Martinez v. Northern Rio Arriba Electric Cooperative6/12/2002
not persuaded that Flores is applicable to the situation at hand. The very object of a funeral contract is to provide peace of mind to grieving survivors. Id. While it is true that an employee might derive some peace of mind from receiving compensation for unused sick time, we remain unpersuaded that peace of mind was an implied part of this particular contract, such that the parties could have "contemplated such [emotional distress] damages at the time the contract was made." Silva, 106 N.M. at 20, 738 P.2d at 514. If we were to allow emotional distress awards in a garden-variety employment contract case, we would undercut the fundamental limitation on awards for contractual breach; namely, what is reasonably within the contemplation of the parties to the contract. We will not let the rare exception illustrated in Flores swallow the general rule.
Prima Facie Tort
Martinez contends, in the alternative, that the award of emotional distress damages can be sustained on the basis of her jury award for prima facie tort. New Mexico first recognized a cause of action for prima facie tort in Schmitz v. Smentowski, 109 N.M. 386, 393-94, 785 P.2d 726, 733-34 (1990). Prima facie tort is intended to provide a remedy for persons harmed by intentional and malicious, but otherwise lawful, acts that "fall outside of the rigid traditional intentional tort categories." Id. at 394, 785 P.2d at 734. Prima facie tort should be used to address wrongs that otherwise "escape categorization," id. at 396, 785 P.2d at 736, but "should not be used to evade stringent requirements of other established doctrines of law," id. at 398, 785 P.2d at 738.
Notably, Martinez did not bring a claim for intentional infliction of emotional distress. Nor did she present evidence of extreme and outrageous conduct on the part of NORA. See Stock v. Grantham, 1998-NMCA-081, 38-39, 125 N.M. 564, 964 P.2d 125 (holding that a prima facie tort claim may not be used as a means of avoiding the more stringent requirements of the tort of intentional infliction of emotional distress which requires extreme and outrageous conduct).
Because not every intentionally caused harm gives rise to an actionable tort, we apply a balancing test to determine whether there is a cause of action under prima facie tort theory. Beavers v. Johnson Controls World Serv., Inc., 120 N.M. 343, 348, 901 P.2d 761, 766 (Ct. App. 1995); Schmitz, 109 N.M. at 394, 785 P.2d at 734. The activity complained of must be balanced against both its justification and the severity of the injury, weighing the injury, the culpable character of the conduct, and whether the conduct is justifiable under the circumstances. Schmitz, 109 N.M. at 394, 785 P.2d at 734.
Martinez relies on Beavers, to support her prima facie tort claim. Accordingly, we examine that case, in some detail, noting the vivid contrast between the facts in Beavers and the case at hand. In Beavers, 120 N.M. at 345-47, 901 P.2d at 763-65, the plaintiff's supervisor knew of her sensitivity and, nevertheless, embarked on a course of conduct intended to humiliate, belittle, and create a hostile work environment for her, forcing her to resign or seek a transfer. The supervisor persisted in ridiculing and disparaging the plaintiff, even after receiving written notice that she had been hospitalized for work-related stress. Id. at 347, 901 P.2d at 765.
After performing the requisite balancing test, we concluded in Beavers that the supervisor's conduct was unjustified, furthered no legitimate business interest, and that the means he used were "outside the ambit of legitimate employer behavior." Id. at 350, 901 P.2d at 768; see also id. at 348-50, 901 P.2d at 766-68 (ba
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