June 14, 2018



                                                                     Supreme Court

                                                                     No. 2017-178-Appeal.
                                                                     (PC 15-4131)


                Russell G. Gross et al.           :

                          v.                      :

                Steven M. Pare et al.             :




                    NOTICE: This opinion is subject to formal revision before
                    publication in the Rhode Island Reporter. Readers are requested to
                    notify the Opinion Analyst, Supreme Court of Rhode Island,
                    250 Benefit Street, Providence, Rhode Island 02903, at Telephone
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                                                                  Supreme Court

                                                                  No. 2017-178-Appeal.
                                                                  (PC 15-4131)


          Russell G. Gross et al.1            :

                     v.                       :

           Steven M. Pare et al.              :


              Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

                                         OPINION

       Justice Goldberg, for the Court. This case came before the Supreme Court on April 11,

2018, pursuant to an order directing the parties to appear and show cause why the issues raised in

this appeal should not be summarily decided. The plaintiff, Russell G. Gross (plaintiff or Gross),

appeals from a final judgment granting the motion of the defendants, Steven M. Pare, William

Trinque, and James J. Lombardi (defendants or the city), for summary judgment. After hearing

the arguments of counsel and examining the memoranda submitted by the parties, we are of the

opinion that cause has not been shown and that this case should be decided without further

briefing or argument. We affirm the judgment of the Superior Court.

                                        Facts and Travel

       At the time of the incident from which the instant case stems, plaintiff was a lieutenant

with the department of communications in the Providence Fire Department. On March 13, 2015,

defendant Trinque, who was director of the department of communications, allegedly berated

plaintiff for allowing one of his dispatchers to be sprawled in his chair while on duty. The

1
  The plaintiff’s complaint and amended complaint list plaintiff’s parents, Russell K. Gross and
Jessie Gross, as co-plaintiffs due to the nature of plaintiff’s loss-of-consortium claim. However,
plaintiff voluntarily dismissed that claim at a hearing in Superior Court on February 16, 2017.
                                               -1-
plaintiff alleged that Trinque asked the dispatcher, “Are you comfortable?” in a discourteous

tone, to which the dispatcher allegedly responded, “Now that you mention it Director, not

really.” Trinque then allegedly yelled, “Sit up!” to the dispatcher. Shortly thereafter, Trinque

summoned plaintiff to his office to discuss the incident, and the two engaged in a contentious

conversation. On that same day, Trinque prepared and presented an interoffice memorandum to

defendant Pare, the public safety commissioner, detailing the incident. Commissioner Pare

ordered plaintiff’s transfer from the department of communications to the division of training for

four weeks, effective March 29, 2015. On June 30, 2015, plaintiff became ill with head pains

and an elevated blood pressure, which he contends was due to the actions taken by defendants.

On July 2, 2015, while plaintiff was absent from work due to his illness, Pare demoted him from

the rank of lieutenant to the rank of firefighter, effective July 5, 2015. Following plaintiff’s

transfer and demotion, he filed two grievances against the city, arguing that the city violated the

applicable collective bargaining agreement (CBA) by transferring and demoting plaintiff. These

grievances were settled at arbitration for a monetary payment.           The plaintiff retired on

February 16, 2016.

       On September 23, 2015, plaintiff filed an action in Superior Court and later filed an

amended complaint alleging intentional infliction of emotional distress, negligent infliction of

emotional distress, loss of consortium, and invasion of privacy.2 The city moved to dismiss

plaintiff’s complaint pursuant to Rule 12(b)(6) of the Superior Court Rules of Civil Procedure on

November 16, 2016, arguing that: (1) plaintiff failed to allege any facts demonstrating that

defendants’ conduct was extreme and outrageous; (2) plaintiff failed to assert facts supporting

2
  The plaintiff later moved to file a second amended complaint, but this motion was denied by
the Superior Court on September 16, 2016. The plaintiff then petitioned this Court for writ of
certiorari to review the Superior Court order, and this Court denied plaintiff’s petition on
May 17, 2017.
                                               -2-
his claim for negligent infliction of emotional distress because he was neither in the “zone of

danger” nor a bystander who witnessed a close relative being injured; and (3) plaintiff could not

recover for invasion of privacy because he did not allege that the city had published a false or

fictitious fact about him. The plaintiff filed an objection to the motion, to which he attached

documents that were not part of the complaint. He asked the hearing justice to convert the city’s

motion to dismiss to a motion for summary judgment because he had submitted documents

outside the four corners of the complaint. A hearing was held on the city’s motion to dismiss on

February 16, 2017, and the hearing justice treated the motion as one for summary judgment

pursuant to Rule 56 of the Superior Court Rules of Civil Procedure. At this hearing, plaintiff

voluntarily dismissed his loss-of-consortium claims, but he maintained that the city’s conduct

was extreme and outrageous and that his invasion-of-privacy claim was viable because the city

portrayed him as being unfit for duty. The hearing justice rendered a bench decision in which

she characterized the case at bar as “simply a workplace dispute, a difference of opinions as to

whether or not someone was adequately performing their job.” The hearing justice granted

summary judgment in favor of defendants on all counts of plaintiff’s amended complaint, stating:

              “In reviewing the complaint as well as the attached exhibits the
              plaintiff has submitted, I do not find that plaintiff has, in fact,
              demonstrated the existence of extreme and outrageous behavior on
              the part of the defendants such that it would result in liability. * * *

              “* * *

              “With respect to the negligent infliction of emotional distress, * * *
              there’s no evidence to establish that this theory of recovery would
              be appropriate, anything that would suggest that Mr. Gross was in
              the zone of danger of the defendants’ negligent acts, or that he was
              a bystander to a related victim’s injury resulting from negligent
              acts of the defendant.




                                               -3-
               “Finally, with respect to the invasion of privacy claim, * * *
               plaintiff[s] provide no evidence that suggests defendants published
               a false or fictitious fact about him.”

Final judgment entered in favor of defendants on March 13, 2017, and plaintiff timely appealed.

       On appeal, plaintiff alleges that the hearing justice impermissibly engaged in fact-finding

when she issued her bench decision. The plaintiff also argues that material questions of fact

precluded summary judgment; specifically, plaintiff asserts that defendants colluded to deprive

him of his constitutional rights and that he was forced to resign after twenty-five years of service

due to his illnesses, which he contends were a result of defendants’ actions.

                                       Standard of Review

       This Court reviews a trial justice’s decision granting summary judgment de novo. See

Sola v. Leighton, 45 A.3d 502, 506 (R.I. 2012); Lynch v. Spirit Rent-A-Car, Inc., 965 A.2d 417,

424 (R.I. 2009). Moreover, “[s]ummary judgment is appropriate only when the ‘pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if

any, show that there is no genuine issue as to any material fact and that the moving party is

entitled to judgment as [a] matter of law.’” Sola, 45 A.3d at 506 (quoting Plunkett v. State, 869

A.2d 1185, 1187 (R.I. 2005)). “Although summary judgment is recognized as an extreme

remedy, * * * to avoid summary judgment the burden is on the nonmoving party to produce

competent evidence that ‘prove[s] the existence of a disputed issue of material fact[.]’” Sullo v.

Greenberg, 68 A.3d 404, 407 (R.I. 2013) (quoting Mutual Development Corp. v. Ward Fisher &

Co., 47 A.3d 319, 323 (R.I. 2012)).

                                             Analysis

       In this case, we are confronted with a straightforward workplace dispute that has been the

subject of arbitration in accordance with the CBA and resulted in a substantial settlement.



                                               -4-
Nevertheless, we address the merits of plaintiff’s claims. In his amended complaint, plaintiff

alleges a claim for intentional infliction of emotional distress based on his transfer and demotion.

The hearing justice agreed with defendants’ contention that, even when viewing all the evidence

in plaintiff’s favor, plaintiff has failed to allege any conduct by the city that was extreme or

outrageous. We agree.

       In order to impose liability on a defendant for intentional infliction of emotional distress:

                  “(1) the conduct must be intentional or in reckless disregard of the
                  probability of causing emotional distress, (2) the conduct must be
                  extreme and outrageous, (3) there must be a causal connection
                  between the wrongful conduct and the emotional distress, and (4)
                  the emotional distress in question must be severe.” Swerdlick v.
                  Koch, 721 A.2d 849, 862 (R.I. 1998) (emphasis added) (quoting
                  Champlin v. Washington Trust Co. of Westerly, 478 A.2d 985, 989
                  (R.I. 1984)).

Furthermore, “this Court has required at least some proof of medically established physical

symptomatology for both intentional and negligent infliction of mental distress.” Id. at 863.

This Court has adopted Restatement (Second) Torts § 46 cmt. d (1965), which provides, in

pertinent part:

                  “It has not been 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 which would entitle the
                  plaintiff to punitive damages for another tort. Liability has been
                  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. Generally, the case is one in which the
                  recitation of the facts to an average member of the community
                  would arouse his resentment against the actor, and lead him to
                  exclaim, ‘Outrageous!’” (Emphasis added); see also Swerdlick,
                  721 A.2d at 862; Champlin, 478 A.2d at 988.

       In the case at bar, plaintiff has failed to allege any conduct suggestive of extreme or

outrageous behavior by any defendant.            In his amended complaint, plaintiff alleges that

                                                  -5-
defendant Trinque “criticized and berated said plaintiff for his performance in plaintiff’s capacity

as a lieutenant due to said co-defendant’s ill perceived determination and conclusion that said

plaintiff failed to ‘do his duty.’” Although Trinque may have berated plaintiff, there is nothing

in the record that suggests that any conduct by any defendant was so extreme or outrageous such

that it was “beyond all possible bounds of decency”; “utterly intolerable in a civilized

community”; or would lead someone to exclaim “Outrageous!” Restatement (Second) Torts

§ 46 cmt. d; Swerdlick, 721 A.2d at 863. Simply put, the incident at the crux of plaintiff’s claims

was a workplace dispute. Although we need not delve into the remaining elements of a claim for

intentional infliction of emotional distress—having concluded that defendants’ conduct was

neither outrageous nor extreme—we note that plaintiff has not provided any evidence of “a

causal connection between the wrongful conduct and the emotional distress[.]” Swerdlick, 721

A.2d at 862 (quoting Champlin, 478 A.2d at 989). Accordingly, we conclude that the hearing

justice properly granted summary judgment in favor of defendants on plaintiff’s claim of

intentional infliction of emotional distress.

       Likewise, plaintiff’s claim for negligent infliction of emotional distress is without merit.

It is well settled that “[o]nly two classes of persons may bring claims for negligent infliction of

emotional distress: those within the ‘zone-of-danger’ who are physically endangered by the acts

of a negligent defendant, and bystanders related to a victim whom they witness being injured.”

Jalowy v. Friendly Home, Inc., 818 A.2d 698, 710 (R.I. 2003). In order to establish a prima facie

claim under the “zone-of-danger” theory, a plaintiff must be in close proximity to the accident to

create the potential of physical harm. See Marchetti v. Parsons, 638 A.2d 1047, 1049 (R.I.

1994). In order to succeed under the “bystander” theory, a plaintiff must actually witness the

accident that caused his or her emotional distress and “(1) be a close relative of the victim, (2) be



                                                -6-
present at the scene of the accident and be aware that the victim is being injured, and (3) as a

result of experiencing the accident, suffer serious emotional injury that is accompanied by

physical symptomatology.” Marchetti, 638 A.2d at 1052.

       The plaintiff in this case does not fall within the zone-of-danger theory or the bystander

theory in order to impose liability on defendants for negligent infliction of emotional distress.

The plaintiff was not in close proximity to a traumatic event of any kind, nor did he witness such

an event in which a close relative was injured. See Marchetti, 638 A.2d at 1049-50. Moreover,

plaintiff’s claim of negligent infliction of emotional distress is fundamentally flawed due to the

fact that plaintiff’s allegations are predicated on the intentional acts of defendants. There is no

suggestion of negligence in the record before this Court, and plaintiff has not alleged any

negligence on the part of defendants as the basis for his claim of negligent infliction of emotional

distress. Accordingly, the hearing justice appropriately granted summary judgment in favor of

defendants on plaintiff’s claim of negligent infliction of emotional distress.

       Lastly, the plaintiff included a claim for invasion of privacy and cited to

G.L. § 9-1-28.1(a)(4), the right-to-privacy statute. Section 9-1-28.1(a)(4) provides for “[t]he

right to be secure from publicity that reasonably places another in a false light before the

public[.]” That section provides further that:

               “(i) In order to recover for violation of this right, it must be
               established that:

                       “(A) There has been some publication of a false or
                       fictitious fact which implies an association which does not
                       exist;

                       “(B) The association which has been published or implied
                       would be objectionable to the ordinary reasonable man
                       under the circumstances;




                                                 -7-
               “(ii) The fact which was disclosed need not be of any benefit to the
               discloser.” Section 9-1-28.1(a)(4).

Similarly, the plaintiff’s arguments regarding this claim are of no moment. The plaintiff alleges

a violation of § 9-1-28.1(a)(4), yet he fails to set forth the publication of any false or fictitious

fact by any defendant. The plaintiff’s transfer and demotion were a matter of public knowledge;

however, the plaintiff can only point to interoffice memoranda between defendants Trinque and

Pare in support of his claim. More importantly, the plaintiff himself acknowledged that the

events upon which his § 9-1-28.1(a)(4) claim is premised actually occurred; therefore we cannot

logically conclude that any publication regarding the dispute at issue was false or fictitious. The

plaintiff’s invasion-of-privacy claim therefore must fail as a matter of law.

                                            Conclusion

       For the reasons set forth herein, we affirm the judgment of the Superior Court granting

summary judgment in favor of the defendants on all counts of the plaintiff’s complaint. The

papers may be returned to the Superior Court.




                                                -8-
STATE OF RHODE ISLAND AND                                  PROVIDENCE PLANTATIONS



                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

Title of Case                        Russell G. Gross et al. v. Steven M. Pare et al.
                                     No. 2017-178-Appeal.
Case Number
                                     (PC 15-4131)
Date Opinion Filed                   June 14, 2018
                                     Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
                                     Indeglia, JJ.
Written By                           Associate Justice Maureen McKenna Goldberg

Source of Appeal                     Providence County Superior Court

Judicial Officer From Lower Court    Associate Justice Maureen B. Keough
                                     For Plaintiff:

                                     Donald R. Lembo, Esq.
                                     For Defendants:
Attorney(s) on Appeal
                                     Etie-Lee Z. Schaub, Esq.
                                     Kenneth B. Chiavarini, Esq.
                                     Megan K. DiSanto, Esq.




SU-CMS-02A (revised June 2016)
