855 S.W.2d 593 (Tex. 1993), D-0963, Boyles v. Kerr

Docket Nº:D-0963.
Citation:855 S.W.2d 593
Party Name:Dan BOYLES, Jr., Petitioner, v. Susan Leigh KERR, Respondent.
Case Date:May 05, 1993
Court:Supreme Court of Texas

Page 593

855 S.W.2d 593 (Tex. 1993)

Dan BOYLES, Jr., Petitioner,


Susan Leigh KERR, Respondent.

No. D-0963.

Supreme Court of Texas.

May 5, 1993

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 Dec. 2, 1992. [*]

Concurring and Dissenting Opinion by Justice Cook Dec. 2, 1992.*

Page 594


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 Our opinion of December 2, 1992, is withdrawn and the following is substituted in its place.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.


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.

Page 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.


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

Page 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...

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