*1 KOESTLER, Jr., Richard J. Plaintiff-Appellant,
v. POLLARD, Donald E. Defendant-Respondent.
Supreme Court Argued No. 90-1004. March 1991. Decided June 1991.
(Also reported 7.) in 471 N.W.2d *3 (in plaintiff-appellant For there were briefs Hammes, appeals) Timothy J. by court of James W. Andringa Hammes, Cramer, & Waukesha and Multhauf by argument Hammes. James W. oral (in defendant-respondent there was a brief For by appeals) Peckerman, Milwau- Bruce M. the court argument Bruce M. Peckerman. oral kee and court CECI, is before the This case J. J. LOUIS appeals, pursuant to from the court of on certification plaintiff, (Rule) Richard J. 809.61, The Stats. sec. Koestler, (Koestler), against this action commenced Jr. (Pollard), seeking damages for the E. Donald Pollard Koestler distress. infliction of emotional intentional intentionally alleged him concealed from Pollard biological father of a child was the that Pollard the fact marriage during their to Koestler's wife born developed a bond with fact after Koestler revealed said the child. appeals order of from the decision and
Koestler county, Zick, Circuit J. Waukesha Willis circuit court for granting dismissing Judge, motion to In the action. legislature dismiss, court reasoned that the circuit it such as Koestler's when claims intended to abolish and aliena- criminal conversation actions for abolished affection.1 tion of presented by this review—whether
One issue is following complaint alleging relief: states a claim for intentionally plain- (1) from the concealed the defendant biological father that the defendant is the tiff the fact 768.01, Stats., provides: 1Section *4 promise, breach of alienation of affec- 768.01 Actions for All causes of action tion and criminal conversation abolished. marry, and criminal breach of contract to alienation of affections for abolished, hereby except that this section shall not conversation are apply existing which hereto- to contracts now or to causes of action fore accrued. plaintiffs
a child born to the wife during their marriage, (2) paternity the defendant revealed the child's after plaintiff developed a bond with the child. We hold complaint a which alleges necessary that facts to a state claim criminal conversation does not state a relief if claim for even alleges it additional facts which not alleged need be to state a claim for criminal conver- sation. Accordingly, we conclude that Koestler's com- plaint fails to a upon state claim which may relief be granted.
The facts appeal relevant to this dispute. are not in 14, 1989, On June Koestler commenced this action. alia, inter alleged, Koestler that while was he married to Koestler, Lynn Vickie engaged Pollard sexual inter- child, course with Vickie which resulted the birth of a C.K., in 1983. Koestler alleged further that Pollard knew was biological he father of C.K. intentionally but this kept caused information to be from until Koestler 17,1987. June As result the initial concealment and paternity C.K., eventual disclosure of the Koestler alleged that he suffered disabling an extreme and emo- tional response relationship his disturbed with C.K. and with his other child. 23, 1989, August
On Pollard moved the court dismiss complaint Koestler's failure state claim upon granted. which relief argued Pollard public policy bars Koestler's claim.
The circuit court heard Pollard's motion to dismiss 9,1990. By 27,1990, on March order entered March circuit granted court Pollard's motion to In dismiss. motion, granting the the circuit court reasoned that the legislature intended to when it abolish Koestler's claim abolished claims for criminal conversation and aliena- tion of affection. *5 from decision of the circuit appealed the
Koestler court, certified appeals appeal and court of the the court. this complaint upon states a claim which
Whether a
may
which we
granted
question
relief
a
law
be
and without deference to the deci-
independently
decide
Fund,
Blue
v. Fireman's
sions of lower courts.
Cross
(1987).
544, 548,
reviewing
In
2d
At common could an action against party engaged third who criminal conversation partner. The adultery spouse's marriage with had to plaintiff action for criminal conversation an prove following facts:
(1) spouses, marriage an between actual (2) sexual intercourse between defendant spouse during [marriage]. guilty coverture Místele, 158 N.W.2d Schneider v. 39 Wis. 2d following (1968). alleges complaint Koestler's facts:
(1) marriage an actual between Koestler and Vickie Koestler;
Lynn (2) sexual intercourse between Pollard and Vickie
Lynn the during Koestler Koestlers' marriage; child, C.K., (3) marriage the of a during birth the as a result of the aforementioned sexual inter- course; and
(4) the and initial concealment eventual disclosure biological
of the fact that is the Pollard father of C.K.2
The first two facts contained in com- Koestler's plaint necessary plead are identical to the facts to and prove Moreover, claima for criminal conversation. complaint, in third fact contained Koestler's the birth of probable consequence child, a is a natural and of the complaint, fact second contained in Koestler's sexual Finally, intercourse. the fourth in fact contained complaint, Koestler's concealment and eventual disclo- paternity sure of the of the child born of the as result undoubtedly intercourse, adulterous is a common occur- rence in cases of in conversation which result criminal pregnancy.
While the third fourth in facts contained complaint Koestler's are to a not essential claim they directly conversation, all criminal flow from the constituting facts alleged are criminal conversation which complaint. Therefore,
in Koestler's Koestler's complaint in essence states claim criminal conver- 768.01, sation and barred sec. To oth- Stats.3 hold complaint go allegations 2Koestler's includes to also which damages. issue analysis complaint necessary 3The of Koestler's facts to a claim illus- state for criminal conversation forth above set that ch. legislature's violate the directive
erwise would 768, Stats., and would sub- liberally be construed4 should Furthermore, 768.01. underlying sec. policies vert public policy because claims claim violates Koestler's in disputes judi- in the courts such as his embroil inappropriate. cial intervention is legislature provided it ch. When enacted liberally con- chapter shall be 768.08 "[t]his thereof." The court object to effectuate the strued Hampton, Prill v. Wis. 2d appeals decision 1990), (Ct. just how App. illustrates 453 N.W.2d In construed. liberally provisions of ch. 768 should be Prill, plaintiffs argued that she should one assertions, that, contrary complaint is an trate Koestler's his attempt mis- "end-run" sec. 768.01 which arises from marital misconduct, alleged Koestler's wife conduct. Without the marital *7 given whom not could have birth to child of Koestler was not father, anything not to biological the and Pollard would have had conceal. by support his do not conclu-
4The authorities cited Koestler
Brockmeyer
strictly
v.
768.01
be
construed.
sion that sec.
should
Bradstreet,
561,
(1983),
Dun
113 Wis.
&
2d
N.W.2d
public
employment
policy exception to the
at will
involved the
and, therefore,
apply
does not
to
case at bar. Con-
doctrine
assertions,
Thomas,
trary
v.
127 Wis. 2d
to Koestler's
Brown
(Ct.
1985),
compel
App.
not
this court to
permitted that husband's injuries caused Id. their divorce. at 681. of appeals rejected
The court the wife's contention claim that she had a for "wrongful divorce" because it "essentially an was alienation of claim." Id.5 affections appeals of despite The court reached this conclusion fact the wife's negligent that claim was based on the defendant, conduct of the alienation affection claims, they allowed, when were were based on the defen- intentional dant's interference the marital relation- If ship.6 sec. 768.01 a negligence though bars claim even only torts, it expressly abolishes it intentional should liberally construed to allege bar claims which that criminal produced conversation paternity a child whose intentionally kept was from spouse, the innocent it since expressly abolishes criminal conversation actions.
Furthermore, if can provisions Koestler evade the sec. simply pleading naturally 768.01 flow facts criminal conversation, from the facts that constitute destroyed by 768.01 will be just artful No or pleading. appeals rejected wrong 5The court of also the wife's claim wit, public policy grounds, ful difficulty divorce on to fail, determining marriage what causes a as well as the fact that Id. inquiry open scrutiny very personal such an would issues. the Prill court noted that However, (public policy reasons two 768.01) and sec. for its decision were interrelated when it stated public policy legislature's supporting same reasons ”[t]he support abolition of these claims also [alienation affections] Id. wrongful denial claim for divorce." at 681-82. [the wife's] Prill Thus, *8 recognizes policy that the behind sec. 768.01 is precise public broader than the terms of sec. 768.01 and that policy may precisely catego bar claims that not fall the do within by ries of actions abolished the statute. Torts, The Keeton, Law 6W. Prosser & W. 124 sec. at 919 (5th n.42, 1984). 920 ed.
805 complaints drawn between distinction could be sensible allege and, therefore, are criminal conversation that by complaints allege that the facts sec. 768.01 barred enough to additional facts criminal conversation and prohibition. example, if we hold sec. For evade 768.01's complaint, not Koestler's a sec. 768.01 does bar that plaintiff a claim intentional infliction could state for by allegingthat an extramarital affair emotional distress public with intent of carried a manner the was on upon inflicting him or her. Such emotional distress legislature clearly type of the intended claim claim by by enacting providing that sec. 768.01 to abolish liberally it should construed. policy underlying
Moreover, would 768.01 plaintiff relief if a could state claim for be subverted simply alleging to elements of facts addition when As one court noted criminal conversation. rejecting emo- claims for the infliction of intentional arising out of conduct: tional distress adulterous permits 'recovery Assuming law now for [the] infliction of mental distress without intentional any duty proof duty than of the breach of other ., public inflicting strong policy it' refrain . . from judicially applying against militate considerations developments in area of law to these recent this arising dispute of a out of matri- the factual context damages claim monial differences. To sustain the in a revival of evils not unlike those would result Legislature in 1935 outlaw prompted and criminal con- actions alienation affections . .. versation . 8, 11, Weicker, v. N.Y.2d 237 N.E.2d
Weicker (1968) (citations 876-77, omitted). 733-34 N.Y.S.2d *9 legislatures The evils that and courts intended by outlawing eliminate claims of criminal conversation included the harm that claims for criminal conversation: blackmail
afforded fertile field for and extortion means of manufactured suits which the threat of publicity is used to force a settlement. Keeton, Torts,
W. Prosser & The W. Law 124 sec. at of 1984) (5th [hereinafter ed. The Law Torts]. The of using publicity evil of the threat of to extort settlements simply plaintiff seeking is not diminished because the is recovery under the of label emotional distress of instead when, the label of criminal conversation as in at the case alleged complaint bar, the facts in a for the former are nearly alleged identical to the facts be that would in a complaint for the latter. prompted legislatures
Another evil which and courts to abolish claims for alienation of affection and criminal genuine type conversation was that "even actions of this [alienation of affection and conversation] [were] criminal brought frequently mercenary purely more than not with Torts, or . vindictive motives . .." The Law at of greater 929. The risk of this evil is even in cases such as the one at bar when a child born as result of criminal conversation.7 abolishing
7The motivations for actions for criminal conver that, sation set contrary forth The Law Torts illustrate assertion, legislative history surrounding Koestler's statutes suggests such as sec. 768.01 intentional infliction emo tional distress actions emulate criminal actions for conver above, Otherwise, sation should barred. all the as discussed legislature eliminate evils which the intended to will return. Furthermore, type for which Koestler injury injury for which the type is not the seeks to recover *10 Therefore, can, should, remedy. public provide or a law P. v. Superior claim. In Richard bars Koestler's policy (1988), Court, Rptr. 246 3d 249 Cal. App. Cal. complaint public policy grounds on a the court dismissed as the same claim alleged same facts and stated that P. in at bar. The Richard complaint Koestler's the case why illustrates claims such as Koestler's analysis court's not be allowed: should parties parties in agree real interest
We with [the they position] who in that have stood Koestler's normally alleged would suffice to state words which . . . intentional infliction tort of action for [a] [cause] subject We that the matter of emotional distress. feel however, action, in one which it is of the is not 'Broadly appropriate for the courts to intervene. "tort," wrong, a civil other speaking, the word means contract, for which the law will than breach of provide remedy in the of an action for dam- form power any judicial ages. It lie within the does not however, system, remedy wrongs. human There all many wrongs flagrant. in are themselves are words, instance, betrayal, wrongs For such as brutal feelings disregard of others are and heartless of the any beyond legal remedy practical any effective attempt correct of law. ... To administration "may give relief do wrongs such or from their effects damage more than if the law leaves them social ' alone." . . . any wrong conclude here which has We that party stood occurred as a result of Richard's who [the position] in Pollard's actions is not one which can be Moreover, legislature expressly provided our sec. 768.08 liberally ch. 768 should be construed. in a
redressed tort action. We do not doubt that this lawsuit unhappy emanated from an situation in parties which the real grief. interest suffered We feel, however, that innocent children here significant suffer having harm from family their litigation involved in such as this and that this is exactly which, type of lawsuit if pro- allowed to ceed, might result in more damage social than will if occur the courts decline to intervene. 'We do not believe provide the law should a basis for such interfamilial warfare.'
Id. at 202 App. 1093-94, Cal. 3d at Rptr. Cal. at 249 (citations omitted). persuaded
We are by the Richard P. analysis. court's policy Public bars Koestler's claim because more harm *11 good than will if result Koestler is pursue allowed to this Moreover, action.8 Koestler's by claim is poli- barred the cies underlying 768.01, sec. by if itself, not sec. 768.01 allowing because claims such as Koestler's will result many of the evils which occurred when claims for crimi- nal conversation were allowed.
By the Court —The decision and order of the circuit court are affirmed.
SHIRLEY ABRAHAMSON, (dissent- S. J. ing). Although the facts of this case might also have formerly given rise to an alienation of affection and
8Contrary assertion, to Koestler's whether the circuit court based its decision on public sec. 768.01 alone or on sec. 768.01 and policy may is irrelevant. We affirm a lower court's decision on grounds upon different by than those relied the lower court. See Murphy, n.2, Saenz (1991). v. 162 Wis. 2d 469 N.W.2d Furthermore, question public policy fully argued has been and briefed before this court. action, I that would hold
criminal conversation plaintiffs emotional infliction of for intentional claim by expressly 768.01, sec. not barred distress is conversa- of affection and criminal alienation eliminated by public policy. actions, Accord- not barred tion is ingly, I of the circuit court and reverse the order would complaint for which relief states claim hold granted. be
HH specifically 1987-88, 768.01, abol- Stats. While sec. of affections and all of action for alienation ishes causes expressly conversation, not it abolish criminal does distress, infliction of emotional tort action of intentional recognized in sec. 768.01 was this state when an action clause 768.01 have a catch-all enacted. Nor does sec. saying crimi- of affections or torts similar to alienation pro- While 768.08 nal conversation are abolished. liberally chapter construed to 768 shall vides that object thereof, it does not authorize this effectuate not add causes action to rewrite sec. 768.01 to court therein. enumerated compare plaintiffs I infliction
When
intentional
claim with alienation of affections
emotional distress
claims, I
that the
conclude
and criminal conversation
plaintiffs
dissimilar to those
claim this case
so
it is
sec. 768.01.1
claims that
not barred
action, see, e.g.,
1For
causes of
discussions of
three
Balm,"
Legislative
"Heart
L.
Attack on
Feinsinger,
33 Mich.
Rev.
*12
(1935); Note, Power Abuse as a Basis Alienation
979
of Affec-
for
(1985); Note,
Jacobsen,
tions: Nelson v.
B.Y.U. L. Rev. 183
1985
Dis-
Intentional
Emotional
Loss Consortium and
Infliction of
of
Affections,
to
L.
tress: Alternative Theories Alienation of
67 Iowa
The
Death
(1982); Note,
v. Miller:
Rev. 859
Cannon
Brief
of
and
Conversation
North
Criminal
Alienation
Affections
of
810
gravamen
The
of the tort action of alienation of
spouse's
society,
love,
affections was a
loss of the
com-
panionship
spouse.
and
of
comfort
the other
The com-
(1)
plaining party
prove wrongful
had to
conduct
(2)
defendant;
spouse;
loss of
or
affection
consortium of the
(3)
wrong-
and
a causal connection between the
ful
Ciskowski,
conduct and the loss. Dobrient v.
54 Wis.
(1972).
422,
419,
2d
The tort
conversation,
action of criminal
a civil tort
adultery,
marriage.
action for
focused on the
The ele
(1)
ments
a claim for
of
criminal conversation were
an
marriage
spouses
(2)
actual
between the
sexual
during
marriage
intercourse
between the defendant
plaintiffs spouse.
and the
Mistele,
Schneider v.
39 Wis.
(1968).3
137, 140,
2d
2See also Prosser and Keeton on 124, (5th p. 918 sec. 1981); (2d) 683, p. (1977). ed. Restatement sec. Torts 478 Torts,
3See also Prosser Keeton on (5th p. 1981); (2d) (1977). p. ed. Restatement of Torts sec. *13 well-being.4 plaintiffs of inten- The four elements the (1) the defen- distress are: tional infliction of emotional plaintiff purpose dis- emotional was to cause the dant's (2) tress, outrageous, extreme and the conduct was defendant's
(3) conduct was the cause the defendant's (4) injury, plaintiff plaintiffs the suffered fact of the response. disabling v. Anderson emotional an extreme 675, 695, Co., Ins. 2d 271 N.W.2d 85 Wis. Continental (1978); 832, Schroeder, 825, 2d McKissick v. 70 Wis. 368 (1975); 349, Gehl, v. 21 Alsteen Wis. 2d 235 686 N.W.2d (1963).5 124 312 N.W.2d arising
Although particular a out of fact situation relationship might support three causes all marital separate and action, three causes of action are distinct. Aliena- are different.
The elements of each action criminal actions tion required marriage affections and conversation predicate tort; both as for relationship. protected Inten- the husband-wife actions requires neither tional infliction of emotional distress designed protect specifically rela- the marital nor is analogue tionship. is tort Criminal conversation adultery; ele- conduct is an essential the crime of sexual necessary ele- ment the tort. Sexual conduct not a action infliction of emotional ment in an for intentional distress.
An of affections focused on action alienation plaintiffs effect the defendant's conduct on spouse. on An for criminal focused action conversation relationship plaintiffs the defendant's sexual with spouse. An action intentional infliction of emotional Torts, (5th and Keeton on pp. ed.
4Prosser sec. 60-62 1981). Torts, (1977); pp. 2d of 71-72 also
5See Restatement Jacobsen, (Utah 1983). Nelson v. P.2d on the distress focuses defendant's conduct towards plaintiff and the effect of the defendant's conduct on the *14 plaintiff.6 protect
The tort three actions different interests compensate and In injuries. different an alienation of affections or criminal plaintiff conversation action the compensation disruption seeks for of the marital rela- In tionship. an action for intentional infliction of emo- distress, plaintiff tional the compensation seeks for injury person; to his her or own the severe emotional plaintiff harm the is an essential element of the tort. The claim in plaintiffs alleges this case that the defen- plaintiff. dant caused emotional harm plain- to the The allege adultery tiff not does or harm to his marital rela- tionship. An alienation of or affections criminal require conversation action does not emotional harm to plaintiff, although the the may fact-finder consider emo- assessing harm as a in tional factor damages. Lis, analysis Super. 48,
6The used Bartanus v. 332 Pa. (Pa. Super. 1984), persuasive. A.2d 1178 Ct. That con court parent's a trasts action for a alienation of child's affection parent's action of intentional infliction emotional distress. The court differentiated between the two causes of action because especially the elements the alleged of the harms —were torts — distinct.
"In an action for the
dis-
intentional infliction of emotional
tress,
inquiry
intentional,
the central
is whether there was
outra-
geous
plaintiff
conduct and whether the
suffered
as
severe distress
then,
focus,
a result of
The
the
that conduct.
is on the effect
plaintiff.
actually
conduct has on the
Whether the conduct
alien-
Conversely,
ated the child
be
irrelevant.
in an action
child,
necessary
of
alienation
the affections of a
it is not
that the
and,
outrageous
importantly,
conduct
focus
involved
more
prohibited
is on the
effect
conduct has on the child."
Bartanus,
Because the different ele- requires proof of tion emotional distress harm than an alienation different ments and redresses action, I con- a criminal conversation of affections or did not abolish intentional legislature clude that it aliena- distress when abolished infliction emotional conversation actions tion of affections criminal 768.01, 1989-90.7 Stats. I—I hH policy public considera- I further conclude that to abolish alienation impelled legislature tions not actions do and criminal conversation affections require circuit court's dismissal of affirmance complaint. *15 relationship of the integrity
While the marital many abolished or legal protection, states have deserves criminal conversa- restricted alienation of affections and These decision.8 states by judicial tion claims statute or by engendered harm that the social have determined Meter, v. Meter Van Van holding, see 328 7For a similar (Iowa 1983). 497 N.W.2d Prosser and cases, compilations
8For of statutes and see state Torts, Note, 124, (5th 1981); Loss Keeton on p. ed. 929-930 of Emotional Distress: Consortium and Intentional Infliction of Affections, Alternative Theories Alienation Iowa L. Rev. 67 of 859, Note, Power Abuse as a Basis Alienation (1982); n.4 Jacobsen, B.Y.U. L. Rev. 183 Nelson v. of Affections: The Alienation (1985); Note, Death v. Cannon Miller: of Brief of Carolina, in and Criminal Conversation North Affections (1985); Note, The Suit Alienation 1317, 1326-1327 N.C.L. Rev. Today?, Its Existence be Can 56 N.D.L. Justified Affections: Note, Hunt: The Status 239, 247, (1980); Rev. Hunt v. n.75 Dakota, 160, 164 "Heartbalm" Torts South 27 S.D.L. Rev. A Standard (1982); Note, New Causation v. Nelson Jacobsen: outweighs they goals attempt these torts to serve. Legislatures give and commentators several reasons for abolishing alienation of affections and criminal conver- apply sation actions.9 These reasons do not with the plaintiffs same force to the claim of intentional inflic- though predicated distress, tion of emotional even it is arising relationship might on facts out of a marital past in the have also been the basis of an alienation of affections or criminal conversation action. generally
First, the abolished actions were not having significant credited with deterrent effect on significant protecting tortious conduct or a effect on or preserving relationship. Presumably the marital marriage was not harmonious before the misconduct and apt improved by was not to be the threat of a civil considering intentionally contrast, action. In individuals inflicting may emotional distress on another be deterred prospect of a civil tort action. involving
Second, actions, the abolished often an great potential misconduct, accusation of sexual had a society's for abuse. The abolished actions allowed intru- aspects emotional, marital, sion into the and sexual unreasonably individuals’ lives and have interfered personal privacy. with an individual's interest The abolished actions could have been used for blackmail. reputation-damaging publicity The threat of could force Actions, Alienation 885, 891-92, 1984 Utah L. Rev. of Affection nn.50, (1984). *16 51
9For evaluations
abolishing
of the reasons for
alienation of
actions,
affections and criminal conversation
see Fundermann v.
Mickelson,
Wallace,
(Iowa 1981);
Wyman
v.
Third, in alienation of affections and compensate intangible criminal conversation actions may injuries arbitrary. excessive and Juries damages in have awarded the two abolished actions to punish defendant's misconduct rather than for the harm inflicted. distress,
In intentional infliction emotional damage measure of is serious emotional All harm. com- pensable personal injuries, physical including pain harm, suffering, carry distress, and emotional the risk of arbitrary Compensation excessive and awards. for seri- only is, however, ous emotional distress basis for damages in an intentional infliction of emotional dis- severity tress action.12 Proof of the of the emotional genuineness distress affords evidence of the of the distress.
Through the tort of intentional infliction of emo-
society recognizes
tional distress
that emotional distress
significant
physical injury.
recog-
is as
as
Our court has
ability
damages
nized the fact-finder's
to assess
in inten-
tional
infliction of emotional distress actions. See
Gehl,
349, 359,
Alsteen v.
21 Wis. 2d
Fourth, the made inequitable. the alienation of affections tort In aliena- plaintiff prove tion of affections actions the had controlling the defendant was the cause of the loss of concept simplistic affections. The tort of causation is too protected relationship. when the interest is the marital Marriages party's vulnerable to a third interference are
12Compare descriptions of the harms for the torts. three (2d) Torts, 46, p. 78, 685, p. Restatement sec. sec. (1977). p. 485 Assigning number of reasons. ones for a troubled
often complex interference with the and causation blame *18 difficult, if extraordinarily marriage is relationship of cau- proving the difficulties of To mask impossible. not manipulate sympathies, may plaintiff sation by stressing the defen- jury of a passions prejudices dant's misconduct. in applicable is more concept of causation
The tort distress actions infliction of emotional intentional complex need not examine the fact-finder because marriage. of a of the dissolution causes and crimi- of affections finally, Fifth and alienation view that on the outmoded actions rest nal conversation under the law and that wife are one the husband and person. Alien- in the other's property interest each has a the master-ser- actions derive from of affections ation enticement; the wife as the the law treated action of vant sought protect to and the action property, husband's Criminal con- in his wife's services. interest husband's versation, adultery, protected criminal tort version of intercourse in exclusive sexual husband's interest wife; damages even the husband could recover with his initiated intercourse with wife consented to or when the of the Married adoption man. With the another in in the 19th cen- Property Act Wisconsin Women's proprietary concept of tury, courts extended the Unlike the two abol- two causes of action to wives. these actions, infliction of emotional distress intentional ished concepts marriage. property on dated law is not based intentionally emotional dis- inflict Individuals relation- in than the marital tress circumstances other in not complaint this case does ship. plaintiffs The relationship. marital The with the allege an interference separate a tort thus constitutes defendant's conduct of alienation of affections independent from the torts Intentionally and criminal conversation. inflicted emo- tional distress is no less emotional distress and no less an actionable tort because the emotional distress was inten- tionally may have, in a inflicted fact situation era, given another rise to a claim for alienation of affec- tions or criminal conversation. conclude,
I as several courts have concluded in simi- cases, legislature lar that the did not intend to abolish a separate claim for the tort of intentional infliction of when emotional distress it abolished the causes of action 768.01, described because intentional infliction of implicate public emotional distress does not the same policies.13 plaintiff I therefore conclude should opportunity attempt prove be afforded the his cause of action. *19 jurisdictions reaching
13For several cases
other
the same
reach, see,
Meter,
e.g.,
result as I
Van Meter v. Van
328 N.W.2d
497,
(Iowa, 1983) ("the
elements of the tort of intentional
distress,
policy
infliction of emotional
and some of its
considera-
tions,
claim");
are different from those
an alienation
Bartanus
Lis,
48,
(Pa.
1984) (no
Super.
Super.
v.
332 Pa.
For case the result the (Gerald B.), Superior App. see Richard P. v. Court 202 Cal. 3d (1988). Rptr. 249 Cal. forth, I I For reasons set dissent. would reverse the order of the circuit court and remand the cause to the circuit court.
I am authorized to state that Chief Justice Nathan joins S. Heffernan this dissent. cited notes 2 and 9 above. 815 accept spouse or an divorce settlement unfavorable to money. party pay third to to force the of for infliction emotional While actions intentional predicated arising rela- on of a marital facts out distress tionship possibility suits and raise the of blackmail also carry poten- privacy, they the do not sanie intrusion into One did two abolished actions.10 tial for abuse as the infliction distress is intentional of emotional reason that prove In an two actions. harder to than the abolished plaintiff the was of affections action for alienation presumption of law's affection assisted both the presumption spouses if the no that between the spouses the affection existed between reconciliation possible might had the not inter- have been defendant presumptions plaintiffs of eased the burden fered. These proof In with a difficult burden.11 and left defendant prove plaintiff action, a only had to criminal conversation con- adulterous two elements and could establish through contrast, In circumstantial evidence. duct plaintiff alleges of intentional infliction emotional who must establish that defendant intended distress plaintiff distress, that defen- cause the emotional outrageous, that the dant's conduct was extreme and resulting plaintiffs The was emotional distress severe. required none of these elements. two abolished actions The of emo- elements of tort intentional infliction Thomas, 318, 379 10See Brown v. 868 127 Wis. 2d N.W.2d (Ct. 1985), App. holding chapter abolishing actions for marry not return of breach contract did bar a claim engagement engage ring. Abolishing a claim return of an an ring purpose chapter prevent ment not further did 768 to extortionary conduct. 11Note, Its Exis The Suit Alienation Can of Affections: Today?, (1980). tence be 56 N.D.L. Rev. Justified