## Facts

- The defendant allegedly discharged a loaded gun multiple times from his home into and through the plaintiff’s apartment window.
- The shots broke the plaintiff’s windows; bullets entered a room where the plaintiff was located and damaged household articles.
- At the time, the plaintiff was in bed shortly after giving birth.
- No bullet physically struck the plaintiff, but she alleged extreme fright, nervous shock, hysteria, and resulting serious illness.
- The complaint alleged the shooting was wanton, reckless, unlawful, and done without regard for plaintiff’s safety, when the defendant knew or should have known the apartment was occupied (it was lighted).
- Although the complaint used the term “assault,” it primarily pleaded the above conduct and resulting injuries.

## Issues

1. Whether allegations that a defendant recklessly fired a loaded gun into an occupied apartment, causing fright, nervous shock, and illness without direct physical impact, state a legally cognizable cause of action sufficient to survive dismissal for failure to state a claim.

## Decision

- The appellate court reversed the order dismissing the complaint under Rule 106 for failure to state a cause of action.
- The court held the complaint’s factual allegations, taken as true, were sufficient to plead an actionable tort claim.
- The court stated it was unnecessary to decide whether the conduct was technically an “assault” because the other alleged acts independently stated a cause of action.
- The complaint was reinstated for further proceedings.

## Legal Principles

- On a motion to dismiss for failure to state a cause of action, the pleaded facts are taken as true and assessed for whether they support any legally cognizable claim.
- Wanton or reckless discharge of a loaded firearm into a dwelling, with knowledge or reason to know it is occupied, can support tort liability for resulting personal injuries.
- A plaintiff may plead recoverable personal injury where extreme fright or nervous shock is alleged to have produced physical illness, even absent direct bodily impact from the projectile.
- Liability need not turn on technical labels (such as “assault”) when the factual allegations describe independently actionable wrongful conduct.

## Conclusion

The court held that allegations of repeated, reckless gunfire into an occupied apartment—causing fright-induced illness though no bullet struck the plaintiff—were sufficient to state a claim, requiring reversal of dismissal and reinstatement of the complaint.


Beck v. Libraro, 220 A.D. 547, 221 N.Y.S. 737 (App. Div. 2d Dep’t 1927)