DANIEL TILTON, SECOND, & others vs. TOWN OF FRANKLIN.

ARMSTRONG, J. The plaintiff Daniel Tilton, II (Daniel), and his parents brought this action to recover damages for their emotional distress and related costs of psychological counseling. After answering, the town filed a motion for summary judgment under Mass.R.Civ.P. 56(b), 365 Mass. 824 (1974), which was allowed. The pleadings were not verified, however, and no depositions, answers to interrogatories, or affidavits were filed in support of the motion. Most of the essential allegations

Page 111

of the complaint were denied in the town's answer. It is apparent from the record, which includes the briefs that the parties filed with the trial judge in support of or in opposition to the motion, that the judge in essence ruled that the plaintiffs could not recover even if all of their factual allegations were found to be true. The motion was treated, in other words, as if it were a motion under Mass.R.Civ.P. 12(b)(6), 365 Mass. 755 (1974), to dismiss the complaint for failure to state a claim on which relief could be granted. We review the judge's ruling on that basis, assuming, as we must, the truth of the allegations of the complaint. See 6 Moore's Federal Practice Section 56.11[2] (2d ed. 1986); Ercon, Inc. v. Chomerics, Inc., 16 Fed. R. Serv. 2d 1372, 1373 (Callaghan) (D. Mass. 1973); Smith & Zobel, Rules Practice Section 12.16 (1974).

Daniel was a student in the Franklin high school class of 1983. In September of 1982, he was appointed editor of the school yearbook. Shortly thereafter, a student who had been graduated in the class of 1982 was discovered to be selling advertising space in the yearbook to local merchants, without authority and with larcenous intent. Daniel was suspected as an accomplice in the fraud, and in the course of the investigation he was removed as editor of the yearbook. When the investigation ended, the school concluded that Daniel had not been involved. The superintendent of schools wrote Daniel a letter to that effect, and the school reinstated him as an editor of the yearbook. Nevertheless certain members of the school's administration and staff (not named in the complaint), both before and after Daniel's exoneration, "recklessly disseminated or permitted to be disseminated" allegations of Daniel's complicity; and when the yearbook was published, it was found to contain hostile comments by yearbook staff members (students, presumably) allegedly carrying the innuendo that Daniel had been party to the fraud. [Note 1]

Page 112

The Tiltons are caught on the horns of a dilemma. If they establish that members of the school staff committed negligent infliction of emotional distress [Note 2], they lose because they claim no physical harm. Payton v. Abbott Labs., 386 Mass. 540, 544-557 (1982). Stockdale v. Bird & Son, 399 Mass. 249, 251-252 (1987). Garrity v. Garrity, 399 Mass. 367, 369 (1987). If they establish that the school staff committed intentional infliction of emotional distress [Note 3], they lose because the defense of sovereign immunity has not been waived with respect to that tort by the Massachusetts Tort Claims Act. G. L. c. 258, Section 10(c), appearing in St. 1978, c. 512, Section 15. The Tiltons apparently attempt to escape between the horns by framing their action as one for "reckless infliction of emotional distress", which they contend is a tort distinct from intentional infliction of emotional distress and hence not barred under the Tort Claims Act.

We agree with the trial judge's analysis in rejecting that contention. "Reckless" behavior, like "wanton" behavior, has traditionally been treated as a species of intentional behavior, because, by definition, the tortfeasor knew or should have known that harm was the probable outcome of his actions. "The essence of wanton or reckless conduct is intentional conduct, by way either of commission or of omission where there is a duty to act, which conduct involves a high degree of likelihood that substantial harm will result to another [citations omitted]. Wanton or reckless conduct amounts to what has been variously described as indifference to or disregard of probable consequences to that other [citations omitted] or the rights of that other." Commonwealth v. Welansky, 316 Mass. 383, 399 (1944). Commonwealth v. Papadinis, 23 Mass. App. Ct. 570, 574-575 (1987). The reference in G. L. c. 258, Section 10(c), to the tort of "intentional mental distress" refers to the tort first recognized in George v. Jordan Marsh Co., 359 Mass. 244 (1971), and later applied in Agis v. Howard Johnson Co.,

Page 113

371 Mass. 140 (1976) (where it is referred to, at 143, as "the cause of action for intentional or reckless infliction of emotional distress"), and Simon v. Solomon, 385 Mass. 91 (1982) (where it is referred to, at 95 and 97, as the tort of "reckless infliction of emotional distress"). See discussions in Payton v. Abbott Labs., 386 Mass. at 554-555; American Velodur Metal, Inc. v. Schinabeck, 20 Mass. App. Ct. 460, 470 (1985). See also Spring v. Geriatric Authy. of Holyoke, 394 Mass. 274, 282-286 (1985).

The Tiltons also cannot prevail if their complaint is treated as alleging claims in slander and libel, because these intentional torts are also among those specifically enumerated in Section 10(c) as excepted from the waiver of immunity effected by the Tort Claims Act. We need not reach questions that would be presented otherwise, as to the appropriate role of school officials in censoring student publications and possible First Amendment constraints. As to the application of First Amendment principles to the tort of intentional infliction of emotional distress, see Fleming v. Benzaquin, 390 Mass. 175, 189-190 (1983); Godbout v. Cousens, 396 Mass. 254, 265 (1985). See also Falwell v. Flynt, 797 F.2d 1270 (4th Cir. 1986), cert. granted sub nom. Hustler Magazine v. Falwell, 480 U.S. 945 (1987).

The Tiltons suggest no set of facts that could be proven in support of the complaint which, in our view, could entitle them to relief against the town. The action was, therefore, correctly dismissed.

Judgment affirmed.