settlement, plaintiffs in Jones I (the parents) received monetary compensation in return for which they released all of their future claims arising from their Lifespring trainings. As part of the monetary settlement, plaintiffs were reimbursed for the costs of psychological therapy which their children received.
This second action brought by the Jones family seeks damages on behalf of the three Jones children in three counts. In the first count, the children contend that the defendants negligently deprived them of the "love, warmth, care, nurturement and security and support" of their parents. Complaint at para. 71. Count II is an action for intentional infliction of severe emotional distress that is also rooted in the deprivation of parental emotional support. Complaint at paras. 72, 77. The last count is an implied private right of action for the violation of a District of Columbia statute requiring the licensure of psychologists in the District and otherwise overseeing their activities. Complaint at para. 78.
Counts I and II
The law of the District of Columbia is clear; it does not recognize a cause of action of a minor for the deprivation of the emotional support of a parent by a third party. Pleasant v. Washington Sand & Gravel Co., 104 U.S. App. D.C. 374, 262 F.2d 471 (D.C. Cir. 1958) (infant does not have an enforceable claim against a third party for loss of a parent's support, education, care, society, etc.); Hill v. Sibley Memorial Hospital, 108 F. Supp. 739 (D.D.C. 1952) (minor child cannot sue for loss of love and companionship as a result of negligent injury to mother). See, Edler v. MacAlpine-Dowine, 86 U.S. App. D.C. 97, 180 F.2d 385 (D.C. Cir. 1950) (no cause of action lies for an infant against a person who intentionally and wrongfully enticed his father to desert home); McMillan, et al. v. Taylor, 81 U.S. App. D.C. 322, 160 F.2d 221 (D.C. Cir. 1946) (same holding as Elder); Annotation, Child's Right of Action for Loss of Support, Training, Parental Attention, or the Like, Against a Third Person Negligently Injuring Parent, 11 A.L.R. 4th 549 (1982).
Under a fair reading of the complaint, plaintiffs' injuries are alleged to be the product of the negligent and/or tortious acts by the defendants against a third party, the plaintiffs' parents. Under this theory of the case, applying D.C. law, no recovery can be had.
In their opposition to defendants' motion to dismiss, plaintiffs contend that their injury is the result of the direct contact they had with the defendants. However, in their more than forty page complaint, the only allegation of direct contact made by the plaintiffs is that they were present at their parents' graduation. If plaintiffs assert that their damages are a result of their presence at "graduation" exercises, then absent any additional showing of contact, this event, as a matter of law, is too remote to be the proximate cause of plaintiffs' injuries. Furthermore, defendants' actions toward plaintiffs' parents are wholly irrelevant under this theory of the case.
For these reasons, counts I and II must be dismissed.
The theory of count III is that plaintiffs have a private right of action under the Practice of Psychology Act, Pub. L. No. 91-657, 84 Stat. 1955-1961 (1971) (first codified at § 2-481-498 (1971), recodified at § 2-1704.1 to 2-1704.18 in 1981 and repealed by D.C. Law 6-99, § 1104(h), 33 D.C. Reg. 729 (1986)). Since the statute is silent on whether a private party may sue, any claim must be implicit. To determine whether a private remedy is implied in a statute, the court must consider whether: (1) the plaintiffs are among the class for whom the statute was intended to protect; (2) there is any indication of legislative intent to create a private remedy; and (3) creation of a private cause of action would be "consistent with the underlying purpose of the legislative scheme." Cort v. Ash, 422 U.S. 66, 78, 45 L. Ed. 2d 26, 95 S. Ct. 2080 (1975). No private right of action can be found unless Congress specifically intends to create one. California v. Sierra Club, 451 U.S. 287, 293-94, 68 L. Ed. 2d 101, 101 S. Ct. 1775 (1981). See Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 15-16, 62 L. Ed. 2d 146, 100 S. Ct. 242 (1979) ("what must ultimately be determined is whether Congress intended to create the private remedy"). To assess congressional intent, it is necessary to examine the "language and the focus of the statute, its legislative history and its purpose." Touche Ross & Co. v. Redington, 442 U.S. 560, 575-76, 61 L. Ed. 2d 82, 99 S. Ct. 2479 (1979). Furthermore, it is the plaintiff who carries the burden of demonstrating the affirmative congressional intent to allow for private enforcement of a statute. Merrill, Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 378, 72 L. Ed. 2d 182, 102 S. Ct. 1825 (1982); Samuels v. District of Columbia, 248 U.S. App. D.C. 128, 770 F.2d 184, 194 (D.C. Cir. 1985).
A careful reading of the statute and its legislative history raises considerable doubt as to whether Congress intended to protect the class of people of which plaintiffs would be members. Section 5(E) of the Practice of Psychology Act exempts from the licensure requirements "qualified members of other established businesses . . . provided that they do not hold themselves out to the public by title or description incorporating the word psychological, psychologist or psychology." 84 Stat. at 1957.
As the language in the Senate report makes clear, so long as businesses do not represent themselves to be psychologists, they do not need to obtain a license. S. Rep. No. 626, 91st Cong., 1st Sess. 4 (1969). This interpretation is reinforced by examining congressional statements prior to passage. In floor debate, Cong. Adams from Washington declared that the intent of the bill was targeted at people who hold themselves out to be psychologists when in fact they are "quacks". 116 Cong. Rec. 41,380 (1970). In addition and equally dispositive, the duty for enforcing the provisions of the Act was given to the Commissioner of the District of Columbia (later to become the Mayor). 84 Stat. at 1960. Nowhere in the legislative history is there any congressional contemplation of private enforcement.
Reviewing the complaint and all other materials before the court, there are no allegations that Lifespring or any of the other defendants represented themselves to be psychologists or that they intended to engage in psychology. Thus, reading the statute and the legislative history, there is no indication that Congress intended to extend the benefit of the statute to the class of persons including plaintiffs. Even if plaintiffs' class were covered by the Act, plaintiffs have failed to show that Congress affirmatively created a private right of action as a means to enforce the law. Instead, enforcement responsibilities were given to the executive of the District government. Therefore, count III must also be dismissed because a private right of action under the Practice of Psychology Act does not exist.
In conclusion, the court orders that all counts of the complaint be dismissed for failing to state a claim upon which relief could be granted.
Date: October 20, 1988
ORDER - October 20, 1988, Filed
Upon full consideration of defendants motion to dismiss the complaint in this action or, in the alternative, for summary judgment, the plaintiffs' opposition thereto, defendants' reply memorandum, plaintiffs' supplemental memorandum and supporting affidavits and statements of material fact, it is this 20th day of October 1988,
ORDERED that judgment be and hereby is entered dismissing each and every count of plaintiffs' complaint with prejudice for failure to state a claim upon which relief can be granted.
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