Chapter 44 CONTRACTUAL OBLIGATIONS AND TORT, INTENTIONAL AFFLICTION OF EMOTIONAL DISTRESS

• Jurisdiction: New York

Chapter Forty-Four

Contractual Obligations and Tort, Intentional Affliction of Emotional Distress

I. Contractual Obligations and Tort

A contract is not a shield from liability for separately actionable tortious conduct.⁶⁷⁴³ One may charge a contracting party with a separate tort liability arising from a breach of a duty distinct from or in addition to the breach of contract.⁶⁷⁴⁴

[A] tort is described in general as "a wrong independent of contract." And yet, it is conceded that a tort may grow out of, or make part of, or be coincident with a contract, and that precisely the same state of facts, between the same parties, may admit of an action either ex contractu or ex delicto. In such cases the tort is dependent upon, while at the same time independent of the contract; for if the latter imposes a legal duty upon a person, the neglect of that duty may constitute a tort founded upon a contract. ⁶⁷⁴⁵

However, the freedom of contract does not embrace the freedom to punish, even by contract.⁶⁷⁴⁶ A contract action cannot be transformed into something more merely by employing the language of tort.⁶⁷⁴⁷ Punitive damages are not recoverable because defendant's alleged conduct is not actionable as a tort independent of its alleged failure to perform its contractual obligations.⁶⁷⁴⁸ The mere allegation that the alleged breach of contract was maliciously intended or constituted willful misconduct does not render the breach of contract claim a separate and independent tort claim.⁶⁷⁴⁹

A relationship, contractual or otherwise, giving rise to a duty, is required before a breach can furnish a basis for tort liability.⁶⁷⁵⁰ Because a finding of negligence must be based on the breach of a duty, a threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party.⁶⁷⁵¹ A tort action may be asserted in an action for breach of contract only where the underlying agreement gives rise to a duty, independent of the contract obligation.⁶⁷⁵² Duty is not something derived or discerned from an algebraic formula. Rather, it coalesces from vectored forces including logic, science, weighty competing socioeconomic policies and sometimes contractual assumptions of responsibility.⁶⁷⁵³

New York law allows concurrent recovery in tort and contract as long as a defendant violates distinct legal duties: one that arises from the contract at issue and one that arises independently.⁶⁷⁵⁴ If a party owes another a legal duty independent of contract, he is liable in tort for breaching that duty no matter how similar the factual allegations underlying the contract claim.⁶⁷⁵⁵ When the duty of one person to another exists solely by virtue of a negotiated agreement, the relationship is normally governed only by the law of contract. Accordingly, a violation of that duty does not ordinarily give rise to a remedy in tort. Nevertheless, if the conduct of one party would constitute a tort in the absence of the contract, then that cause of action is not extinguished simply because some aspects of the relationship between the parties happen also to be governed by an independent agreement.⁶⁷⁵⁶

A tort claim will not lie where a party is merely seeking to enforce its bargain.⁶⁷⁵⁷ If the damages suffered are of the type remediable in contract, a plaintiff may not recover in tort.⁶⁷⁵⁸ In essence, it is a well-established principle that a simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated. "This legal duty must spring from circumstances extraneous to, and not constituting elements of, the contract, although it may be connected with and dependent upon the contract."⁶⁷⁵⁹

A historical overview of where tort may arise out of a contract is given in Landon v. Kroll Laboratory Specialists, Inc.:⁶⁷⁶⁰

In this regard "[p]rofessionals, common carriers and bailees, for example, may be subject to tort liability for failure to exercise reasonable care, irrespective of their contractual duties." . . . "In these instances, it is policy, not the parties' contract, that gives rise to a duty of due care."

Historically, "[o]ne of the earliest appearances of what we now know as negligence was in the liability of those who professed to be competent in certain 'public' callings." "A carrier, an innkeeper, a blacksmith, or a surgeon, was regarded as holding oneself out to the public as one in whom confidence might be reposed, and hence as assuming an obligation to give proper service, for the breach of which, by any negligent conduct, he might be liable."

This traditional negligence standard of ordinary care is variously reflected in cases involving services provided by, among other workers . . . physicians . . . psychiatrists . . . psychologists . . . lawyers . . . accountants . . . engineers . . . architects . . . social workers . . . barbers . . . bean-weighers . . . elevator operators . . . druggists . . . and laboratory testing providers.

In New York University v. Continental Insurance Co.,⁶⁷⁶¹ the Court of Appeals distinguished the "reasonable care" duty of a tort obligation from a breach of contract and the care to be taken not to blend them:

A tort obligation is a duty imposed by law to avoid causing injury to others. It is "apart from and independent of promises made and therefore apart from the manifested intention of the parties" to a contract. Thus, defendant may be liable in tort when it has breached a duty of reasonable care distinct from its contractual obligations, or when it has engaged in tortious conduct separate and apart from its failure to fulfill its contractual obligations.

The very nature of a contractual obligation, and the public interest in seeing it performed with reasonable care, may give rise to a duty of reasonable care in performance of the contract obligations, and the breach of that independent duty will give rise to a tort claim. Where a party has fraudulently induced the plaintiff to enter into a contract, it may be liable in tort . . . or where a party engages in conduct outside the contract but intended to defeat the contract, its extraneous conduct may support an independent tort claim.

. . . Conversely, where a party is merely seeking to enforce its bargain, a tort claim will not lie [citations omitted].

II. The Tort Of Intentional Infliction of Emotional Distress

In matrimonial actions, rancor and the desire for vengeance commonly fuel the litigation engine. Retribution may be achieved by submitting the wrongdoer to contentious and costly legal proceedings, irrespective of the presence or absence of any merit behind the theory of recovery. The cause of action "intentional infliction of emotional distress" is a common battle cry. To better grasp the reason that this cause of action is unavailable in matrimonial actions stemming from a marital contract, it is necessary to understand the development and applications of this cause of action and the concept of tort arising out of contractual situations.

The tort of intentional infliction of emotional distress is a departure from the common law.⁶⁷⁶² Its development reflected judicial acknowledgment of the need to afford relief where traditional theories of recovery did not.⁶⁷⁶³ The intentional infliction of emotional distress is unique as a tort in that it is based on after-the-fact judgments and is "as limitless as the human capacity for cruelty." The Court of Appeals, in 1978, in Fischer v. Maloney,⁶⁷⁶⁴ adopted the elements of the tort as set forth in Restatement (Second) of Torts:

An action may lie for intentional infliction of severe emotional distress "for conduct exceeding all bounds usually tolerated by decent society" (Prosser, Torts [4th ed.], § 12, p 56). The rule is stated in the Restatement, Torts 2d, 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" (§ 46, subd. [1]; see for one aspect Comment d: "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").

In Howell v. New York Post Co.,⁶⁷⁶⁵ the Court of Appeals mapped the evolution of intentional infliction of emotional distress as a tort:

Historically, the common law of this State did not recognize emotional injury—even with physical manifestations—as an independent basis for recovery. . . . The Court expressed two concerns, present even today, with permitting emotional distress damages: (i) the potential "flood of litigation," and (ii) the ease with which emotional injury "may be . . . feigned without detection."

Howell distilled four elements necessary to establish liability under this tort:

The tort has four elements: (i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress. The first element—outrageous conduct—serves the dual function of filtering out petty and trivial complaints that do not belong in court, and assuring that plaintiff's claim of severe emotional distress is genuine. . . . In practice, courts have tended to focus on the outrageousness element, the one most susceptible to determination as a matter of law.

Howell imposed a rigorous standard of review over such after-the-fact claims because there is no specific form of behavior that is proscribed, such as in battery, thus making the requirements difficult to satisfy.

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.

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