VIRGINIA LARRY v. STATE OF NEW JERSEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1286-10T2

VIRGINIA LARRY,

Plaintiff,

and

DOREEN GRIFFIN,

Plaintiff-Appellant,

v.

STATE OF NEW JERSEY,

Defendant-Respondent.

December 28, 2011

Argued October 24, 2011 - Decided

Before Judges Grall and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2154-08.

Doreen Griffin argued the cause pro se.

Peter D. Wint, Assistant Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Wint, on the brief).

PER CURIAM

Plaintiff Doreen Griffin appeals the October 1, 2010 grant of summary judgment dismissing her complaint alleging intentional infliction of emotional distress, negligent infliction of emotional distress, and false imprisonment against defendant State of New Jersey. For the reasons that follow, we affirm.

Plaintiff was employed in the New Jersey Department of Law and Public Safety with an office in the Hughes Justice Complex. In May 2007, co-workers lodged complaints of harassment against her, and her co-worker Virginia Larry, also a named plaintiff,1 with the Department's Manager of Human Resources.

In the presence of a Human Resource staff person and a New Jersey State trooper, plaintiff was called into her Section Chief's office, advised she was suspended, and directed to leave the building immediately. The trooper opened the door for plaintiff, walked with her to her office so she could clear out her desk, and accompanied her out of the building. Human Resources had contacted the State Police upon the lodging of the co-workers' complaints, and the State Police were included in the subsequent investigation.

On June 18, 2007, the first day plaintiff was scheduled to return to work, she fainted on the steps outside the Hughes Justice Complex. At that juncture she did not know the disposition of the complaints. Plaintiff was examined by the State doctor and did not return to work until the following day. She was then informed the allegations against her were not substantiated.

In the ensuing weeks, plaintiff saw a psychologist for some fifteen sessions as she reported experiencing depression and other symptoms she claims were caused by the suspension. She was prescribed an anti-depressant for her symptoms. Plaintiff's civil complaint soon followed.

The trial judge granted defendant's motion for summary judgment because he concluded that even viewing the facts in the light most favorable to plaintiff, the circumstances fell short of a prima facie case of intentional or negligent infliction of emotional distress, or false imprisonment. He also found that plaintiff did not satisfy the verbal threshold.

We review the grant of summary judgment using the same standard as the trial court utilized in its issuance. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. R. 4:46-2(c). Viewing the facts in the light most favorable to the nonmoving party, where it is clear that there is but one "single, unavoidable resolution of the alleged dispute[,]" summary judgment should be granted. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). We conclude the court correctly granted summary judgment because the dismissal of the complaint was the "single, unavoidable resolution of the [] dispute." See ibid.

In order to establish intentional infliction of emotional distress, a plaintiff must prove:

(1) that the actor intended to inflict[] emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct . . . ;

(2) that the conduct was "extreme or outrageous";

(3) that the actions of the defendant were the cause of the plaintiff's distress . . . ; and

(4) that the emotional distress suffered by the plaintiff was severe.

[Cole v. Laughrey Funeral Home, 376 N.J. Super. 135, 147 (App. Div. 2005) (citation omitted).]

Focusing our attention only on the second element, it is clear that plaintiff cannot satisfy the test. In order for the conduct to qualify, it "'must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency . . . .'" Taylor v. Metzger, 152 N.J. 490, 509 (1998) (quoting Buckley v. Trenton Sav. Fund Soc'y, 111 N.J. 355, 366 (1988) (quotation omitted)). Indeed, the conduct must be "atrocious." Taylor, supra, 152 N.J. at 509. The question of whether the conduct is extreme or outrageous is one of law based on the facts. We concur with the motion judge that the facts do not fall into that category. See id. at 509-10.

There can be no doubt, as the motion judge observed, that to be escorted from your place of employment by a State trooper is embarrassing. But it is not the equivalent of atrocious conduct plaintiff was neither handcuffed nor restrained in any way. It simply guaranteed that the removal would be accomplished "in an orderly manner." The fact that she was escorted from the building was simply not "beyond all possible bounds of decency." Consequently, summary judgment was correctly granted as to this cause of action.

Similarly, plaintiff cannot establish the elements of a cause of action for negligent infliction of emotional distress. In order to establish those elements, a plaintiff must prove: (1) that defendant owed plaintiff a duty of reasonable care; (2) that the duty was breached; (3) that the plaintiff suffered severe emotional distress; and (4) that the breach of the duty was the proximate cause of the injury. G.D. v. Kenny, 411 N.J. Super. 176, 195 (App. Div. 2009) (citing Russo v. Nagel, 358 N.J. Super. 254, 269 (App. Div. 2003)), aff'd 205 N.J. 275 (2011). A cause of action exists where there is "emotional injury [] deemed a foreseeable consequence of negligent conduct . . . ." Jablonowska v. Suther, 195 N.J. 91, 101 (2008). "[L]iability should depend on the defendant's foreseeing fright or shock severe enough to cause substantial injury in a person normally constituted." Decker v. Princeton Packet, Inc., 116 N.J. 418, 429 (quoting Caputzal v. The Lindsay Co., 48 N.J. 69, 76 (1966)). In this case, the employer had no reason to foresee that its actions would lead an employee in plaintiff's position to experience fright or shock sufficient to cause substantial injury.

Plaintiff's employer, defendant, considered a State Police escort necessary to prevent any contact between plaintiff and her co-workers which might be perceived as harassing or construed as potentially intimidating. In addition to the obligation to act in a reasonable manner towards plaintiff, defendant also had obligations towards the complainants and all others in the workplace. The selection of the State Police as the agency to escort plaintiff out of the building, therefore, was simply not a breach of any duty defendant may have had towards plaintiff, and is as a result not actionable. Consequently, plaintiff has no cause of action for negligent infliction of emotional distress.

The final claim which we address is plaintiff's assertion that she was falsely imprisoned by defendant. This cause of action also lacks any support in the record. "False imprisonment" has been defined as "'unlawful restraint upon a man's freedom of locomotion.'" Marion v. Borough of Manasquan, 231 N.J. Super. 320, 330 (App. Div. 1989) (quoting Earl v. Winne, 14 N.J. 119, 128 (1953)). It can be accomplished through force or threats. Earl, supra, 14 N.J. at 128. Here, the State trooper escort did not restrain plaintiff's freedom of locomotion. Indeed, the State trooper opened the door for plaintiff to exit her Section Chief's office after she was informed of the suspension. Additionally, as the judge noted:

Any employee working at [the Hughes Justice Complex] is only allowed access to the building if they are properly employed and hold a valid identification pass. Here, plaintiffs were being suspended and, therefore, had no authorization to be present in the building unattended . . . .

For that reason, no factfinder could conclude that plaintiff's movements were unlawfully restricted. Accordingly, this cause of action also falls short.

Because plaintiff has no viable claim against defendant, there is no need for us to reach the issue of whether she could meet the verbal threshold for a damage award as required by N.J.S.A. 59:9-2(d). Under these circumstances, defendant was entitled to summary judgment as a matter of law.

1 The appeal as to plaintiff Virginia Larry has been withdrawn.