Richard A. Pulaski Const. Co., Inc. v. Air Frame Hangars, Inc., A-40-07, (Sup. Ct., July 1, 2008) — In a non-employment case that may have implications for employers, the Supreme Court declined for now to recognize the cause of action known as "prima facie tort," and held that if the tort is ever to be recognized, it is only available when there are no other tort causes of action available to a plaintiff. Here, Plaintiff sued defendant for failure to pay for construction services. Plaintiff secured an arbitration award against Defendant under a fraud theory, but was not able to recover because Defendant had no assets. Plaintiff also asserted a claim for prima facie tort under the Restatement (Second) of Torts §870, which allows for recovery against a party when a party intentionally inflicts harm, without any excuse or justification, by an act or series of acts which would otherwise be lawful and which results in special damages.
The Court, while refusing to recognize whether such a claim is ever available, held that such a claim cannot exist when the plaintiff has an effective remedy under a different cause of action, as it did here. The case may have implications for employers if the prima facie tort is ever recognized, as it creates a possible cause of action for alleged workplace wrongs when no other applicable cause of action exists.