Boyles v. Kerr

• Decision Date: 08 January 1991
• Docket Number: No. 6-90-064-CV,6-90-064-CV
• Parties: Dan BOYLES, Jr., Appellant, v. Susan Leigh KERR, Appellee.
• Court: Texas Court of Appeals

Page 255

806 S.W.2d 255

Dan BOYLES, Jr., Appellant, v. Susan Leigh KERR, Appellee.

No. 6-90-064-CV.

Court of Appeals of Texas,

Texarkana.

Jan. 8, 1991.

Rehearing Overruled Feb. 5, 1991.

Second Motion for Rehearing Overruled March 5, 1991.

Barry A. Chasnoff, Akin, Gump, Strauss, Hauer & Feld, San Antonio, Lynne Liberato, David Crump, Johnson & Gibbs, Houston, for appellant.

Kenneth W. Burch, Gray, Burch & Haddad, Ronald D. Krist, Houston, for appellee.

Before CORNELIUS, C.J., and BLEIL and GRANT, JJ.

OPINION

GRANT, Justice.

Dan Boyles, Jr. appeals from a judgment rendered against him and Karl Broesche, Ray Widner, and John Paul Tamborello ¹ for $1,000,000 in favor of Susan Leigh Kerr. The jury awarded Kerr $250,000 for mental pain and anguish caused by the defendants' tortious acts, $250,000 for future mental pain and anguish, and $500,000 in punitive damages, which was divided among the defendants.

On appeal, Boyles brings four points of error and argues them jointly in his brief. He contends that the trial court erred in rendering judgment because the cause of action upon which the case was tried does not exist, because there was no evidence of negligence, because there was no duty which would support the finding of negligence and because the jury verdict cannot support the judgment rendered.

The evidence reflects that Boyles and Kerr went on their first date to her senior prom in May, 1985, and that the date ended in a sexual encounter. Boyles was seventeen years old at the time, and Kerr was nineteen years old. They met several times afterwards in other locations, with each meeting ending in sexual activity. On August 10, 1985, Kerr asked Boyles to accompany her to a wedding. He declined but agreed to pick her up afterwards. Before picking her up, Boyles spoke with Broesche and arranged to use Broesche's parents' home as a place to engage in sexual intercourse. Broesche suggested videotaping the activity. Boyles went to pick up Kerr while Broesche, Widner, and Tamborello set up a hidden video camera focused on the bed. While setting up the camera, the three engaged in a taped conversation, identifying each other for the camera's benefit and making vulgar comments and predictions about the activity which was about to occur. They left the room with the camera running, and later the sexual intercourse between Boyles and Kerr was videotaped.

Boyles obtained the videotape shortly after it was made, and he showed it on three different occasions in private residences to a total of ten people. Kerr testified that there was considerable gossip about the tape going around the Southwest Texas State University campus, where she attended school, and the University of Texas campus, where Boyles attended. She further testified that the gossip had spread to some of her friends at other college campuses. In early December of that year, she demanded that Boyles give her the tape, which he did.

Kerr testified that she had experienced severe emotional distress from these events, that she had been highly embarrassed, that she had experienced nightmares, shaking, dizziness and stomach upsets, and that she had difficulty working and taking her college finals. She also testified that she had some difficulty relating to men, although she testified to having had several lengthy and sexually active relationships since this occurrence.

The jury found that the defendants' negligence had proximately caused Kerr to suffer mental anguish; that the percentage of negligence attributable to Boyles was sixty percent, to Broesche was twenty percent, and to Tamborello and Widner, ten percent each; and that each of the defendants had been grossly negligent. The jury awarded exemplary damages of $350,000 against Boyles, $100,000 against Broesche, and $25,000 each against Tamborello and Widner.

We first examine Boyles' contention that the trial court erred in rendering judgment because the cause of action upon which the case was tried does not exist. Kerr went to trial on her eighth amended original petition. In that petition, she alleged that she was entitled to damages for the intentional, as well as the negligent, invasion of her privacy and the repeated public disclosure of embarrassing private matters concerning her. She also alleged that she was entitled to damages because of the negligent infliction of mental and emotional stress and trauma by the defendants.

In Billings v. Atkinson, 489 S.W.2d 858 (Tex.1973), the Supreme Court declared that "an unwarranted invasion of the right to privacy constitutes a legal injury for which a remedy will be granted." The Court recognized that the type of injury in an invasion of privacy case is necessarily nonphysical in nature and held that damages for mental suffering are recoverable without the necessity of showing actual physical injury in a case of willful invasion of the right of privacy. See also National Bonding Agency v. Demeson, 648 S.W.2d 748 (Tex.App.--Dallas 1983, no writ). The issue before this Court, however, is whether recovery is available when the invasion of the right of privacy is caused by negligence.

Generally, the aim of tort law is to protect the rights and privileges of persons against wrongful acts by others. Our tort law provides redress from wrongful acts that affect some legal interest of the complaining party. The right to privacy is a recognized legal interest in Texas. Billings, 489 S.W.2d 858. The concept of invasion of privacy covers four torts: (1) intrusion upon the plaintiff's seclusion, solitude or private affairs; (2) public disclosure of embarrassing private facts about the plaintiff; (3) publicity which places the plaintiff in a false light in the public eye; and (4) appropriation, for the defendant's advantage, of the plaintiff's name or likeness. Moore v. Charles B. Pierce Film Enterprises, 589 S.W.2d 489 (Tex.Civ.App.--Texarkana 1979, writ ref'd n.r.e.).

The acts in the present case could be classified under the first three of the foregoing tort classifications: the acts of Boyles amounted to an intrusion into Kerr's personal affairs; ² the acts disclosed embarrassing private matters to the public; ³ and the acts placed her in the false light of appearing to be a person who willingly allowed herself to be videotaped while engaging in sexual activities.

We have found no case in which a Texas state court has held whether a negligent invasion of privacy is compensable. In Wood v. Hustler Magazine, 736 F.2d 1084 (5th Cir.1984), the federal court, applying Texas law, upheld a judgment in which Hustler Magazine was found liable for negligently placing the plaintiff in a false light. This finding was based upon the magazine placing the plaintiff in an offensive false light by publishing a stolen photograph of her in the nude. The magazine was found to have been negligent in its procedures because it had failed to verify whether the person shown in the photograph had consented to the publication.

Other jurisdictions have recognized that invasion of privacy can be accomplished negligently as well as intentionally. See, e.g., Lynn v. Allied Corp., 41 Ohio App.3d 392, 536 N.E.2d 25 (1987); Prince v. St. Francis-St. George Hospital, 20 Ohio App.3d 4, 484 N.E.2d 265 (1985). According to authorities in some other jurisdictions, the precise motives of the defendant are generally unimportant in determining whether there is a right of action for invasion of privacy. See cases cited under 62A AM.JUR.2D Privacy § 46 (1990). The right to compensation for a recognized tortious injury should not depend upon whether it is inflicted for the purpose of harming the injured party or negligently inflicted with the likelihood of harming the injured party. Thus, the basis for liability in a privacy action may rest upon a negligent, as well as an intentional, invasion.

Emotional distress may be an element of damages in cases in which other interests have been invaded and in which tort liability has arisen because of that invasion. There is also a separate tort of negligent infliction of emotional distress which has been recognized in some circumstances to be an independent cause of action in Texas. The Supreme Court specifically stated in St. Elizabeth Hospital v. Garrard, 730 S.W.2d 649, 654 (Tex.1987): "Texas joins an established trend in American jurisprudence which recognizes the tort of negligent infliction of mental anguish without imposing arbitrary restrictions on recovery in such actions." See also Blankenship v. Kerr County, Texas, 878 F.2d 893 (5th Cir.1989).

Both negligent invasion of privacy and the negligent infliction of emotional distress are viable legal remedies upon which the trial court could base its judgment. Both of these remedies were covered under the submission of broad negligence issues to the jury. The point of error that the cause of action upon which the case was tried does not exist is overruled.

We next address Boyles' contention that he and his codefendants owed no duty to Kerr. The case was tried on straightforward negligence issues. As previously discussed, Kerr's right to privacy is entitled to legal protection. These codefendants had a legal duty not to engage in conduct which would result in foreseeable damages to Kerr. Such a duty may arise not only as a matter of a legal relation but also from a knowledge of the danger, which in turn depends upon the probability of injury. Bennett v. Span Industries, 628 S.W.2d 470, 473 (Tex.Civ.App.--Texarkana 1981, writ ref'd n.r.e.). If the circumstances are such that a person of ordinary common sense would recognize that, if he did not exercise reasonable care in his conduct with regard to the known circumstances, his acts would place another in danger, the duty to use ordinary care to avoid such danger arises. Bennett, 628 S.W.2d at 474. Certainly Boyles could have foreseen the likelihood that emotional injury to Kerr would result from his acts.

When all of the essential facts are...