The Court finds that the detention of plaintiffs at the scene of the shooting was not unlawful, but rather was legally justified. Therefore, the plaintiffs were not falsely arrested or imprisoned.
3. Property Loss
In Count III, plaintiffs allege that they suffered a loss of property in the amount of the veterinarian bill, $ 1,786.50. It is not clear from the complaint under what theory of liability plaintiffs seek this recovery. However, in their proposed conclusions of law, plaintiffs allege that "the United States is liable for loss of property due to negligence or wrongful acts or omissions of an employee of the government."
The Court finds that Miller was negligent in shooting Kal as quickly as he did. It is apparent that the policy of the Capitol Police is to use a weapon only as a last resort. Although the use of the weapon may have become necessary as the confrontation escalated, there were alternative measures that a reasonable officer concerned about his own safety and the safety of his K-9 would have taken to avoid being attacked by Kal. The Court finds that, as a result of Miller's negligence, plaintiffs suffered a loss of property in the amount of $ 1,786.50. The defendant, therefore, is liable for that amount.
4. Intentional Infliction of Emotional Distress
In Count IV, plaintiffs allege that Miller shot Kal with reckless disregard for the safety of McClellan, who, they allege, was in the direct line of fire, thus causing her to suffer extreme emotional distress requiring medical care. To recover for the tort of intentional infliction of emotional distress in the absence of a physical injury, McClellan must demonstrate "'(1) "extreme and outrageous" conduct on the part of the defendant which (2) intentionally or recklessly (3) causes the plaintiff "severe emotional distress."'" Abourezk v. New York Airlines, Inc., 283 U.S. App. D.C. 34, 895 F.2d 1456, 1458 (D.C. Cir. 1990) (citing Sere v. Group Hospitalization, Inc., 443 A.2d 33, 37 (D.C.), cert. denied, 459 U.S. 912, 74 L. Ed. 2d 176, 103 S. Ct. 221 (1982)). The defendant is only liable if Miller's conduct was "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." Restatement (Second) of Torts § 46, Comment d at 73.
There is no question but that McClellan suffered emotional distress arising out of the incident. However, the Court finds that it resulted from what she perceived to be the senseless shooting of her pet, not from any disregard for her own safety. Moreover, in no way did Miller's conduct rise to the requisite level of outrageousness and atrocity to warrant recovery under this theory.
5. Negligent Infliction of Emotional Distress
Finally, in Count V, plaintiffs allege that Miller caused McClellan to suffer emotional distress by shooting Kal in the direct line of McClellan, negligently and with careless disregard for her safety. To recover for negligent infliction of emotional distress in the absence of a direct physical injury, plaintiffs must show that McClellan "was in the zone of physical danger and was caused by [Miller's] negligence to fear for . . . her own safety. . . ." Williams v. Baker, 572 A.2d 1062, 1067 (D.C. 1990) (en banc). As stated above, plaintiff did not have time to fear for her own safety. To the extent that she may have experienced fear, it was fear for the safety of her dog. Moreover, it can hardly be said that she was in the zone of danger, because Miller aimed his gun downward toward the dog, who was considerably closer to Miller than McClellan was. And, again, her emotional distress did not arise out of fear for her own safety, but rather arose out of grief over the shooting and eventual death of her pet.
An appropriate Order accompanies this Opinion.
ORDER - March 27, 1991, Filed
Upon consideration of all of the evidence presented at the July 5 and 6, 1989, bench trial and the parties' proposed findings of fact and conclusions of law, for the reasons set forth in the accompanying Opinion, it hereby is
ORDERED, that judgment is entered in favor of the plaintiffs in the amount of $ 1,786.50 as to Count III. It hereby further is
ORDERED, that judgment is entered in favor of the defendant as to Counts I, II, IV, and V.