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Full Opinion
Delois TURNER, Plaintiff-Appellant,
v.
Nancy WONG, Individually and trading as Donut Connection, The Donut Connection Cooperative Corporation, Defendants-Respondents.
Superior Court of New Jersey, Appellate Division.
*345 Rossi, Barry, Corrado & Grassi, attorneys for appellant (Frank L. Corrado, Wildwood, on the brief).
Cahill, Wilinski & Rhodes, attorneys for respondents (Vincent T. Cieslik, on the brief).
Before Judges HAVEY, PARRILLO and HOENS. *341 *342 *343
*344 The opinion of the court was delivered by PARRILLO, J.A.D.
Plaintiff Delois Turner appeals from the Law Division's summary judgment dismissal of her complaint against defendants Nancy Wong and The Donut Connection Cooperative Corporation for malicious prosecution, intentional infliction of emotional distress, and denial of the benefits of a public accommodation based on race in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, and 42 U.S.C.A. § 1981.
On review of this summary judgment determination, we view the facts in a light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540, 666 A.2d 146 (1995). They may be briefly stated. On March 4, 2000, plaintiff, a fifty-seven-year old African-American who resides in New York State, entered defendant's store in Cape May Court House, New Jersey, to buy a cup of coffee and a donut. She was waited on by defendant Wong (defendant), the owner and operator of the store, who served plaintiff the donut first. While defendant turned to get *346 the cup of coffee, plaintiff tasted the donut and complained that it was stale. Defendant replied that her donuts were baked fresh daily. Plaintiff responded that, while she did not doubt this, her donut was nevertheless stale. She requested a new one.
Defendant refused, insisting that plaintiff had to pay first. Plaintiff, having no intention of paying for the stale donut, instead demanded that she be given a new donut first. Defendant then called plaintiff a "black nigger from Philadelphia," repeating that phrase three or four times in front of other customers in the shop, who were all white. According to plaintiff, defendant railed, "you black niggers come in here, give me a hard time. White people don't give me a hard time. White people nice people." Although she threatened to call the police, defendant never did. Instead her son Kevin intervened, voided the charge for the donut from the cash register, and told plaintiff to pay for just the coffee, which she did.
When plaintiff asked defendant where there was a phone, defendant pointed to the door and told plaintiff to "get out of my store." Unable to obtain another donut and having been subjected to these racial insults, plaintiff left the store and filed a complaint with the Middle Township police who charged defendant with an indictable bias crime, N.J.S.A. 2C:33-4(d).[1] On the same day, while at the police station being processed, defendant filed a complaint against plaintiff who, as a result, was charged with theft of a donut in violation of N.J.S.A. 2C:20-3(a). That charge was administratively dismissed by the Cape May County Prosecutor's Office on May 17, 2000, pursuant to R. 3:25-1. On the same date, the prosecutor downgraded the bias charge against defendant to the petty disorderly persons offense of harassment, N.J.S.A. 2C:33-4(a), for which she was tried in municipal court, convicted, and fined $250. The municipal judge found that defendant had used the word "nigger" several times in a loud voice and had accused black people of giving her a hard time, that defendant's son even tried to quiet her down, and that the words were uttered intentionally to cause plaintiff alarm.
As a result of the March 4, 2000 incident, plaintiff was embarrassed, shocked, mortified, hurt, angry and humiliated, although she never sought medical, therapeutic or psychiatric treatment. She claimed that since the incident, her self-esteem had deteriorated and that she viewed herself differently. Consequently, she filed this lawsuit against defendants, alleging malicious prosecution based on the theft charge, intentional and negligent infliction of emotional distress, and racial discrimination in violation of both N.J.S.A. 10:5-4 and 42 U.S.C.A. § 1981. Without moving to amend her complaint, plaintiff also belatedly asserted a civil bias claim under N.J.S.A. 2A:53A-21.
After completion of discovery, defendants moved for summary judgment. The trial court granted the motion, dismissing all of plaintiff's claims. Specifically, the court found that plaintiff failed to demonstrate either a "special grievance" to support her malicious prosecution claim, "severe" emotional distress to sustain the intentional tort alleged, or denial of a "benefit of public accommodation" for purposes of 42 U.S.C.A. § 1981 and N.J.S.A. 10:5-4. During oral argument on the summary judgment motion, plaintiff conceded she had no cause of action *347 for negligent infliction of emotional distress. There was no disposition of plaintiff's last-minute civil bias claim because it was not asserted before the trial court's summary judgment determination, and plaintiff never moved for reconsideration or to amend her complaint.
Plaintiff appeals from the summary judgment dismissal of her complaint. For reasons that follow, we affirm the dismissal of the claim of intentional infliction of emotional distress, finding no proof that plaintiff suffered severe emotional distress, and the malicious prosecution claim, finding no evidence of a "special grievance." However, we reverse the dismissal of the discrimination counts, finding genuine issues of material fact exist with respect to each that would support the respective causes of action.
We review the trial court's grant of defendant's motion for summary judgment de novo, applying the same legal standard as the trial court under Rule 4:46-2(c). Antheunisse v. Tiffany, 229 N.J.Super. 399, 402, 551 A.2d 1006 (App. Div.1988), certif. denied, 115 N.J. 59, 556 A.2d 1206 (1989). A motion for summary judgment should be granted only when the moving party establishes the absence of any genuine issue as to a material fact. Brill v. Guardian Life Ins. Co. of Am., supra, 142 N.J. at 539-40, 666 A.2d 146. On this appeal, we accept plaintiff's version of defendant's conduct as true and give plaintiff the benefit of all reasonable inferences from the facts. Baliko v. Stecker, 275 N.J.Super. 182, 186, 645 A.2d 1218 (App.Div.1994). If there is no genuine issue of material fact, we decide whether the trial court's ruling on the law was correct. Prudential Prop. Ins. v. Boylan, 307 N.J.Super. 162, 167, 704 A.2d 597 (App. Div.1998). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty L.P. v. Township of Manalapan, 140 N.J. 366, 378, 658 A.2d 1230 (1995).
I
Plaintiff claims that proof of humiliation, embarrassment and disbelief, caused by racial slurs, was sufficient to establish a prima facie case of intentional infliction of emotional distress. We disagree.
To establish a claim for intentional infliction of emotional distress, a plaintiff must show that: the defendant acted intentionally or recklessly, both in doing the act and producing emotional distress; the conduct was so outrageous in character and extreme in degree as to go beyond all bounds of decency; the defendant's actions were the proximate cause of the emotional distress; and the distress suffered was so severe that no reasonable person could be expected to endure it. Buckley v. Trenton Sav. Fund Soc'y, 111 N.J. 355, 366, 544 A.2d 857 (1988). Here, the court dismissed plaintiff's claim solely on the ground that she did not prove this last element of severe emotional distress.[2]
*348 Severe emotional distress is a severe and disabling emotional or mental condition which may be generally recognized and diagnosed by trained professionals. Taylor v. Metzger, 152 N.J. 490, 515, 706 A.2d 685 (1998). The emotional distress must be sufficiently substantial to result in either physical illness or serious psychological sequelae. Aly v. Garcia, 333 N.J.Super. 195, 204, 754 A.2d 1232 (App. Div.2000), certif. denied, 167 N.J. 87, 769 A.2d 1050 (2001). The standard is an objective one. The defendant's conduct must be "sufficiently severe to `cause genuine and substantial emotional distress or mental harm to average persons.'" Taylor, supra, 152 N.J. at 516, 706 A.2d 685 (quoting Decker v. Princeton Packet, Inc., 116 N.J. 418, 430, 561 A.2d 1122 (1989)). The average person, of course, must be one similarly situated to the plaintiff. Ibid. "Whenever an intentional infliction of emotional distress claim arises out of conduct that also constitutes invidious discrimination on the basis of `race' ..., the average person standard must be adapted to reflect those characteristics of the plaintiff that are the focus of the alleged discrimination." Id. at 516-17, 706 A.2d 685.
Mere allegations of "aggravation, embarrassment, an unspecified number of headaches, and loss of sleep," are insufficient as a matter of law to support a finding of severe mental distress that no reasonable person could be expected to endure. Buckley, supra, 111 N.J. at 368, 544 A.2d 857. In Aly, supra, 333 N.J.Super. at 204-05, 754 A.2d 1232, we held that it is not enough for the plaintiff to allege that he or she was "acutely upset" by the incident in question, especially where no medical assistance or counseling is sought. And in Griffin v. Tops Appliance City, Inc., 337 N.J.Super. 15, 26, 766 A.2d 292 (App.Div.2001), we found no cause of action where the plaintiff claimed merely that he felt terrible, that he was devastated, and that his whole personality changed as a result of the incident in question. He did not suffer from any headaches, he had no difficulty sleeping, he was not unable to perform his daily routine, and he did not seek medical assistance or present an expert medical opinion. Ibid.
Similarly, in Lascurain v. City of Newark, 349 N.J.Super. 251, 280, 793 A.2d 731 (App.Div.2002), the plaintiff did not establish severe emotional distress where she claimed that she became nauseous and upset, was depressed, had nightmares, and no longer enjoyed her daily activities. The court found that, although the plaintiff's personal physician corroborated her depression, there had been no dramatic impact on her everyday activities or her ability to function and she had not sought regular psychiatric counseling. Ibid.; see Harris v. Middlesex Cty. College, 353 N.J.Super. 31, 47, 801 A.2d 397 (App.Div. 2002) (no evidence of severe emotional distress where no allegation of interference with daily activities, no expert to support claims of emotional devastation or loss of self-esteem, and no evidence of counseling or treatment).
To be sure, the invocation of racial slurs may conceivably be sufficient to cause severe emotional distress to the average African-American. Taylor, supra, 152 N.J. at 518, 706 A.2d 685. In Taylor, the plaintiff demonstrated that she had regularly undergone psychotherapy, resorted to wearing a bullet-proof vest because of fear, had been treated for anxiety, had suffered mood changes, insomnia, nightmares, and flashbacks, and had been diagnosed as suffering from post-traumatic stress disorder. Id. at 514, 706 A.2d 685. The Court determined, based on these injuries, that a rational factfinder may find that the defendant's conduct would have *349 caused severe emotional distress in the average African-American. Id. at 518, 706 A.2d 685.
Of course, the inquiry here is not whether racial insults could inflict severe emotional distress, but rather whether the racial epithets uttered in this case actually did cause plaintiff severe emotional distress. In marked contrast to Taylor, plaintiff here never sought medical, psychological or other professional treatment as a result of the March 4, 2000 incident. Nor did she offer any medical or expert proof to corroborate her feelings of lost self-esteem or anger. Moreover, plaintiff's claimed distress never manifested itself physically or objectively by way of headaches, loss of sleep, inability to perform her daily functions, or any condition that was professionally diagnosed. Instead, plaintiff merely claimed that she felt humiliated and mortified because of the racial insults. Yet we cannot infer severe emotional distress simply from proof of racial slurs alone without further evidence of resultant physical illness or serious psychological sequella, see Taylor, supra, 152 N.J. at 515, 706 A.2d 685, none of which has been proffered by plaintiff.
Nothing in our recent decision in Tarr v. Bob Ciasulli's Mack Auto Mall, Inc., 360 N.J.Super. 265, 822 A.2d 647 (App.Div.2003), is to the contrary. In holding that a plaintiff alleging discrimination in a workplace environment does not have to meet the severe and substantial standard in order to create a jury question, Tarr, supra, 360 N.J.Super. at 271, 822 A.2d 647, we expressly distinguished that claim from those, as alleged here, based on the intentional tort of outrage. Emotional distress suffered by reason of proscribed discrimination is a "category distinct and separate from claims of negligent or intentional infliction of emotional distress in other contexts." Ibid. As to the latter, the injury is compensable "only if it is severe and substantial, ... not merely transitory but rather has a discernible effect on the plaintiff's ability to function normally, either physically or psychologically, on a daily basis." Id. at 271, 822 A.2d 647 (citing Buckley, supra, 111 N.J. at 369, 544 A.2d 857; Lascurain, supra, 349 N.J.Super. at 280-82, 793 A.2d 731.)
While plaintiff's proofs of humiliation and indignity may very well be sufficient to withstand a motion to dismiss her LAD claim (see infra), they fall far short of sustaining a cause of action for the intentional tort. Without corroborating medical proof or evidence of physical or psychological symptoms, there exists no genuine issue of material fact as to the severity or substantiality of plaintiff's emotional distress. Accordingly, we conclude that the trial court properly dismissed this cause of action.
II
The trial court dismissed plaintiff's malicious prosecution claim based on her failure to prove that she suffered a "special grievance" as a result of the disorderly persons theft charge filed against her by defendant Wong. We agree. Whatever constraints or adverse consequences on the exercise of plaintiff's civil rights may have been intended by the filing of the disorderly persons' offense charge, none was achieved. Therefore, no interference with plaintiff's liberty or impairment of the common weal has been demonstrated to satisfy the "special grievance" element of this cause of action.
A claim for malicious prosecution arising out of a criminal proceeding requires proof that: the criminal action was instituted by the defendant against the plaintiff; it was actuated by malice; there was the absence of probable cause for the proceeding; and it was terminated *350 favorably to the plaintiff. Lind v. Schmid, 67 N.J. 255, 262, 337 A.2d 365 (1975); Geyer v. Faiella, 279 N.J.Super. 386, 394, 652 A.2d 1245 (App.Div.), certif. denied, 141 N.J. 95, 660 A.2d 1194 (1995); Vickey v. Nessler, 230 N.J.Super. 141, 146, 553 A.2d 34 (App.Div.), certif. denied, 117 N.J. 74, 563 A.2d 836 (1989). However, when the underlying proceeding is civil rather than criminal, or based on traffic, disorderly persons, or petty disorderly persons charges-involving none of the physical constraints ordinarily attendant to the criminal processthe cause of action is known as malicious use of process and requires proof of a deprivation of liberty or "other special grievance." Vickey, supra, 230 N.J.Super. at 146, 553 A.2d 34. See also Campione v. Adamar of N.J., Inc., 155 N.J. 245, 268, 714 A.2d 299 (1998); Baglini v. Lauletta, 338 N.J.Super. 282, 299, 768 A.2d 825 (App.Div.2001); LoBiondo v. Schwartz, 323 N.J.Super. 391, 423, 733 A.2d 516 (App.Div.), certif. denied, 162 N.J. 488, 744 A.2d 1211 (1999); Klesh v. Coddington, 295 N.J.Super. 1, 3, 684 A.2d 504 (App.Div.1996), certif. denied, 147 N.J. 580, 688 A.2d 1055 (1997). The tort of malicious use of process is disfavored out of fear that its use could chill free access to the courts, Tedards v. Auty, 232 N.J.Super. 541, 549, 557 A.2d 1030 (App. Div.1989), and consequently, it is not much resorted to. LoBiondo, supra, 323 N.J.Super. at 422, 733 A.2d 516.
Here, plaintiff does not really dispute that she must prove a "special grievance", but argues that the potential deprivation of her constitutional rights satisfies that requirement. We disagree.
At the outset, we are satisfied that the proofs could be found by a reasonable trier of fact to belie probable cause for the bringing of the theft charge against plaintiff by defendant. We are also satisfied that the element of malice may be met by a showing that the purpose of filing the complaint for theft was to retaliate against plaintiff for filing bias crime charges against defendants and for attempting thereby to vindicate her civil rights, an inference reasonably drawn from the facts indulgently viewed in plaintiff's favor. That is to say, we regard the filing of a complaint for theft for the purpose of suppressing the exercise of one's right to enforce her civil rights as per se malicious in this context. Cf. LoBiondo, supra, 323 N.J.Super. at 423, 733 A.2d 516. As to the element of favorable termination, the theft charge was administratively dismissed by the Cape May County Prosecutor's Office.
That leaves the final element of the cause of action, special grievance, which is "somewhat problematical." LoBiondo, supra, 323 N.J.Super. at 423, 733 A.2d 516. "Special grievance is an elusive concept." Ibid. It has been defined as consisting of "interference with one's liberty or property." Penwag Prop. Co., Inc. v. Landau, 76 N.J. 595, 598, 388 A.2d 1265 (1978). It is injury different from, and in addition to, the ordinary expense of a defense. Ibid. Thus, while counsel fees and costs may be an element of damages in a successful malicious prosecution action, they do not by themselves constitute the special grievance necessary to make out the cause of action. Ibid. Similarly, mental anguish, emotional distress, or loss of reputation from the filing of a complaint are not the special injuries required to sustain a malicious prosecution action. Brien v. Lomazow, 227 N.J.Super. 288, 304, 547 A.2d 318 (App.Div.1988). On the other hand, the loss of one's ability to practice his or her profession, with a resultant loss of income, does constitute a special grievance. Giri v. Rutgers Cas. Ins. Co., 273 N.J.Super. 340, 347, 641 A.2d 1112 (App.Div.), certif. denied, 139 N.J. 185, 652 A.2d 174 (1994). And, in the context of *351 SLAPP[3] litigation, we recognized that the deprivation of a citizen's constitutional right to protest and communicate regarding public issues qualifies as a special grievance. LoBiondo, supra, 323 N.J.Super. at 424, 733 A.2d 516. There, we observed:
[W]e do not read "interference with one's liberty" as embracing only physical freedom of movement and hence as limited to restraint on that freedom. Rather, we interpret "liberty" as including the entire bundle of freedoms afforded by the Constitution-including freedom of speech and freedom to petition.
[LoBiondo, supra, 323 N.J.Super. at 424, 733 A.2d 516.]
In LoBiondo, supra, an objector vigorously protested a land-use application to expand a nearby beach club. 323 N.J.Super. at 395, 733 A.2d 516. The applicant filed an action against the objector, claiming defamation and malicious interference with business advantage. Id. at 395-96, 733 A.2d 516. We held that the objector could demonstrate a "special grievance" in the context of malicious use of process because of the chilling effect the applicant's complaint had upon the objector's First Amendment freedom of speech and right to protest. Id. at 422, 733 A.2d 516.
We reaffirmed the LoBiondo holding more recently in a similar land-use application context. In Baglini v. Lauletta, supra, the applicant for land-use approval involving rezoning filed a lawsuit against local objectors demanding more than $1 million in damages. We found the plaintiffs had submitted sufficient evidence of a special grievance to withstand the summary judgment motion in their malicious abuse of process claim against the developer:
The constraint upon the good-faith exercise of the protestors' bundle of freedoms afforded by the Constitution caused by a so-called SLAPP suit may indeed constitute special grievance in the context of a malicious use of process claim.
[338 N.J.Super. at 302, 768 A.2d 825 (internal quotations omitted).]
Of course, a determinant of whether a special grievance exists is what actually happened to the plaintiff in the prior proceeding she was forced to defend and "not what could have happened." Vickey, supra, 230 N.J.Super. at 149-50, 553 A.2d 34. Although there may exist the potential for loss of liberty or property, a court must look at the "reality" of what happened, rather than mere "potentiality." Klesh, supra, 295 N.J.Super. at 4, 684 A.2d 504.
Thus, in both LoBiondo, supra, and Baglini, supra, the interference with personal liberty and, beyond that, the impairment of the common weal, attendant upon the filing of the SLAPP lawsuits, had been actual, not merely potential, and sufficiently demonstrated on the facts in each case. In LoBiondo, we observed:
And we are convinced that the challenge to those freedoms attendant upon the filing of what may be conveniently referred to as a SLAPP suit and the constraint the suit imposes upon the exercise of those freedoms, both intended and thereby achieved, constitute a sufficient interference with one's liberty to satisfy the special grievance element. We point out that it is not only the defendant in a SLAPP suit who suffers. The common weal is obviously impaired as well since the consequence of *352 a SLAPP suit is not only to silence the defendant but to deter others who might speak out as well. Suppression of public debate on public issues and the placing of a priceoften a high oneon the right to petition for redress is, in our view, special grievance enough.
[323 N.J.Super. at 424, 733 A.2d 516 (emphasis supplied).]
And in Baglini, although the plaintiffs continued their prerogative writs complaint even after the developer's complaint was served upon them and were ultimately successful in setting aside the revisions to the zoning ordinance, we nevertheless found proof that plaintiffs suffered a real, not merely imagined, injury:
The [Lauletta developer's] complaint itself repeated ten times a demand of more than $1 million in damages. Plaintiffs testified that upon being served with the complaint, they became "very nervous." Many had trouble sleeping and eating. Others were concerned that they would "go to jail" or lose their homes or be required to withdraw their children from college. The Pfisterers, German immigrants, testified that their belief in the United States Constitution had been shaken by the event. Erich Pfisterer stated that the lawsuit "did its trick...." He concluded "I will definitely not get involved anymore." Melanie Parvin also stated that never again would she get involved with such a protest. Further, after commencement of the suit, Bernadine Koren's active political undertakings in the community dwindled; at the time of trial, "it was down to nothing."
[338 N.J.Super. at 302,Additional Information