855 S.W.2d 619 (Tex. 1993), D-0184, Twyman v. Twyman

Docket Nº:D-0184.
Citation:855 S.W.2d 619
Party Name:William E. TWYMAN, Petitioner, v. Sheila Kay TWYMAN, Respondent.
Case Date:May 05, 1993
Court:Supreme Court of Texas
 
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Page 619

855 S.W.2d 619 (Tex. 1993)

William E. TWYMAN, Petitioner,

v.

Sheila Kay TWYMAN, Respondent.

No. D-0184.

Supreme Court of Texas.

May 5, 1993

Page 620

Douglas M. Becker and Roger Moore, Austin, for petitioner.

Edwin J. (Ted) Terry and James LaRue, Austin, for respondent.

OPINION

CORNYN, Justice.

In this case we decide whether a claim for infliction of emotional distress can be brought in a divorce proceeding. Because the judgment of the court of appeals is based on negligent infliction of emotional distress, and cannot be affirmed on that or any other basis, we reverse the judgment of that court and remand this cause for a new trial in the interest of justice. TEX.R.APP.P. 180. We deem a new trial appropriate because of our recent decision that no cause of action for negligent infliction of emotional distress exists in Texas. Today, however, we expressly adopt the tort of intentional infliction of emotional distress, and hold that such a claim can be brought in a divorce proceeding.

I.

Sheila and William Twyman married in 1969. Sheila filed for divorce in 1985. She later amended her divorce petition to add a general claim for emotional harm without specifying whether the claim was based on negligent or intentional infliction of emotional distress. In her amended petition, Sheila alleged that William "intentionally and cruelly" attempted to engage her in "deviate sexual acts." 1 Following a bench trial, the court rendered judgment dissolving the marriage, dividing the marital estate, awarding conservatorship of the children to Sheila, ordering William to pay child support, and awarding Sheila $15,000 plus interest for her claim for emotional distress. William appealed that portion of the judgment based on emotional distress, contending that interspousal tort immunity precluded Sheila's recovery for negligent infliction of emotional distress. The court of appeals affirmed the judgment, holding that Sheila could recover for William's negligent

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infliction of emotional distress. 790 S.W.2d 819.

While this case has been pending, we have refused to adopt the tort of negligent infliction of emotional distress. See Boyles v. Kerr, 855 S.W.2d 593 (Tex.1993). Thus the judgment of the court of appeals cannot be affirmed. We consider, therefore, whether the court of appeals' judgment may be affirmed on alternative grounds. Because Sheila's pleadings alleging a general claim for emotional harm are broad enough to encompass a claim for intentional infliction of emotional distress, we consider whether the trial court's judgment may be sustained on that legal theory.

While this court has never expressly recognized the tort of intentional infliction of emotional distress, we found no reversible error in the court of appeals' opinion in Tidelands Automobile Club v. Walters, which did so. 699 S.W.2d 939 (Tex.App.--Beaumont 1985, writ ref'd n.r.e.). There, the court of appeals adopted the elements of the tort as expressed in the RESTATEMENT (SECOND) OF TORTS § 46 (1965). The Restatement elements of intentional infliction of emotional distress are: 1) the defendant acted intentionally or recklessly, 2) the conduct was extreme and outrageous, 3) the actions of the defendant caused the plaintiff emotional distress, and 4) the emotional distress suffered by the plaintiff was severe. Id. According to the Restatement, liability for outrageous conduct should be found "only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Id. cmt. d. Of the forty-six states that have recognized this tort, forty-three have adopted this Restatement formulation. 2 The other three states, although not adopting the Restatement definition, require the equivalent of "outrageous" conduct. 3 Today we become

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the forty-seventh state to adopt the tort of intentional infliction of emotional distress as set out in § 46(1) of the RESTATEMENT (SECOND) OF TORTS.

We do not, however, adopt this tort only because of its broad acceptance in jurisdictions throughout the United States. As distinguished from the tort of negligent infliction of emotional distress, we believe the rigorous legal standards of the Restatement formulation of intentional infliction of emotional distress help to assure a meaningful delineation between inadvertence and intentionally or recklessly outrageous misconduct. The requirements of intent, extreme and outrageous conduct, and severe emotional distress before liability can be established will, we think, strike a proper balance between diverse interests in a free society. That balance, at minimum, must allow freedom of individual action while providing reasonable opportunity for redress for victims of conduct that is determined to be utterly intolerable in a civilized community.

This holding represents a middle ground between the polar positions adopted by various members of the court. 4 JUSTICE HECHT, joined by JUSTICE ENOCH, in arguing against our express adoption of the tort of intentional infliction of emotional distress, maintains that judges and juries are guided by insufficient standards, that liability may be imposed arbitrarily, that reported cases either supporting or refusing to support an award of damages disclose no uniform patterns, and that the sensitivities of aggrieved people are entirely too subjective and unpredictable. We disagree, and believe that such objections could just as easily be made to well-established causes of action in Texas. For example, one might also contend that the legal standards for ordinary negligence are vague, and that juries must necessarily rely on their own notions of fault. Because jurors' ideas about what is "ordinary" and "reasonable" may vary, the same arguments about lack of uniformity, unpredictability, and personal sensitivities could be made. Yet just as we trust juries to decide questions of negligence, proximate cause, and damages, when guided by appropriate legal standards we think them equally capable of resolving factual disputes giving rise to the tort of intentional infliction of emotional distress.

JUSTICE SPECTOR, joined by JUSTICE DOGGETT, on the other hand, agrees with us that this tort should be adopted, but uses this case as another opportunity to question the wisdom of our decision in Boyles, in which we refused to adopt the tort of negligent infliction of emotional distress. They join some amici curiae 5 in implying that the court has disregarded the tort's unique role in addressing women's psychic injuries. One need only identify those who have brought claims for negligent infliction of emotional distress, however, to dispel the suggestion that women will be disproportionately affected. Of the thirty-four Texas appellate cases in which a claim for negligent infliction of emotional distress was alleged, 6 thirteen were brought by women, 7 twelve were brought

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by men, 8 seven by husbands and wives jointly, 9 one by an executrix on behalf of an estate, 10 and one by a corporation. 11 These cases demonstrate that the tort has been alleged by litigants in a wide variety of circumstances. There is simply no factual or legal basis for the suggestion that by choosing not to recognize this particular tort, the court demonstrates insensitivity to female claimants.

JUSTICE SPECTOR also argues that because of our refusal to recognize the tort of negligent infliction of emotional distress some wrongs will go uncompensated because of the difficulty in proving the actor's intent when the actor intends nothing more than to satisfy his own desires. Infra, 855 S.W.2d at 644. But in Sheila Twyman's case, and in countless other cases involving both men and women, we believe that our adoption of the Restatement formulation of the tort of intentional infliction of emotional distress provides a reasonable opportunity for redress for outrageous conduct.

Of course, rarely will a defendant admit knowing of a substantial certainty that emotional harm would befall the victim. Juries, however, are free to discredit the defendant's protestations that no harm was intended and to draw necessary inferences to establish intent. See McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex.1986); Fichtner v. Richardson, 708 S.W.2d 479, 483 (Tex.App.--Dallas 1986, writ ref'd n.r.e.) ("The jury may believe all, part, or none of the testimony in arriving at the finding it concludes is the most reasonable"); see also Walters v. American States Ins. Co., 654 S.W.2d 423, 426 (Tex.1983) (holding that jury is free to make a

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reasonable inferential leap based on evidence). Ironically, for JUSTICE SPECTOR to argue in favor of applying a negligence standard to this case is to argue that as a matter of law the emotional harm William caused was foreseeable but not substantially certain to occur. 12 We disagree with that characterization and believe that on retrial the factfinder should be permitted to consider whether William knew with substantial certainty that his actions would probably cause Sheila emotional harm.

Moreover, Section 46 of the Restatement definition of the tort expressly includes situations in which the actor recklessly inflicts emotional distress. An actor is reckless when he "knows or has reason to know ... of facts which create a high degree of risk of ... harm to another, and deliberately proceeds to act, or fails to act, in conscious disregard of, or indifference to that risk." Restatement (Second) § 500, cmt. a. Again, on retrial, the jury may consider whether William acted recklessly toward Sheila.

II.

We now consider whether the cause of action for intentional infliction of emotional distress may be brought in a divorce proceeding. 13 In Bounds v....

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