Law School Case Brief
Howell v. N.Y. Post Co. - 81 N.Y.2d 115, 596 N.Y.S.2d 350, 612 N.E.2d 699 (1993)
Liability for the tort of intentional infliction of emotional distress is 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 Sept. 1988, plaintiff Pamela J. Howell was a patient at a private psychiatric facility ("Facility") where she intended to keep her hospitalization a secret from all but her immediate family. Hedda Nussbaum, the "adoptive" mother of a child whose death from child abuse in late 1987 generated intense public interest, was also a patient at the Facility at that time. A photographer employed by defendant New York Post Company, Inc. ("Post") took photographs, without permission, of a group patients walking outdoors on the Facility's premises; a photograph showed Nussbaum and Howell walking together. The Post published that picture, along with another picture of Nussbaum taken shortly after her arrest in 1987. Howell thereafter filed a lawsuit against the Post, the photographer and two writers, seeking damages for, inter alia, alleged violations of Civil Rights Law § 50 and intentional infliction of emotional distress ("IIED"). Howell's husband brought a derivative claim for loss of consortium. On defendants' motion, the supreme court dismissed all causes of action except for the IIED and derivative claims. On the parties' cross appeals, the appellate division modified the judgment by dismissing the entire complaint. The Court of Appeals of New York granted Howell's motion for leave to appeal to consider the dismissal of her claims for violation of the right to privacy and IIED.
Did Howell state a cause of action for the invasion of her statutory right to privacy, under Civil Rights Law § 50, or a cause of action for IIED?
The Court of Appeals of New York affirmed the appellate division's judgment insofar as it pertained to the individual defendants—the photographer and the writers. The court held that, as to the invasion of privacy claim, the article accompanying the photograph was a matter of public interest, and was not a veiled advertisement. Moreover, Howell failed to meet her burden of demonstrating that there was no real relationship between the article and the photograph of her. As to the IIED claim, the court observed that a newspaper's publication of a newsworthy photograph was an act within the contemplation of the "privileged-conduct" exception. Thus, even if defendants were aware that publication would cause Howell emotional distress, publication—without more—could not ordinarily lead to liability for IIED. Moreover, defendants' conduct was not so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency.
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