into inaction by psychological means, and held that it is a jury question as to when a plaintiff discovered an injury.
The Court finds that the complaint satisfies the three-pronged test of Bussineau, and is therefore eligible for application of the discovery rule.
III. Defendants' Motion to Dismiss Counts I and II.
The defendants have requested the Court to enter judgment on each count of the complaint that seeks damages for emotional distress. Count I alleges negligent infliction of emotional distress. The plaintiff argues that District of Columbia law on this issue is undecided at this time, since the Court of Appeals has granted rehearing en banc in Williams v. Baker, 540 A.2d 449 (D.C. 1988) to reconsider whether the District permits claims for negligent infliction of emotional distress in the absence of physical injury. However, the precise issue to be decided in Williams v. Baker is liability to bystanders who suffer emotional shock from contemporaneous observation of physical injury to close relatives. In cases involving claims falling outside this narrowly restricted area, District of Columbia law is clear that a plaintiff may not recover for negligently psychological injuries which do not result from physical injury. Kropinski, 853 F.2d at 952. Since the plaintiff has failed to allege the requisite physical injury to sustain a claim of negligent infliction of emotional distress, Count I is dismissed.
Count II of the complaint alleges intentional infliction of emotional distress. The District of Columbia imposes liability for this intentional tort only when the defendant's conduct goes beyond the bounds of decency and falls well below civilized standards. Waldon v. Covington, 415 A.2d 1070 (D.C. 1980). The defendants have argued that no reasonable jury could find the conduct of the defendants outrageous under the circumstances, and that plaintiff has failed to identify a discrete incident causing injury. The Court finds that such a ruling would be premature at this time, given that pleadings are not intended, under the Federal Rules, to contain a complete factual exposition of matters intended to be proven at trial, and are meant to serve a notice-giving function only. Assuming the truth of all the allegations in the pleadings, the Court cannot find that a reasonable jury would be unable to find the alleged conduct outrageous.
IV. Defendants' Alternative Motion for Summary Judgment.
Defendants' motion in the alternative for summary judgment will not be granted due to the genuine issues of material fact raised by the plaintiff's affidavits. In particular, the defense based on failure to prosecute during the limitations period is an issue of fact to be decided by the jury, since it is "for the jury to decide when [the plaintiff] discovered or, under the exotic circumstances of this case, should have discovered the [injury]." Kropinski, 853 F.2d at 955. That issue of fact is raised by the affidavit of Dr. Gary Glass.
Therefore, it is hereby ORDERED that plaintiff's motion to amend the complaint is GRANTED.
It is FURTHER ORDERED that defendants' motion for judgment on the pleadings is DENIED.
It is FURTHER ORDERED that defendants' motion to dismiss Count I of the complaint is GRANTED.
It is FURTHER ORDERED that defendants' motion to dismiss Count II of the complaint is DENIED.
It is FURTHER ORDERED that defendants' alternative motion for summary judgment is DENIED.
It is FURTHER ORDERED that the Court's Order of January 23, 1989, staying discovery, is VACATED and the stay of discovery is LIFTED.
It is FURTHER ORDERED that a Status Hearing will be held on May 17, 1989 at 9:45 A.M.
DATE April 11, 1989