Appeals from the Superior Court of the District of Columbia (CAB-9043-10) (Hon. Brian F. Holeman, Trial Judge)
The opinion of the court was delivered by: Reid, Senior Judge:
Before BLACKBURNE-RIGSBY and MCLEESE, Associate Judges, and REID, Senior Judge.
Opinion for the court by Senior Judge REID.
Opinion concurring in part and dissenting in part by Associate Judge MCLEESE at page 22.
This case arises out of a series of protests held by Adam Ortberg, Michael Weber, and others at the District of Columbia offices of Goldman Sachs and the District of Columbia home of a Goldman Sachs' employee, Michael Paese. On January 11, 2011, after a hearing in Superior Court, Goldman Sachs and Mr. Paese obtained a preliminary injunction restricting the protests.*fn1 Mr. Ortberg and Mr. Weber now appeal the grant of that injunction and its scope. On this record, and for the reasons set forth below, we are constrained to reverse the trial court's grant of a preliminary injunction.
Beginning in late August 2010, protestors appeared on a regular basis outside the building that housed Goldman Sachs' District of Columbia office. The demonstrators were affiliated with a group called Defenders of Animal Rights Today and Tomorrow ("DARTT"), a defendant in this case. The protest called attention to Goldman Sachs' business dealings with an investment group (Fortress) that did business with a third company: Huntingdon Life Sciences ("HLS"). HLS and the companies that do business with it have been targeted by animal-rights activists in the United States and Europe. These activists have engaged in lengthy protest campaigns, which have occasionally included harassment and violence. After demonstrations at Goldman Sachs' office began, the protestors also appeared outside the home of Mr. Paese, a Managing Director at Goldman Sachs. In all, the demonstrators held thirteen protests, eight at Goldman Sachs and five at Mr. Paese's residence, between August and October 2010.
Generally, the protests followed a pattern. A group of demonstrators, usually between four and six in number, would arrive with bullhorns, airhorns, and posters. They would begin chanting slogans or making speeches accusing Goldman Sachs, and later Mr. Paese, of complicity in the deaths of animals. These chants and speeches were often amplified through the use of a bullhorn. Occasionally, according to Goldman Sachs, the protestors would enter the lobby of the building that contained Goldman Sachs' office and use their bullhorns or airhorns there. The shouting and the chanting usually lasted for roughly 30 minutes, at which point the protestors would move on. At Mr. Paese's home, and at Goldman Sachs' office, the protestors identified Mr. Paese by name and chanted a slogan that included the phrase "we know where you sleep at night." Following a tense encounter between neighbors and protestors outside of Mr. Paese's home on the night of October 31, 2010, Goldman Sachs and Mr. Paese filed a complaint against Mr. Ortberg, Mr. Weber, DARTT, and others, alleging claims for private nuisance, intentional infliction of emotional distress, negligent infliction of emotional distress and conspiracy. The plaintiffs also sought a temporary restraining order and a preliminary injunction.
On December 10, 2010, the parties appeared in the trial court for a hearing on a preliminary injunction. After hearing testimony from Mr. Paese, Mr. Ortberg and Mr. Weber, the court determined that the plaintiffs were likely to succeed on their claims of private nuisance and conspiracy, and that Mr. Paese was likely to succeed on his claim of intentional infliction of emotional distress. The court then issued a preliminary injunction, and Mr. Ortberg and Mr. Weber appealed.
We begin our analysis with the trial court's decision to grant the preliminary injunction. Mr. Ortberg and Mr. Weber's main argument is that the trial court abused its discretion when it concluded that Goldman Sachs and Mr. Paese were likely to succeed on the merits of their claims for intentional infliction of emotional distress and private nuisance.*fn2 The decision to grant or deny a preliminary injunction is a discretionary one. Feaster v. Vance, 832 A.2d 1277, 1287 (D.C. 2003). To grant an injunction, the trial court must find, among other things, that "the moving party has clearly demonstrated" a "substantial likelihood" of success on the merits. Id. at 1287 (quotation marks and citation omitted).
We review a trial court's decision to grant a preliminary injunction "not to resolve the merits of the underlying dispute between the litigants, except insofar as the action of the trial court turns on a question of law or statutory interpretation." Id. at 1288 (internal quotation marks and citation omitted). Therefore, "our role is confined to (1) examining the trial court's findings and conclusions to see if they are sufficiently supported by the record; (2) assuring that the trial court's analysis reflects a resolution of all the issues which necessarily underlie the issuance of an injunction; and (3) inquiring into any other claims of an abuse of discretion by the trial court." Id. (internal quotation marks and citations omitted). When reviewing challenges to a trial court's determination that a party is likely to succeed on the merits, we have said that "[a] party seeking temporary equitable relief need not show a mathematical probability of success on the merits . . . . Nevertheless, if the appellees' claims are barred by law, we must reach the merits of the decision" on appeal. In re Estate of Reilly, 933 A.2d 830, 837 (D.C. 2007) (internal quotation marks and citations omitted).
Substantial Likelihood of Success on Mr. Paese's Intentional Infliction of Emotional Distress Claim
Mr. Ortberg and Mr. Weber argue that the trial court erred when it concluded Mr. Paese would be able to prove that the defendants' conduct was "extreme and outrageous" and that Mr. Paese had "suffer[ed] severe emotional distress." For the reasons set forth below, we hold that on this record Mr. Paese has not "clearly demonstrated" a "substantial likelihood" of success on the merits of his intentional infliction of emotional distress claim. Feaster, supra, 832 A.2d at 1287. Hence, the trial court should not have granted Mr. Paese's motion with respect to that claim.
At the hearing on the preliminary injunction, the trial court ruled that "to the extent that the conduct [of the defendants] is outrageous, over the top, extreme, beyond the bounds of decency . . . the [c]court finds that on balance Mr. Paese would prevail." The court did not explain what it meant by the language "to the extent that," and did not explicitly indicate what specific action it considered to be "extreme and outrageous." However, the trial court also made clear that it regarded the protestors' chant "we know where you sleep at night" to be a threat of "future injury or disturbance." In addition, the trial court did not make a specific ruling regarding the severity of Mr. Paese's distress, noting only that "the [c]court heard from Mr. Paese regarding his emotional distress." Mr. Paese had explained in his testimony and a written declaration that he felt "afraid" that the protests would lead to violence and that he found the protests "humiliating, embarrassing and intimidating." Mr. Paese also recounted that his family felt "targeted and terrorized in our own home because of the actions of these people."
In order to prove the tort of intentional infliction of emotional distress, "a plaintiff must show (1) extreme and outrageous conduct on the part of the defendant which (2) intentionally or recklessly (3) causes the plaintiff [to suffer] severe emotional distress." Baltimore v. District of Columbia, 10 A.3d 1141, 1155 (D.C. 2011) (internal quotation marks and citations omitted). Our case law establishes strict tests for the elements of intentional infliction of emotional distress. Bernstein v. Fernandez,649 A.2d 1064, 1075 n.17 (D.C. 1991). "Liability will only be imposed for conduct 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." Homan v. Goyal, 711 A.2d 812, 818 (D.C. 1998); accord Wood v. Neuman, 979 A.2d 64, 77 (D.C. 2009). In order to establish "extreme and outrageous conduct," a plaintiff must show that "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!'" Id.(quoting RESTATEMENT (SECOND) OF TORTS § 46 cmt. d).
Further, "in determining whether the conduct complained of is ‗extreme and outrageous,' the court must consider ‗the specific context in which the conduct took place.'" Estate of Underwood v. National Credit Union Admin., 665 A.2d 621, 641 (D.C. 1995) (citation omitted). When evaluating "context," a court should examine "not only . . . the nature of the activity at issue but also . . . the relationship between the parties, and the particular environment in which the conduct took place." Id. (internal quotation marks and citation omitted). In any context, no liability can be "imposed for ‗mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.'" Homan, supra, 711 A.2d at 818 (internal citations omitted). As a result, "[t]he requirement of outrageousness is not an easy one to meet." Drejza v. Vaccaro, 650 A.2d 1308, 1312 (D.C. 1994).
When viewed in context, the conduct in this case was not extreme and outrageous. The parties had no relationship before the protests began. The conduct took place on public streets, and consisted mostly of chanting slogans and some vague threats. In general, the conduct complained of is part and parcel "of the frictions and irritations and clashing of temperaments incident to participation in a community life," especially life in a society that recognizes a right to public political protest. Homan, supra, 711 A.2d at 818 (internal quotation marks and citation omitted). While serious threats would be grounds for the imposition of liability, the oblique threats of "future injury or disturbance" in this case do not rise to that level. See id. at 820 (liability imposed where defendant had reason to believe plaintiff's life would be threatened, and it was).
In addition, the record shows that Mr. Paese was only disturbed on a few occasions over a period that spanned several weeks. As we have said before, "[i]n some, indeed most, instances, a few unwelcome visits," accompanied by "some harassing" conduct, "would not be cognizable in an action for a tort which requires proof of extreme or outrageous conduct." Id. Other hallmarks of extreme and outrageous conduct that we have identified previously, like abusing a position of authority over another, District of Columbia v. Tulin, 994 A.2d 788, 801 (D.C. 2010) (police officer's swearing and insults not outrageous, but causing plaintiff to be arrested and prosecuted "without legal justification" sufficiently outrageous), or callously disregarding another's known weakness, Drejza, supra, 650 A.2d at 1312-13 (plaintiff was a rape victim who accused the defendant detective of derogatory and belittling comments during her interview), are also not present in this case.
To be sure, the protests were loud and disturbing. However, our case law requires more to support a claim of "extreme and outrageous conduct." Because the threshold finding of "extreme and outrageous conduct" is a question of law, Waldon v. Covington, 415 A.2d 1070, 1078 (D.C. 1980), we are constrained to conclude that the trial court abused its discretion when it concluded that Mr. Paese was likely to succeed in establishing, on this record, "extreme and outrageous conduct" by the defendants.
We reach the same conclusion with respect to the element of "severe emotional distress." Again, our case law sets a high standard, requiring "emotional distress of so acute a nature that harmful physical consequences might be not unlikely to result." Kotsch v. District of Columbia, 924 A.2d 1040, 1046 (D.C. 2007) (internal quotation marks and citation omitted). "Recovery is not allowed merely because conduct causes mental distress." Crowley v. North Am. Telecomms. Ass'n., 691 A.2d 1169, 1172 (D.C. 1997). Likewise, "‗[e]mbarrassment and difficulty' do not approach the level of foreseeable harm essential to establish [appellants'] intentional tort liability." Waldon, supra, 415 A.2d at 1078. A person may "intentionally inflict some worry and concern," so long as he or she "refrain[s] from conduct intended or likely to cause physical illness." Clark v. Associated Retail Credit Men of Washington D.C., 70 App. D.C. 183, 187-88, 105 F.2d 62, 66-67 (1939).
In his declarations and testimony, Mr. Paese clearly alleged some mental distress. However, we are unable to discern any indication that his distress was "of so acute a nature that harmful physical consequences might be not unlikely to result." Kotsch, supra, 924 A.2d at 1046 (internal quotation marks and citation omitted). Unlike other intentional infliction of emotional distress plaintiffs, Mr. Paese did not complain of any symptoms of emotional distress, like a loss of sleep or an inability to concentrate. See Purcell v. Thomas, 928 A.2d 699, 713-14 (D.C. 2007); Homan, supra, 711 A.2d at 821; Clark, supra, 105 F.2d at 65 (collecting cases, where plaintiffs variously were "nervous and could not work," or suffered "worry, humiliation, and loss of sleep"). Instead, Mr. Paese only labeled the emotions he was feeling, without indicating "the intensity and the duration of the distress," which are factors "to be considered in determining its severity." RESTATEMENT (SECOND) OF TORTS § 46 cmt. j. We have also previously found a list of emotions similar to the one presented by Mr. Paese to be insufficient to establish "severe emotional distress." See Wood, supra, 979 A.2d at 78 (plaintiff who was "horrified" at the "destruction of her garden"; "constantly crying and almost sleepless"; "shaken"; and "embarrassed at having been made out to be a ‗pariah' in the neighborhood" denied recovery because the distress was insufficiently severe). Therefore, we conclude that the trial court's finding of a likelihood of success on this prong of the intentional infliction of emotional distress claim was not supported by the record. In short, Mr. Paese is not entitled to an injunction on his intentional infliction of emotional distress claim because he has not "clearly demonstrated" a "substantial likelihood" of success on two of the three elements of the tort. Feaster, supra, 832 A.2d at 1287.
Substantial Likelihood of Success on the Appellees' Claim of Private Nuisance
Before the trial court, Mr. Ortberg and Mr. Weber argued that the District of Columbia does not recognize "private nuisance" as a stand-alone tort, but rather as a theory of damages requiring the commission of a predicate tort. The trial court rejected their argument, relying on this court's opinion in B&W Management, Inc. v. Tasea Inv. Co.,451 A.2d 879 (D.C. 1982), and determined that private nuisance was a tort which required proof of "a substantial and unreasonable interference [with the] private use and enjoyment of one's land." On appeal, Mr. Ortberg and Mr. ...