readery: Because the tort is very simple and only requires evidence of a loving marriage, the substantial diminution of affections (complete distruction isn’t required), and causality, it shouldn’t be difficult to survive a motion to dismiss and get to a jury trial.

I don’t know about anyone else but I am much more interested in what would be required for the suit to get past summary judgement. It seems trivial to plead this sort of case well in any divorce against almost any associate of one’s ex-spouse. The question to my mind is whether such a case, given what is known about this case thus far, if it seems likely that one could come up with enough evidence merely on the allegations provided to get past a summary judgement motion.

One only has to set out a prima facie case to get past a motion to dismiss and get to the jury. Because the tort is very simple and only requires evidence of a loving marriage, the substantial diminution of affections (complete distruction isn’t required), and causality, it shouldn’t be difficult to survive a motion to dismiss and get to a jury trial. However, because of a variety of other evidence the defense could bring up, it’s entirely possible the jury would ultimately find for the defendant’s if a lawsuit happened. However, they could find for the plaintiff. It depends on who the jury ultimately believes, who they sympathize with, who they think the wrongdoer and who the wronged. This involves variables that cannot be completely predicted in advance.

Here’s my viewpoint. This is stupid. While in just about any divorce, I am sure someone can argue a well-pleaded case of alienation of affections against any of the former spouse’s associates sufficiently to survive a MTD, I think the real question here is whether one can survive summary judgement.

It doesn’t seem to me much of a feat to file a lawsuit of this sort that survives an MTD. However, I would expect the fundamental question here to be whether what is known at the moment make it likely that the case would survive a summary judgement and get to a jury, or whether a judge would read through the discovery record and issue a judgement for Young.

MCM: The inability of people to understand this tort astounds me.

Because the rest of the country got rid of it ages ago ;-) (and good riddence!)

MCM:
Those are all questions of fact for the jury. This is what good trial lawyers are for.

This being said, I would think that a jury would look less-than-kindly on allegations of alienation of affection based on a cover-up that was similar to what the plaintiff had done in previous cases. It would seem to me rather difficult to argue that Mrs. Edwards’ coverups were legitimate but Mr Young’s were not, esp. if Mrs. Edwards was involved in covering up the affair too. The obvious argument is that Mr Young was doing Mrs. Edwards a favor, not harming her interests at all.

I would think you would need more than a cover-up allegation to get very far. Now, if Mr Young had made arrangements for Mr. Edwards and his mistress to meet, etc. then I could see it.

Somehow, the facts we are getting seem either incomplete or inaccurate.

MCM: this is a blog comment section. For many reasons — your nitpicking, your near-hijacking of this thread, etc — please chill.

“Near-hijacking”? I have only talked about AoA in this thread. Please show me where I “near-hijacked” it, so that I can complete the hijacking. Maybe you’re mad that you made a poorly worded post and made yourself look foolish. That sounds like a personal problem you should work out elsewhere. This is a blog comment section, after all.

And if you think I was “nitpicking” I suggest you find yourself a new vocation.

Substantively: you’re not necessarily right on the jury issue. Aside from various procedural motions that can be used to keep things away from a jury (judgment on the merits, summary judgment, appeals, etc.), there are a lot of women who are not going to have much sympathy for her. Yes, there’s the emotional “hands off the dying lady” thing, but women are tough on each other, and few women (and almost no men) would shed many tears for the woman who stayed in her marriage when she was healthy and only now sues… her husband’s friend. Trust this; women are tough on each other.

You should type “women are tough on each other” a few more times. Third time’s a charm, at least.

In other words you have no argument and you’re just banging empty platitudes into your keyboard.

That’s because you were supposed to let her enter before you, not behind you.

The door opened inward.

The following bit of verse speculated during the campaign about who Obama would pick to replace Biden as running mate, after Joe had made the umpteenth gaff in one week. Seems like a long time ago:

When Joe doth go, whose shall replace
that surgically enhanc-ed face?

There’s Edwards, of the Breck girl bang.
On this slim sylph O’s fate would hang?
“Throw out Don Juan!” would be the cry.
Edwards tends bedwards, there let him lie.

Or what of Gotham’s crown-ed Hill?
She’d do the job, but for her Bill.
For he would, like Polonious, lurk
behind an arras, with a clerk.

There’s el bandito Richardson:
a stew-ed hen, far too well done.
And hobbit-boy Dennis Kucinich?
A spine as stiff as wilted spinach.

The rest, ’tis sad, but must be said:
they’ll not be missed when they are dead.
Doddering fools, thin piping Reids,
Pelosi gorgons mouthing screeds….

Which leaves us with the blessed O,
Overstock of charm and brio.
There’s none that’s fit to tend his train,
so all alone the O shall reign.

In addition, I think people are narrowing the idea of “covering up” down to “lying about it so nobody would find out.” If what we’ve heard is true, then Young has done so much more, so very much more, than this. My understanding is that he actively facilitated their trysts and that the deceptive acts went far beyond just not telling Elizabeth, or denying it.

You’re right; there may be no right of contribution under the applicable statute for an intentional tortfeasor. However, this defendant could at least bring in the cheating spouse/employer, as his principal to whom he would look to be indemnified for harms caused while acting at the principal’s direction.

Unless NC law is to the contrary, he would also likely have claims for equitable indemnity against both the cheating spouse and the other woman. Access to this very broad equitable claim would (or should) not be barred to an intentional tortfeasor. The whole point of the remedy is to put the damages on the baddest of the bad guys, by shifting it from one whose fault is secondary or passive to one whose’s fault is primary or active. There are no requirements other than that, under all the facts, the one party should bear the loss. Equitable subrogation is another, similar, claim that could be made here.

As most contribution statutes expressly say they do not impair any right of indemnity under existing law, they would (or should) not block this avenue to make the happy couple pay.

That’s because you were supposed to let her enter before you, not behind you.

I lived in NYC and haved lived for years in Chicago. I habitually open doors for women, and have not in my memory had such a reaction. I’ve had smiles and thanks, but no shock.

If you really don’t like us up here, the road lies open to the south; watch the ice.

Virginia looks down on both.”

In (North) Carolina, they’re taught the 3 R’s: Readin’, ‘Ritin’, and Road to Richmond. :-D

As for the supposed suit, the whole lot of them are already losers. This is just KingQueen of the Hill.

Substantively: you’re not necessarily right on the jury issue. Aside from various procedural motions that can be used to keep things away from a jury (judgment on the merits, summary judgment, appeals, etc.), there are a lot of women who are not going to have much sympathy for her. Yes, there’s the emotional “hands off the dying lady” thing, but women are tough on each other, and few women (and almost no men) would shed many tears for the woman who stayed in her marriage when she was healthy and only now sues… her husband’s friend. Trust this; women are tough on each other.

Dan Weber: NC is a contributory negligence state, right? Does that apply to AoA?

Alienation of affection was, at common law, an intentional tort, so no, contributory negligence does not apply. Also, in response to an earlier post regarding Andrew Young possibly bringing in others by third-party complaint for contribution, it was my recollection from Torts (admittedly some 29 years ago now – I’ve never practiced in that area) that contribution claims were also inapplicable to intentional torts – contribution is an equitable remedy which can be barred by “unclean hands”, which would be the case for all intentional tortfeasors. Is that right? Or am I experiencing the onset of Alzheimers?

(Somewhat unrelated, but there is a legislative rule that prohibits plaintiffs from suing businesses for the actions of their employees.)

Under a theory of AoA, of course. So no suing strip clubs, et cetera.

One question: since “contributing” to the loss of affection is the standard for causation, presumably Young can bring in by third party pleading, not just “the other woman,” but all the other joint tortfeasors — i.e., everyone else in the campaign, in town, around the country, at the National Enquirer, in Elizabeth’s circle (?), etc., who knew and said nothing, to make contribution.

Knowing and saying nothing is not the same as actively concealing. But yes, the behavior has to be malicious – like enabling an affair by actively covering for John or facilitating the behavior.

I don’t see how maliciousness can be conjured out of an employee following the employer’s directions, and talking public responsibility for the employer’s actions. And what duty did the employee owe to the plaintiff that required him to inform her? Under this rule, half the bar tenders and hotel managers in town could be liable for not informing on their customers.

Again, it’s not the “not informing”, it’s the active concealment and facilitation. The duty is “don’t interfere in my marriage in a way that you know is likely to negatively impact it”. And again, since the standard is malice, you’d have to know the person is married. There’s no duty to inform, but there’s a duty not to interfere.

I’m not sure how the employment relationship matters here. Every person in North Carolina has a duty not to maliciously cause the end of happy marriages.

(Somewhat unrelated, but there is a legislative rule that prohibits plaintiffs from suing businesses for the actions of their employees.)

“An Economic Approach to Adultery Law,” Chapter 5, pp. 70-91 of Marriage and Divorce: An Economic Perspective, edited by Antony Dnes and Robert Rowthorn, Cambridge: Cambridge University Press, 2002.A long- term relationship such as marriage will not operate efficiently without sanctions for misconduct, of which adultery is one example. Traditional legal sanctions can be seen as different combinations of various features, differing in who initiates punishment, whether punishment is just a transfer or has real costs, who gets the transfer or pays the costs, whether the penalty is determined ex ante or ex post, whether spousal rights are alienable, and who is punished. Three typical sanctions, criminal penalties for adultery, the tort of alienation of affections, and the self-help remedy of justification are formally modelled. The penalties are then discussed in a variety of specific applications to past and present Indiana law. In MS-Word, , and pdf. ( http://rasmusen.org/published/Rasmusen_02.BOOK.adultery.pdf) .

You say, “[t]o get to the jury you just have to be arguing that the defendant did some kind of malicious act (covering up an affair seems easy enough) that somehow led to the end of the marriage.”

I think you are stretching the tort, at least for proceedings that look beyond the sufficiency of the pleadings. There is such a thing as summary judgment. Correct me if I’m wrong, but the explanations of the tort, both generally and in N.C., indicate that, in order to be liable, the defendant’s conduct must (a) be “malicious,” or at least be done knowing the likely result, and (b) actually contribute to or cause the loss of affection.

I don’t see how maliciousness can be conjured out of an employee following the employer’s directions, and talking public responsibility for the employer’s actions. And what duty did the employee owe to the plaintiff that required him to inform her? Under this rule, half the bar tenders and hotel managers in town could be liable for not informing on their customers. And what of the employee’s actual duties to his creepy boss; don’t they count? If not, could a clergyman or advisor to whom the cheating spouse confessed be liable for not revealing the confidence?

Second, “contribute to or cause,” however elastic “contribute” is read, implies a degree of causality far stronger than the “somehow led” you mention. That seems little more than “but for” causation. At that rate, and if no duty is required, the guy at the gas station who fills the cheating spouse’s car on his travels to the trysts can be liable, if he knows where he’s going.

If this is wrong, you might want to provide case citation to instances where a third-party, such as an employee of the unfaithful spouse, or another bystander, with no duties running to the plaintiff, was found liable simply for helping to conceal, or just failing to reveal, the spouse’s infidelity.

One question: since “contributing” to the loss of affection is the standard for causation, presumably Young can bring in by third party pleading, not just “the other woman,” but all the other joint tortfeasors — i.e., everyone else in the campaign, in town, around the country, at the National Enquirer, in Elizabeth’s circle (?), etc., who knew and said nothing, to make contribution. Yes?

Bama 1L: Virginia looks down on both.

True dat.

Bama 1L:
Virginia looks down on both.

In North Carolina we like to say that we are a vale of humility between two mountains of conceit.

The timing of her knowledge isn’t even “relevant” to whether it was Young’s actions that “destroyed” a “loving marriage” (as opposed to, say, the fact that John had an affair resulting in a love child)? The fact that she herself tried to cover up John’s affair is not even “relevant” to her claim that someone else’s cover-up was what did the marriage in?

Relevant to the JURY, yes. Not relevant to the prima facie case of alienation of affections.

MCM, if you could keep the snark down to a minimum and read what I wrote, you would see that I was making perfect sense. I wasn’t talking about a prima facie case, which seems to be your tunnel-visioned focus on this thread, but about whether or not Elizabeth can win.

On the contrary, I suggest YOU read what you wrote. Maybe you shouldn’t have concluded your post by asking,

In other words, can you really sue for alienation of affection when the affection wasn’t there to be alienated?

and instead asked something like, “Can you win at trial when…”.

She doesn’t just need to prove a prima facie case of actual causation, but needs to survive any evidence to the contrary that Andrew Young might put on. Last time I checked, defendants are entitled to cross-examination and to put on their own evidence. While Elizabeth’s prima facie case may be mildly amusing, Young’s side of the case would be hysterical. I’m trying to imagine Elizabeth, on the witness stand, answering questions like “How many women had John slept with before he met Andrew Young?” and “Instead of covering up the relationship, had Mr. Young told you that your husband was promising to marry Rielle Hunter in a rooftop ceremony in Manhattan, complete with the Dave Matthews Band, what would you have done to save your marriage?”

Yes, that’s precisely the kind of question that the NC Rules of Civil Procedure allow. But more importantly…

My lawyerly advice to her would be to stay far, far away from a lawsuit like this, because any decent defence attorney would humiliate her… and she would have no one to blame but herself.

I really think you are underestimating the sympathy value of a wronged, dying woman. Juries eat that crap up. This is not an argument in front of a bunch of law students. This is a soap opera. You are not going to get anywhere trying to humiliate the victim in cross-examination.

A. Zarkov: Last Fall I toured Charleston and the locals told me that NC and SC are quite different, and in fact rivals. One looks down on the other.

Virginia looks down on both.

I’m astounded, too — that the same person made each of the above statements. The timing of her knowledge isn’t even “relevant” to whether it was Young’s actions that “destroyed” a “loving marriage” (as opposed to, say, the fact that John had an affair resulting in a love child)? The fact that she herself tried to cover up John’s affair is not even “relevant” to her claim that someone else’s cover-up was what did the marriage in? Maybe “relevant” has a different meaning in North Carolina.

But how hard do you really think it will be for Elizabeth to claim there was one, and cite some basic evidence that one existed?

MCM, if you could keep the snark down to a minimum and read what I wrote, you would see that I was making perfect sense. I wasn’t talking about a prima facie case, which seems to be your tunnel-visioned focus on this thread, but about whether or not Elizabeth can win. She doesn’t just need to prove a prima facie case of actual causation, but needs to survive any evidence to the contrary that Andrew Young might put on.

Last time I checked, defendants are entitled to cross-examination and to put on their own evidence. While Elizabeth’s prima facie case may be mildly amusing, Young’s side of the case would be hysterical. I’m trying to imagine Elizabeth, on the witness stand, answering questions like “How many women had John slept with before he met Andrew Young?” and “Instead of covering up the relationship, had Mr. Young told you that your husband was promising to marry Rielle Hunter in a rooftop ceremony in Manhattan, complete with the Dave Matthews Band, what would you have done to save your marriage?”

My lawyerly advice to her would be to stay far, far away from a lawsuit like this, because any decent defence attorney would humiliate her… and she would have no one to blame but herself.

Bob from Ohio: I think Young has some money but is it worth years of bad publicity to her?

theobromophile: Aside from the deep pockets issue, there’s nothing to be gained by suing Young (and this goes for Rielle Hunter suing Young to get the sex tape).

Maybe Elizabeth Edwards will feel better if she can get a court to say Young wronged her and force Young to write her a check. That’s why we call alienation of affection a “heart-balm tort.” It’s never really about the money damages.

Of course, that’s also why nearly every jurisdiction has abolished it.

In other words, can you really sue for alienation of affection when the affection wasn’t there to be alienated?

If you don’t claim the existence of a loving marriage in your complaint, then no, you can’t. But how hard do you really think it will be for Elizabeth to claim there was one, and cite some basic evidence that one existed?

Aren’t you supposed to be a lawyer or something?

That had Elizabeth known about this particular affair, John would have suddenly become a model husband? That, after failing to stop a plethora of other affairs, this one (when John has made comments about having Rielle marry him after Elizabeth passes) would have ended?

Again, you fail to understand the basic elements of the tort. She does not have to prove that Young caused John to cheat. She does not have to prove that John would have stopped cheating. She only has to convince the jury that she could have saved the marriage if she had known of the affair earlier.

It has nothing to do with the cheating occurring or not occurring. She can even have known of prior affairs, so long as she can convince the jury that the marriage was generally happy in spite of them.

The inability of people to understand this tort astounds me.

The traditional facts are a wife sueing the other woman (why wouldn’t she sue Rielle?)

My thoughts exactly. Aside from the deep pockets issue, there’s nothing to be gained by suing Young (and this goes for Rielle Hunter suing Young to get the sex tape).

It would be funny, though, to watch Elizabeth argue that if Young had been different, Edwards would have stopped tomcatting around. What’s the argument? That had Elizabeth known about this particular affair, John would have suddenly become a model husband? That, after failing to stop a plethora of other affairs, this one (when John has made comments about having Rielle marry him after Elizabeth passes) would have ended?

In other words, can you really sue for alienation of affection when the affection wasn’t there to be alienated?

Her reputation (since she knew about it and still campaigned for president) is already under fire, this would not help.

Does she want to be on Court TV that much?

Last Fall I toured Charleston and the locals told me that NC and SC are quite different, and in fact rivals. One looks down on the other. Charleston is certainly the most friendly and polite city I have ever visited. The contrast with California is stark, where rudeness is almost a way of life, especially in Berkeley.

I moved to Chicago from North Carolina some years ago and held the door open for a woman entering a building behind me. She was shocked.