Piro v. McKeever , 245 N.C. App. 412 ( 2016 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-351
Filed: 16 February 2016
Mecklenburg County, No. 14 CVS 3109
MICHAEL C. PIRO, Plaintiff,
v.
REBECCA HADDEN MCKEEVER, L.C.S.W.; CYNTHIA L. SAPP, Ph.D.; KAREN
BARRY, M.F.T., LMFT; and DAVIDSON COUNSELING ASSOCIATES, Defendants.
Appeal by plaintiff from order entered 3 November 2014 by Judge Robert C.
Ervin in Mecklenburg County Superior Court. Heard in the Court of Appeals 22
September 2015.
Horack Talley Pharr & Lowndes, P.A., by Christopher T. Hood and Gena
Graham Morris, for plaintiff-appellant.
The Epstein Law Firm, PLLC, by Andrew J. Epstein, for defendant-appellee
Rebecca Hadden McKeever, L.C.S.W.
BRYANT, Judge.
Where the allegations in the complaint, taken as true, fail to indicate that
defendant’s conduct was extreme and outrageous or that it was reasonably
foreseeable plaintiff would suffer severe emotional distress, we affirm the trial court’s
dismissal of the complaint seeking relief for intentional infliction of emotional
distress or negligent infliction of emotional distress.
On 24 February 2014, plaintiff Michael C. Piro filed a complaint in
Mecklenburg County Superior Court seeking relief on the basis of negligent infliction
PIRO V MCKEEVER
Opinion of the Court
of emotional distress, intentional infliction of emotional distress, and punitive
damages. Plaintiff named as defendants Rebecca Hadden McKeever, L.C.S.W.;
Cynthia L. Sapp, Ph.D.; Karen Barry, M.F.T., LMFT; and Davidson Counseling
Associates. Defendant McKeever is a licensed clinical social worker, defendant Sapp
a licensed clinical psychologist, and defendant Barry a licensed marriage and family
therapist.
In his complaint, plaintiff asserts that plaintiff and Karen Shapiro Piro
(Shapiro) are the parents of three boys: Allen (then 14 years of age); Noah (then 12
years of age); and Michael (then 4 years of age).1 On 28 June 2006, plaintiff filed a
complaint raising issues of child custody, child support, equitable distribution, and
interim distribution. On 16 November 2007, a custody order was entered awarding
plaintiff and Shapiro joint legal and physical custody of Allen and Noah.2
In April 2011, plaintiff’s eldest child, Allen, began receiving services from
defendant McKeever. Plaintiff alleges that the day after a 7 April 2011 meeting
between defendant McKeever, Shapiro, and Shapiro’s father, Shapiro contacted the
Mecklenburg County Department of Social Services’ Child Protective Services (DSS)
and alleged that plaintiff had sexually assaulted Noah. DSS contacted the
Huntersville Police Department (HPD), and both agencies conducted concurrent
1 Pseudonyms are used to protect the identities of the minor children.
2 At that time, Michael had yet to be born.
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investigations into Shapiro’s allegations. On 19 April 2011, HPD concluded that no
probable cause existed to charge plaintiff. DSS likewise found the allegations against
plaintiff to be unsubstantiated, and also closed its investigation.
In May 2011, defendant McKeever conducted her first and second therapy
sessions with Noah. Thereafter, Shapiro again contacted DSS and reported
additional allegations of sexual abuse upon Noah by plaintiff. DSS declined to reopen
its investigation into Shapiro’s allegations, but HPD commenced a second
investigation.
On 9 June 2011, defendant McKeever conducted a forensic interview of Noah,
and thereafter, Noah went to Pat’s Place Child Advocacy Center, where a professional
forensic interviewer sought specific details regarding sexual abuse perpetrated by
plaintiff.
On 27 June 2011, the Honorable Christy T. Mann entered an order that
granted Shapiro sole custody of the children, directed plaintiff to vacate the marital
residence, and prohibited plaintiff from having any contact with Allen, Noah, and
Michael. Judge Mann’s order that plaintiff have no contact with Allen, Noah, and
Michael remained in effect from June 2011 through November 2013.
In his complaint, plaintiff alleged that defendant McKeever’s conduct and
interview techniques were in contravention of the American Counseling Association
Code of Ethics, and McKeever should have known that the use of such techniques
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Opinion of the Court
substantially increased the risk of erroneous and unreliable results. Plaintiff alleges
that defendant McKeever was an agent and/or servant of defendant Davidson
Counseling Associates and that defendants Sapp and Barry directly participated in
Noah’s treatment by discussing, consulting, and supervising defendant McKeever’s
care of Noah. Plaintiff also asserts that “DSS, HPD, a court-appointed forensic
custody evaluator, and[,] ultimately[,] the Judge presiding over the Domestic Action
found the allegations of sexual abuse to be unsubstantiated,” although nothing in the
record before this Court supports such a finding by a judge. Plaintiff alleges that he
has suffered severe emotional distress, including mental anguish, depression, stress,
embarrassment, humiliation, concern for his sons, substantial monetary expenses,
and other damages.
Defendants McKeever, Barry, and Sapp filed individual answers to plaintiff’s
complaint, including a motion to dismiss plaintiff’s claims. Defendant Davidson
Counseling Associates also filed a motion to dismiss. On 2 September, 28 October,
and 3 November 2014, the Honorable Robert C. Ervin, Judge presiding in
Mecklenburg County Superior Court, entered orders granting defendants’ individual
motions to dismiss plaintiff’s complaint with prejudice, pursuant to Rule 12(b)(6). In
pertinent part, the trial court concluded that plaintiff’s complaint failed to allege the
“extreme and outrageous conduct” necessary to recover for intentional infliction of
emotional distress and failed to establish that it was reasonably foreseeable
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Opinion of the Court
defendant McKeever’s conduct would cause plaintiff severe emotional distress as
required to recover for a claim of negligent infliction of emotional distress. Plaintiff
appeals only from the order granting defendant McKeever’s motion to dismiss.
_____________________________________________
On appeal, plaintiff raises the following issues: whether the trial court erred
by concluding (I) that defendant McKeever’s alleged conduct did not meet the
threshold for extreme and outrageous; and (II) that the harm caused by defendant
McKeever was unforeseeable.
Standard of Review
A pleading which sets forth a claim for relief,
whether an original claim, counterclaim, crossclaim, or
third-party claim shall contain . . . [a] short and plain
statement of the claim sufficiently particular to give the
court and the parties notice of the transactions,
occurrences, or series of transactions or occurrences,
intended to be proved showing that the pleader is entitled
to relief[.]
N.C. Gen. Stat. § 1A-1, Rule 8(a)(1) (2013). “Under the ‘notice theory of pleading’ a
complainant must state a claim sufficient to enable the adverse party to understand
the nature of the claim, to answer, and to prepare for trial.” Ipock v. Gilmore, 73 N.C.
App. 182, 188, 326 S.E.2d 271, 276 (1985) (citation omitted) (citing N.C. Gen. Stat. §
1A-1, Rule 8(a)(1) (1983); Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970)). “ ‘While
the concept of notice pleading is liberal in nature, a complaint must nonetheless state
enough to give the substantive elements of a legally recognized claim or it may be
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Opinion of the Court
dismissed under Rule 12(b)(6).’ ” Highland Paving Co., LLC v. First Bank, ___ N.C.
App. ___, ___, 742 S.E.2d 287, 293 (2013) (quoting Raritan River Steel Co. v. Cherry,
Bekaert & Holland, 322 N.C. 200, 205, 367 S.E.2d 609, 612 (1988)).
Our review of the grant of a motion to dismiss under Rule
12(b)(6) of the North Carolina Rules of Civil Procedure is
de novo. We consider whether the allegations of the
complaint, if treated as true, are sufficient to state a claim
upon which relief can be granted under some legal theory.
Bridges v. Parrish, 366 N.C. 539, 541, 742 S.E.2d 794, 796 (2013) (citation and
quotations omitted). “ ‘[A] complaint should not be dismissed for insufficiency unless
it appears to a certainty that plaintiff is entitled to no relief under any state of facts
which could be proved in support of the claim.’ ” Acosta v. Bynum, 180 N.C. App. 562,
567, 638 S.E.2d 246, 250 (2006) (quoting Sutton, 277 N.C. at 103, 176 S.E.2d at 166).
I
Plaintiff argues that the trial court erred in dismissing his claim for intentional
infliction of emotional distress. Plaintiff argues his complaint establishes conduct on
the part of defendant McKeever that a jury could find extreme and outrageous.
Specifically, plaintiff contends that defendant McKeever’s conduct resulted in
accusations that plaintiff sexually assaulted Noah and deprived plaintiff of
companionship with his minor children for three years. We disagree.
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Opinion of the Court
The tort of intentional infliction of emotional distress was formally recognized
by our Supreme Court in Stanback v. Stanback, 297 N.C. 181, 254 S.E.2d 611 (1979),
as noted in Dickens v. Puryear, 302 N.C. 437, 446–47, 276 S.E.2d 325, 331 (1981).
This tort imports an act which is done with the intention of
causing emotional distress or with reckless indifference to
the likelihood that emotional distress may result. A
defendant is liable for this tort when he desires to inflict
severe emotional distress or knows that such distress is
certain, or substantially certain, to result from his conduct
or where he acts recklessly in deliberate disregard of a high
degree of probability that the emotional distress will follow
and the mental distress does in fact result.
Dickens, 302 N.C. at 449, 276 S.E.2d at 333 (citations, quotations, and ellipsis
omitted). “This tort . . . consists of: (1) extreme and outrageous conduct, (2) which is
intended to cause and does cause (3) severe emotional distress to another.” Id. at 452,
276 S.E.2d at 335.
[Our Supreme Court has also] stated that the severe
emotional distress required for [intentional infliction of
emotional distress] is the same as that required for
negligent infliction of emotional distress, which is:
any emotional or mental disorder, such as, for
example, neurosis, psychosis, chronic depression,
phobia, or any other type of severe and disabling
emotional or mental condition which may be
generally recognized and diagnosed by professionals
trained to do so.
Holloway v. Wachovia Bank & Trust Co., 339 N.C. 338, 354–355, 452 S.E.2d 233, 243
(1994) (citing Johnson v. Ruark Obstetrics & Gynecology Assoc., 327 N.C. 283, 304,
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395 S.E.2d 85, 97 (1990)). “Conduct is extreme and outrageous when it exceeds all
bounds usually tolerated by a decent society.” Shreve v. Duke Power Co., 85 N.C. App.
253, 257, 354 S.E.2d 357, 359 (1987) (citation and quotations omitted).
In his complaint, plaintiff made the following assertions:
9. Defendant McKeever is a Licensed Clinical Social
Worker. Upon information and belief, Defendant
McKeever was at all relevant times licensed to
render services in the State of North Carolina under
license/certification number C003301.
...
16. Plaintiff’s oldest son, [Allen], and middle son, [Noah]
received services from Defendant McKeever from
approximately April, 2011 through September 2013.
17. During Defendant McKeever’s treatment of [Allen]
and [Noah], Defendant McKeever discussed,
consulted with, and sought supervision from
Defendant Sapp[, a licensed Clinical Psychologist,]
and Defendant Barry[, a licensed Marriage and
Family Therapist,] regarding [Defendant
McKeever’s] treatment of, at a minimum, [Noah].
...
27. On or about May 19, 2011, Defendant McKeever met
[Noah] for the first time. Defendant McKeever had a
therapy session with [Noah] that day.
28. On or about May 26, 2011, Defendant McKeever
conducted a therapy session with [Noah].
...
32. On June 9, 2011, Defendant McKeever conducted a
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Opinion of the Court
therapy session with [Noah].
33. Prior to June 9, 2011, [Noah] never reported to
defendant McKeever that he had been the victim of
any sexual abuse perpetrated by Plaintiff.
34. At that June 9, 2011 therapy session, Defendant
McKeever engaged in and conducted an interview of
[Noah]. Defendant McKeever conducted that
interview in the form of a forensic interview aimed
at eliciting from [Noah] a report of sexual abuse.
35. Defendant McKeever knew or should have known
that she should not have conducted that June 9,
2011 forensic interview.
...
42. Defendant McKeever’s conduct and interview of
[Noah] inappropriately used overly suggestive
questioning, made over-interpretations, and
otherwise employed means and methods known or
that should have been known to produce inaccurate
and unreliable results. Further, the conduct and
interview engaged in by Defendant McKeever
specifically targeted Plaintiff and/or was overly
suggestive of improper behavior by Plaintiff.
Defendants’ subsequent conduct exacerbated the
situation.
...
46. Defendant McKeever had knowledge of the risks
attendant to her conduct, including the risks that
DSS and HPD would investigate and prohibit and/or
limit Plaintiff’s visitation, that Karen Shapiro would
seek to limit and/or prohibit custody and visitation
by Plaintiff, that the relationship between Plaintiff
and the Boys would be adversely affected, that
Plaintiff would sustain separation from the Boys,
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Opinion of the Court
and that Plaintiff would suffer severe emotional
distress and other damages.
...
53. Since and as a result of Defendants’ conduct,
Plaintiff has suffered severe emotional distress.
...
58. As a direct and proximate result of the acts and
omissions of Defendants, Plaintiff has suffered and
will continue to suffer severe emotional distress,
including but not limited to mental anguish,
depression, stress, embarrassment, humiliation,
concern for his sons, substantial monetary expenses,
and other damages to be proven at trial.
Plaintiff makes conclusory allegations but fails to assert any facts depicting
conduct by defendant McKeever that meet the threshold of extreme and outrageous
conduct, that is, conduct “exceed[ing] all bounds usually tolerated by a decent
society.” Shreve, 85 N.C. App. at 257, 354 S.E.2d at 359. Moreover, plaintiff fails to
assert any facts that would establish defendant McKeever knew or had a substantial
certainty plaintiff would suffer severe emotional distress as a result of McKeever’s
interview and counseling of Noah. See Holloway, 339 N.C. at 354–55, 452 S.E.2d at
243 (defining severe emotional distress as “any emotional or mental disorder, such
as, for example, neurosis, psychosis, chronic depression, phobia, or any other type of
severe and disabling emotional or mental condition which may be generally
recognized and diagnosed by professionals trained to do so”). Plaintiff’s complaint
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Opinion of the Court
essentially asks the court to speculate on what action exhibited by defendant was
extreme and outrageous: performing her job as a licensed clinical social worker?; or
meeting with children’s parent or grandparents? We note defendant does not allege
any type of breach of confidentiality. Unwittingly or not, plaintiff’s complaint causes
one to speculate that the allegations of sexual abuse upon his children was a major
concern to the trial court and led to the two year no contact order against plaintiff.
From this, one could further infer that plaintiff’s own actions, not those of defendant
McKeever, provided the impetus for what plaintiff claims as the denial of
“substantive and meaningful contact with the Boys.”3 Thus, as plaintiff failed to
allege facts to show that defendant’s conduct amounted to extreme and outrageous
behavior, it was proper for the trial court to dismiss plaintiff’s claim of intentional
infliction of emotional distress. Further, plaintiff has not shown that he suffered from
severe emotional distress (neurosis, psychosis, chronic depression, phobia, or any
other type of severe and disabling emotional or mental condition).
For the aforementioned reasons, we overrule plaintiff’s argument.
II
3 It is noted that both the dissent and the concurring opinion react to the above comments in
this majority opinion that are essentially dicta, as they are speculative and not necessary to a proper
de novo review of the complaint. The majority opinion does reason, separate and apart from the dicta,
that the “facts” in the complaint, as alleged by plaintiff, when taken in the light most favorable to
plaintiff, fail to support plaintiff’s claim for intentional infliction of emotional distress. The dicta
merely reveals how plaintiff’s complaint not only fails to allege facts to establish his claim, but alleges
facts that support an inference as to why relief cannot be granted.
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Opinion of the Court
Next, plaintiff argues that the trial court erroneously usurped the function of
the fact-finder by concluding the harm caused by defendant McKeever was
unforeseeable. Alternatively, plaintiff argues that the complaint establishes
foreseeable harm sufficient to state a claim for negligent infliction of emotional
distress. We disagree.
Our cases have established that to state a claim for
negligent infliction of emotional distress, a plaintiff must
allege that (1) the defendant negligently engaged in
conduct, (2) it was reasonably foreseeable that such
conduct would cause the plaintiff severe emotional distress
(often referred to as “mental anguish”), and (3) the conduct
did in fact cause the plaintiff severe emotional distress.
Although an allegation of ordinary negligence will suffice,
a plaintiff must also allege that severe emotional distress
was the foreseeable and proximate result of such
negligence in order to state a claim[.]
Ruark Obstetrics, 327 N.C. at 304, 395 S.E.2d at 97 (citations omitted).
On appeal, plaintiff contends that his complaint makes numerous allegations
that, when treated as true, establish defendant McKeever had a duty to refrain from
negligently interacting with Noah and Ms. Shapiro. Defendant appears to argue,
albeit indirectly, that his allegations show that it was foreseeable to defendant
McKeever that plaintiff would be subject “to multiple investigations by the
authorities [that] would unreasonably interfere with, and suspend for nearly three
years, Plaintiff[]’s relationship with his children.” We disagree.
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Opinion of the Court
There are no allegations in plaintiff’s complaint which indicate that it was
reasonably foreseeable that McKeever’s conduct—i.e. her interview and counseling
of plaintiff’s child—would cause plaintiff severe emotional distress or mental
anguish. See Holloway, 339 N.C. at 354–355, 452 S.E.2d at 243 (defining “severe
emotional distress” as “any emotional or mental disorder, such as, for example,
neurosis, psychosis, chronic depression, phobia, or any other type of severe and
disabling emotional or mental condition which may be generally recognized and
diagnosed by professionals trained to do so”). Accordingly, we overrule plaintiff’s
argument.
AFFIRMED.
Judge GEER concurs in result by separate opinion.
Judge TYSON dissents.
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No. COA15-351 – Piro v. McKeever
GEER, Judge, concurring in the result.
I agree with the majority opinion that the trial court properly granted
defendant McKeever’s motion to dismiss, but I reach this conclusion based on
somewhat different reasoning. I, therefore, respectfully concur in the result.
With regard to plaintiff’s claim for intentional infliction of emotional distress
(“IIED”), the majority opinion holds that plaintiff has failed to state a claim upon
which relief can be granted because “Plaintiff [made] conclusory allegations but
fail[ed] to assert any facts depicting conduct by defendant McKeever that meet the
threshold of extreme and outrageous conduct[.]” While I agree with this conclusion,
I agree with the dissent that the following reasoning from the majority opinion is
inconsistent with the standard applicable to a motion to dismiss:
Plaintiff’s complaint essentially asks the court to speculate
on what action exhibited by defendant was extreme and
outrageous: performing her job as a licensed clinical social
worker?; or meeting with children’s parent or
grandparents? We note defendant does not allege any type
of breach of confidentiality. Unwittingly or not, plaintiff’s
complaint causes one to speculate that the allegations of
sexual abuse upon his children was a major concern to the
trial court and led to the two year no contact order against
plaintiff. From this, one could further infer that plaintiff’s
own actions, not those of defendant McKeever, provided the
impetus for what plaintiff claims as the denial of
“substantive and meaningful contact with the Boys.”
PIRO V. MCKEEVER
GEER, J., concurring in the result
In deciding a motion to dismiss, the factual allegations must be read in the light most
favorable to the plaintiff. The majority opinion, however, draws an inference in favor
of defendant McKeever.
I do not believe that drawing this inference is necessary given that the
allegations in the complaint are not sufficient standing alone to rise to the level of
IIED. “[T]he initial determination of whether conduct is extreme and outrageous is
a question of law for the court: ‘If the court determines that it may reasonably be so
regarded, then it is for the jury to decide whether, under the facts of a particular case,
defendants’ conduct . . . was in fact extreme and outrageous.’ ” Johnson v. Bollinger,
86 N.C. App. 1, 6, 356 S.E.2d 378, 381-82 (1987) (quoting Briggs v. Rosenthal, 73 N.C.
App. 672, 676, 327 S.E.2d 308, 311 (1985)). “ ‘Conduct is extreme and outrageous
when it is 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.’ ” Johnson v. Colonial Life & Accident Ins. Co., 173 N.C.
App. 365, 373, 618 S.E.2d 867, 872 (2005) (quoting Guthrie v. Conroy, 152 N.C. App.
15, 22, 567 S.E.2d 403, 408-09 (2002)). “[T]his Court has set a high threshold for a
finding that conduct meets the standard.” Dobson v. Harris, 134 N.C. App. 573, 578,
521 S.E.2d 710, 715 (1999), rev'd on other grounds, 352 N.C. 77, 530 S.E.2d 829
(2000).
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GEER, J., concurring in the result
In deciding whether the conduct alleged here was extreme and outrageous, it
is necessary to parse through our existing case law to determine exactly what kind of
conduct alleged is sufficiently “atrocious” or “intolerable in a civilized community” in
order to withstand a motion to dismiss for failure to state a claim for relief. Johnson,
173 N.C. App. at 373, 618 S.E.2d at 872. In West v. King’s Dep’t Store, Inc., 321 N.C.
698, 705-06, 365 S.E.2d 621, 625-26 (1988), our Supreme Court found that the
behavior of a store manager in publicly accusing two patrons of shoplifting and
threatening legal action against them, even after they presented their receipt for
purchase, was sufficient to withstand a motion for a directed verdict dismissing their
claims for IIED. Likewise, in Turner v. Thomas, ___ N.C. App. ___, ___, 762 S.E.2d
252, 264 (2014), disc. review allowed, 367 N.C. 810, 767 S.E.2d 523 (2015), this Court
found a plaintiff’s complaint sufficiently pled a claim for IIED when the complaint
alleged that “defendants . . . -- public officers -- essentially manufactured evidence to
negate plaintiff’s self defense claim” in plaintiff’s “highly publicized” prosecution for
a murder of which he was later exonerated.
In Turner, we juxtaposed the facts of that case with the facts in Dobson, where
a department store employee exaggerated a report of child abuse against a store
customer and reported it to the Department of Social Services. Dobson, 134 N.C. App.
at 575, 521 S.E.2d at 713. We found that “[i]n Dobson, the defendant was a private
citizen whose false accusations of criminal conduct merely served to initiate an
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GEER, J., concurring in the result
investigatory process. The defendant’s conduct in Dobson was not considered
outrageous in part due to the existence of an independent investigatory process that
served to protect the plaintiff from further proceedings based on false accusations.”
Turner, ___ N.C. App. at ___, 762 S.E.2d at 265.
I find the distinction between Turner and Dobson applicable here. Defendant
McKeever was not a “public officer,” as were the state agents in Turner, but was a
private citizen performing her work as a licensed clinical social worker, leaving
further investigation of the child abuse allegations to the appropriate authorities.
Furthermore, I would point out that plaintiff makes no allegations that defendant
McKeever intentionally “manufactured evidence” against plaintiff and makes no
allegations that defendant had knowledge of -- and ignored -- prior unsubstantiated
allegations of child abuse against plaintiff. Thus, there is a common element in
Turner and West that is not alleged against defendant McKeever here: the intentional
and knowing disregard of facts that could potentially exonerate or call into question
plaintiff’s allegedly criminal conduct.
Therefore, I agree with the majority opinion that plaintiff has failed to
sufficiently allege conduct rising to the level of IIED, but I reach that conclusion based
on the similarity of this case to Dobson and the material distinctions between this
case and Turner and West. I cannot agree with the dissenting opinion which states
that “defendant McKeever used suggestive questioning and other techniques
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GEER, J., concurring in the result
specifically aimed at eliciting a false allegation of sexual abuse . . . .” Although the
allegations in the complaint indicate defendant McKeever’s questioning was
professionally negligent, the complaint does not allege facts sufficient to allow an
inference that defendant McKeever’s conduct was intentionally aimed at eliciting a
false accusation from N.P. or that defendant McKeever willfully and knowingly
disregarded facts that would exonerate plaintiff, as was alleged in Turner and West.
I, therefore, would hold, as the majority does, that the trial court properly dismissed
plaintiff’s IIED claim as asserted against defendant McKeever.
Turning to plaintiff’s claim for negligent infliction of emotional distress
(“NIED”), I would hold that the trial court properly dismissed that claim on the
grounds that plaintiff has failed to allege facts sufficient to show that he has suffered
severe emotional distress amounting, as required by the Supreme Court, to a “type of
severe and disabling emotional or mental condition which may be generally
recognized and diagnosed by professionals trained to do so.” Johnson v. Ruark
Obstetrics & Gynecology Assocs., 327 N.C. 283, 304, 395 S.E.2d 85, 97 (1990). Plaintiff
has alleged only that he “has suffered and will continue to suffer severe emotional
distress, including . . . mental anguish[] [and] depression. I would hold that this
allegation is not sufficient to meet the standard set in Johnson.
This Court has held that in order to withstand a motion to dismiss for failure
to state a claim, the allegations of distress must contain “the type, manner, or degree
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GEER, J., concurring in the result
of severe emotional distress [the plaintiff] claims to have experienced.” Horne v.
Cumberland Cnty. Hosp. Sys., Inc., 228 N.C. App. 142, 149, 746 S.E.2d 13, 20 (2013).
Although “chronic depression” is a condition identified in Johnson as sufficient to
support a claim for NIED, 327 N.C. at 304, 395 S.E.2d at 97, plaintiff here has not
alleged any other facts indicating a diagnosis of or treatment for his depression or
that his depression was disabling in any respect. See Fox v. Sara Lee Corp., 210 N.C.
App. 706, 715, 709 S.E.2d 496, 502 (2011) (“Thus, Plaintiff’s allegations, construed
liberally in her favor, suggest that she had been placed on medical leave, had ‘a
complete nervous breakdown[,]’ and became unable to manage her affairs, all at
around the same time.”) Even construing the complaint liberally, I cannot find
plaintiff’s allegations of severe emotional distress sufficient to establish a claim for
NIED and, therefore, agree with the majority opinion that the trial court properly
dismissed that claim as well. See also Pierce v. Atl. Grp., Inc., 219 N.C. App. 19, 32,
724 S.E.2d 568, 577 (2012) (holding that plaintiff failed to sufficiently allege severe
emotional distress when complaint simply alleged that plaintiff experienced serious
stress that severely affected his relationship with his wife and family members).
Consequently, I concur in the result.
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No. COA15-351 – Piro v. McKeever
TYSON, Judge, dissenting.
The plurality and the concurring in the result only opinions uphold the trial
court’s dismissal of plaintiff’s claims of intentional and negligent infliction of
emotional distress for failure to state a claim pursuant to Rule 12(b)(6) of the North
Carolina Rules of Civil Procedure. Their opinions hold plaintiff: (1) failed to allege
sufficient facts depicting conduct by defendant McKeever to “meet the threshold of
extreme and outrageous conduct;” and (2) failed to allege sufficient facts to indicate
it was reasonably foreseeable to defendant McKeever that her conduct would cause
Plaintiff severe emotional distress. I respectfully dissent from both conclusions.
I vote to hold plaintiff’s complaint, taken as true, alleged sufficient facts under
“notice pleading” to assert defendant McKeever engaged in extreme and outrageous
conduct to satisfy that element of the tort of intentional infliction of emotional
distress. I also vote to hold plaintiff alleged sufficient facts to assert it was reasonable
for defendant McKeever to foresee her conduct could cause plaintiff severe emotional
distress to satisfy that element of the tort of negligent infliction of emotional distress.
I would reverse the Rule 12(b)(6) failure to state a claim dismissal by the trial court
and remand for further proceedings.
I. Standard of Review
PIRO V. MCKEEVER
Tyson, J., dissenting
The majority’s plurality opinion correctly notes this Court’s review of a trial
court’s grant of a motion to dismiss under North Carolina Rule of Civil Procedure
12(b)(6) is de novo. Bridges v. Parrish, 366 N.C. 539, 541, 742 S.E.2d 794, 796 (2013).
Numerous cases from our Supreme Court highlight the pleading standard a
plaintiff must comply with to survive a Rule 12(b)(6) motion to dismiss: “A complaint
is adequate, under notice pleading, if it gives a defendant sufficient notice of the
nature and basis of the plaintiff’s claim and allows the defendant to answer and
prepare for trial.” Burgess v. Busby, 142 N.C. App. 393, 399, 544 S.E.2d 4, 7, disc.
review improv. allowed, 354 N.C. 351, 553 S.E.2d 579 (2001) (citing Redevelopment
Comm. v. Grimes, 277 N.C. 634, 645, 178 S.E.2d 345, 351-52 (1971)). As a general
rule, “a complaint should not be dismissed for insufficiency unless it appears to a
certainty that plaintiff is entitled to no relief under any state of facts which could be
proved in support of the claim.” Stanback v. Stanback, 297 N.C. 181, 185, 254 S.E.2d
611, 615 (1979) (emphasis original) (citation omitted); see also Fussell v. N.C. Farm
Bureau Mut. Ins. Co., 364 N.C. 222, 227, 695 S.E.2d 437, 441 (2010) (“A trial court
should not grant a motion to dismiss unless it is certain that the plaintiff could prove
no set of facts that would entitle him or her to relief.” (citation omitted)).
II. Extreme and Outrageous Conduct
Applying this standard of review as enunciated by our Supreme Court, the
allegations in plaintiff’s complaint are sufficient to support the “extreme and
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Tyson, J., dissenting
outrageous” element of an intentional infliction of emotional distress claim. This
Court has held that “whether the alleged conduct on the part of the defendant ‘may
reasonably be regarded as extreme and outrageous’” is “initially a question of law[.]”
Burgess, 142 N.C. App. at 399, 544 S.E.2d at 7 (citation omitted). The alleged conduct
in an intentional infliction of emotional distress claim must “exceed[] all bounds of
decency tolerated by society[.]” West v. King’s Dept. Store, Inc., 321 N.C. 698, 704, 365
S.E.2d 621, 625 (1988).
The plurality opinion concludes plaintiff has “fail[ed] to assert any facts
depicting conduct[] that meet[s] the threshold of extreme and outrageous conduct[.]”
I disagree and conclude the allegations presented in plaintiff’s complaint alleged
sufficient facts that, if proven, tend to show defendant McKeever’s conduct
“exceed[ed] all bounds usually tolerated by a decent society[.]” Id.
Plaintiff alleged the following facts in his complaint: Noah’s mother, and
plaintiff’s former wife, Shapiro, contacted DSS during the pendency of child custody
litigation and alleged, without any foundation, Plaintiff had sexually assaulted Noah.
DSS involved the Huntersville Police Department (“HPD”), and both agencies
conducted concurrent investigations into Shapiro’s allegations. On 19 April 2011,
HPD concluded there was no probable cause to arrest or charge plaintiff and closed
its investigation after interviewing, among others, plaintiff, Shapiro, and Noah. The
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Tyson, J., dissenting
same day, DSS also found the allegations against plaintiff to be unsubstantiated, and
closed its investigation.
Defendant McKeever is a licensed clinical social worker who conducted therapy
sessions with plaintiff’s sons, including 10-year-old Noah, beginning a month later on
19 May 2011. During all therapy sessions, Noah never displayed any signs nor
reported to defendant McKeever he had ever been the victim of any sexual abuse
perpetrated by Plaintiff or anyone else.
On 9 June 2011, defendant McKeever conducted a forensic interview with
Noah “aimed at eliciting. . . a report of sexual abuse” from him. Plaintiff alleged
defendant McKeever “knew or should have known” she should not have conducted
the 9 June 2011 interview in which she allegedly used “overly suggestive
questioning,” “over-interpretations,” and other “means and methods known or that
she should have known to produce inaccurate and unreliable results.” Plaintiff
attempted to communicate with defendant McKeever by leaving a voicemail
requesting she contact him, but defendant McKeever never responded or returned
plaintiff’s call.
As our Supreme Court has stated, when an appellate court reviews “a motion
to dismiss for failure to state a claim upon which relief can be granted, N.C. R. Civ.
P. 12(b)(6), all allegations of fact are taken as true[.]” Jackson v. Bumgardner, 318
N.C. 172, 174-75, 347 S.E.2d 743, 745 (1986). Taking these allegations as true, as we
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Tyson, J., dissenting
must, plaintiff contends defendant McKeever, a licensed therapist, and in the total
absence of any history, signs, or factual basis, used suggestive questioning and other
unreliable methods to purposefully elicit an allegation of sexual abuse by a ten-year-
old boy against his father. Noah had never previously made any allegation to
defendant McKeever.
Defendant McKeever is alleged to have, along with the other defendants,
thereafter “engaged in further conduct that perpetuated and/or reinforced [Noah’s]
report, causing further damage.” The trial court in plaintiff’s and Shapiro’s child
custody case found as fact the allegations of sexual abuse against plaintiff “were false
and that plaintiff ‘unequivocally did not sexually abuse [Noah].’” Piro v. Piro, ___ N.C.
App. ___, 770 S.E.2d 389, 2015 N.C. App. LEXIS 118, *2 (2015) (unpublished)
(emphasis original).
The plurality posits: “Unwittingly or not, plaintiff’s complaint causes one to
speculate that the allegations of sexual abuse upon his children was a major concern
to the trial court and led to the two year no contact order against plaintiff.” “[O]ne
could. . . infer,” the plurality continues, “that plaintiff’s own actions, not those of
defendant McKeever, provided the impetus for what plaintiff claims as the denial of
‘substantive and meaningful contact with the Boys.’”
Under the required standard of review, the trial court and this Court must
take all allegations of fact as true and cannot weigh those facts. Jackson, 318 N.C. at
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Tyson, J., dissenting
174-75, 347 S.E.2d at 745. In his complaint, plaintiff alleged that as a result of
defendant McKeever’s conduct, he was denied substantive and meaningful contact
with his sons for years and was also forced to spend years in litigation regarding
custody and visitation. It is not the duty, nor the province, of this Court under our
standard of review of the order dismissing plaintiff’s claims pursuant to Rule 12(b)(6)
to speculate or question the reason for the no contact order in contravention of
plaintiff’s well-pleaded allegations of fact stating the reason therefore.
This Court “has set a high threshold for a finding that conduct meets the
standard” of extreme and outrageous conduct. Dobson v. Harris, 134 N.C. App. 573,
578, 521 S.E.2d 710, 715 (1999), rev’d on other grounds, 352 N.C. 77, 530 S.E.2d 829
(2000); see also Johnson v. Colonial Life & Accident Ins. Co., 173 N.C. App. 365, 373,
618 S.E.2d 867, 872 (2005) (“Conduct is extreme and outrageous when it is 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.” (citations omitted)).
Our Supreme Court has held conduct to be extreme and outrageous in
circumstances I find to be much less “atrocious” or “intolerable” than the allegations
made by plaintiff here.
In Stanback v. Stanback, our Supreme Court held a plaintiff had properly
stated a claim for intentional infliction of emotional distress sufficient to survive a
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Tyson, J., dissenting
Rule 12(b)(6) motion by alleging the defendant breached a contract, the breach was
“wilful, malicious, calculated, deliberate and purposeful,” and that such breach
caused him to suffer “great mental anguish and anxiety.” Stanback, 297 N.C. 181,
198, 254 S.E.2d 611, 622-23 (1979).
Likewise, in West v. King’s Dept. Store, Inc., Mr. and Mrs. West (“the
plaintiffs”) traveled to a discount department store looking for bargains. West, 321
N.C. at 699, 365 S.E.2d 621, 622. While at the store, the manager accused Mr. West
of stealing merchandise, and threatened to have him arrested if the goods were not
returned. Id. Mr. West showed the manager a receipt for the allegedly stolen
merchandise and asked him not to involve his wife in the dispute, because she was
an outpatient at a local hospital and could not handle the aggravation and anxiety.
Id. at 700, 365 S.E.2d at 623. Ignoring the warning, the manager confronted Mrs.
West and also accused her of stealing merchandise. Id.
The plaintiffs sued the store for, inter alia, intentional infliction of emotional
distress. Id. The trial court granted the defendant’s motion for a directed verdict as
to the claim, and this Court affirmed. Id. at 704, 365 S.E.2d at 625. Quoting the
dissenting Judge at the Court of Appeals, our Supreme Court reversed and held the
conduct of the store manager was sufficiently extreme and outrageous to survive a
motion for a directed verdict:
Few things are more outrageous and more calculated to
inflict emotional distress on innocent store customers that
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Tyson, J., dissenting
have paid their good money for merchandise and have in
hand a document to prove their purchase than for the seller
or his agent, disdaining to even examine their receipt, to
repeatedly tell them in a loud voice in the presence of
others that they stole the merchandise and would be
arrested if they did not return it.
Id. (quoting West v. King, 86 N.C. App. 485, 358 S.E.2d 386 (Phillips, J., dissenting).
I believe the allegations that defendant McKeever used suggestive questioning
and other techniques specifically aimed at eliciting a false allegation of sexual abuse
by a ten-year-old boy against his father, are more “atrocious” and “intolerable” than
the facts our Supreme Court found to be extreme and outrageous in Stanback and
West. Plaintiff has alleged facts that, if proven, would constitute extreme and
outrageous conduct and fabrication of a false history by defendant McKeever which
“exceeds all bounds of decency tolerated by society[.]” West, 321 N.C. at 704, 365
S.E.2d at 625. The plurality’s opinion erroneously weighs the evidence and
“speculates” to reach its conclusion to the contrary.
III. Reasonably Foreseeable Nature of Plaintiff's Emotional Distress
The plurality opinion also concludes plaintiff’s complaint contains “no
allegations. . . which would indicate that it was reasonably foreseeable that
McKeever’s conduct – i.e. her interview and counseling of plaintiff’s child – would
cause plaintiff severe emotional distress and anguish.” I disagree.
Sufficient allegations in plaintiff’s complaint, if proven, would show plaintiff’s
severe emotional distress was, or should have been, reasonably foreseeable to
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Tyson, J., dissenting
defendant McKeever. Plaintiff alleged defendant McKeever: (1) “specifically targeted
plaintiff and/or was overly suggesting of improper behavior by Plaintiff” in her
questioning of Noah; (2) conducted an interview with Noah “aimed at eliciting. . . a
report of sexual abuse” against plaintiff; (3) had “knowledge of the risks attendant to
her conduct including the risks that DSS. . . would investigate and prohibit” plaintiff
from visiting his sons; and (4) had knowledge that the risks were imminent and
closely related to” her conduct and such risks were “the reasonably foreseeable result
of [her] conduct.” Plaintiff further alleges defendant McKeever knew or reasonably
should have known her conduct failed to follow proper policies and procedures.
Taken as true, plaintiff alleges defendant McKeever used inappropriate means
and methods in contravention of applicable policies and procedures, to intentionally
elicit a false criminal report of sexual abuse by a ten-year-old boy against his father
while knowing this conduct imminently risked plaintiff’s ability to parent and
interact with his sons. These allegations are sufficient to show defendant McKeever’s
actions were “reasonably foreseeable” to “cause the plaintiff severe emotional
distress.” Johnson v. Ruark Obstetrics & Gynecology Assocs., P.A., 327 N.C. 283, 304,
395 S.E.2d 85, 97 (1990) (citations omitted).
IV. Conclusion
“All allegations of fact are taken as true[.]” Jackson, 318 N.C. at 174-75, 347
S.E.2d at 745. At this very early point in the proceedings, plaintiff’s allegations,
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Tyson, J., dissenting
taken as true, are sufficient to show defendant engaged in extreme and outrageous
conduct, and that it was reasonably foreseeable her conduct would cause plaintiff
severe emotional distress to survive a Rule 12(b)(6) motion to dismiss.
I vote to reverse the judgment of the trial court and remand for further
proceedings on plaintiff’s claims. I respectfully dissent.
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