GILBERT C. QUINN & another [Note 1] vs. JOSEPH WALSH

DUFFLY, J. Does a complaint alleging that a defendant engaged in an extramarital affair in order to injure a plaintiff spouse

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survive the statutory abolition [Note 2] of the common-law torts of alienation of affection and criminal conversation? Concluding that such a complaint stated no case, a judge of the Superior Court dismissed it. The spouse, Gilbert C. Quinn (Quinn), and son (Michael) appeal the dismissal.

These are the allegations in the complaint. Quinn and Susan Bloomstein were married on July 17, 1977. Their only child, Michael, was born on March 30, 1982. In January, 1994, and continuing thereafter for a period of time not specified in the complaint, Susan Bloomstein-Quinn engaged in an extramarital affair with Joseph Walsh. Walsh knew that Bloomstein-Quinn was married and engaged in the affair openly and in a manner such that it became known to the plaintiffs and to the community at large. The purpose of the affair was, "in part," to injure Quinn [Note 3]. By November, 1994, Walsh's conduct had caused Quinn's marriage of nearly twenty years to end, and he filed for divorce. The plaintiffs suffered severe emotional distress and Walsh knew or should have known that his conduct would result in such emotional distress.

The two-count complaint was filed on September 11, 1997. Walsh filed a motion to dismiss the plaintiffs' complaint on the grounds that it failed to state a claim upon which relief could be granted and that the claims were barred by the applicable statute of limitations. The motion to dismiss was allowed after hearing.

1. Statute of limitations. The motion judge concluded that the plaintiffs' complaint was barred by the three-year statute of limitations applicable to tort claims. -A three-year limitation period applies to [a] plaintiff's claims in tort for intentional infliction of emotional distress." Mellinger v. West Springfield, 401 Mass. 188, 191 (1987). In order that the complaint not be time-barred, the plaintiffs' injury must have occurred after September 11, 1994. Here, the allegedly injurious conduct consisted of the affair and its publication to "the plaintiffs and to the community at large," which resulted in their suffering "severe emotional distress."

The time when a cause of action accrues has not been defined by statute but has been the subject of judicial interpretation. See Riley v. Presnell, 409 Mass. 239, 243 (1991). The general rule

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is that a cause of action in tort accrues at the time the plaintiff is injured. Ibid. See Joseph A. Fortin Constr., Inc. v. Massachusetts Hous. Fin. Agency, 392 Mass. 440, 442 (1984); Frank Cooke, Inc. v. Hurwitz, 10 Mass. App. Ct. 99, 109 (1980). We have said that where the claim arises from the intentional infliction of emotional distress, the injury occurs on the date a plaintiff first experiences anxiety or distress which is the intended result of the defendant's conduct. Pagliuca v. Boston, 35 Mass. App. Ct. 820, 824 (1994). We have narrowed this rule to provide that, "[w]hen an injury . . . becomes manifest, the statute of limitations does not stay in suspense until the full extent, gravity, or permanence of that same injury or consequential disease is known." Id. at 824-825, quoting from Gore v. Daniel O'Connell's Sons, Inc., 17 Mass. App. Ct. 645, 649 (1984).

In cases where the emotional injury is said to have been caused by a defendant's negligence, our courts have imposed the even narrower requirement that -[a] plaintiffs emotional distress must follow 'closely on the heels of' the negligent act." Miles v. Edward 0. Tabor, M.D., Inc., 387 Mass. 783, 789 (1982), quoting from Ferriter v. Daniel O'Connell's Sons, Inc., 381 Mass. 507, 518 (1980). We see no reason to apply a different rule to the claim made here. This is because we recognize the need to impose limits on the scope of liability with respect to claims involving emotional injuries, whether negligently or intentionally caused [Note 4]. See, e.g., Migliori v. Airborne Freight Corp., 426 Mass. 629, 631-633 (1998) ("[w]here the mechanism by which injury comes about includes the psychological, both the class of plaintiffs and kinds of claims are greatly and predictably expanded. . . . We have imposed relational, temporal, and spatial limits on the scope of liability for emotional harm . . . [which are] grounded in [the] practical need to draw a determinate line against excessive liability. . . . [W]e must acknowledge that these requirements of proximity are based more on the pragmatic need to limit the scope of potential li-

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ability, than on grounds of fairness or other imperatives of corrective justice").

We therefore conclude that, unless the circumstances are such that the resulting damage is "inherently unknowable," Friedman v. Jablonski, 371 Mass. 482, 485 (1976), and the statute of limitations is therefore tolled until "a plaintiff discovers, or reasonably should have discovered, that she has been harmed," Phinney v. Morgan, 39 Mass. App. Ct. 202, 204 (1995) [Note 5], the manifestation of intentionally inflicted emotional injury must be substantially contemporaneous with the outrageous conduct. Thus, to survive dismissal based on the claim that the action was time-barred, the inferences to be drawn from the allegations in the complaint must encompass both the requirement that the plaintiffs suffered emotional distress soon after learning of the alleged outrageous conduct and that their distress was manifested after September 11, 1994.

Under Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), "the allegations of [a] complaint, as well, as such inferences as may be drawn therefrom in the plaintiffs favor are to be taken as true." Nader v. Citron, 372 Mass. 96, 98 (1977), quoting from Conley v. Gibson, 355 U.S. 41, 45-46 (1957). "There is no requirement that the plaintiff's complaint . . . state the relevant facts with completeness or precision." Ahern v. Warner, 16 Mass. App. Ct. 223, 226 n.2 (1983). Our analysis must be based upon an indulgent reading of the complaint, Haggen-y v. Globe Newspaper Co., 383 Mass. 406, 409 (1981), including indulgence for the period of limitations. Friedman v. Jablonski, 371 Mass. at 487-488. Although the plaintiffs did not specifically allege

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when they became aware of the relationship between Bloomstein-Quinn and Walsh, nor when they began to suffer as a result of Walsh's conduct in advertising the affair, the plaintiffs did allege that the affair commenced in January, 1994, and was conducted "openly and in a manner such that the relationship became known to Quinn and friends of Quinn . . . as well as becoming known in the community where he lived." It is the plaintiffs' contention that, because it is not possible to conclude from the face of the complaint precisely when the plaintiffs were injured, the motion judge effed in concluding that their injury was discovered some time before September 11, 1994.

We agree that it is possible to infer from their allegations that the plaintiffs did not learn of the affair until after September 11, 1994, either because the "ongoing" affair continued throughout the summer or, if it ended soon after it began, that this did not become immediately known to the plaintiffs. On this basis we conclude that the plaintiffs have adequately, if barely, pleaded the minimally necessary facts to survive the bar of the statute of limitations [Note 6].

2. Failure to state a claim upon which relief may be granted. Walsh also sought to dismiss the plaintiffs' complaint on the ground that it failed to state a claim upon which relief could be granted. Mass.R.Civ.P. 12(b)(6). The issue before us is one of first impression: Does an adulterous affair which was openly conducted and initiated "in part" to injure a plaintiff [Note 7] preclude at this stage a ruling as matter of law that there is "no set of facts in support of [the plaintiffs'] claim[s] which would entitle [them] to relief?" Nader v. Citron, 372 Mass. at 98. The motion judge concluded that the plaintiffs' complaint was essentially a claim for alienation of affection or criminal conversation, forms of action which have been abolished by statute in Massachusetts [Note 8], and for this reason dismissed the complaint. We agree with the motion judge that, with respect to Quinn, the

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complaint should therefore be dismissed. On a different basis, we conclude that Michael's claim should also be dismissed. A discussion of the evolution of the "heart balm [Note 9]" torts necessarily precedes our analysis, to be followed by a discussion of the tort of intentional infliction of emotional distress, the stated basis of the plaintiffs' action.

(a) Alienation of affection and criminal conversation. The common-law torts of alienation of affection and criminal conversation compensated a spouse [Note 10] for intentional interference with the marital relationship by a third party [Note 11]. These actions are similar in that both "compensate[] the plaintiff for impairment of consortium," Clark, Law of Domestic Relations s.12.3, at 662 (2d ed. 1987), and both are "intentional" torts, Nolan & Sartorio, Tort Law s.s. 152, 153, at 261-265 (1989); Nolin v. Pearson, 191 Mass. 283, 289 (1906), but they may be distinguished.

To recover for criminal conversation [Note 12] there had to be proof "that the defendant had adulterous relations with the plaintiffs spouse." Clark, Law of Domestic Relations s. 12.3, at 662. See Restatement (Second) of Torts s. 685 (1977). The tort involved adultery with one spouse "whether with or against her will." Bigaouette v. Paulet 134 Mass. 123, 126 (1883). Loss of consortium was the only necessary component of damage, but the plaintiff could seek compensation for "humiliation, embar-

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rassment, mental anguish and loss of consortium," Clark, Law of Domestic Relations, s. 12.3, at 663. See, e.g., Spade v. Lynn & Boston R.R., 168 Mass. 285, 290 (1897) (holding that mental distress resulting from negligence is not actionable, the court distinguishes its decision from "those classes of actions where an intention to cause mental distress . . . is shown or is reasonably to be inferred as, for example, in cases of seduction"); Neville v. Gile, 174 Mass. 305, 306 (1899) (allegation that plaintiff "suffered physically as well as mentally, and has been distressed in body and mind," stated "an aggravation of damages for the loss of consortium" [emphasis original]); Restatement (Second) of Torts s. 685 comment g ("plaintiff is entitled to recover for emotional distress" in an action for criminal conversation).

Early decisions did not recognize alienation of affection as a substantive cause of action in Massachusetts. Neville v. Gile, 174 Mass. at 306 ("[i]n this Commonwealth, alienation of affections alone is not a substantive cause of action"). But see Tasker v. Stanley, 153 Mass. 148, 148 (1891) (in which "[t]wo actions of tort . . . for alienating the affections of the plaintiff's wife and enticing her to leave him" are considered). Decisions subsequent to Neville purporting to rely on the court's articulation of the law in that case did not, however, require dismissal of actions alleging alienation of affection if the claim was, in effect, for loss of consortium resulting from maliciously motivated enticement. See Webber v. Benbow, 211 Mass. 366, 368 (1912); Cutter v. Cooper, 234 Mass. 307, 316 (1920); Gahagan v. Church, 239 Mass. 558, 559 (1921).

Over time, the distinction between alienation of affection as an aggravation of damages and the variously described actions for loss of consortium (based either on enticement by improper motive or on debauchery) blurred and were ultimately reconstituted as a single tort, alienation of affection. The elements of this tort included aspects of the torts from which it was derived - debauchery or enticement by improper motive, resulting in loss of consortium and loss of affection. See, e.g., Longe v. Saunders, 246 Mass. 159, 160-161 (1923); Bradstreet v. Wallace, 254 Mass. 509, 511-512 (1926); Sherry v. Moore, 258 Mass. 420 (1927), S.C., 265 Mass. 189 (1928); Labrie v. Midwood, 273 Mass. 578, 579 (1931); Lizotte v. Warren, 302 Mass. 217 (1939); McCracken v. Cohen, 322 Mass. 12, 12-13 (1947); White v. Thomson, 324 Mass. 140, 142 (1949); Pataskas v. Judeikis, 327 Mass. 258, 259 (1951). As was the case with claims

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based on criminal conversation, recovery could also be had for mental or emotional distress in actions based on the alienation of a spouse's affection. See Spade v. Lynn & Boston R.R., 168 Mass. at 290. See also Restatement (Second) of Torts s. 683 comment m ("[i]n an action for alienation of affections, one spouse is entitled to recover damages for the loss of the other's affections and the emotional distress thus caused"). Cf. White v. Thomson, supra at 143 (denying injunctive relief in action based on alienation of affections, because "[e]quity cannot by injunction restrain conduct which merely injures a person's feelings and causes mental anguish" [citations omitted]).

By the mid-1950's, the common law "heart balm" torts were generally expressed in only two causes of action [Note 13], the tandem torts of alienation of affection and criminal conversation. See, e.g., Ross v. Nourse, 330 Mass. 666 (1953); Perry v. Carter, 332 Mass. 508 (1955); Nigrosh v. Daniels, 349 Mass. 777 (1965); Andrews v. Andrews, 350 Mass. 781 (1966); Saeli v. Mangino, 353 Mass. 591 (1968). In Doe v. Doe, 378 Mass. 202, 203 (1979), "the continuing validity of the torts of alienation of affections and criminal conversation" by judicial determination was left to another day, which never dawned. The torts were abolished by statute six years later.

As provided in 1985 by G. L. c. 207, s. 47B, a plaintiff may no longer recover, and "no action, suit or proceeding shall be maintained," for alienation of affection, or for criminal conversation. [Note 14] The plaintiffs contend that their action is not one for alienation of affection or criminal conversation, but for

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intentional infliction of emotional distress. We are not bound by the label they have ascribed to the facts alleged, Lambley v. Kameny, 43 Mass. App. Ct. 277, 280 (1997); Sheehy v. Lipton Indus., Inc., 24 Mass. App. Ct. 188, 193 n.5 (1987), but look to the allegations themselves to determine the cause of action. If those allegations state a cause of action not specifically abolished by this statute, it may not be dismissed. It is well established that "an existing common law remedy is not to be taken away by a statute unless by direct enactment or necessary implication." Ferriter v. Daniel O'Connell's Sons, Inc., 381 Mass. at 521, quoting from King v. Viscoloid Co., 219 Mass. 420, 425 (1914). Eyssi v. Lawrence, 416 Mass. 194, 199-200 (1993). See Pinnick v. Cleary, 360 Mass. 1, 14-15 (197 1); Riley v. Davison Constr Co., 381 Mass. 432 (1980); O'Sullivan v. Shaw, 431 Mass. 201, 206 (2000).

The plaintiffs argue that it is incidental that the vehicle used to cause them emotional distress was an adulterous affair, and note that they have made no claim for loss of consortium. [Note 15]" Loss of consortium was a significant, but not exclusive, element of the abolished torts. We do not agree that the allegations in the plaintiffs' complaint - that they suffered severe emotional harm as a result of Walsh's openly conducted affair with Bloomstein-Quinn and that this injury was intentionally inflicted - describe circumstances that meaningfully differentiate them from those previously compensable through claim of alienation of affection and criminal conversation. We have noted that intent was also an element of the torts no longer recognized (see, e.g., Nolin v. Pearson, 191 Mass. at 289), and the plaintiffs' claim cannot therefore be distinguished on this basis. We recognize that, although referred to as intentional torts, the label was "not always quite deserved, for a defendant charged with criminal conversation or alienation of affections [could have been] liable although harboring no malicious design, being in truth the

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seduced rather than the seducer, and at least in the case of criminal conversation, unaware even that a marital relation existed." Diaz v. Eli Lilly & Co., 364 Mass. at 159-160. However, as we discuss infra, the "intentional" component of the tort of intentional infliction of emotional distress may also be met by a showing that the defendant intended to commit the act without regard for the distress which was the likely result of his conduct. To conclude that there is a basis for recovery if Walsh engaged in the affair to cause distress, but not if Walsh did so without regard for the distress which might result would, we think, require a fact finder to make a distinction without a legally sufficient difference.

Further, damages based on emotional distress caused by a sexual affair were also available to a plaintiff claiming criminal conversation or alienation of affection. By abolishing these common-law torts, the Legislature has registered its intent to preclude recovery for emotional distress resulting from adultery. See, e.g., Gasper v. Lighthouse, Inc. 73 Md. App. 367, 372 (1987) ("[w]hat is precluded . . . is the refitting of the abolished actions into other forms. One cannot sue to recover for injuries arising from 'defilement of the marriage bed' or from an interference with the marriage by simply casting the defendant's conduct as . . . some other intentional tort" [emphasis original]); Weicker v. Weicker, 22 N.Y.2d 8 (1968); Strock v. Presnell, 38 Ohio St. 3d 207, 215-216 (1988), and cases cited (" 'the resurrection of these interests under a different name is fallacious and improper.' . . . [O]ther states that have abolished amatory actions agree that any attempt to recover for those actions under a different label is prohibited" [citations omitted]). Contrast Van Meter v. Van Meter, 328 N.W.2d 497 (Iowa 1983); Speiss v. Johnson, 89 Or. App. 289, aff'd, 307 Or. 242 (1988).

Based on our analysis of the abolished amatory torts, we conclude that the plaintiffs' allegations amount to nothing more than "heart balm" by another name. Because we do not intend by this decision to preclude all claims for intentional infliction of emotional distress solely because sexual misconduct in a marital context figures as part of the conduct complained of, and to address Michael's argument that his claim survives even if Quinn's is deemed abolished, we briefly review the evolution of this tort in Massachusetts.

(b) Intentional infliction of emotional distress. Out of the human condition may arise a myriad of emotional responses

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including anger, sadness, anxiety, and distress, many of which are attributable to the conduct of others. While perhaps blameworthy, such conduct is often not legally compensable. "It does not lie within the power of any judicial system to remedy all human wrongs." Prosser & Keeton, Torts s. 4, at 23 (5th ed. 1984). The development of a cause of action in this Commonwealth for the intentional infliction of severe emotional distress is set forth in Agis v. Howard Johnson Co., 371 Mass. 140 (1976). Prior to Agis, manifestations of bodily injury were a requisite element of such a claim [Note 16]. Discussing the extension of the action both to situations in which emotional injury occurred recklessly, as well as without bodily harm, the court recognized concerns with problems of proof, and that "a wide door might 'be opened not only to fictitious claims but to litigation over trivialities.' " Id. at 143. While "not unconcerned," the court concluded "that 'the problems presented are not . . . insuperable' and that 'administrative difficulties do not justify the denial of relief for serious invasions of mental and emotional tranquility.' " Ibid (citation omitted). But the bar was set sufficiently high so that only substantial claims of emotional harm could overcome it. "To prevail on [a] claim [based on this tort), [a] plaintiff[] must establish '(1) that the defendant intended to inflict emotional distress, or knew or should have known that emotional distress was the likely result of his conduct, . . . (2) that the defendant's conduct was extreme and outrageous, beyond all possible bounds of decency, and utterly intolerable in a civilized community, (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 and of such a nature that no reasonable person could be expected to endure it.' Liability cannot be predicated on 'mere insults, indignities, threats, annoyances, petty oppressions or other trivialities nor even is it enough 'that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by "malice," or a degree of aggravation

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which would entitle the plaintiff to punitive damages for another tort.' " Yetrault v. Mahoney, Hawkes & Goldings, 425 Mass. 456, 466 (1997) (citations omitted).

Although denominated an "intentional" tort, a review of decisions in which the cause of action has survived a motion to dismiss indicates that the majority of such actions are based, not on conduct engaged in for the purpose of causing distress, but on conduct which the actor should have known would result in distress [Note 17]. That the plaintiffs have alleged that Walsh engaged in the affair in order to injure them does not distinguish this action from the amatory actions abolished by G. L. c. 207, s. 47B. See discussion, supra. The plaintiffs' claim must fail, even if not abolished, because the conduct complained of was not outrageous.

An affair of the sort alleged here would by most in our society be considered reprehensible and a cause for sadness, anger, and distress; we do not condone the behavior which is alleged to have occurred. But an openly conducted affair, even one which

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is intended to, or which the actor should have known would, cause emotional harm, does not in our society constitute conduct which is " 'extreme and outrageous,' . . . 'beyond all possible bounds of decency' and . . . 'utterly intolerable in a civilized community.' " Agis v. Howard Johnson Co., 371 Mass. at 145, quoting from Restatement (Second) of Torts s. 46 comment d (1965). In this respect, our holding is in line with the majority of State courts having decided similar issues. See Strauss v. Cilek, 418 N.W. 2d 378, 380 (Iowa Ct. App. 1987) ("defendant's conduct in participating in a [consensual] sexual relationship with . . . his friend's wife . . . over an extended period, is [not] atrocious"); Whittington v. Whittington, 766 S.W.2d 73, 74 (Ky. Ct. App. 1989) ("adultery can never reach the status of outrageous conduct"); Ruprecht v. Ruprecht, 252 N.J. Super. Ct. 230, 238 (1991) (allegations of adultery which occurred over an eleven-year period before discovered "fail[ed] to reach the level of outrageousness necessary"); Padwa v. Hadley, 127 N.M. at 419 (where defendant's sexual pursuit of plaintiffs wife, former wife and former fiancee, "was [defendant's] weapon of choice for attacking and hurting [plaintiff]," this was insufficient to establish liability); Poston v. Poston, 112 N.C. App. 849, 851 (1993) ("allegation of adultery does not evidence . . . extreme and outrageous conduct"); Alexander v. Inman, 825 S.W.2d 102, 105 (Tenn. Ct. App. 1992) (defendant's adulterous affair with plaintiffs wife and his perjury concerning these activities would not "in these days and times [be found by] an average member of the community . . . to be so atrocious that it goes beyond the bounds of decency").

This is not to say that there are no claims for intentional infliction of emotional distress which may be maintained because the conduct complained of involves sexual misconduct in a marital context. See Lusby v. Lusby, 283 Md. 334 (1978) (defendant husband raped wife and assisted two others in attempt to rape her); Figueiredo-Torres v. Nickel, 321 Md. App. 642 (1991) (claim stated against defendant psychiatrist who engaged in affair with his patient's wife); Speiss v. Johnson, 89 Or. App. 289 (claim stated against psychiatrist who treated husband's wife and engaged in sexual relationship with her); Twyman v. Twyman, 855 S.W.2d 619 (Tex. 1993) (emotional distress claim allowed where husband demanded that wife, who had been raped prior to marriage, engage in sexual acts involving bondage activities). Contrast Scamardo v. Dunaway, 694

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So. 2d 1041 (La. App. 1977) (no cause of action based on intentional infliction of emotional distress where defendant who engaged in affair with plaintiff's wife was medical doctor consulted for wife's infertility problems but remanded to allow amendment of the pleadings); Strock v. Presnell, 38 Ohio St. 3d at 214-216 (no claim based on intentional infliction of emotional distress where defendant minister engaged in affair with plaintiff's wife while acting as marriage counselor). See also O'Connell v. Chasdi, 400 Mass. 686, 689-691 (1987) (jury verdict for intentional infliction of emotional distress upheld; the defendant employer made repeated, unwanted sexual advances and threatened plaintiff's job if she continued to rebuff him). We do not decide today that conduct which in other States has been deemed sufficiently outrageous to state a cause of action would suffice to make out such a claim in Massachusetts; each case must be determined on the particular facts put before us. But those facts which the plaintiffs have alleged do not amount to conduct rising to the level of outrage necessary to support their claim, nor can such conduct reasonably be inferred. Thus Michael's claim must also fail, although we agree that it was not abolished by G. L. c. 207, s. 47B, because the heart balm torts were maintainable only by a spouse [Note 18].

In sum, the complaint fails to state a cause of action entitling the plaintiffs to relief and properly was dismissed.

Judgment affirmed.