yard. After the police left, Notis again began to intimidate the plaintiffs.
The following afternoon, Notis made intimidating gestures at Anastasia and Korina when they returned from school. The same afternoon, Notis destroyed the remainder of the plaintiffs' garden and threw garden items on the plaintiffs' property.
DISCUSSION
A motion to dismiss under Mass.R.Civ.P. 12(b)(6) tests the legal sufficiency of the complaint. A motion to dismiss for failure to state a claim should only be granted if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." General Motors Acceptance Corp. v. Abington Casual Ins. Co., 413 Mass. 583, 84 (1992). The court must accept the allegations made in the plaintiff's complaint as true, as well as any reasonable inferences that may be drawn therefrom. Nader v. Citron, 372 Mass. 96, 98 (1977); Eyal v. Helen Broadcasting Corp., 411 Mass. 426, 429 (1991).
In evaluating the plaintiff's complaint, "the court is not to consider the unlikelihood of the plaintiff's ability to produce evidence to support otherwise legally sufficient complaint allegations, . . . however improbable appear the facts alleged, . . . and `notwithstanding expressions of denial and incredulousness as to ultimate proof by the defendants." Brum v. Town of Dartmouth, 44 Mass. App. Ct. 318, 322 (1998). Thus, a complaint should not be dismissed for failure to state a claim unless "on the face of the complaint it is unmistakable that the plaintiff can prove no facts in support of a tenable legal claim." Disend v. Meadowbrook School, 33 Mass. App. Ct. 674, 676 (1992).
I. Count III — Assault
The tort of assault requires the "intentional creation of an apprehension of immediate physical harm by means of an overt gesture." Nolan and Sartori,_Tort Law § 12, at 5-10 (2002); Restatement (Second) of Torts § 21 (1965). Taking the facts in the plaintiffs' complaint as true, a fact-finder could reasonably conclude that Notis' words and actions together constituted an assault. A trier of fact could infer that by holding up hedge-clippers and throwing plants in the direction of the 13-year old plaintiff, Notis engaged in an overt action intended to cause the plaintiffs apprehension of physical harm. The plaintiffs also allege that both Anastasia and Korina were terrified by Notis' actions.
A motion to dismiss for failure to state a claim is a threshold inquiry, requiring a plaintiff only to plead facts sufficient to dispel his absolute inability to support a valid legal claim. See General Motors Acceptance Corp., 413 Mass. at 584; Disend, 33 Mass. App. Ct. at 676. As to the count of assault, the plaintiffs have alleged sufficient facts to survive a Rule 12(b)(6) challenge.
II. Count IV — Intentional Infliction of Emotional Distress
To state a cognizable claim for intentional infliction of emotional distress, the plaintiff must allege that (1) the defendant intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) the conduct was extreme and outrageous; (3) the actions of the defendant were the cause of the plaintiff's distress; and (4) the emotional distress sustained by the plaintiff was severe and of such a nature that a reasonable person could not be expected to endure it. Agis v. Howard Johnson Co., 371 Mass. 140, 145 (1976). Assessing the plaintiffs' complaint against the elements of the cause of action of intentional infliction of emotional distress, the court concludes that they have alleged sufficient facts to survive a Rule 12(b)(6)motion to dismiss.
Notis contends that the plaintiffs have not met the threshold required to establish that his behavior was extreme and outrageous or so severe as to be unendurable by a reasonable person. The term outrageous describes "more than workaday insults, annoyances, or even threats and petty oppressions." Conway v. Smerling, 37 Mass. App. Ct. 1, 8 (1994). Behavior that is outrageous and extreme involves "a high order of reckless ruthlessness or deliberate malevolence that . . . is simply intolerable." Id. The Massachusetts courts have found extreme and outrageous behavior arising from a variety of alleged facts and circumstances. See Agis, 371 Mass. at 145 (manager's summary dismissal of plaintiff because her last name began with the letter "A" was extreme and outrageous) (1976); Boyle v. Wenk, 378 Mass. 592, 595 (1979) (repeated harassing calls to plaintiff, who defendant knew had been recently released from the hospital, was extreme and outrageous). See also Brown v. Nutter, McClennen Fish, 45 Mass. App. Ct. 212, 218-219 (1998); Deloury v. Fleet Bank of Massachusetts, 1998 Mass. Super. LEXIS 305, *5 (Feb. 26, 1998).
In the present case, a factor to consider in appraising the plaintiffs' claim for intentional infliction of emotional distress is the young ages of Ananstasia and Korina Tserkonis. A defendant's knowledge of a plaintiff's vulnerability to emotional distress may compound the effect of the defendant's behavior, causing it to rise to the level of extreme and outrageous. Boyle, 378 Mass. at 594-596 (plaintiff just out of hospital and in weakened condition); Richard W. Bishop, Prima Facie Case-Proof and Defense § 26.2, at 398 (2001); see also Bailey v. Shriberg, 31 Mass. App. Ct. 277, 279-280 (1991) (elderly and frail neighbors might have been more susceptible to emotional distress as a result of the defendant's conduct). It is reasonable to consider that the fact that two of the plaintiffs are children made them more susceptible to emotional damage. Notis' knowledge of the plaintiffs' ages may have put him on notice that they might be more vulnerable to emotional distress as a result of his conduct. If so, it is for the trier of fact to decide whether the Notis' behavior rose to the level of extreme and outrageous.
The plaintiffs' claim should only be defeated if it is beyond doubt that the plaintiffs will be unable to establish any further facts to support a claim for intentional infliction of emotional distress. See General Motors Acceptance Corp., 413 Mass. 583, 84 (1992). The plaintiffs' claim for intentional infliction of emotional distress is not particularly well stated. Nevertheless, the plaintiffs have alleged facts on each element of the tort, and have explicitly pleaded "extreme emotional distress". Moreover, whether a trier of fact would conclude that the defendant's conduct was extreme and outrageous, and whether a reasonable person could be expected to endure it, are questions of fact on which reasonable persons could differ. The facts and circumstances alleged in plaintiffs' complaint provide a sufficient basis to survive the threshold challenge of defendant's Rule 12(b)(6) motion.
ORDER
For the foregoing reasons, Defendant's Motion to Dismiss Counts III and IV of Plaintiffs' Complaint Pursuant to Mass.R.Civ.P. 12(b)(6) is DENIED .
______________________________ Peter M. Lauriat Justice of the Superior Court