Denise Schmidt v. Joseph Mulholland t/a Island Joe's Tattoo Studio, Rose Mulholland, et al.,
N.J. Super. Ct., Cape May County, Docket No. L-441-04

In this personal injury action involving claims of sexual harassment and assault, the New Jersey Superior Court partially granted a Motion for Summary Judgment filed by Wright & O'Donnell on behalf of a Defendant, who was an alleged co-owner of a tattoo studio where Plaintiff alleged she was sexually harassed and assaulted during a tattoo procedure. The Court held that a plaintiff must produce evidence of a demonstrable psychiatric injury in order to sustain a cause of action for negligent infliction of emotional distress.

Summary

The New Jersey Superior Court recently, in an unpublished opinion, held that the failure of a plaintiff to produce any evidence of demonstrable psychiatric injury would defeat a claim of negligent infliction of emotion distress. The Court granted Defendant's Motion for Summary Judgment as to Plaintiff's negligent infliction of emotional distress claims, as Plaintiff had no claims of physical manifestations, medical or psychological treatment. Further, Plaintiff had failed to provide any evidence of severe and demonstrable psychiatric injury or "severe emotional trauma" so as to sustain such a cause of action.

The Litigation

Plaintiff asserted that during the course of a tattoo session, she was sexually harassed and/or assaulted by the tattoo artist. Plaintiff filed suit in the New Jersey Superior Court against the tattoo artist, the tattoo studio, the owner of tattoo studio, and the owner's wife. Plaintiff made no claims of medical or psychological treatment, and offered no evidence to demonstrate her psychiatric injury. The owner's wife, an alleged co-owner of the studio, filed a Motion for Summary Judgment based on, among other issues, the fact that Plaintiff's failure to demonstrate psychiatric injury defeated her claims of negligent infliction of emotional distress. The New Jersey Superior Court agreed.

The Decision

As an initial matter, the Court dismissed the negligent hiring claim against the Moving Defendant, based on the undisputed evidence that she was not involved in any way with the tattoo studio on the date the Defendant tattoo artist was hired. However, of most significance, the Court proceeded to dismiss Plaintiff's claims of negligent infliction of emotional distress based on Plaintiff's inability to prove any demonstrable psychiatric injury in this matter. The Court stated that "negligent infliction of emotional distress" consisted of "negligent conduct that is the proximate cause of emotional distress in a person to whom the actor owes a legal duty to exercise reasonable care." Decker v. Princeton Packet, Inc., 116 N.J. 418, 429 (1989). Negligent infliction of emotional distress occurs "where one suffers severe emotional trauma as a result of the tortfeasor's negligent act or omission." Gendak v. Poblete, 139 N.J. 291, 296 (1995). In recognizing that the severity of emotional distress raises questions of both law and fact, the Court went on to state that it is the trial judge who "decides whether, as a matter of law, such emotional distress can be found, and the jury decides whether it has, in fact, been proved" (quoting Buckley v. Trenton Sav. Fund Soc'y, 111 N.J. 355, 366 (1988)). The Court again quoted the Decker case, finding that liability will be imposed only where the emotional distress is "sufficiently palpable, severe or enduring." 116 N.J. at 431.

Applying New Jersey law, the Court held that the Moving Defendant's Motion for Summary Judgment was granted as to Plaintiff's claim of negligent infliction of emotional distress. First, the Court noted that the Plaintiff has made no claims of physical manifestations, medical treatment or psychological treatment. In addition, Plaintiff provided no evidence of severe and demonstrable psychiatric injury. Furthermore, Plaintiff did not produce evidence of "severe emotional trauma." For these reasons, Plaintiff was unable to sustain a cause of action for negligent infliction of emotional distress.

For additional information, or a copy of this Opinion, please contact Law Wright or Kelly Johnson, Wright & O'Donnell, P.C., directly at (610) 940-4092.

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