Boyles v. Kerr

BOYLES, Jr., Petitioner, Dan KERR, Leigh Respondent.

Susan

No. D-0963.

Supreme Court of Texas.

5,May 1993.

Concurring Opinion by Justice Gonzalez Rehearing

on Motion

5,May 1993.

Supplemental Dissenting Opinion by Doggett

Justice Motion

Rehearing 5,May 1993.

Dissenting Opinion by Justice

Doggett Dec. 1992.

Concurring Opinion and Dissenting Cook Justice Dec. tape Boyles possession took short- ON MOTION OPINION made, subsequently and ly after was REHEARING FOR occasions, each it on three time at a showed

PHILLIPS, Justice. Chief he Although showed the private residence. friends, gossip about the tape to ten rehearing motion for Respondent’s spread among many of Kerr incident soon opinion of December overruled. Our Boyles’ friends in Houston. Soon and following is and the is withdrawn school, many students at Kerr’s Southwest place. substituted its school, University, Boyles’ and Texas State Austin, also University of Texas in This is a suit for story. not Kerr did aware distress. We hold became fliction of emotional until December duty in not to learn of video general Texas there is Boyles stopped had see- long A after she and negligently inflict emotional distress. him, anguish dam After she confronted may recover mental each other. claimant had eventually with defendant’s admitted what he ages only in connection legal duty. tape Because to Kerr. breach of some other and surrendered done only on the Respondent proceeded below made. copies had been No negligent infliction of emotional theory of alleges that she suffered humilia- Kerr distress, judgment of the we reverse the from the and emotional distress tion severe appeals in her favor. 806 S.W.2d court surrounding it. gossip videotape and the However, justice, in the interest and even ca- gatherings, friends At social trial. remand for a new we approach her and acquaintances would sual video, wanting know about

comment “why did going to do” or “what [she] I stigmatized Kerr tape it.” The do [she] 10, 1985, Dan August Petitioner On queen” reputation “porno with the Jr., seventeen, covertly video- Boyles, then friends, and she among some of her Respondent taped nineteen-year-old Susan notori- and claimed that the embarrassment engaging in sexual intercourse Leigh Kerr performance. her academic ety affected dating steadily, Although him. not with made it that the incident Kerr also claimed they had known each other a few months men, although for her to relate to difficult previous sexual en- and had shared several subsequent sex- having had she testified to she had not counters. Kerr testified that Eventually, relationships. she ually-active prior to her relation- had sexual intercourse counselling. sought psychological ship Boyles. with Broesche, and Boyles, Widner Kerr sued Boyles, were both home Kerr and who Tamborello, invasion alleging intentional summer, plans made for the had Houston privacy, privacy, negligent invasion of go night on the of the incident. out intentional) (but infliction of arranged up, Boyles picking Before Kerr the case was Before emotional distress. friend, Broesche, Karl to use the with a however, Kerr jury, to the submitted house for sexual intercourse Broesche except neg- dropped all causes of action suggested videotaping the Kerr. Broesche distress. The ligent infliction emotional activity, Boyles agreed. Broesche for Kerr on that jury returned a verdict friends, Paul Ray Widner and John two claim, $500,000 in dam- assessing actual Tamborello, in a hid a camera bedroom that all defen- ages. jury The also found Boyles arrived. After set- before Kerr and awarding negligent, grossly dants were camera, videotaped the three ting up the $500,000 damages, punitive additional making crude comments and themselves $350,000 against assessed of which was activity that was to follow. jokes about the judgment Boyles. The trial court rendered running, camera and the They left with the jury’s verdict. recorded. accordance with ensuing activities were distress. ably emotional foreseeable appealed the court Only Boyles said: judg- Court That court affirmed the appeals.1 him, concluding that Kerr emotion- against

ment from severe Clearly, freedom the law negligent infliction of interest which established al distress is an Having The rec- protect_ distress under the facts of this case. to should serve protec- appeals court also affirmed based an interest merits ognized of that negligent privacy, though tion, this court to contin- invasion of even it is the of theory prior legal to of this ually Kerr abandoned this sub- monitor the doctrines from jury public of the case to the and did not is free mission state to insure argue right it as a basis for affirmance restrictions on the brief unwarranted appeals. wrongs the court of redress committed seek Thus, hold that against we them.... II injury resulting from proof physical of longer an element anguish mental Initially, must we determine whether negligent of the common law action for negligent infliction of emotional distress anguish. mental infliction of independent constitutes an cause of action recognized Texas. Kerr claims that we justices joined Four 730 S.W.2d at 653-54. right negligently a broad to recover for judgment, in the but concurred on the inflicted emotional distress in St. Elizabeth grounds that the same result could be Garrard, (Tex. Hospital v. reached under the traditional Texas rule 1987). Boyles contends that the Garrard allowing damages aris- emotional distress holding particular is limited to the facts of mishandling corpse. ing from the of a Id. that case. was, holding 654. If the Court’s contends, mishandling limited to the Garrard, In hospital negligently dis- corpses, concurring opinion would posed baby Garrards’ stillborn an written, not its ratio- need have been unmarked, grave common without incorporated nale would have been in the plaintiffs’ knowledge or consent. The Gar- majority opinion. rards sued for infliction of emo- distress, tional alleging they liability without standard under this new any physical tort, however, suffered injury. entirely This Court never clear. was they nonetheless concluded that had stated to indicate that Garrard seemed “trivial” a cause of action. compen- We determined that emotional distress should not be recognized sated, “Texas first negli- similarly the tort of 730 S.W.2d at gent anguish infliction of mental protect against Hill v. should law “severe” Kimball, (1890).” 76 Tex. 13 S.W. 59 emotional distress. Id. at 653. Rather tort, said, 730 S.W.2d at 652. This articulating any we had than threshold level of se- however, been administered under verity, traditional tort concluded that Court concepts, subject only “[¡jurors to a refinement on are best suited to determine the element damages: the mental suf- whether and to what extent the defen- fering compensable is not compensable unless it mani- dant’s conduct mental caused physically. anguish by referring fests itself Id. After experi- determin- to their own physical require- manifestation ence.” Id. at 654. arbitrary ment was because it “denies holding While the was cor- Garrard persons court access to with valid claims rect, reasoning conclude that we its was they prove permitted so,” id., could if to do interpretation based on an erroneous proceeded we to abolish it. 730 S.W.2d at Kimball, step Hill and is out Therefore, jurisdictions. most American proceeded, believe, language The Court then we we overrule the Garrard general duty create a not recognizes indepen- to inflict reason- the extent that judgment appeal. 1. Broesche settled with Kerr after the rendered; Widner and Tamborello did not negligently anticipated plaintiff inflict- have would right

dent to recover for Instead, distress. ed emotional distress. mental an- suffer emotional damages compensated only guish should be Hill, therefore, recognize did not a cause in connection with defendant’s breach of action for infliction of emotion- duty imposed by some other law. This was recognized merely right al distress. It Garrard, recovery prior basis injuries to recover for under stan- expanded scope liability based which negligence principles, notwithstanding dard on a misconstruction of Hill v. Kimball. physical injury produced that the indi- rectly through emotional trauma. Gar- Hill, pregnant suffered a woman Hill, merely modify thus rard did but miscarriage when she witnessed the defen- entirely cause created an new of action. severely beating yard. in her dant two men physical injuries The sued for her woman vigorously The dissent denounces our ab claiming the negligence, under emo- Garrard, in olition of the tort created call witnessing beatings the tional trauma of ing “controlling precedent” that contains miscarriage the de- produced the and that pronouncement” a “rather clear of a new reasonably anticipated fendant should have affirming respect dig “the human tort for danger the to her. The Court found that 607, 608, (Dog nity.” at 605 plaintiff the had stated a cause of action. J., dissenting rehearing). gett, Gar- however, basis, physical injury was the rard, however, lofty pedes ill deserves the suffered, together allega- with her she had belatedly tal to the dissent has ele which foreseeability. tion of The Court reasoned today, justices it. the of this vated Even as follows: agree cannot on the extent of Gar Court (Gonzalez, reach, s see at 604 rard’ infra physical personal injury may That a be J., rehearing), concurring on motion produced through strong a emotion of holding. its broad we have never embraced the mind there can no doubt. The Pasadena, Thus, 744 City in Freeman v. produce fact that it is more difficult to (Tex.1988), by we limited the S.W.2d 923 injury through operation of such an persons cause of action to those stander the mind than direct means meeting Legg, the criteria of Dillon v. ground refusing affords no sufficient 72, 80, 728, 441 P.2d Cal.Rptr. Cal.2d law, compensation, in an action at when 912, (1968), citing without even Gar- injury intentionally negligently the inflicted_ is potential a basis for broader liabili rard as Here, according to the alle- ty. Ray, the author of the Court’s Justice gations petition, the defendant has Garrard, noting in in a con- opinion while bodily injury by produced a means that, opinion because curring Freeman emotion, injury and it is for that Garrard, “perhaps by- for a need sought. that the is without a stander cause of action now 215, 76 Tex. at 13 S.W. at 59. 925, basis,” explain did not S.W.2d could not only why plaintiff in Freeman The Court considered whether Further, physical inju- her recover under the tort. plaintiff could recover for Garrard ries, Reagan Vaughn, re- held in not whether she could otherwise Court 463, (Tex.1990),that a child her mental S.W.2d cover for emotional distress or damages anguish mental anguish by witnessing beatings. caused could not recover Furthermore, resulting injury parent, to a liability from a severe the Court noted “whether, considering as a basis for depend on under the cir- without Garrard would him, cumstances, Doggett, who now lights recovery. before Even Justice and with in the recov- reasonably prudent man would have an- views Garrard as landmark damages, ticipated danger ery to her or not.” Id. In of emotional distress did words, vigorous worthy the defendant was deem it of citation his other impos- concurring dissenting Reagan. if he should have known that he was fact, recov- physical injury upheld risk of this Court has never an unreasonable plaintiff, merely ery not if he should under the tort. to the Garrard Garrard concluding that struggling apparently Were we Court Garrard, Crump, Professor one perhaps could limit the case limited to its facts. we counsel, Boyles’ appellate argued has slip quiet to its facts and let it into oblivion. important sight not to lose try But other courts must to understand it ... “[i]t Thus, relationship between many as well. while lower Texas of the contractual Garrard creating hospital patient courts have read as the source of the independent David underlying cause of action for [in Garrard].” distress, see, Independent e.g., Evaluating Torts Crump, infliction of emotional Inc., Campos upon “Negligent” Hosp., v. Ysleta Gen. 836 Based “Intentional" or How Emotional Distress: (Tex.App. S.W.2d Paso Infliction of — El B.C.G., Keep Dissolving denied); Baby C.T.W.v. 809 S.W.2d Can From We writ Water?, in the Bath (Tex.App. 34 Ariz.L.Rev. — Beaumont writ); (1992). Massey Massey, S.W.2d (Tex.App. [1st Dist.] — Houston Considering opinions and those of McNamara v. Freedom requested); writ courts, other Texas well as the law Inc., Newspapers, 903 n. 2 jurisdictions, Garrard most American (Tex.App. Corpus Christi de writ — fairly anomaly could be characterized as an nied); Dominguez Kelly, rather than a landmark. We believe the 749, 1990, (Tex.App. 753 Paso writ de — El jurisprudence of our state is better served nied); Orkin Exterminating Co. v. Wil by overruling language broad Garrard’s liamson, 905, (Tex.App.— 785 S.W.2d 912 it as in Free- outright, ignoring rather than 1990, Dep’t denied); Texas Austin writ of man, limiting the case to its facts as Winters, Corrections v. 531, 765 S.W.2d Delta, Harmon pretending or that the 1989, (Tex.App. 532 writ de — Beaumont concurring opinion was fact the rationale nied); City Watauga Taylor, v. 752 of majority. of the 199, (Tex.App. S.W.2d 204 Worth — Fort Garrard, By overruling language of 1988, writ); see no Blankenship also only general duty we hold there no County, Kerr 893, (5th 878 F.2d 897 Cir. negligently not to inflict emotional distress. 1989), other “courts appeals of have not Our decision does not affect a claimant’s fully embraced holding.” Chiles v. [its] right anguish damages to recover mental Chiles, 127, 779 S.W.2d 130 (Tex.App.— caused defendant’s breach of some oth Dist.1989, denied). Houston writ [14th See, e.g., Fisher Coastal legal duty. er Moreover, some federal decisions have Co., Transp. 149 Tex. 230 522 S.W.2d with Garrard dealt by limiting the decision (1950) (negligent physi infliction of direct particular to its example, facts. For Lillebo, Moore v. injury); cal 722 S.W.2d Co., Harmon v. Grande Tire 821 F.2d death); Fisher v. (Tex.1986) (wrongful 683 (5th Cir.1987), 258 shortly decided after Hotel, Inc., 424 Carrousel Motor S.W.2d Garrard, the court stated that “[w]hile (Tex.1967) (battery); v. West Stuart 627 majority opinion in Garrard broadly Co., ern Union Tel. 66 Tex. 18 S.W. written, being only we read it as directed (failure (1885) telegraph company 351 proof.” the matter of The court thus con- message); Billings timely deliver death cluded that Garrard did not create a new Atkinson, 489 S.W.2d 858 (Tex.1973) (inva duty that would a non-eyewitness allow Assocs., privacy); Leyendecker & sion of bystander negligently to recover for inflict- Wechter, Inc., v. (Tex.1984) 683 S.W.2d 369 Id. also In re ed distress. See emotional (defamation); Foley Wyatt, Pat H. & v.Co. Air Airport, Crash at Dallas/Ft. Worth (Tex.Civ.App. S.W.2d 904 — Houston (5th Cir.1988). In Fiorenza v. 856 F.2d 28 n.r.e.) (negli writ ref’d [14th Dist.] Bank-Central, City First F.Supp. gent handling corpse). (E.D.Tex.1988), the court held Supreme Also, holding Texas Court does not does not affect “[t]he yet recognize separate right bystanders cause action to recover emotion employee/employer relationship damages al distress suffered as a result distress,” infliction of witnessing a serious or fatal accident. (Tex.1991). Also, Sloane, bystander rules 825 S.W.2d adopted the

Texas has may anguish damages not be recov- by the mental originally promulgated California Deceptive Trade Legg, 68 Cal.2d ered under the Texas Supreme in Dillon v. Court Act, 72, 80, 441 P.2d Tex.Bus. & Com.Code Cal.Rptr. Practices (1968): §§17.41-17.63, proof of a willful or absent grossly negligent violation. See Luna v. (1) located near plaintiff was Whether Sales, Inc., Dodge North Star accident as contrasted

the scene of the (Tex.1984); Duncan v. Luke Johnson away from one who was a distance with Ford, Inc., (Tex.1980). Our it; holding today not extend these rules. does (2) from a the shock resulted Whether impact upon plaintiff direct emotional imposing require are not We also sensory contemporaneous from the that emotional distress manifest itself ment accident, as contrasted observance of compensable. ex physically to be As from others learning of the accident Garrard, purpose plained in sole occurrence; and after its physical manifestation rule is to ensure (3) were plaintiff and the victim Whether genuineness claims for emotional dis related, closely as contrasted with an ab- criti 730 S.W.2d at 652. Garrard tress. relationship presence any sence of requirement as both under- and cized this relationship. a distant overinclusive, id., agree. and we See Julie Davies, Pasadena, Actions Emotional A. Direct City Freeman Possible?, Compromise (Tex.1988). Harm: Is Reagan also (1992) (the (Tex. 24-25 Wash.L.Rev. Vaughn, 804 S.W.2d rule “has been criticized 1990). require manifestation policy concerns relation ground that it has obvious limiting distress cause of ac the emotional harm”). emotional dis generally to emotional Where in the direct case do tion victim damages recognized is a element bystander in the case. Before a tress apply not recover, legal duty, a the claimant she must for breach of bystander may he or phys demonstrating a negligent may recover without that the defendant has establish the emotional distress. injuries ical manifestation of ly inflicted serious or fatal on rule, long has been the even before primary This victim. See, e.g., Leyendecker & As Garrard. emphasize are not We that we 369, Wechter, socs., Inc., 374 v. right to recover broadening a claimant’s (Tex.1984). by anguish damages mental caused breach recognize jurisdictions do not duty; right Most other particular of a we ieave such negligently inflict may general duty not to example, a claimant unaffected. For recovery by Many limit anguish damages in emotional distress. not recover mental physical manifesta- misrepresenta requiring proof of a connection with recovery where v. tion.2 Others allow tion. Federal Land Bank Assoc. 647, Merrill, Jackson, 114, 115, (Miss.1980); See, 406 e.g., Corso v. 119 N.H. v. 122 Ariz. Keck 668, (1979); Anderson, Norman, (1979); City P.2d Towns v. 593 669 Jines v. 351 A.2d 300 517, 1163, (1978); Allen, 1048, (Okla.1960); Colo. 579 P.2d 1165 Robb 195 Melton v. P.2d 1052 709, R.R., (Del. Pennsylvania 210 A.2d 715 1019, (1978); v. 731, Or. 580 P.2d 1021-22 282 1965); (Fla. Champion Gray, 478 So.2d 17 122, Pa.Super. Banyas Hosp., v. Lower Bucks 293 Powell, Goldstein, 1985); & Hamilton v. Frazer 1236, (1981); Reilly v. United A.2d 1239 437 States, 149, (1984); Murphy, S.E.2d 818 252 Ga. 311 894, (R.I.1988); Dooley v. 547 A.2d 895 Northwest, Inc., v. Max Rouse & Sons Hatfield 372, Hospital, 283 S.C. 322 Richland Memorial 944, 840, 851, (1980); 100 Idaho 606 P.2d 955 Behrens, (1984); 283 S.E.2d Chisum 669 Ctr., 233 Hoard v. Shawnee Mission Medical 235, (S.D.1979); Laxton v. Orkin N.W.2d 240 267, Vance, (1983); Vance v. Kan. 662 P.2d 1214 431, Co., Exterminating 433-434 490, (1979); Payton v. 286 Md. 408 A.2d 728 Ctr., (Tenn.1982); v. Medical 139 Vaillancourt 171, Labs, 540, N.E.2d 174 Abbott 386 Mass. 437 92, 138, (1980); Hughes A.2d 95 Vt. 425 4, LaCroix, (1982); Daley Mich. 179 384 214, Moore, 27, (1973); 214 Va. 197 S.E.2d 219 390, (1970); N.W.2d Okrina v. Midwestern 395 19, Soc’y, Wis.2d Meracle v. Children’s Serv. 400, (1979); Corp., 282 Minn. 165 N.W.2d 259 (1989). N.W.2d 69, Sears, Young, So.2d Roebuck & Co. v. foreseeability injury claimant establishes the breach of some reliance right independent duty.3 jurisdictions finding duty, A rec- alone in and thus a few ognize general right negli- recover, adequate recover is not when the distress,4 gently inflicted emotional but damages sought intangible are for an jurisdictions squarely these are in the mi- injury. In limitless liabili- order avoid nority. ty proportion degree of all to the of a out negligence, against defendant’s experience We find the in California to impossible which it is to insure without be instructive. In Molien v. Kaiser Foun imposing unacceptable costs on those 916, Hospitals, dation 27 Cal.3d 167 Cal. right among spread, whom the risk is 831, 838-39, Rptr. 616 P.2d 820-21 negligently caused emo- to recover (1980), Supreme the California Court abol tional distress must be limited. physical injury requirement, ap ished the parently creating independent an cause of Chusa, Thing v. La 48 Cal.3d negligently action for inflicted “serious” 865, 877-78, Cal.Rptr. 771 P.2d later, emotional years distress. Nine how (1989). ever, the court declared that “the negligent year, Last the court confirmed that Mol- causing of emotional distress not an inde creating relied ien should on as pendent tort....”, Marlene F. v. Affiliated independent tort for infliction Psychiatric Clinic, Inc., Medical 48 Cal.3d distress, recovery may but that 98, 101, Cal.Rptr. 770 P.2d duty arising preexist- lie “where a from a (1989), damages and that are recovera ing relationship negligently breached.” ble where there is a “breach of a Court, Burgess Superior Cal.4th plaintiff owed the that is assumed 615, 619, Cal.Rptr.2d 831 P.2d imposed defendant or on the defendant as a (1992). Burgess, plaintiff sued her law, matter of or that arises out of a rela obstetrician for emotional distress caused tionship between the two.” Id. 257 Cal. negligent delivery the doctor’s of the Rptr. at 770 P.2d at 282. In another plaintiff’s child. The court viewed the shortly F., case decided after Marlene professional malprac- claim as a traditional Supreme California Court further ex which, action, tice cause of under California plained as follows: law, supported anguish damages. mental is clear foreseeability [I]t Cal.Rptr.2d Id. 9 831 P.2d at 1203. injury alone is “guideline” not a useful duty allegedly breached was that aris- meaningful or a scope restriction on the doctor-patient relationship. from the [negligent infliction of emotional Id. experience action. The Dillon distress] recognized indepen-

confirms, Some courts have observed, as one commentator dent cause of action for “serious” or “se- “[fjoreseeability proves that too vere” emotional distress. v. Although may much.... it set See Schultz tolerable 131, Co., types harm, limits Barberton 4 Ohio St.3d 447 for most of Glass provides (1983); Co., virtually Nooney N.E.2d 109 646 liability no limit on for Bass v. (Mo.1983); nonphysical Rabin, State, [citing Rodrigues harm.” S.W.2d 765 v. Tort (1970). Recovery 156, Negligently Eco- 52 Haw. 472 P.2d 509 This for Inflicted Reassessment, however, standard, nomic Loss: A 37 Stan. fails to delineate mean- 1513, (1985) L.Rev. 1526 apparent recovery It is ingfully those situations where ]. Court, 1064, State, 156, Burgess Superior (1978); Rodrigues 3. See v. 2 Cal.4th 9 1180 52 Haw. 615, Cal.Rptr.2d (1992); Corgan 831 P.2d 1197 (1970); Osteopathic 472 P.2d 509 Gammon v. Muehling, 143 Ill.2d 158 Ill.Dec. Maine, Inc., (Me. 1987); Hosp. 534 A.2d 1282 of (1991); Legrand, N.E.2d 602 Oswald v. Inc., Markets, Supersave Johnson v. 211 Mont. (Iowa 1990); N.W.2d 634 Clomon v. Monroe Co., (1984); Nooney 686 P.2d 209 Bass Bd., (La.1990). City Sch. 572 So.2d 571 (Mo.1983); 646 S.W.2d 765 Johnson v. Ruark Assoc., Gynecology N.C. Obstetrics Ctr., Inc., Taylor Baptist 4. See Medical (1990); (Ala.1981); S.E.2d 85 v. Barberton Glass So.2d Montinieri v. Southern Schultz Co., Co., (1983). England New Tel. 175 Conn. 398 A.2d 4 Ohio St.3d N.E.2d should be way saying As one commentator another of allowed. emotional explained: has distress is foreseeable. imagine It is difficult to how a set of The dissent duty also would find a based developed

rules applied could be on a “special relationship” on a par between the case-by-case distinguish basis to severe agree ties. relationships We that certain from nonsevere emotional harm. Severi- give which, may duty breached, rise to a if ty proposition; is not an either/or it is support would an emotional distress award. Thus, degree. rather a matter any of Co., See Stuart v. Western Union Tel. attempt general to formulate a (1885) (failure rule Tex. 18 S.W. 351 inevitably would almost telegraph company timely result a deliver death requirement severity message); threshold so Foley Pat H. & Co. Wyatt, it, high a (Tex.Civ.App. handful would meet S.W.2d 904 — Houston n.r.e.) (funeral or so low that it would be an ineffective writ ref’d [14th Dist.] middle-ground negligent handling screen. A home’s corpse). rule would be doomed, However, upon specific duty for it there must be some would call courts to that, law, distinguish of care under the large between arises from numbers of relationship. point The dissent can factually cases to no too similar to warrant duty such in this case. The law has hereto would, different treatment. Such a rule sought impose specific legal fore not course, arbitrary application. its solely personal duties on a based relation Pearson, Richard N. Liability Bystand- ship, even an one. The intimate duties Negligently ers Emotional for Inflicted general Kerr owed to included the Harm —A Comment on the Nature Ar- duty willfully not to invade the other’s Rules, bitrary 34 U.Fla.L.Rev. privacy intentionally and the not to (1982). by outrageous inflict emotional distress judgment We therefore reverse the unnecessary recognize conduct. It is appeals the court of in favor of Kerr on the “special duty” some other on the based ground negligent infliction of emotional parties’ relationship provide intimate distress.5 recovery. for basis IV Ill argues Kerr if do not rec- even we recognizes The dissent that foreseeabil- ognize recovery infliction of ity injury adequate is not an basis to distress, recognize we should impose liability unintentionally inflicted grossly cause of action for inflic- emotional distress. 855 S.W.2d at 614. tion of emotional distress. She contends proposes The dissent therefore a test that judgment that the should be affirmed un- would allow where defendant der of action as she this alternative cause legal duty breaches “some not to cause jury finding, obtained a in connection with beyond harm to another by that created punitive damages, Boyles her that claim for foreseeability_” 855 S.W.2d at 615. grossly negligent. was duty may voluntary This arise “from the undertaking assuming of an affirmative that such a cause of ac- action that Even Texas, puts recognized another at risk....” tion Kerr could Id. We believe were “duty” that the dissent’s limitation no not recover on it under the record before “voluntary undertaking plead preserve limitation at all. A us she did not because puts theory recovery.6 simply ... that another at risk” is this Kerr’s trial issue, Boyles argues grounds, also that Kerr cannot we do not reach this and we recover express opinion thereon. negligence for intentional conduct under a theo Rider, 875, ry, citing Fulmer v. 635 S.W.2d rehearing, equates purported 6. On Kerr 1982, n.r.e.); (Tex.App. Tyler writ ref'd Nation — cause of action with intentional or reckless in- fliction of emotional Bourn, al Union Fire Ins. Co. v. 441 S.W.2d under Restatement distress (Tex.Civ.App. Worth writ ref'd (Second) contending gross of Torts that § — Fort n.r.e.). negligence Because we decide the case on other refer to the same and recklessness action, Boyles’ failure to and thus intention- causes only for asserted claims pleading by consent. constitute trial object invasion of did not privacy, invasion of al emotion- Un negligent infliction of Area Teachers Fed. Credit and Austin privacy See Hills, that petition does assert City Bank — Northwest al distress.7 v. First ion “malicious,” “willful,” Boyles’ (Tex.App. conduct was — Austin allega- negligent,” but these “grossly denied); Antonio v. City San writ support only made tions were (Tex.App. Lopez, 754 S.W.2d — San claim, separate not as a punitive damages denied). writ Antonio Moreover, petition cause of action. inten- remaining doubt about Kerr’s Any Boyles’ was out- that conduct never asserts by her actions in laid to rest tion was rageous. instructed response Boyles’ motion for contain “a short pleading A should Boyles’ counsel contended verdict. When sufficient of the cause of action statement negligence recover for that Kerr could not in- the claim give fair notice of to volved_” tried from the “the case has been because 47(a). We have Tex.R.Civ.P. ...,” finish as an intentional tort start to that, special recognized in the absence of strenuously, point- objected Kerr’s counsel exceptions, petition should be construed edly remarking that “should Court pleader. Roark v. liberally in favor of the suggestion, adopt counsel’s counsel would (Tex.1982). Allen, A grease client in the dropped have his uphold petition as to a court should totally out of gotten that he would have may reasonably that cause of action be Moreover, before the court coverage.” stated, specifically inferred from what is motion, Boyles’ Kerr’s counsel ruled on if an element of the cause of action is even her actions for intentional inva- abandoned id.; specifically alleged. Gulf, not privacy invasion sion Bliss, Ry. Colo. & S.F. explaining that privacy,8 (Tex.1963). case, present In the how- get complicated charge rather than into a ever, may reasonably not be inferred that questions might that long drawn plead independent Kerr intended to defined, clearly we have reduced grossly negligent cause of action for inflic- requested by way of our offensive thrust petition tion of emotional distress. Her negligence negligent in- submissions — specific contained causes of action on which men- emotional distress and fliction seeking recover, she was and there was anguish. tal nothing petition gave contained in the unequivo- Kerr thus (emphasis supplied). fair notice to that Kerr would also negli- other than cally waived all theories seek separate to recover under a cause of distress, and gent of emotional infliction “grossly negligent” action for infliction theory to the the court submitted by outrageous emotional distress conduct. proof, she cannot jury. Regardless of the Nor was this cause of action tried pled she either or tried now claim that consent, presentation as Kerr’s of the evi- theory. any separate consent an action on put Boyles dence did not notice she seeking was to recover under such a theo- V ry. Although proof perhaps Kerr’s rejecting negligent relevant infliction of emo- to Restatement 46 cause of § action, cause of pled independent it was also relevant to her tional distress as an argues mental state in or reckless inflic- Texas. She further determine whether intentional conduct, outrageous necessary a previously pled element under tion of emotional distress was Section is established in the record as a and abandoned. gross- matter of law. Because we conclude that ly negligent infliction of emotional distress was recognized previously ac- a cause of 8. We have action, plead separate not express aas cause of we privacy. invasion of tion for intentional opinion no on these issues. Atkinson, Billings (Tex.1973). petitions 7. Because Kerr’s earlier are not con- record, appellate tained in the we are unable to action, we stated in original opinion “truly egregious.” Susan Kerr did not law cannot and should not at- original “[t]ort misunderstand our opinion. She tempt provide to every redress for instance rehearing contends on that our character- rude, behavior, insensitive or distasteful strong izations were sufficiently to consti- though may even feelings, result in hurt tute holding Boyles’ a conduct was embarrassment, or even humiliation.” We outrageous as a matter of law: clear, however, made that we did not con- jury No say new is needed to Dan Boyles’ sider conduct fall into that cate- Boyles’ outrageous. conduct was This gory, stating part as follows: fact is established in record as a this system The tort provide can and does matter of law. as This Court has stated remedy against engage those who in majority much its opinion. independent such conduct. But an cause of action Motion for Rehearing Although for infliction at 9. our of emo- tional distress encompass would might suggested conduct characterizations have outrageous far less than that conclusion, involved this then, do we did not nor we here, and such a broad tort is not neces- now, issue, any holding intimate on this sary truly compensation allow in a remanding we are this cause for a new egregious case such as this. Nevertheless, trial. some amici curiae on rehearing (emphasis supplied). make assertions more akin to We denied Boyles not because duty breached no to- dissent’s inventions than our actual hold- Kerr, only theory ings. ward but because the The Association of Women Attor- which she chose to inflic- neys, example, asserts that we held assert — tion of overly emotional distress —was Boyles’ conduct was as a matter of encompass broad and would other cases when, law outrageous, not as discussed involving merely rude or insensitive behav- above, opinion was read Kerr as ior. reaffirm today. We that conclusion supporting opposite result. The Wom- Advocacy Project,9 en’s contends that “this original

The dissent mischaracterized the summarily Court has removed the re- opinion, stating Court’s the ma- “[t]o Texans, jority happened what to this in- dress the tens of thousands of woman is distinguishable women, from a mere both men and who are survivors of trifle....” abuse,” According S.W.2d at 618. to the dis- in fact sexual when sent, Boyles the Court held that owed and we remand for a trial on other actionable duty breached no toward Kerr. The dis- grounds. Finally, the brief of the Women sent majority’s referred to “the unilateral and the of the Bar of Law Section State reject choice to Susan Kerr’s claim that Texas asserts that “if the tables had been these four men owed a not to inflict turned, peddled10 and Kerr had the video- her,” severe harm on id. at and later tape vignette perfor- Boyles’ sexual refusing why stated that to discuss no “[i]n ..., majority in mance the all-male duty arises Boyles’ exploita- from sexual decidedly case would have reached a differ- Kerr, tion of majority Susan abdicates grave charge, and ent result.” This is a responsibility.” its Id. at 617-618. wholly one without merit. cause case would be action under review this These completely characterizations are men and women be available both expressly inaccurate. The Court noted women, men and and our injuries against that Kerr’s used both were not a “trifle.” It judgment Boyles did not hold that reflected our considered breached tort decision duty, Boyles’ development and it of the com- appropriate labeled conduct as brief, "charg- According money tape.” to its amicus This Women’s collected to see Advocacy Project agency provid- is a statewide collecting" money ing one consisted of sexual, legal social and services to victims of viewing telling Boyles person, tape, after physical, and emotional abuse. “worry” bet. There $20-$25 about football agreement that was no evidence of an advance Court, charges 10. This amicus also that the forgiven or that solic- the debt would original opinion, to mention in its "failfed] summary Boyles charged of the facts that and ited this consideration. rehearing by See, Concurring opinion on Twyman v. e.g., mon law of Texas. GONZALEZ, (Tex. J. 623-624 Twyman, 859 S.W.2d 1993). might argue that the as well One opinion on dissenting Supplemental County in Civil dissenters Bexar Sheriff’s DOGGETT, J., joined by rehearing by Davis, 802 S.W.2d Service Comm. SPECTOR, JJ. GAMMAGE (Tex.1990) J., dissenting), (Doggett, they against women because were biased MOTION OPINION ON CONCURRING re police captain fired for voted that REHEARING FOR of women subor peated sexual harassment process. had been denied due dinates 5,May 1993] [Filed GONZALEZ, Justice. VI in case happened to Ms. Kerr this What cannot recover on the Kerr based no one grossly offensive conduct which proceeded. she cause of action under which should, As the law should tolerate. such be, however, may that she failed to It well However, does, provide remedy. preserve assert and alternative causes dissenting posturing a result of the hold action because of her reliance on our has been lost in the shuffle justices, what ing in broad discretion Garrard. We have played in pivotal is the role that insurance in the interest of to remand for new trial this case. justice appears party may that a where videotaped proceeded wrong young men who Ms. legal have under the theo intentionally posi encounter ry. Byrd, American Title Kerr’s sexual See Ins. Co. (Tex.1964); capture the event on Dahlberg 384 S.W.2d 683 tioned the camera to intentionally Holden, They showed the vid 150 Tex. 238 S.W.2d 699 film. (1951). nothing particularly appropriate eotape to their friends. There was Remand their outra losing party may presented where the have accidental or careless about However, controlling geous his or Ms. Kerr inten her case reliance on conduct. tionally up right her to receive re precedent subsequently gave that was overruled. Inc., other theories of Murray Agency, See v. San Jacinto dress under two (Tex.1990) (case pleaded: 800 S.W.2d re she had willful invasion which plaintiff action which was rec might privacy,1 manded because have relied a cause of years subsequently precedent ognized by on Court sixteen before overruled this preparing Billings in this summary judgment jury her re verdict case (Tex. sponse); Liebman, Atkinson, Scott v. 489 S.W.2d (Tex.1966) (remand 1973), intentional infliction of emotion the interest of justice distress, rec appropriate where defendant re al a cause of action quested jury precedent ognized by issues in the Restatement reliance on (Second) adopted by the longer controlling). generally Rob Torts in 1965 and was Calvert, appeals years prior four ert W. “... In the Interest Beaumont court of Justice.”, (1972). Mary’s jury in this case in Tidelands L.J. 291 It is to the verdict Walters, appropriate more we have also even where Automobile Club 1985, writ ref’d subsequently given recognition (Tex.App. formal to a 939 — Beaumont n.r.e.) might (relying Finance applicable Duty cause of action which v. General (1954)). Co., Twyman, of this Tex. 273 S.W.2d 64 facts case. See Therefore, contrary Doggett’s supra (expressly recognizing the tort of to Justice distress). dissent, two causes suggestion intentional infliction of emotional in his these jurispru judgment in the We therefore reverse of action were established Kerr’s case appeals prior and remand this cause to dence of state to Ms. court of lawyers gambled proceeding the trial court for a new trial. to trial. Her Doggett any explanation privacy invasion of claim. Justice does not offer for Ms. Kerr’s decision to waive her willful they strategic they when or not failed to exercise made a decision to whether proceed only questionable legal ordinary question, in with the care on the occasion theory negligent they negligently infliction inflicted some of emotional whether It distress. sort of mental distress on her. would placed appear by as virtue of the record tried, At the time this case was there every by plaintiffs themselves controversy was and confusion about the in- single question directed toward regarding negli state of the law the tort of tentional conduct. gent infliction of emotional distress. See attorney]: [plaintiff’s MR. KRIST: In re Air Crash at Dallas/Ft. Air Worth Honor, with, begin let the Your the—to (5th Cir.1988); port, 856 F.2d 28 Harmon reveal, purposes, record for whatever Co., Inc., (5th 821 F.2d Grande Tire date, might be at a later that should Cir.1987). Our Court had limited this tort adopt suggestion, coun- Court counsel’s separate independent as a cause of dropped in sel would have his client negligent handling action to corpse, of a grease gotten he have would Garrard, Hospital see St. Elizabeth totally coverage— out of (Tex.1987), “bystand THE COURT: contempo er” cases which allow those who raneously perceive involving an accident your going give It’s I case ... and am negligently close you your charge. you relative to recover for If don’t requested tort, asking inflicted emotional distress. Freeman ask I ain’t for an intentional Pasadena, it, (Tex. prose- going you I’m to make ... not 1988); Reagan Vaughn, you see also cute a didn’t want to lawsuit (Tex.1990) (recovery negli prosecute. worry S.W.2d 463 about that. So don’t gent Nobody infliction of emotional going get distress denied intentional tort Bystander satisfied). they because Rule not In unless ask for it.

Reagan, the Court did not even mention Texas, In policy a home owners covers prior holding Garrard, much less only accidents or careless conduct and ex- state that Garrard had created all en lawyers cludes intentional acts. Ms. Kerr’s compassing negligent tort of infliction of may they have that if obtained a believed Therefore, emotional distress. to the ex judgment declaring Boyles’ conduct opinion tent that the 5-4 in Garrard can be (in- “negligence” came within the rubric otherwise, aberration, read it is an and for carelessness), tap they advertence or could the reasons stated in the majority opinion, policies par- owned homeowners step it is out of majority with the view. ents of and the other defendants. Thus,

It does not take a rocket scientist to a search this case has a lot to do with why determine Ms. lawyers pay. Kerr’s elected “deep pocket” for a who can If the proceed solely negligent on the tort of purpose awarding damages punish is to fact, infliction of emotional distress. wrongdoer and deter such conduct lawyers explained future, her their strategy responsible to the then the individuals evidence, trial court. At the close of the reprehensible for these actions are the ones attorneys suffer, the defense people made a motion for who should not the of Texas directed negligence verdict on the higher premiums theories the form of insurance recovery: for home owners. The COURT: Under what basis? nothing gender- This case has to do with

MR. attorney]: DRABECK [defendant’s based discrimination or an assault on wom- Under the rights. reason, basis that intentional tort can- en’s There is no other than be the result of stereotype, conduct. to assume that emotional dis- That the case has fact, been tried from start tress unique only to women. In to finish as an intentional tort Cornyn’s plurality opinion noted in Justice lawyers over here. We’d ask that the in Twyman Twyman, recognize (Tex.1993), Court that. many There has never men almost as question been one anybody asked of brought as to women have claims for harm, I relief is declared unwarranted. Further- infliction of emotional distress. reject the believe that this court should more, to women as well as men will have dignity affirmed in respect for human premiums own- pay higher for their home Hospital. Elizabeth policies dissenting justices’ if the views ers prevail. were to boldly overrules Normally a court duty no is controlling precedent to declare sum, In Kerr does not need Susan least like Susan Kerr at owed to someone amorphous cause of action in order to ob- reasoning. provides explanation some of its judgment against parties a the actual- tain again steadfastly refuses majority the This experience. for her traumatic ly responsible recognizing that “cer- to do. Even while judgment opin- I concur in the Court’s duty relationships may give rise to a tain ion. breached, which, an emo- support if would award,” 855 tional distress DISSENTING SUPPLEMENTAL majority explain why Boyles refuses the to ON FOR OPINION MOTION duty Kerr. owe such a to Susan does not REHEARING1 duty question a of law The existence of a is Totally ig- this court must decide. 5,May [Filed 1993] today the most recent statement of nored is DOGGETT, Justice. subject: very court on this the law this determining the defendant Today majority the reaffirms its recent whether duty, under a the court will consider judgment reversal of the for Susan Kerr. factors, including the several interrelated What has occurred here with the issuance risk, inju- foreseeability, and likelihoodof roughly opinion rehearing of a revised on is utility of ry weighed against the social comparable Boyles having to Dan erased conduct, magnitude the of the the actor’s portions videotape featuring those of the guarding against injury, the remarks, burden of making friends then his crude placing the bur- consequences the replaying tape the remainder of the so fac- defendant. Of all these den on the damaging Excising to Susan Kerr. a few tors, foreseeability “the of the risk is phrases way insensitive in no alters the consideration.” foremost and dominant insensitivity majority’s opinion. Transportation Houston Co. Greater Continuing reject Hospi to St. Elizabeth (Tex.1990) Phillips, 801 S.W.2d Garrard, (Tex.1987), tal v. 730 S.W.2d 649 omitted). (citations majority The once has, majority according to the Women fac- wholly analyze refuses to these again and the Law Section of the State Bar of fair, analysis any tors balanced because Texas, the clock a time back to “turn[ed] result.2 produce would a different exploitation unwilling when the sexual socially foreseeability of emotional acceptable, Conceding women was without re making and gard negligently to inflicted emotional dis harm to Susan Kerr caused majority sum- pro replaying videotape, tress.” Amicus Brief at 7. se See also group amicus letter brief “foremost and domi- marily of a of women dismisses this (“decision inadequate message dentists at 1 sends a to nant as an basis consideration” unintentionally in- liability the women of impose Texas that sexual harass then, How, OK”). do ment and abuse is No matter how flicted emotional distress. conduct, so- weigh? mat factors What is the intolerable the other is the resulting utility Boyles’ ter how severe the cial conduct? What 2, 1992, My dissenting today Tex. opinion of December 2. See 36 of December is with that (Dec. 1993). Sup.Ct.J. 231 following only not withdrawn and the is offered supplement writing, copy aas to that a of which Gonzalez, opinion today, separate Justice 2. In a Indeed, appendix. magni- attached Houston, effort makes no the author of Greater injustice both tude of which has occurred writing, only apply prior his but to reconcile majority and the here determination of the against Susan rationalizes the action taken here fully J., (Gonzalez, divert attention therefrom can be at 604 concur- Kerr. 855 S.W.2d appreciated by comparing majority’s writing ring rehearing). magnitude guarding against injury— irretrievably locked in pre-video era? how difficult it for refrain majority say. will not What has hap- from videotaping displaying his secret pened multiple pronounce- to this court’s tape compared imposing on Kerr the ments that concept common law obligation protect by searching herself stagnant, is not frozen or but must great room for hidden cameras? Is it too change to reflect current social conditions 5 require Boyles responsible burden to to be technological turning and advances? In for his actions? clock, majority back the its has turned on back those who suffer severe harm in explaining why Boyles

Rather than Dan duty ways, particular. new and in negligently owed no not to inflict emo- on women Kerr, majority tional distress Twyman, (Spector, on Susan 855 at 640 See S.W.2d handy offers the J., excuse that it has belated- dissenting). new, ly narrowly-drawn discovered a brand Why is the door closed for Susan Kerr? alternative intentional infliction cause of Why truly does her unfortunate situation Twyman Twyman, action. 855 S.W.2d necessitate the retreat from Elizabeth (Tex.1993), upon essentially 619 is seized Hospital, recognized which a cause of ac- companion Kerr, Boyles case to then negligently tion for inflicted emotional dis- used question as an excuse to avoid the law, abrupt tress? This reversal in the we duty here. Because Susan Kerr has now discover, is not to difficulties attributable available an action for intentional infliction particular majority’s in her case but to the distress, majority sum- “ ” liability.’ fear of ‘limitless 855 S.W.2d '

marily unnecessary” declares: “It is to ex- at 599. duty amine further. 855 S.W.2d 600. concluding This is tantamount to that a Perhaps is correct in Justice Gonzalez who, court should not hold accountable one asserting “played pivot- that insurance through negligence, discharges a loaded case,” al role in this 855 at 603 S.W.2d gun within inches of another’s head be- (Gonzalez, J., concurring rehearing)— duty cause there is a shoot intention- pivotal in the sense that excessive concern ally. logic This concept fossilizes the every opinion for the effect of on insurance duty, precluding any expansion further and companies pre- seems to have become foreshadowing beyond further retreats far here, overriding dominant even to and issue today’s misadventure. the exclusion of a woman’s most basic

Why rights. today should Susan Kerr loses because of be held to a lesser majority’s standard than telegraph morticians and misdirected concern about 3 companies? Why duty potential liability should our law of of insurers for some 3. See ously recognized negligently pace "Stuart v. Western Union Tel. Foley Court App. n.r.e.) (funeral corpse)."). ny 18 S.W. In a related quisitive pretations Development tronic chooses to exclude intrude struments have accelerated the — Houston & Co. v. emphasized timely computers S.W.2d into areas which a technology: minds. inflict emotional (1885) of the reach of the constitutional deliver death context, Wyatt, home’s [14th Dist.] duties at 597-598 photocopying the need for the law to (failure Consequently judicial and other from 442 S.W.2d imposed negligent handling the California prying message); (discussing previ telegraph compa person normally Co., sophisticated distress, machines, on some not to ability eyes writ Tex. Supreme (Tex.Civ. and in- Pat H. ... citing inter- keep elec- ref'd of a in- 5. See factors, cating change Burrows upon “contemporary Kilgarlin Remedies Edgar, cent Evolution (Tex. 1990); Cal.Rptr. protection pace devices. particular, well.”). Reagan the risks in Jr. & with the due to advanced (Tex.1987); then (1986) (“Tort & Sandra § Superior El Chico v. it is 1.03 has James 529 P.2d (Tex.1983). individual Duty Vaughn, ^[2] long perils necessary The Re Sterba-Boatwright, society. When these risks Sanchez B. Court, law, (1990) (duty dependent attitudes”); been the method of allo Sales, Poole, created Texas, technology privacy general, 1 Texas Torts Cal.3d 28 S.Tex.L.Rev. Schindler, also J. (1974). William W. must these and other change Hadley duty, keep new & addition, regrettably Kerr is criticized might some hypothetical rude behavior that relying upon a well-established day give rise to a lawsuit: both existing decision cause of action under We denied ... because pursue a failing al law of Texas theory to assert— which chose [Kerr] majority insists it had never claim that the dis- infliction of emotional today’s delayed much an recognized until overly en- tress —was broad would case, companion in its new compass in other cases that was nouncement behavior merely rude or insensitive. claims Kerr Justice Gonzalez Twyman. “a “strategic gamble” based on took a mythical Why at 602. not await that Id. legal theory” pursuing questionable case, arises, if it ever to address and when under Hos negligence action St. Elizabeth question? “merely If rude and insensi- (Tex.1987), decided pital, 730 S.W.2d in some future tive” behavior is involved trial, years prior to the rather than two ample opportunity litigation, there will be infliction of emotional distress majority say intentional for this so then instead fact, If, in being wholly insensitive now. a decision handed down Twyman, under asserts, has majority as the “this Court jury in this years four after the verdict the upheld never a under Gar- J., (Gonzalez, con at 604 case. 855 S.W.2d tort,” at the fear of limitless rard id. rehearing).8 curring on liability has no foundation. initially recognized by the ma- Although tragic But is most clear is that the what pronouncement al- jority as a rather clear de events that befell Susan Kerr —events lowing recovery negligently inflicted scribed the Association of Women Attor distress, Hospital emotional Elizabeth neys name-calling” “tan as “not mere but has, rehearing, oddly on for the first time rape” tamount to 6—are all irrelevant. In entirely “anomaly” that is “not become deed, majority’s reviewing the insistence on bar,” clear to the bench and history, wholly Kerr’s sexual a discussion giving rise to and an “aberration” unnecessary legal presented, to the issues Id. at 604 “controversy and confusion.” 855 S.W.2d at is not dissimilar from a J., rehearing). (Gonzalez, concurring on rejected frequently employed now tactic Phillips and Justice Gon- Both Chief Justice past against rape the victims. Tex. law for this rely primarily zalez on federal (adopted generally R.Crim.Ev. 412 to bar proposition, citing In re Air strange new strategy discussing the common defense Worth, 856 F.2d 28 at Dallas/Ft. Crash conduct); rape prior a victim’s sexual (5th Cir.1988), upon which and the decision Vaught Margaret Henning, James A. & Co., relies, it Harmon v. Grande Tire Admissibility Rape a Victim’s Prior Cir.1987). (5th same Fifth Yet the F.2d 252 Contempo A Sexual Conduct in Texas: County, Blankenship v. Kerr Circuit rary Analysis, Mary’s Review and 23 St. (5th Cir.1989), made later 878 F.2d (1992). Today L.J. 893 we should focus on upon from language relied clear that the here, presented amply the facts which dem concurring majority in the Harmon very the real harm that onstrate emotional “ambiguous dictum” opinions today was Instead, truly Kerr has suffered. Susan the Texas Su- no means undercut empathy,7 she is damned with faint reflect “unambiguously de- having preme Court’s understanding little real concern for or exis- Hospital of her trauma. clared” St. Elizabeth previously a well-ac- at 1-2. Susan Kerr’s reliance on 6. Amicus Brief opinion. Supreme See 855 cepted Texas Court majority Affecting generosity, 7. an air of ("[bjecause Respondent proceed- S.W.2d at 602 recognizes injuries a 'tri- that "Kerr’s were not negligent only theory inflic- ed below on " fle,' Boyles’ 855 S.W.2d at and condemns distress’’); ("the id. at 602 tion of emotional " 'rude, "category" not conduct as in the in- negli- theory only which she chose ” assert — at 602. sensitive or distasteful behavior.’ Id. distress’’); gent id. at 603 infliction of (“Kerr based on the cause of Similarly regarding precedent cannot recover most recent tenuous, proceeded"). majority repeatedly complains of under which she action upon tence of a dent Torts Based cause of action for “Intentional" infliction of emotional distress. “Negligent” Emotional Dis- Infliction of Keep tress: How Can We the Baby From Not is misrepresented, federal law Water?, Dissolving in the Bath 34 Ariz. but the appel numerous decisions of Texas (1992). justi- L.Rev. As final belated late difficulty compre courts that had no fication for its sudden awareness hending Hospi St. Elizabeth scope previously well-accepted law is now in dis- tal are ignored.9 Instead, majority array, majority cites to Justice Gonza- chooses to cite dictum from Chiles v. Chi les, concurring opinion lez’s (Tex.App issued until . —Hous denied), today ton Id. at 596. single rehearing. writ [14th Dist.] appellate opinion necessarily disap is This uncertainty self-created then proved by companion writing today in quickly unqualified resolved with certain- Twyman. That presented only ease ty by barring completely the well-worn — issue of intentional infliction of emotional path suffer- infliction to those held, contrary Twyman, distress ing severe emotional harm. The choice of that such action could not be maintained today presented action “overruling writing divorce suit. Nor did dis language outright, Garrard’s broad ... pute “St. Eliza prior holding: this court’s ..., ignoring limiting case to its facts Hospital beth v. Garrard ... established pretending concurring opin- ... that the proof physical that of injury longer is no ion in majori- was fact the rationale of the required negligent to recover for infliction Id. at 597. Most ty.” revealing is the of emotional distress.” 779 S.W.2d at 130. majority’s failure op- to even consider the bootstrap To discovery its new that the simply respecting prior tion of this court’s law of emotional distress is racked with controlling precedent decision as and allow- confusion, the majority next relies on an ing Susan Kerr to recover. originated article appellate in the briefs in this path majority case and was written The which coun- announces Boyles. 597, sel for Dan 855 S.W.2d at Susan Kerr should have followed —inten- Crump, Evaluating Indepen- citing David tional infliction emotional distress —is of See, e.g., Inc., 901, 1991, Campos Hosp., v. (Tex.App. Corpus Ysleta Gen. 836 903 n. 2 Christi — 791, 1992, (Tex.App. denied) ("The S.W.2d recognizes 795 Paso writ writ law of Texas also — El denied) (“negligent negligent infliction of emotional dis causes of action for ... infliction of "recognized independent distress.”); theor[y] tress” is Dominguez Kelly, of v. 786 Texas"); Mitsubishi, 749, recovery 1990, in (Tex.App. Dan Boone Inc. S.W.2d writ 753 Paso — El Ebrom, 334, denied) ("The (Tex.App 830 Appellant correctly pleads S.W.2d 337 also . —Hous 1992, denied) ("In ton negligent [14th Dist.] writ cause of action for the infliction of Eliza Hospital, right plaintiff bring anguish beth aof mental as sanctioned in St. Elizabeth negligent Hospital_”); Exterminating suit for infliction of mental an Orkin Co. v. Wil B.C.G., 905, guish upheld.”); liamson, (Tex.App. C.T. W. v. 785 S.W.2d 912 — Austin 788, 1991, 1990, (Tex.App. denied) (In S.W.2d Hospital, no writ St. Elizabeth — Beaumont writ) (“In Hospital Supreme the case of St. Texas eliminated the "[t]he 'physical Elizabeth Court has Garrard, Supreme recognize[d] requirement pre- Court ... manifestation’ as a negligent anguish.”); requisite anguish tort of infliction of mental to the of mental Zubiate, actions.”); damages negligence State Farm Auto. Ins. 590, Dep’t Co. v. 808 S.W.2d in Texas 1991, denied) (Tex.App. Winters, Paso writ Corrections v. 765 S.W.2d — El ("the Supreme fully recognized denied) ("Dam proof (Tex.App. Court writ — Beaumont physical injury resulting ages negligent anguish from mental an for infliction of mental guish longer is no an proof element of the common are now recoverable manifestation.”); without negligent law action Watauga Taylor, for infliction City of mental anguish”); Massey Massey, (Tex.App. S.W.2d S.W.2d writ) ("Proof Worth no — Fort (Tex.App. physical injury longer [1st Dist.] writ is no — Houston (“Based requested) upon the unlimited and un element of the common law action for equivocal holding by supreme anguish.”); Padget Gray, court in St. infliction of mental Garrard, Hospital v. we (Tex.App. hold that the Elizabeth — Amarillo writ) ("Since Kimball, tort of ... infliction of emotional dis the decision in Hill v. (1890), recog tress is an established cause of action that does 76 Tex. 13 S.W. 59 Texas has require proof physical injury.”); right negligently McNa nized the inflict recover Inc., distress.”). Newspapers, mara v. Freedom ed emotional inconsistency, he de- initially explaining this rejected very one in this case10 and Not today’s majority opin- enlightened keeper which the author of clares himself personally ground,” ion continues to view as rife who leads the court “middle likely being following with “difficulties.” Most led established law so that Tex- well garden path, forty-seventh down the Susan Kerr now state to as can become “the pursue directed to the back trial court to infliction of adopt the tort of intentional action, in those this new cause of which Id. at 622. The false emotional distress.” injured who are are “seldom successful.” ground” Twyman staked out “middle (Hecht, J., Twyman, 855 S.W.2d at 631 per- following existing Texas law between dissenting). negligently inflicted mitting recovery for rejecting an inten- emotional distress Rejected again today is a “moderate successful,” tional tort that is “seldom id. precedent course crafted from Texas and a (Hecht, J., dissenting). In disavow- at 631 growing body nationally of law that would Texas, previous Twyman law liability limit trivial while recom- plurality only a choice be- offers women pensing truly grievous,” as outlined tween slim and none. my prior writing. (Dog- at 616 J., gett, dissenting). Abolition of a well majority then rewrites its excuse for established cause of action should be a last refusing judgment to affirm the for Susan employed only resort after modification grounds. prior Kerr on alternative In its proven and restriction have first been un- opinion disregarding jury’s finding Cornyn successful. As Justice observes gross negligence, majority insisted that today in companion writing Twyman, his Kerr must lose because of her failure any “well-established of action in cause[] jury Boyles’ issue as to whether submit grounds Texas” can attacked on outrageous. conduct was But now this judges juries guided are insuffi- approach must be abandoned. With standards, cient liability may be im- recognition of a cause of action for inten- posed arbitrarily, reported ei- cases today tional infliction of emotional distress ther supporting refusing support to encompasses even “reck- Twyman that damages award of disclose no uniform conduct, majority explain the cannot less” pattern, ag- and that the sensitivities of why finding gross negligence of al- grieved people entirely subjective are too support ready obtained here will not recov- unpredictable. and ery.12 majority willing Nor is the to even Oddly, might 855 S.W.2d at 622. Cornyn legal question Justice consider a call for congratulates plurality rejecting unqualified Boyles’ on their assessment be- such an attack in Twyman professing disapproval while at the While havior. joining conduct, majority same time to add identical criticism in his hastens Boyles justify holding” “intimatpng] any evisceration of the tort of that it on is not negligent infliction of his conduct is outra- emotional distress. the issue of whether (Dec. 2, Tex.Sup.Ct.J. Refining writing. 10. See 36 at 236 n. 10 vious See Diamond Shamrock (“this 1992) Mendez, expressly recog- Marketing Court has never S.W.2d 198 and (Tex.1992) Co. v. nized this cause of action intentional inflic- (refusing recognize [for in- intentional distress], tion of emotional and need reach falsely insisting employer’s fliction but that an today”). Contrary the issue to the assertions of deliberately spreading and word that an em- Gonzalez, (Gonzalez, Justice 855 S.W.2d at 603 sufficiently ployee not be was a thief would J., concurring rehearing), my on it is not writ- "outrageous” anyway). qualify majority opinion joined but the which he expressed doubt as to the existence of a why finding previously explained 12. I have cause of action for intentional infliction of emo- existing gross negligence sufficient under joining tional distress. In the few months since Susan Kerr to recover for Texas law to allow opinion, pronounces Justice Gonzalez now See the severe distress she suffered. emotional intentional infliction one of the "well-estab- J., ("As (Doggett, dissenting) at recovery” wrongly lished theories of that Kerr Royalty explained in Burk Co. v. this court "intentionally, gave up.” and Id. at 603. Walls, (Tex.1981), ‘"reck syn Twyman, disregard” "gross negligence” (Phillips, 11. are 855 S.W.2d at 626 less and C.J., dissenting); ”). pre- onymous this is consistent with his terms.’ geous as a matter of law. devastating 855 S.W.2d at the most inju- Perhaps significantly, ries. more message Court has sent a to these citi- only way So now the majority can injuries zens that their do judi- not merit deny Kerr pleadings relief is to rewrite her redress, leaving cial them with no alter- disregard procedural and to law that justice native but to take into their own pleadings broadly Despite construed. hands.13 repeated very references in Kerr’s short petition grossly conduct, redress, Instead of the women of Texas majority incredibly concludes that today receive excuses. did not “fair sought have notice” that she majority While the unsuccessfully at- to recover for that behavior. Id. at 601. tempts injustice to rationalize the done to Although Boyles’ she described actions by belatedly linking Susan Kerr her great case specificity, condemning them as “despicable” Twyman, adopts Justice Gonzalez a more “contemptible,” she did magic “outrageous;” not use the approach. problem here, word direct The real he majority declares, concludes that he then did not “posturing” is the of the dissent have “fair notice” that his conduct was of December 1992. 855 S.W.2d at 604 beyond decency. human Id. at 601. (Gonzalez, J., concurring rehearing).14 He, course, disregards the entire section given

No credence is to the views of majority’s original opinion IV at- urge necessity those who impor- tempting to legal rebut the substantive ar- preserving tance of a cause of action for guments of that dissent and offers no ex- infliction of emotional distress. writings planation why he Phillips respond Chief Justice chose not to attempt Instead, Justice Gonzalez to rebut rather December. on behalf of the ma- than analyze to understand and many jority only passing he makes reference to amicus groups, briefs filed women’s id. the law in his rush to come to the assis- 601, 595, essentially suggesting that companies. tance of insurance just these wrong. Claiming women took it Today’s writings designed seem to shift majority widespread is victim of mis- anywhere the focus but on the women that understanding, Phillips Chief Justice dis- they Phillips affect. Chief Justice writes arguments misses the advanced these hypotheticals, of future id. at Justice women nothing but “inventions” of over- Gonzalez companies defends insurance imaginations. active Id. at 602. The Wom- owners,” claiming protect while to “home Advocacy en’s Project, provides which so- 604, and, incredibly, Cornyn id. at Justice legal cial and services to victims of sexual claims really important that what is here is abuse, and captures emotional the wide- the “freedom of peo- individual action” of spread harm by inflicted majority: the ple Boyles like Dan Twyman. and William court message has sent a to all [T]he Twyman, legal at 622. these Texans have suffered sexual [who posture unchanged; of this case remains they and emotional are sec- abuse] truly public what is involved here is the ond class citizens. It logic defies to have reaction system majority’s prior writing, to the justice a compensate that will the victim of a which generated writing. car wreck but that has more will compensate recipients books, refuse to the Newspapers, appear not law to have 13. Amicus Brief at iii. Supreme Since the United States Court’s deci- Wade, sion in Roe v. 410 U.S. S.Ct. (1973), 35 L.Ed.2d 147 we approach have witnessed affecting 14. This to issues women is a previously tremendous increase in the number of abor- similar to that Justice Gonzalez has Krusen, expressed. country, tions in this all in Nelson v. the name of "free J., (Tex. 1984) (Gonzalez, "right concurring privacy." choice" or the ... This dissenting) (criticizing policy "disposable and a woman’s constitu has contributed to a soci- tionally-protected right ety.” to choose whether to abortion). Specifically, have an he insisted that: Id. at 935. recognized Hospital, we Elizabeth inspiration for their new principal been the “just as se- emotional loss can be opinions.15 that an physical one. debilitating” and as a vere trouble, majority imposes For on her exploitation 730 S.W.2d at The sexual obligation pay Susan eourt Kerr vividly demonstrates that of Susan Kerr completely judg- costs and reverses Jr., planned an en- reality. Boyles, Dan damages ment for awarded for the severe friend, home of a counter with Kerr at the her emotional distress she suffered when Broesche, videotaping suggested Karl who and, videotaped most act was intimate meeting Su- the event. While disregard for complete utter and her wel- Kerr, friends, Ray Widner two other san fare, Refusing others. to ac- shared with Tamborello, helped Paul Broesche and John cept overruling century responsibility for on the bed. focus a hidden camera video deny in order to Kerr Texas law Susan victim&emdash;this making recording After themselves crude recovery, blaming then jokes vulgar predictions about the an- and justice. Boyles and ticipated activities of Susan SPECTOR, JJ., join and GAMMAGE Kerr, departed, leaving the cam- three dissenting opinion. ensuing operating era record the inter- knowledge or course without her consent. DOGGETT, Justice, dissenting. [Filed 1992] Dec. by Boyles tape, The recorded shown [Fjreedom people, became a three occasions to various from severe emotional dis- conversation, topic particularly tress is an interest which the each law should serve protect. of the universities attended two. At gatherings, social friends and even casual Garrard, Hospital

St. Elizabeth acquaintances approached Susan Kerr (Tex.1987). video, asking “why did about the ... [she] A young by jury woman was found Stigmatized reputation it." with the have suffered severe emotional distress alleged “porno queen,” Kerr severe Susan when secretly her most intimate act was from the emotional distress and humiliation videotaped displayed to others. To videotaping, showing tape, deny relief, majority her rewrites Texas ensuing Eventually, notoriety. she respect law and recants the for human sought psychologist counselling for what a dignity affirmed this court in St. Eliza- diagnosed stress “post-traumatic later beth Hospital. Having recently weakened A that Susan Kerr jury disorder.” found right privacy1 and demonstrated its injury as had suffered severe plight rape victim,2 indifference to the of a negli- gross of the negligence result the majority now declares that in Texas no gence of the men. four legal necessary negli- to establish gence nonconsensual, arises from surrepti-

tious videotaping engaged of a woman I. rights sexual intercourse. The of Texas away good women this court has honored slip continue to like sand With reason through majority’s fingers. from principle that “freedom severe previous example Refining Marketing 15. For a effect of 1. Diamond Shamrock pleadings” "newspaper majority, Mendez, 198, (Tex.1992) on the see Co. v. S.W.2d 213 844 Edgewood 491, 502, Kirby, Indep. Sch. Dist. v. 804 S.W.2d J., ("The (Doggett, dissenting) assault on the J., (Tex.1991) (Doggett, concurring 507 right begun."). privacy in Texas has A). rehearing) (Appendix on Houston, Delaney University

2. See 835 v. 56, J., concurring) (Doggett, ("rape 61 S.W.2d [required] relying three-page victim affidavit argument wait after [oral] seventeen months answer”). misleading [here for] 612

emotional distress is an interest which grave. an upholding unmarked In such an law protect.” should serve to action, St. Eliza repeatedly we referred to the “tort Hospital, beth 730 S.W.2d at 654. Review anguish.” infliction of mental ing the outmoded rule that denied 730 joined S.W.2d at 651-52. We also unless a negligently produced emotional in “established trend in jurispru- American jury manifested itself physically, we con by rejecting dence” “arbitrary” and un- cluded that such a restriction “arbitrarily “physical reasonable the manifestation re- denies court persons access to with valid quirement.” Id. at 654. claims.” at Id. 652. We thus held that decision, In overruling prior our the ma- “proof physical injury resulting from jority diverts Texas from that national anguish” mental longer would no be re recognizing trend manifesta- quired liability. to establish Id. at 654. requirement tion as outmoded.3 The ma- however, Today, majority denies Su- jority’s claim that we have somehow fallen san protection promised Kerr the by the step” “out jurisprudence with American Texas, law of criticizing preserving her for completely misses the mark. 855 S.W.2d one well-established cause of action while only question at 595. The is whether Tex- “failpng] preserve to assert and alternative steps Hospi- forward as in St. Elizabeth causes of action.” 855 at 603. tal or majority races backward as the in- Wholly disregarded argument is Kerr’s Nationally, prior sists. decision is con- brought that she against action authority sidered an provided that has wronged the four men who her that she example for other states to follow. See legally prove. Faulting could her choice of Osteopathic Hospital Gammon v. designed alternatives is solely to create the Maine, 7; Inc., 534 A.2d at 1285 & n. see illusion injustice is not principal Corgan Muehling, also v. 158 Ill.Dec. at product today’s opinion. With no other 495, 574 N.E.2d at 608. In march legal her, viable remedy available to Susan justice, leadership.4 Texas should not fear will, fact, Kerr left to resolve this leading, today’s majority But rather than “personal dispute[] through normal social quick every beats a retreat. If such deci- means,” 234, Tex.Sup.Ct.J. 36 at however sion of this court is to be erased from the arranged. that can be being step,” books as “out of Texas is deny To Susan Kerr the relief which place legal thinking. doomed to last jury deserving, found she was so majority yet why must And the rush to retreat? The ma- prece- overrule another jority vigor “judicial dent. Hospital, parents St. Elizabeth declares with re- “strained,” sued for Tex.Sup. infliction of emotional sources” would be 36 233, resulting hospital’s negli- insignificant, distress from a Ct.J. with the the trivi- gent disposal daughter al, of their stillborn with other “intimate” affairs of mere See, Center, Inc., e.g., 759, Taylor Baptist (1983); 3. v. Medical N.E.2d Central 764 Hammond v. 369, (Ala.1981); 400 So.2d Center, 17, 374 Montinieri v. Lane Communications 312 Or. 816 Co., England Telephone Southern New 175 593, (1991); Giard, Hunsley P.2d v. 87 337, 1180, (1986); Leong Conn. A.2d v. 1096, (1976); Wash.2d P.2d Gates Takasaki, (1974); 55 Haw. 520 P.2d Richardson, (Wyo.1986); P.2d see Corgan Muehling, 143 Ill.2d 158 Ill.Dec. Davis, (Iowa also Barnhill 300 N.W.2d 104 489, 495, (1991); Lejeune 574 N.E.2d 1981). (La. Bayne Hosp., Branch 556 So.2d 1990); Maine, Osteopathic Hosp. Gammon v. Reagan Vaughn, 465 n. 4 Inc., (Me.1987); 534 A.2d Bass v. (Tex. 1990) (recognizing Co., cause of action for loss (Mo. 1983) (en Nooney consortium); banc); Markets, Inc., parental Davenport Supersave see also v. Johnson v. 211 465, 209, (1984); Garcia, 4, (Tex.1992) (national Mont. 686 P.2d 213 James v. 834 S.W.2d 22 Lieb, 47, 109, (1985); 221 Neb. 375 N.W.2d 116 jurisprudence benefits from contributions of in Jackson, 557, Ayers Township 106 N.J. 525 states); County dividual Bexar Civil Sheriff's 287, (1987); State, A.2d 295 Battalla v. 10 Davis, 659, Service Comm’n v. 802 S.W.2d 668- 237, 729, N.Y.2d 219 N.Y.S.2d 176 N.E.2d J., (Doggett, dissenting) (calling judicial 69 for (1961); Gyne Johnson v. Ruark Obstetrics & resolving legal initiative Texas in new is Assocs., cology 327 N.C. 395 S.E.2d sues). (1990); Hanks, Paugh 6 Ohio St.3d Instead, we litigation on basis. can How tort the 855 S.W.2d at 600. heart. just ability of happened as the traditionally here relied on anyone view what have rude, citizens, “instance of insensitive jury, another as a empaneled Texas twelve at 601-02. behavior”? Id. distasteful and the fraudulent distinguish between videotape produced surreptitiously When a Hospital, Elizabeth genuine. the St. inter- participating in sexual of a woman increasing The majority’s at 654. public the dis- makes her focus of course making ordinary Texans for mere disdain cussion, as injury her dismissed how can be again is once jurors determinations such ma- can the unworthy protection? How at Tex.Sup.Ct.J. today. See 36 apparent “ difficulty in ‘distin- jority’s purported 2; also v. Hamshire- 232 n. see Leleaux from emotion- guishpng] severe nonsevere Dist., Indep. Sch. Fannett ” denying relief harm,’ justify al id. J., dissenting); (Doggett, (Tex.1992) life- and Kerr for humiliation Susan the 463, Vaughn, Reagan disabling psychological disorder she long dis (Tex.1991)(Doggett, J., concurring and Boyles’ be so can conduct suffered? How deny remedy to all because senting). To an- majority’s callously condoned meritless actions of a few “arbitrari- of the are they judges nouncement and other den[iesj persons ly court access just busy to handle matters? too such “do[esj and not serve best valid claims” 233. Tex.Sup.CtJ. at public.” Elizabeth interests of St. re- give unjustifiable To this sudden and 652, 654. Certain- Hospital, 730 S.W.2d at degree of jurisprudence versal of our some physical symptoms does ly existence of respectability majority employs anal- the emotional authenticity affect the not ysis apparently drawn from Section 436A re- contrary in effect injury. A conclusion (Second) Torts the Restatement strong, (1965), punishes the weak provision changed wards has not correctly rejected injury may since we it in Eliza- be identical: when the sustained Hospital. ago Three Re- beth decades suffering is no more difficult Mental approved a physical statement manifesta- terms, no less a in financial estimate upon tion limitation based the misunder- pain.... “physical” than injury, real standing that: of the [Tjhe protection is not law [Ejmotional disturbance which is not so physically sound alone. serious as severe and to have Keeton, Keeton on Page Prosser & W. consequences normally in the realm (5th 1984) (hereinaf- trivial, at 360 ed. Torts and so falls the maxim within § Torts) (citations not that the law does concern itself with Keeton ter Prosser & evanescent, temporary, trifles.... so so omitted).5 degree harm suffered relatively unimpor- and so harmless wrongful change the of a does not nature tant, compensating that the task of for it objectionable in- conduct act. If someone’s unduly would burden the courts and the vic- emotional on two flicts severe distress [Ejmotional defendants.... disturbance tims, that dis- of whom manifests one may easily feigned, depending, too wrong- why should physically, tress must, very largely subjective upon the one and support recovery for doer’s fault testimony plaintiff; ... not the other? might open too for it wide a door for of unwarranted The unwarranted fear who false claimants have suffered rejected by unequivocally claims has been at all. real harm appropriate- leading who one commentator (Second) 436A, Restatement of Torts § ly declared that: comment b. enough long [Tjhere precedent has been feign physical While a claimant can also injuries, deny claims], does and no yet injury this court all [for Davies, (1983). 5. Direct Actions Hospital, Accord St. S.W.2d at See also Julie A. Elizabeth 652-54; Possible?, Corgan Muehling, Ill.Dec. at Compromise Harm: Is Emotional 608; 574 N.E.2d at Glass Barbeton Schultz (1992). Wash.L.Rev. 24-25 4 Ohio St.3d Co.. N.E.2d 109. 614

great 595, increase in litigation has been ob- S.W.2d at and to declare “there is no general duty served. in Texas not to negligently distress,” emotional 594, inflict id. at 54, Prosser & Keeton on at 360. Torts § majority’s recognize refusal to Susan comports This experience of other claim groundless. Kerr’s remains She state courts that have not been overbur- permitted should be to recover here in an with litigation. Lieb, dened v. See James ordinary negligence action, initially which 47, 109, (1985); 221 Neb. 375 N.W.2d 117 requires proof of four elements: exis- Co., Schultz Barbeton 4 Glass Ohio duty, tence of a a duty, breach a of that 131, (Ohio 109, St.3d 447 111-12 N.E.2d injury, resulting foreseeability a to 1983); Bell, see also Peter A. The Bell reasonably prudent person such an Tolls: Toward Full Recovery Tort Psy- for a injury likely was result of the breach. Injury, 333, chic 36 U.Fla.L.Rev. 362-65 Store, See Rosas Buddies 518 Food (1984) (describing the threat unlimited (Tex.1975). S.W.2d 534 these Modifying liability as a “conjured-up possibility which they apply involving standards to cases materializes”). never Nor is there the ability harm preserve emotional would slightest indication that our decision St. suffering injury those severe emotional has Elizabeth strained courts Texas re- to damages. recover quiring litigation of trivial claims.6 Ordinarily, ways there are a number provide Texas need not and does duty, including establish a undertak every redress for instance of rude or insen- any foreseeably conduct that could sitive behavior foreseeably results injury. psychic cause an In the context of feelings hurt or embarrassment. St. Eliz- injuries, foreseeability has been alone Hospital, (extend- abeth 730 S.W.2d at 653 by some viewed as insufficient create an ing protection to inju- “severe” emotional adequate duty. See Marlene F. v. Affiliat ries). We sought have to balance our de- Inc., Psychiatric Clinic, ed 48 Medical expose sire not to parties litigation over 583, 98, Cal.Rptr. 102, Cal.3d 770 P.2d the trivial with longstanding commit- 278, (1989) (foreseeability must be ac to assuring ment inju- redress for serious Therefore, companied by a legal duty).8 it id.; Kimball, 210, ries. See Hill v. 76 Tex. required duty plain that a be “owed 59, (1890). S.W. tiff is assumed or the defendant imposed on the defendant as a matter of II. law, relationship arises out of a if it compelled repudiate Even feels require St. duty between two.” Id. This Hospital, reject totally Elizabeth “an expressed ment has also been as “some independent cause of negli- plaintiff action ... special relationship between the n distress,”7 gently inflicted higher establishing 855 and the defendant stated, recovery negligence following 6.A in a action St. tion but was existence of a Serv., shown); Hospital has been allowed in three never Inc. v. Marine Elizabeth Buffalo Monteau, 416, published appellate (Tex.App 761 S.W.2d other See C.T.W. cases. . -Hous 1988, denied). D.T.G., 788, writ) (recovery (Tex. Dist.] ton no [14th B.C.G. and 809 S.W.2d 1991, writ); App. no Orkin Extermi - Beaumont Williamson, 905, nating Co. v. Although 785 S.W.2d Hospital, St. we dis Elizabeth (Tex.App. denied) (action damages writ cussed for emotional distress — Austin brought tort, negligence); City separate both under DTPA properly viewed as is more (Tex. Watauga Taylor, negligence damages general an element of in a of App. writ). Gyne action. See Johnson v. & Worth A fourth case Ruark Obstetrics - Fort Assocs., cology Hospital, but 395 S.E.2d at 97. followed was based Elizabeth separately on a to deliver actionable failure Winters, telegram. Dep’t Davies, Texas Harm, Corrections But see 8. See Emotional at 25. (Tex.App. Bell, Peter The Bell Full Tort A. Tolls: Toward - Beaumont cases, denied). reported writ In two other re Psychic Recovery Injury, 36 U.Fla.L.Rev. covery negligence (1984); not to be Virginia was found war 362-65 E. Nolan & Edmund Dominguez Ersin, Negligent ranted under the facts of the case. Distress: Emotional Infliction of Kelly, (Tex.App. Chaos, Emerging Hastings Coherence v - El . from denied) (a (1982). proper Paso writ cause of ac- LJ. causing the risk dis of toward unreasonable duty than defendant usual ” Lines, (Second) of Torts plaintiff.” Restatement Hubbard Allied Van tress .... Cir.1976). (4th Inc., (“Emotional 313(l)(a) 540 F.2d Distress Unintend § law, Texas a sufficient foreseeability Consistent with ed”). requirement of The other from a statute or may arise expressed been as conduct has this context a legal may be when obligation, or created “likely produce emotional distress that is party “voluntarily enters an affirma- into ordinary sensibilities.” Hub person of a affecting the interests of anoth- tive action at bard, F.2d 1230. Inclusion er,” such consequences harmful and the person reasonably standard avoids prudent reasonably foreseeable. Otis conduct are for the hurt specter “compensation Clark, Corp. v. Engineering supersensitive plaintiff feelings of the —the (Tex.1983).9 Osteopath psyche.” eggshell Gammon generally inoffen litigation To over deter Maine, Inc., at 534 A.2d 1285. Hosp. ic legally acceptable con sive or otherwise writing, unlike Unfortunately, today’s St. un produce anguish may duct that mental Elizabeth, fails to the relevant examine accompanied reference injury, distress, in- legal literature of Torts could be made to Restatement permitting cluding that which recommends requirement outrageous of “extreme and limitations an action with reasonable such “reck conduct” of either an intentional or If, majori- negligence.10 as the part a (Second) of less” nature. Restatement insists, are neces- ty further restrictions 313(1)(a); 46(1). Torts also id. § § mental negligently produced an- sary for Hubbard, (conduct F.2d at must guish damages physical manifesta- absent outrageous”); be “extreme and Bass tion, imposed without de- these could Co., 772; Nooney at Schultz against emotional stroying protection all Co., 447 at 113. Barbeton Glass N.E.2d (1) following there injury by the conditions: requires in- Restatement also that the legal cause harm (Second) duty not to jury be of must be some “severe.” Restatement 46; F., beyond created foresee- Torts also 257 Cal. another see Marlene § Rptr. (discussing arising at ability injury, at 770 P.2d such as that from distress”). “[djamages relationship, statutory duty, for severe emotional a or special This recognition conforms with an voluntary undertaking of affir- from Hospital right risk; is a (2) Elizabeth there puts at action that another mative harm, psychic be free from all such as by conduct duty must be breached insults, that resulting from mere rather but (3) reckless, outrageous; that is extreme from “severe emotional distress.” severe; must be resulting psychic harm showing This at 653. threshold injury an (4) likelihood of such injury a “check on the ... con establishes reasonably pru- foreseeable to must be minor emotional blows into of] would ad- version lawsuits.” These person. standards dent Davies, Harm, at Emotional majori- way the in a more balanced dress 49. discouraging single-minded interest in ty’s maintaining the suits while unmeritorious anguish, context of mental recov- law to those promised protection ery had when an actor “should may be injuries. sustaining severe emotional have realized that his conduct involved Cantu, Harm); Negligent Maintaining duty requirement Charles E. 9. ensures Emotional damages "recovery can without be achieved Expanding Emotional Distress: Infliction of liability, triggering potentially limitless Dillon, 17 Tex.Tech L.Rev. Since Rule Evolved defendants,” Davies, Cantu, hence not unfair to Emo- (1986) (hereinafter Negli- 1574-76 ensuring Harm, while the stan- tional Bell, Infliction); A. The Bell Tolls: Peter gent unrespon- flexibility dard’s avoids a static Injury, Psychic Recovery Tort Toward Full sive rule of law. Id. (1984); Virginia E. No- 334-35 U.Fla.L.Rev. Ersin, Negligent lan & Edmund Infliction of Davies, See, e.g., A. Julie Direct Actions for Emerging Distress: Emotional Coherence from Possible?, Compromise Is Emotional Harm: (1982). Hastings Chaos, LJ. Davies, (1992) (hereinafter Wash.L.Rev. 49-53 (to 1988, writ) The satisfy facts us all of no before these recover anguish mental Boyles Although clearly conditions. in- damages in an insurance code action “[i]t tended the of engaging act intimate rela- necessary to show the tortfeasor acted tions with which would Susan Kerr knowingly or with conscious indiffer- videotaped, he did not intend the conse- ence”). explained As this court in Burk quences, in the psychic injury this case Walls, Royalty Co. v. 616 S.W.2d “ Boyles suffered. stressed that he told (Tex.1981), disregard’ ‘gross ‘reckless and Kerr that was sorry “he and had not meant negligence’ synonymous are terms.” hurt her.” Counsel for conceded Similarly, adequate finding there was an argument at oral an “certainly argu- of a severe or psychic harm. ment can be made in this case that there question The jury on emotional distress negligence involved,” was also and that anguish” defined “mental as: negligence “there is evidence from which” argued. By showing could be and then relatively high degree pain of mental [A] failing destroy tape, the negligently he disap- and distress. It is than more mere disregarded well-being. Kerr’s emotional pointment, anger, resentment, or embar- By Boyle’s admissions, own his conduct rassment, although may include all of negligent; was he not did intend to harm It these. includes a mental sensation of Further, charge Kerr. defining based on pain resulting painful from emotion such “negligence” “failing to do that which a grief, disappointment, indigna- severe person ordinary prudence would have tion, shame, despair pride, wounded done under the same or similar circum- public and/or humiliation.12 stances,” jury’s finding the adequately con- By definition, finding damages under this stitutes a foreseeability. determination of jury the injury indicated that Kerr’s was presented, Under circumstances minimis, not trivial or de but rather a Boyles’ participation surreptitious in the “relatively high degree pain of mental and videotaping showing and recording severity injuries distress.” The her was gave heightened rise to a duty of care. supported by considerable evidence includ- majority opinion offers slight- not the expert testimony that this disorder explanation est of why this not does create plague would Kerr for the rest of her life. not to inflict emotional distress that Hence, significant even if limitations were,,, was Boyles’ breached role in making, imposed on for emotional distress' displaying, failing destroy the video- action, negligence findings in a jury’s this tape, all of which jury conduct the found to support are an sufficient to award dam- gross constitute negligence, defined as: ages to Susan Kerr. such entire want of care as to indicate question act or courts, omission In its haste bar access to the

the result of conscious indifference to majority prefers abolition of an action rights, safety per- welfare or consideration a more moderate course sons affected it. precedent grow crafted from Texas and a ing body of nationally law that would limit finding This of conscious indifference liability recompensing for the trivial Boyles’ based on while highly offensive behavior truly grievous. If satisfy prerequisite sufficient to restrictive standards outrageous necessary, are this first at reckless conduct.11 court should See Un Cobb, tempt improvement, derwriters Ins. Co. v. modification and Life (Tex.App. Corpus S.W.2d Christi evisceration of Cy a cause of action. — Cf. See, heightened Servs., culpability e.g., This addresses the at 920. How Ins. v. Patriot Fin. justification other for the manifes- (Tex.App. 786 S.W.2d — Austin (Second) rule tation Torts advanced in Restatement Cobb, denied); 819; writ 746 S.W.2d at Roberts § 436A comment b. (Tex. Corp., v. U.S. Home writ); App. Antonio no Trevino v. anguish 12. This definition of mental has been — San Co., applied comports Southwestern Bell Tel. consistently, S.W.2d rather Co., Royalty writ). (Tex.Civ.App. Corpus our definition in Burk Christi no — abuse to those between Muller, such as 640 tions Utility Co. press Creek may not recover parents living, whose (Tex.1982). 860, 866 dead, distress, abuse of their “surely great may, are parents whose III. logic.” Prosser & Keeton triumph of qual- are not and balance But moderation ex- 366. One commentator Torts § See, e.g., majority values. ities which damages for the allowance of plains that 833, Packer, 846 827 S.W.2d v. Walker little from corpses of derives mistreatment (dis- J., dissenting) (Tex.1992) (Doggett, aura of “mysticism or than the more mandamus alteration of cussing majority’s Cantu, at Infliction, Negligent death.” obstructing dis- protect to those procedures such arbi- cannot stand on The law those seek- denying review to covery while ap- By recognizing trary foundations. of information). only semblance The damages for emotional of today’s writing propriateness moderation associated negligence part of traditional distress as strategic decision to overrule is necessary elements are es- leav- all apparently while action when Hospital Elizabeth per- tablished, arbitrary This creates limitations can be place. law in ing all related any person to resolve. di- purports than it so that manently more anomalies discarded differently is treated no rectly victimized majority’s Perhaps curious is the most and the dead children parents of than reject the insistence that it “continue[s] telegrams. recipients of inaccurate 36 requirement.” physical manifestation fact, 233, when, any Tex.Sup.Ct.J. at as a suit today classifies What this court narrowly limited. rejection is most such resulting from emo- personal injuries for recognize recov- majority continues to The require- nothing more than a harm is tional infliction of emotional ery for physical injury be shown ment that some inju- physical evidence of a distress without seeking dam- negligence action in a recover previously accepted categories ry for a few v. Moore ages emotional distress. corpses or such as the mistreatment of (Tex.1986), we Lillebo, 686 722 S.W.2d misdelivery telegrams. H. Fo See Pat concluded: (Tex. 904 ley Wyatt, & S.W.2d Co. rule has manifestation physical The Civ.App. writ Dist.] [14th — Houston many symp- include expanded to been n.r.e.) corpse); (negligent handling ref’d gone great have toms. “Courts Co., Tex. Tel. Stuart Western Union inju- physical to find a lengths in order 580, 18 (1885)(negligent failure of S.W. Comment, Recov- Bystander Texas ry.” telegraph company to deliver death mes Sanchez ery: In the Aftermath sage). also and Keeton on See Prosser 896, 901 Schindler, L.Rev. Baylor 362; Cantu, at In Negligent Torts § have symptoms All manner of (1983). fliction, Only at 1565. because “a claim manifestations.... qualified right to the limited ant’s recover” under meaning has at- wide-ranging Such prior circumstances of these cases is left manifestation,” that “physical tached to today’s opinion, “unaffected” of its former lost much the term has 597-98, majority at can the claim it S.W.2d significance.... fully physical man has not reinstituted the requirement. ifestation today’s added).13 (Footnote The effect holding physi- ruling preserve protection is thus extended to Greater meaningless in a negligent mishandling of the dead than out- cal manifestation declaring it action while rageous living. wrongful Distinc- death treatment (1946) sett, 13. This court has not hesitated to permit Tex. recov ery produces any physi harm ner- when emotional "extreme (physical shown manifestation See, symptoms. e.g., Gulf, Ry. headaches, cal C. & S.F. Co. vousness, memory lapse of severe (Tex. Hayter, 93 Tex. 54 S.W. Moore, deterioration”). also and brain 1900) (permitting recovery fatigability, lack ("embarrassment” and "humilia- S.W.2d at 686 energy, pains, various aches and and disincli jurisdictions). in other tion” suffice activity); nation to Houston Electric Co. v. Dor- meaningful where only lifelong mere emo- concepts ation of new in tort is produced. tional harm is historically province judiciary.” El Corp. Poole, Chico IV. (Tex.1987).14 To majority happened what to this majority fails to acknowledge indistinguishable woman is from a mere psyche the human injured can be way in a or any trifle other distress associated with every that is bit as real slicing through daily public existence. The display of this flesh crushing again bones. Once to- compared woman’s most intimate act is day’s opinion considers one-half of the any termination of “intimate relation- equation: fairness ship,” callously And where the concern is to avoid exces- just treated as another affair heart. punishment sive upon negligent defen- When these four videotaped men Susan dant, it must be asked whether fairness during intercourse, Kerr sexual they gross- permit leaving will burden of loss the ly trespassed over line the of the ordinary upon instead victim. the innocent acceptable. why and they And should not legally accountable to her the for emo- I & at Prosser Keeton Torts 361. § tional scars inflicted their misconduct? ap- adopt believe we a balanced should of any provided. No answer kind is In- proach that both. strives fairness to majority disparages stead the the victim Instead, by majority’s return the the to gratuitous with “[although comments that rule, another “dead manifestation dating [Boyles] steadily,” Susan Kerr principle tort [has resuscitate[d].” been] “shared several ... sexual encounters” Sterling, See Stewart Title Guar. v.Co. him, meeting soon after id. at and (Tex.1992) J., (Doggett, noting that, despite the emotional blow sus- dissenting). I compared There this reinvi- tained, subsequent sexually-active she “had goration of such dead con- and unrealistic relationships.” 594. Id. at cepts “unthinking awakening to the of Living in Night The the suggesting zombie[s] While law is “in- California Dead,” predicted id. at that: structive,” proceeds majority id. the disregard to the fact that the definition of movies, the have opinion Like this will duty in doctors, that state is not limited to movies, sequels. the havoc Unlike telegraph companies. morticians and But tort on our traditional the court effects today’s whether to writers looked Califor- to cause harm the lives law will direct reject nia some other secret to source ordinary thousands of Texans. claim, can only Susan Kerr’s we surmise. “Sequel” perhaps an under- Id. at analysis or explanation any No kind is statement; is a happening is here what regarding offered what factors were deter- such Wednesday matinee serial each where minative majority’s of the unilateral choice could end writing appropriately revisionist reject Susan Kerr’s claim these four “To Be Continued.” duty men owed a not to inflict severe harm behavior,” are “Rude and callous we irretrievably on her. The law is not locked told, pay price is we must —what in the days before televisions and video- soci- open “must in a free be tolerated cameras, operators nor limited to of tele- con- at 236. The ety.” Tex.Sup.Ct.J. graphs carriages. and horse-drawn In re- nothing to do duct occurred here has which fusing why duty to discuss no arises from open society. free and promoting with a Kerr, Boyles’ exploitation sexual of Susan majority clear: majority message abdicates its is responsibility. separate writings today’s, injustice Until such court to court Don’t bother this sought obligation bar keep inconsequential, to fulfill its from better tort apace for Su- law with modern times: “The cre- both. The cause now remanded impose prevent Phillips, Transportation 14. This refusal a Co. not, outrageous er, J., and harmful conduct (Tex.1990) howev- (Doggett, dissenting). phenomenon. a new See Greater Houston of the join any part I court’s another decline to san Kerr to endure trauma of discusses a cause action opinion “in which justice.” trial interest infliction of emotional dis- terms; intentional S.W.2d at 594. What conflict beyond has The court reached tress. justice interest has been served here case to discuss questions presented this today. I dissent. infliction within its discussion intentional gross negli- possible of action for cause GAMMAGE,JJ., join MAUZY unnecessary and gence. The discussion is. dissenting opinion. confuses the issue. COOK, Justice, concurring and dissenting. Dec.

[Filed 1992.] holding majority.

I concur however, separately,

I I write because find opinion confusing court’s and inconsis- clarify in many respects. my

tent I must positions important own on these issues. TWYMAN, Petitioner, E. William opinion The court’s leads to confusion damages. between cause of action and sections, In some court refers to a TWYMAN, Kay Respondent. Sheila “cause of infliction action No. D-0184. Elsewhere, emotional distress.” the court Texas. Supreme refers to “emotional as an Court of distress” ele- damages. ment of Another section refers 5,May anguish damages.” to “mental terminology confusion under- standable, judi- given the various labels

ciary has applied to causes of action for distress the element dam- terms,

ages. however, precision Lack of

should not allowed to be obscure differ-

ence between the cause of action damages

element the exact effect of

today’s decision. The cause of action we

reject today general negligent is the inflic- distress, negli-

tion of emotional once called

gent anguish infliction of mental Garrard, Hospital

Elizabeth (Tex.1987). What we do not disturb in opinion

the court’s is the status dam- anguish

ages. Damages for mental are Texas, as the result of

still recoverable Furthermore,

many damages such torts. proved physical manifesta-

need view, was cor- my

tion. St. Elizabeth drop manifestation re-

rect

quirement damages recover for mental

anguish.

Case Details

Case Name: Boyles v. Kerr

Court Name: Texas Supreme Court

Date Published: May 5, 1993

Citation: 855 S.W.2d 593

Docket Number: D-0963

Court Abbreviation: Tex.