The Huffington Post reports that the woman who released worms and crickets on a NYC Subway on August 24, 2016, Zaida Pugh, said she did so as a prank. As can be seen on the video included in the article, the release of the creatures created pandemonium and caused people to scream in terror; apparently the emergency brake was pulled at some point.
Can she be sued? And if so, for what?
(Side point: Anyone can “sue” anyone, for anything, at any time, as long as they are physically capable of drafting a complaint and filing it in court. Whether such a lawsuit would be successful is another story; thus the question is better phrased “Can she successfully be sued?”.)
One potentially applicable cause of action is “intentional infliction of emotional distress,” the so-called “tort of outrage.”
The elements of intentional infliction of emotional distress are:
- extreme and outrageous conduct;
- the intent to cause, or the disregard of a substantial likelihood of causing, severe emotional distress;
- causation; and
- severe emotional distress.
Courts have held that “[f]or conduct to meet the standard of extreme and outrageous, it must be 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 civilized society” and that “[t]he bar is extremely high” such that “[t]his highly disfavored cause of action is almost never successful.” (Flynn-Rodriguez v. City of New York, No. 14-CV-2287, 2016 WL 4468186 (E.D.N.Y. Aug. 24, 2016).)
Nevertheless, one could argue that releasing bugs on a crowded train, in such a small space, from which there is no reasonable means of escape, makes out such a claim. (I express no opinion as to whether such a claim would ultimately be successful.)
Another principle that might come into play is the so-called “egg shell skull” rule. Specifically, as set forth in the Pattern Jury Instructions (which do not have the force of law, but are nonetheless instructive):
The fact that the plaintiff may have a physical or mental condition that makes (him, her) more susceptible to injury than a normal healthy person does not relieve the defendant of liability for all injuries sustained as a result of (his, her, its) negligence. The defendant is liable even though those injuries are greater than those that would have been sustained by a normal healthy person under the same circumstances.
N.Y. Pattern Jury Instr. – Civil 2:283.
To the extent this provision is applicable, if someone on that train was returning from their meeting at COTPA (Cricket On Train Phobes Anonymous), the defendant(s) will have a difficult time arguing that they should not be accountable for that person’s increased susceptibility to injury.
What if, for example, that person was so traumatized that they were killed while trying to climb outside the train to escape the bugs?
Update: Cricket lady has apparently been arrested.