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Full Opinion
Dan BOYLES, Jr., Petitioner,
v.
Susan Leigh KERR, Respondent.
Supreme Court of Texas.
Concurring Opinion by Justice Gonzalez on Motion for Rehearing May 5, 1993.
Supplemental Dissenting Opinion by Justice Doggett on Motion for Rehearing May 5, 1993.
Dissenting Opinion by Justice Doggett December 2, 1992.
Concurring and Dissenting Opinion by Justice Cook December 2, 1992.
*594 OPINION ON MOTION FOR REHEARING
PHILLIPS, Chief Justice.
Respondent's motion for rehearing is overruled. Our opinion of December 2, 1992, is withdrawn and the following is substituted in its place.
This is a suit for the negligent infliction of emotional distress. We hold that there is no general duty in Texas not to negligently inflict emotional distress. A claimant may recover mental anguish damages only in connection with defendant's breach of some other legal duty. Because Respondent proceeded below only on the theory of negligent infliction of emotional distress, we reverse the judgment of the court of appeals in her favor. 806 S.W.2d 255. However, in the interest of justice, we remand for a new trial.
I
On August 10, 1985, Petitioner Dan Boyles, Jr., then seventeen, covertly videotaped nineteen-year-old Respondent Susan Leigh Kerr engaging in sexual intercourse with him. Although not dating steadily, they had known each other a few months and had shared several previous sexual encounters. Kerr testified that she had not had sexual intercourse prior to her relationship with Boyles.
Kerr and Boyles, who were both home in Houston for the summer, had made plans to go out on the night of the incident. Before picking Kerr up, Boyles arranged with a friend, Karl Broesche, to use the Broesche house for sexual intercourse with Kerr. Broesche suggested videotaping the activity, and Boyles agreed. Broesche and two friends, Ray Widner and John Paul Tamborello, hid a camera in a bedroom before Kerr and Boyles arrived. After setting up the camera, the three videotaped themselves making crude comments and jokes about the activity that was to follow. They left with the camera running, and the ensuing activities were recorded.
Boyles took possession of the tape shortly after it was made, and subsequently showed it on three occasions, each time at a private residence. Although he showed the tape to only ten friends, gossip about the incident soon spread among many of Kerr and Boyles' friends in Houston. Soon many students at Kerr's school, Southwest Texas State University, and Boyles' school, the University of Texas at Austin, also became aware of the story. Kerr did not learn of the video until December 1985, long after she and Boyles had stopped seeing each other. After she confronted him, Boyles eventually admitted what he had done and surrendered the tape to Kerr. No copies had been made.
Kerr alleges that she suffered humiliation and severe emotional distress from the videotape and the gossip surrounding it. At social gatherings, friends and even casual acquaintances would approach her and comment about the video, wanting to know "what [she] was going to do" or "why did [she] do it." The tape stigmatized Kerr with the reputation of "porno queen" among some of her friends, and she claimed that the embarrassment and notoriety affected her academic performance. Kerr also claimed that the incident made it difficult for her to relate to men, although she testified to having had subsequent sexually-active relationships. Eventually, she sought psychological counselling.
Kerr sued Boyles, Broesche, Widner and Tamborello, alleging intentional invasion of privacy, negligent invasion of privacy, and negligent (but not intentional) infliction of emotional distress. Before the case was submitted to the jury, however, Kerr dropped all causes of action except for negligent infliction of emotional distress. The jury returned a verdict for Kerr on that claim, assessing $500,000 in actual damages. The jury also found that all defendants were grossly negligent, awarding an additional $500,000 in punitive damages, $350,000 of which was assessed against Boyles. The trial court rendered judgment in accordance with the jury's verdict.
*595 Only Boyles appealed to the court of appeals.[1] That court affirmed the judgment against him, concluding that Kerr established negligent infliction of emotional distress under the facts of this case. The court of appeals also affirmed based on negligent invasion of privacy, even though Kerr abandoned this theory prior to submission of the case to the jury and did not brief or argue it as a basis for affirmance in the court of appeals.
II
Initially, we must determine whether negligent infliction of emotional distress constitutes an independent cause of action in Texas. Kerr claims that we recognized a broad right to recover for negligently inflicted emotional distress in St. Elizabeth Hospital v. Garrard, 730 S.W.2d 649 (Tex. 1987). Boyles contends that the Garrard holding is limited to the particular facts of that case.
In Garrard, a hospital negligently disposed of the Garrards' stillborn baby in an unmarked, common grave without the plaintiffs' knowledge or consent. The Garrards sued for negligent infliction of emotional distress, without alleging that they suffered any physical injury. This Court nonetheless concluded that they had stated a cause of action. We determined that "Texas first recognized the tort of negligent infliction of mental anguish in Hill v. Kimball, 76 Tex. 210, 13 S.W. 59 (1890)." 730 S.W.2d at 652. This tort, we said, had been administered under traditional tort concepts, subject only to a refinement on the element of damages: the mental suffering is not compensable unless it manifests itself physically. Id. After determining that the physical manifestation requirement was arbitrary because it "denies court access to persons with valid claims they could prove if permitted to do so," id., we proceeded to abolish it. 730 S.W.2d at 654.
The Court then proceeded, we believe, to create a general duty not to inflict reasonably foreseeable emotional distress. The Court said:
Clearly, freedom from severe emotional distress is an interest which the law should serve to protect.... Having recognized that an interest merits protection, it is the duty of this court to continually monitor the legal doctrines of this state to insure the public is free from unwarranted restrictions on the right to seek redress for wrongs committed against them.... Thus, we hold that proof of physical injury resulting from mental anguish is no longer an element of the common law action for negligent infliction of mental anguish.
730 S.W.2d at 653-54. Four justices joined in the judgment, but concurred on the grounds that the same result could be reached under the traditional Texas rule allowing emotional distress damages arising from the mishandling of a corpse. Id. at 654. If the Court's holding was, as Boyles contends, limited to the mishandling of corpses, the concurring opinion would not need to have been written, as its rationale would have been incorporated in the majority opinion.
The liability standard under this new tort, however, was never entirely clear. Garrard seemed to indicate that "trivial" emotional distress should not be compensated, 730 S.W.2d at 652, and similarly that the law should protect against "severe" emotional distress. Id. at 653. Rather than articulating any threshold level of severity, however, the Court concluded that "[j]urors are best suited to determine whether and to what extent the defendant's conduct caused compensable mental anguish by referring to their own experience." Id. at 654.
While the holding of Garrard was correct, we conclude that its reasoning was based on an erroneous interpretation of Hill v. Kimball, and is out of step with most American jurisdictions. Therefore, we overrule the language of Garrard to the extent that it recognizes an independent *596 right to recover for negligently inflicted emotional distress. Instead, mental anguish damages should be compensated only in connection with defendant's breach of some other duty imposed by law. This was the basis for recovery prior to Garrard, which expanded the scope of liability based on a misconstruction of Hill v. Kimball.
In Hill, a pregnant woman suffered a miscarriage when she witnessed the defendant severely beating two men in her yard. The woman sued for her physical injuries under negligence, claiming that the emotional trauma of witnessing the beatings produced the miscarriage and that the defendant should have reasonably anticipated the danger to her. The Court found that the plaintiff had stated a cause of action. The basis, however, was the physical injury she had suffered, together with her allegation of foreseeability. The Court reasoned as follows:
That a physical personal injury may be produced through a strong emotion of the mind there can be no doubt. The fact that it is more difficult to produce such an injury through the operation of the mind than by direct physical means affords no sufficient ground for refusing compensation, in an action at law, when the injury is intentionally or negligently inflicted.... Here, according to the allegations of the petition, the defendant has produced a bodily injury by means of that emotion, and it is for that injury that the recovery is sought.
76 Tex. at 215, 13 S.W. at 59.
The Court considered only whether the plaintiff could recover for her physical injuries, not whether she could otherwise recover for her emotional distress or mental anguish caused by witnessing the beatings. Furthermore, the Court noted that liability would depend on "whether, under the circumstances, and with the lights before him, a reasonably prudent man would have anticipated the danger to her or not." Id. In other words, the defendant was negligent if he should have known that he was imposing an unreasonable risk of physical injury to the plaintiff, not if he merely should have anticipated that the plaintiff would suffer emotional distress.
Hill, therefore, did not recognize a cause of action for negligent infliction of emotional distress. It merely recognized the right to recover for physical injuries under standard negligence principles, notwithstanding that the physical injury is produced indirectly through emotional trauma. Garrard thus did not merely modify Hill, but created an entirely new cause of action.
The dissent vigorously denounces our abolition of the tort created in Garrard, calling it "controlling precedent" that contains a "rather clear pronouncement" of a new tort affirming "the respect for human dignity." 855 S.W.2d at 608, 607, 605 (Doggett, J., dissenting on rehearing). Garrard, however, ill deserves the lofty pedestal to which the dissent has belatedly elevated it. Even today, the justices of this Court cannot agree on the extent of Garrard `s reach, see infra at 604 (Gonzalez, J., concurring on motion for rehearing), and we have never embraced its broad holding. Thus, in Freeman v. City of Pasadena, 744 S.W.2d 923 (Tex.1988), we limited the bystander cause of action to those persons meeting the criteria of Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 80, 441 P.2d 912, 920 (1968), without even citing Garrard as a potential basis for broader liability. Justice Ray, the author of the Court's opinion in Garrard, while noting in a concurring opinion in Freeman that, because of Garrard, "perhaps the need for a bystander cause of action is now without a basis," 744 S.W.2d at 925, did not explain why the plaintiff in Freeman could not recover under the Garrard tort. Further, the Court held in Reagan v. Vaughn, 804 S.W.2d 463, 466-67 (Tex.1990), that a child could not recover mental anguish damages resulting from a severe injury to a parent, without considering Garrard as a basis for recovery. Even Justice Doggett, who now views Garrard as a landmark in the recovery of emotional distress damages, did not deem it worthy of citation in his vigorous concurring and dissenting in Reagan. In fact, this Court has never upheld a recovery under the Garrard tort.
*597 Were we the only Court struggling with Garrard, we could perhaps limit the case to its facts and let it slip into quiet oblivion. But other courts must try to understand it as well. Thus, while many lower Texas courts have read Garrard as creating an independent cause of action for negligent infliction of emotional distress, see, e.g., Campos v. Ysleta Gen. Hosp., Inc., 836 S.W.2d 791, 795 (Tex.App.—El Paso 1992, writ denied); C.T.W. v. B.C.G., 809 S.W.2d 788, 796 (Tex.App.—Beaumont 1991, no writ); Massey v. Massey, 807 S.W.2d 391, 397 (Tex.App.—Houston [1st Dist.] 1991, writ requested); McNamara v. Freedom Newspapers, Inc., 802 S.W.2d 901, 903 n. 2 (Tex.App.—Corpus Christi 1991, writ denied); Dominguez v. Kelly, 786 S.W.2d 749, 753 (Tex.App.—El Paso 1990, writ denied); Orkin Exterminating Co. v. Williamson, 785 S.W.2d 905, 912 (Tex.App.— Austin 1990, writ denied); Texas Dep't of Corrections v. Winters, 765 S.W.2d 531, 532 (Tex.App.—Beaumont 1989, writ denied); City of Watauga v. Taylor, 752 S.W.2d 199, 204 (Tex.App.—Fort Worth 1988, no writ); see also Blankenship v. Kerr County, 878 F.2d 893, 897 (5th Cir. 1989), other "courts of appeals have not fully embraced [its] holding." Chiles v. Chiles, 779 S.W.2d 127, 130 (Tex.App.— Houston [14th Dist.1989, writ denied). Moreover, some federal decisions have dealt with Garrard by limiting the decision to its particular facts. For example, in Harmon v. Grande Tire Co., 821 F.2d 252, 258 (5th Cir.1987), decided shortly after Garrard, the court stated that "[w]hile the majority opinion in Garrard is broadly written, we read it as being directed only to the matter of proof." The court thus concluded that Garrard did not create a new duty that would allow a non-eyewitness bystander to recover for negligently inflicted emotional distress. Id. See also In re Air Crash at Dallas/Ft. Worth Airport, 856 F.2d 28 (5th Cir.1988). In Fiorenza v. First City Bank-Central, 710 F.Supp. 1104, 1105 (E.D.Tex.1988), the court held that "[t]he Texas Supreme Court does not yet recognize a separate cause of action in the employee/employer relationship for negligent infliction of emotional distress," apparently concluding that Garrard was limited to its facts. Professor Crump, one of Boyles' appellate counsel, has argued that "[i]t is important ... not to lose sight of the contractual relationship between hospital and patient as the source of the underlying duty [in Garrard]." David Crump, Evaluating Independent Torts Based upon "Intentional" or "Negligent" Infliction of Emotional Distress: How Can We Keep the Baby From Dissolving in the Bath Water?, 34 Ariz.L.Rev. 439, 458 (1992).
Considering our opinions and those of other Texas courts, as well as the law in most American jurisdictions, Garrard could fairly be characterized as an anomaly rather than a landmark. We believe the jurisprudence of our state is better served by overruling Garrard's, broad language outright, rather than ignoring it as in Freeman, limiting the case to its facts as in Harmon and Delta, or pretending that the concurring opinion was in fact the rationale of the majority.
By overruling the language of Garrard, we hold only that there is no general duty not to negligently inflict emotional distress. Our decision does not affect a claimant's right to recover mental anguish damages caused by defendant's breach of some other legal duty. See, e.g., Fisher v. Coastal Transp. Co., 149 Tex. 224, 230 S.W.2d 522 (1950) (negligent infliction of direct physical injury); Moore v. Lillebo, 722 S.W.2d 683 (Tex.1986) (wrongful death); Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627 (Tex.1967) (battery); Stuart v. Western Union Tel. Co., 66 Tex. 580, 18 S.W. 351 (1885) (failure of telegraph company to timely deliver death message); Billings v. Atkinson, 489 S.W.2d 858 (Tex.1973) (invasion of privacy); Leyendecker & Assocs., Inc., v. Wechter, 683 S.W.2d 369 (Tex.1984) (defamation); Pat H. Foley & Co. v. Wyatt, 442 S.W.2d 904 (Tex.Civ.App.—Houston [14th Dist.] 1969, writ ref'd n.r.e.) (negligent handling of corpse).
Also, our holding does not affect the right of bystanders to recover emotional distress damages suffered as a result of witnessing a serious or fatal accident. *598 Texas has adopted the bystander rules originally promulgated by the California Supreme Court in Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 80, 441 P.2d 912, 920 (1968):
(1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it;
(2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence; and
(3) Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.
Freeman v. City of Pasadena, 744 S.W.2d 923 (Tex.1988). See also Reagan v. Vaughn, 804 S.W.2d 463, 466-67 (Tex. 1990). The policy concerns that require limiting the emotional distress cause of action in the direct victim case generally do not apply in the bystander case. Before a bystander may recover, he or she must establish that the defendant has negligently inflicted serious or fatal injuries on the primary victim.
We emphasize that we are not broadening a claimant's right to recover mental anguish damages caused by breach of a particular duty; we leave such right unaffected. For example, a claimant may not recover mental anguish damages in connection with negligent misrepresentation. Federal Land Bank Assoc. v. Sloane, 825 S.W.2d 439 (Tex.1991). Also, mental anguish damages may not be recovered under the Texas Deceptive Trade Practices Act, Tex.Bus. & Com.Code §§ 17.41-17.63, absent proof of a willful or grossly negligent violation. See Luna v. North Star Dodge Sales, Inc., 667 S.W.2d 115 (Tex.1984); Duncan v. Luke Johnson Ford, Inc., 603 S.W.2d 777 (Tex.1980). Our holding today does not extend these rules.
We also are not imposing a requirement that emotional distress manifest itself physically to be compensable. As explained in Garrard, the sole purpose of the physical manifestation rule is to ensure the genuineness of claims for emotional distress. 730 S.W.2d at 652. Garrard criticized this requirement as both under- and overinclusive, id., and we agree. See Julie A. Davies, Direct Actions for Emotional Harm: Is Compromise Possible?, 67 Wash.L.Rev. 1, 24-25 (1992) (the physical manifestation rule "has been criticized on the ground that it has no obvious relation to emotional harm"). Where emotional distress is a recognized element of damages for breach of a legal duty, the claimant may recover without demonstrating a physical manifestation of the emotional distress. This has long been the rule, even before Garrard. See, e.g., Leyendecker & Assocs., Inc., v. Wechter, 683 S.W.2d 369, 374 (Tex.1984).
Most other jurisdictions do not recognize a general duty not to negligently inflict emotional distress. Many limit recovery by requiring proof of a physical manifestation.[2] Others allow recovery where the *599 claimant establishes the breach of some independent duty.[3] A few jurisdictions recognize a general right to recover for negligently inflicted emotional distress,[4] but these jurisdictions are squarely in the minority.
We find the experience in California to be instructive. In Molien v. Kaiser Foundation Hospitals, 27 Cal.3d 916, 167 Cal. Rptr. 831, 838-39, 616 P.2d 813, 820-21 (1980), the California Supreme Court abolished the physical injury requirement, apparently creating an independent cause of action for negligently inflicted "serious" emotional distress. Nine years later, however, the court declared that "the negligent causing of emotional distress is not an independent tort....", Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc., 48 Cal.3d 583, 257 Cal.Rptr. 98, 101, 770 P.2d 278, 281 (1989), and that damages are recoverable only where there is a "breach of a duty owed the plaintiff that is assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of a relationship between the two." Id. 257 Cal. Rptr. at 102, 770 P.2d at 282. In another case decided shortly after Marlene F., the California Supreme Court further explained as follows:
[I]t is clear that foreseeability of the injury alone is not a useful "guideline" or a meaningful restriction on the scope of the [negligent infliction of emotional distress] action. The Dillon experience confirms, as one commentator observed, that "[f]oreseeability proves too much.... Although it may set tolerable limits for most types of physical harm, it provides virtually no limit on liability for nonphysical harm." [citing Rabin, Tort Recovery for Negligently Inflicted Economic Loss: A Reassessment, 37 Stan. L.Rev. 1513, 1526 (1985)]. It is apparent that reliance on foreseeability of injury alone in finding a duty, and thus a right to recover, is not adequate when the damages sought are for an intangible injury. In order to avoid limitless liability out of all proportion to the degree of a defendant's negligence, and against which it is impossible to insure without imposing unacceptable costs on those among whom the risk is spread, the right to recover for negligently caused emotional distress must be limited.
Thing v. La Chusa, 48 Cal.3d 644, 257 Cal.Rptr. 865, 877-78, 771 P.2d 814, 826-27 (1989).
Last year, the court confirmed that Molien should not be relied on as creating an independent tort for negligent infliction of emotional distress, but that recovery may lie "where a duty arising from a preexisting relationship is negligently breached." Burgess v. Superior Court, 2 Cal.4th 1064, 9 Cal.Rptr.2d 615, 619, 831 P.2d 1197, 1201 (1992). In Burgess, the plaintiff sued her obstetrician for emotional distress caused by the doctor's negligent delivery of the plaintiff's child. The court viewed the claim as a traditional professional malpractice cause of action, which, under California law, supported mental anguish damages. Id. 9 Cal.Rptr.2d at 621, 831 P.2d at 1203. The duty allegedly breached was that arising from the doctor-patient relationship. Id.
Some courts have recognized an independent cause of action for "serious" or "severe" emotional distress. See Schultz v. Barberton Glass Co., 4 Ohio St.3d 131, 447 N.E.2d 109 (1983); Bass v. Nooney Co., 646 S.W.2d 765 (Mo.1983); Rodrigues v. State, 52 Haw. 156, 472 P.2d 509 (1970). This standard, however, fails to delineate meaningfully those situations where recovery *600 should be allowed. As one commentator has explained:
It is difficult to imagine how a set of rules could be developed and applied on a case-by-case basis to distinguish severe from nonsevere emotional harm. Severity is not an either/or proposition; it is rather a matter of degree. Thus, any attempt to formulate a general rule would almost inevitably result in a threshold requirement of severity so high that only a handful would meet it, or so low that it would be an ineffective screen. A middle-ground rule would be doomed, for it would call upon courts to distinguish between large numbers of cases factually too similar to warrant different treatment. Such a rule would, of course, be arbitrary in its application.
Richard N. Pearson, Liability to Bystanders for Negligently Inflicted Emotional Harm—A Comment on the Nature of Arbitrary Rules, 34 U.Fla.L.Rev. 477, 511 (1982).
We therefore reverse the judgment of the court of appeals in favor of Kerr on the ground of negligent infliction of emotional distress.[5]
III
The dissent recognizes that foreseeability of injury is not an adequate basis to impose liability for unintentionally inflicted emotional distress. 855 S.W.2d at 614. The dissent therefore proposes a test that would allow recovery where defendant breaches "some legal duty not to cause harm to another beyond that created by foreseeability...." 855 S.W.2d at 615. This duty may arise "from the voluntary undertaking of an affirmative action that puts another at risk...." Id. We believe that the dissent's "duty" limitation is no limitation at all. A "voluntary undertaking... that puts another at risk" is simply another way of saying that the emotional distress is foreseeable.
The dissent also would find a duty based on a "special relationship" between the parties. We agree that certain relationships may give rise to a duty which, if breached, would support an emotional distress award. See Stuart v. Western Union Tel. Co., 66 Tex. 580, Additional Information