New York City restaurateurs who unknowingly participated in an academic research project that sought to elicit responses to made-up complaints about food poisoning have stated actionable claims for intentional infliction of emotional distress and other torts against a university and the professor who carried out the project. Such was the ruling of a New York court in 164 Mulberry Street Corp. v. Columbia University, 771 N.Y.S.2d 16 (App. Div. 1st Dep’t 2004).
In this case, Professor Flynn of the Columbia Business School designed and implemented a study which sought to elicit responses from restaurants in New York City to complaints from putative customers. As part of the project, Professor Flynn sent letters to plaintiffs’ restaurants, as well as many other New York City restaurants, falsely claiming that he and/or his wife had suffered food poisoning, resulting in severe gastric consequences that ruined their anniversary. The letters disclaimed any intention of contacting regulatory agencies and stated that the only intent was to convey to the owner what had occurred "in anticipation that you will respond accordingly." Apparently, the point of the study was to see how the various restaurants "responded accordingly."
Professor Flynn later admitted the falsehood in a letter of apology. He briefly explained that "the letter was fabricated to help collect data for a research study that I designed concerning vendor response to customer complaints," and that none of the data collected would be used for publication. The Dean of the Columbia Business School also wrote a letter apologizing for Flynn’s conduct. He promised to "put in place procedures and guidelines for empirical research projects so that this will never happen again."
The plaintiffs in the companion actions were various restaurants and restaurateurs, along with their employees, who were the subject of Professor Flynn’s experiment. The plaintiffs alleged that they were extremely upset by the claim of food poisoning, especially in view of the extraordinarily competitive nature of the restaurant business and the critical importance of reputation. Some tried unsuccessfully to send flowers to the fictitious address provided by Flynn. Subsequently, the New York City Department of Health conducted an investigation into the claim of food poisoning, during which restaurant employees were required to submit to stool analysis. The plaintiffs faulted the University for failing to have and enforce appropriate guidelines and protocols regarding ethical and acceptable research practices by Flynn, thereby allowing this kind of research to be conducted. They alleged numerous claims, including intentional and negligent infliction of emotional distress, misrepresentation, fraud and libel, and sought compensatory and punitive damages. The trial court dismissed most of the plaintiffs’ causes of action, but refused to dismiss, among others, the claims for intentional infliction of emotional distress (IIED) brought by the individual plaintiffs who received the letters.
On appeal, the New York Supreme Court Appellate Division explained that in order to survive a motion to dismiss, a cause of action for IIED must allege conduct that 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." The conduct, the court explained, must consist of more than mere insults, indignities and annoyances. Further, the emotional distress claim will be dismissed "unless the claim arises as a result of a campaign of harassment or intimidation." The court held that the several letters sent to the plaintiffs "could be construed in the aggregate as presenting a campaign of harassment." Even though the letters were directed to different individuals, the court ruled that such did not vitiate "what seems to have been serial acts perpetrated by a single source." The court explained that while Professor Flynn did not intend to harass the plaintiffs in his academic research, his "ill-conceived mode of gathering data for the project may have resulted in a campaign of harassment of the individual restaurant owners." He intended to elicit a response, and in doing so may have "recklessly disregarded the potential consequences of that conduct," the court found.
Making a claim for food poisoning, the court explained, could conceivably impact on the success of the enterprise and perhaps destroy its viability as a business in such a highly competitive trade. Once a restaurant’s reputation is tainted, it is hard to undo the damage. The possibility of a forced closing of a restaurant could very likely affect the physical and emotional well-being of the restaurateurs involved, the court wrote, especially those who may have invested all their savings and energy into the business.
One plaintiff testified that, in view of Professor Flynn’s "high status," the letter "was like getting a death warrant from the White House. …The Restaurant was turned upside down to try to find out how this could have happened. Much food on hand in our kitchen was destroyed, at a cost of thousands of dollars. Vendors were notified and told to check their entire inventory. Staff members were all put on notice that if this were ever to be traced to a particular person, that individual would not only be fired, but would, probably never work in this field again. …" In light of the evidence, the court concluded there was a sufficient basis to allow a jury to decide whether the conduct was sufficiently outrageous to meet the requisite standard.
The Columbia University case teaches that educational institutions, and their faculty and staff, are not immune from legal liability if their conduct in carrying out academic research crosses the line into legally actionable conduct. To reduce exposure to legal liability, institutions should have procedures and guidelines in place with respect to the conduct of research projects. It is essential that researchers understand the ethical and legal implications of their work and act accordingly. Research involving the knowing or unknowing participation of individuals should not only respect, but also protect the autonomy, the rights and the dignity of participants. An institution which fails to set appropriate guidelines runs the risk of being held liable for misconduct in the carrying out of academic research projects.
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