This post examines an opinion a New York court issued recently in a civil suit. The case is Wimmer v. Greenleaf Arms, Inc., 2011 WL 6187127 (New York Supreme Court 2011), and this, according to the opinion, is how it arose:
Caroline Wimmer (hereinafter `decedent’) was murdered in her apartment on March 28, 2009 by . . . Calvin Lawson (hereinafter `Lawson’). Her body was discovered two days later by her parents, . . . Martha Wimmer and Ronald Wimmer (hereinafter `the Wimmers’). They went to check her apartment after not having heard from her for a few days and, finding the door ajar, they called 911. . . .
Mark Musarella . . . , an Emergency Medical Technician (or EMT), was among those who responded to the scene in ignorance of the fact that Ms. Wimmer was already deceased. While at the scene, [Musarella] took a photograph of the decedent's corpse, which he subsequently uploaded onto his personal Facebook page.
Wimmer v. Greenleaf Arms, Inc., supra. According to various news stories, including the one you can find here, Caroline Wimmer was killed because of a false rumor posted on MySpace.
Lawson was . . . convicted . . . of decedent's murder on May 26, 2010. On December 10, 2010, . . . Musarella pled guilty to a violation of Section 195.00 of the [New York] Penal Law (`Official Misconduct’), for his actions in taking the photo and posting it on Facebook. After he had successfully completed his sentence of community service, Musarella was allowed to withdraw his guilty plea and plead guilty to [New York] Penal Law Section [240.20] (`Disorderly Conduct’), a violation, on March 14, 2011.
Wimmer v. Greenleaf Arms, Inc., supra. (The opinion says he pled guilty to disorderly conduct under § 240.25 of the New York Penal Law, but that section defines the crime of harassment. Since § 240.20 of the Penal Law defines the crime of disorderly conduct, I've substituted it.)
On October 30, 2009, Martha Wimmer was appointed as representative of Caroline’s estate and on March 25, 2011 she and her husband sued Greenleaf Arms, which owned the building in which Caroline’s apartment was located, Calvin Lawson, Mark Musarella and others, alleging various causes of action. Complaint, Wimmer v. Greenleaf Arms et al., 2011 WL 1130638. Musarella responded by filing a motion to dismiss three of the causes of action the Wimmers brought against him: trespass, breach of fiduciary duty and infliction of emotional distress. Wimmer v. Greenleaf Arms, Inc., supra.
As Wikipedia notes, a motion to dismiss asks the court to find that a cause of action “is not one for which the law offers a legal remedy.” As Wikipedia also explains, in ruling on such a motion, “the court must assume the truth of the factual allegations, but may hold that the claim states no cause of action under the applicable substantive law.”
After the Wimmers filed a response to Musarella’s motion, the judge who has the case issued his ruling on the motion to dismiss. Wimmer v. Greenleaf Arms, Inc., supra. He began with the first cause of action – trespass, noting that trespass is an intentional
physical entry onto the property of another without justification or permission. . . . Hence, liability for civil trespass requires the trier of fact to consider whether the [defendant], without justification or permission, either intentionally entered another's property, or, if entry was permitted, refused `to leave after permission to remain ha[d] been withdrawn’. (Long Island Gynecological Servs., P.C. v. Murphy, 298 A.D.2d 504, 748 N.Y.S.2d 776 (N.Y. Supreme Court Appellate Division 2002)). . . .
Wimmer v. Greenleaf Arms, Inc., supra.
These are the arguments the Wimmers and Musarella respectively made on the viability of the Wimmers’ trespass claim:
[Musarella] argues that at the time he entered the decedent's premises, neither she nor either of her parents had any possessory rights in that apartment owing to [her] death and the parents' lack of any possessory interest. Hence, his lawful entry into the apartment for the purpose of rendering aid could not be retroactively rendered illegal by his taking of the unauthorized photograph. In response, plaintiffs contend that upon their daughter's death, [her] interest in the lease passed by operation of law to [Martha, as] her personal representative. . . .
[S]ince . . . Martha Wimmer was subsequently appointed as the administrator of her daughter's estate, she has standing to pursue an action for trespass. Alternatively, plaintiffs maintain that, even if [Musarella] had entered the apartment legally, his license to remain terminated once it became clear there was no medical assistance to be rendered at the scene. Accordingly, by remaining in the apartment beyond that point, and taking an unauthorized photograph of the decedent, [he] turned his licensed entry into a trespass.
Wimmer v. Greenleaf Arms, Inc., supra.
The judge found that, giving the Wimmers’ claims “their most liberal construction,” they stated a cause of action for trespass “inasmuch as the complaint alleges that while [Musarella] entered the premises properly, he remained unlawfully not to render aid, but to photograph the corpse.” Wimmer v. Greenleaf Arms, Inc., supra. That ruling does not mean Musarella is liable for trespass; it means this cause of action can go forward so evidence can be presented to the judge or jury who will decide whether or not he is, in fact, liable for trespass. So this one survived.
The judge then took up the breach of fiduciary duty claim, noting that under New York law, “a fiduciary relationship `exists between two persons when one of them is under a duty to act for, or to give advice for, the benefit of another upon matters within the scope of the relation’”. Wimmer v. Greenleaf Arms, Inc., supra (quoting EBC I, Inc. v. Goldman, Sachs & Co., 5 N.Y.3d 11, 832 N.E.2d 26 (N.Y. 2005)). He also noted that the “elements of a claim for breach of fiduciary duty are (1) the existence of a fiduciary relationship, (2) misconduct by the defendant, and (3) damages arising directly therefrom.” Wimmer v. Greenleaf Arms, Inc., supra (emphasis in the original).
In his motion to dismiss, Musarella argued that no fiduciary duty
existed between himself and the decedent, who was already deceased when he entered the apartment. More specifically, [Musarella] argues that two of the necessary elements of fiduciary duty, i.e., de facto control and dominance, were absent herein.
In response, plaintiffs argue that [Musarella] violated the guidelines promulgated by the New York State Department of Health which require EMTs to maintain patient confidentiality, and that these requirements applied to the decedent notwithstanding her prior demise since [he] had been summoned to the apartment for the purpose of rendering medical aid. According to plaintiffs, the fact that no such care was required does not relieve him of his duty to maintain confidentiality with reference to their daughter's condition.
Wimmer v. Greenleaf Arms, Inc., supra.
After considering the arguments and the law, the judge found that the plaintiffs had failed to state a viable cause of action for breach of fiduciary duty because such a relationship
of trust could not have been established between the decedent and [Musarella] The essence of a fiduciary relationship is the placement of trust from one party to another, who then assumes the duty to act with the highest degree of care. By the very nature of the circumstances underlying this case, such a relationship could not have been established with the decedent. As a result, plaintiffs' sixth cause of action for breach of fiduciary duty must be dismissed.
Wimmer v. Greenleaf Arms, Inc., supra.
The judge then took up the third cause of action, the one for infliction of emotional distress. Wimmer v. Greenleaf Arms, Inc., supra. As Wikipedia explains, there are actually two potential causes of action for inflicting emotional distress: One seeks damages for intentionally inflicting emotional distress, while the other seeks damages for negligently inflicting emotional distress.
In his motion to dismiss this cause of action, Musarella argued that a claim for inflicting
emotional distress upon another is usually premised upon actions that unreasonably endanger plaintiff's physical safety or cause such person to fear for his or her physical safety, elements which are totally absent here. Additionally, [Musarella] argues that the complaint fails to make clear whether negligent or intentional infliction of emotional distress is claimed.
If plaintiffs' claim is for the intentional infliction of emotional distress, [he] argues that it is either barred by the one year statute of limitations applicable thereto, and/or his actions at bar do not rise to the level of extreme or outrageous conduct. Alternatively, if the plaintiffs are claiming the negligent infliction of emotional distress, [Musarella] argues that the cause of action is fatally flawed absent any allegation that the physical safety of either of the Wimmers was ever in danger. . . .
[The Wimmers] argue that the cause of action only requires them to allege extreme and outrageous conduct that intentionally or recklessly caused them to suffer severe emotional distress. In addition, [they] maintain that under the Public Health Law they have an absolute right to control the disposition of the decedent's body, and this right was violated by [Musarella’s] photographing the corpse and publishing the photograph, as a result of which both were caused . . . extreme emotional distress.
Wimmer v. Greenleaf Arms, Inc., supra.
In ruling on these arguments, the judge noted, first, that the Wimmers had not specified whether they were attempting to assert a cause of action for intentional or negligent infliction of emotional distress. Wimmer v. Greenleaf Arms, Inc., supra. He found, though, that this failure was not significant because “under either theory, this cause of action must be dismissed.” Wimmer v. Greenleaf Arms, Inc., supra.
New York’s cause of action for intentional infliction of emotional distress 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.” Wimmer v. Greenleaf Arms, Inc., supra. The judge noted that liability has been imposed under this cause of action “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.” Wimmer v. Greenleaf Arms, Inc., supra. He then found that Musarella’s conduct, “objectionable as it may have been, simply does not rise to the level required to constitute a valid claim for intentional infliction of emotional distress.” Wimmer v. Greenleaf Arms, Inc., supra.
The judge then addressed the negligent infliction of emotional distress, noting that under New York law a deceased person’s relatives can recover under this theory when
(1) a defendant negligently transmitted erroneous information concerning the death of a loved one . . . (2) failed to `transmit truthful information concerning a relative's death or funeral’ (Lauer v. City of New York, 171 Misc.2d 832, 656 N.Y.S.2d 93 (N.Y. Sup. 1997) or (3) negligently mishandled a corpse (Augeri v. Roman Catholic Diocese, 225 A.D.2d 1105, 639 N.Y.S.2d 640 (N.Y. Supreme Court Appellate Division 1996).
Wimmer v. Greenleaf Arms, Inc., supra.
He again found for Musarella, noting that the Wimmers’ cause of action was
limited to [Musarella’s] purported taking of an unauthorized photograph of the decedent and then posting it temporarily to his Facebook page. Without any allegation that [he] did anything physically to the corpse, or in any way withheld the body from disposition according to the wishes of her parents, or interfered with their right of sepulcher, their seventh cause of action fails to state a recognized claim for the negligent infliction of emotional distress. As such, it must also be dismissed.
Wimmer v. Greenleaf Arms, Inc., supra.
So the trespass claim survived, while the other two did not. Wimmer v. Greenleaf Arms, Inc., supra.
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