Johnson v. Standard Fruit and Vegetable Co., Inc.

• Decision Date: 29 August 1997
• Docket Number: No. 01-95-01239-CV,01-95-01239-CV
• Citation: 984 S.W.2d 633
• Parties: Rueben C. JOHNSON, Appellant, v. STANDARD FRUIT AND VEGETABLE CO., INC., Bright Truck Leasing Corporation, and James William Marshall, Appellees. (1st Dist.)
• Court: Texas Court of Appeals

Page 633

984 S.W.2d 633

Rueben C. JOHNSON, Appellant, v. STANDARD FRUIT AND VEGETABLE CO., INC., Bright Truck Leasing Corporation, and James William Marshall, Appellees.

No. 01-95-01239-CV.

Court of Appeals of Texas Houston (1st Dist.).

Aug. 29, 1997.

Opinion Supplementing Decision to

Reflect En Banc Vote Sept. 11, 1997.

Frank W. Mitchell, Houston, for Appellant.

Gene F. Creely, II, John H. Boswell, Marie R. Yeates, Houston, for Appellees.

Before SCHNEIDER, C.J., and ANDELL and TAFT, JJ.

OPINION

ANDELL, Justice.

Appellant, Rueben C. Johnson, appeals from a take-nothing summary judgment in favor of Standard Fruit and Vegetable Company, Inc., Bright Truck Leasing Corporation, and James Marshall (collectively, appellees). In this appeal, we are asked to determine whether there is a cause of action in negligence solely for emotional distress ¹ damages caused by a breach of the duty of vigilance imposed on the operator of a motor vehicle on a public highway. We also address whether the trial court erroneously rendered summary judgment on appellant's cause of action for intentional infliction of emotional distress. We reverse in part and affirm in part.

Facts

Rueben Johnson is a Vietnam veteran, active in focusing attention on the plight of individuals who are missing in action or are prisoners of war due to the Vietnam War. In support of this cause, on May 21, 1990, Johnson participated in a march called "The Last Patrol." Johnson was near the front of the walking procession that was followed by a deputy sheriff in his squad car with emergency lights flashing.

As the march proceeded down the highway, ² James Marshall, a driver for Standard Fruit, crashed the tractor trailer he was driving into the rear of the procession. The tractor trailer hit the squad car, killing the deputy. After realizing the initial impact, Johnson turned and observed the tractor trailer in the air on its way to colliding with a pickup truck. Everybody in the march moved off the road to the right. The tractor trailer came to a stop approximately two car lengths from Johnson.

The accident exacerbated Johnson's pre-existing condition known as posttraumatic stress disorder (PSD). Johnson's PSD originated from his experience in Vietnam where he sustained, among others, injuries requiring above-the-knee amputation of both legs. Johnson's PSD includes trembling, twitching, feeling shaky, tense or achy muscles, physical restlessness, easy fatigability and tiring, shortness of breath with anxiety, heart pounding and racing, frequent sweating, dryness in mouth, gastrointestinal distress, hot flashes, frequent urination, and difficulty swallowing. Johnson also experiences a sense of being "keyed up" or "on edge," startle phenomena, difficulty with concentration, and a sleep disturbance. All of Johnson's ailments have been aggravated because of the accident.

Procedural Summary

Johnson's second amended petition alleged claims for (1) negligent infliction of physical injury, (2) intentional infliction of emotional distress, (3) causing physical and mental injuries in violation of a special relationship between appellees and the driving public by virtue of state and federal safety regulations, and (4) the infliction of mental and physical injuries by gross negligence. Negligence and gross negligence on the part of Standard Fruit was also alleged for putting an unsafe driver on the road, failing to encourage its drivers to drive safely, and failing to ascertain if Marshall was a safe driver.

Appellees filed a motion for summary judgment seeking denial of recovery for: (1) physical injuries on the basis of Johnson's deposition testimony that he suffered no physical injuries in the accident and (2) emotional injuries because Johnson was not a direct victim of a tort and was not bringing suit under the wrongful death statute or as a bystander who had witnessed a close relative's death or injury. Appellees specifically addressed four theories of recovery for emotional injuries, seeking denial of recovery under each: (1) intentional infliction, on the basis that Marshall's conduct was not willful, wanton, extreme, or outrageous; (2) violation of a special relationship created by safety regulations, on the basis that no special relationship exists between users of a roadway; (3) egregious conduct, on the basis that it is not a recognized cause of action; and (4) gross negligent infliction, also on the basis that it is not a recognized cause of action.

Johnson's response first detailed controverted facts that raised fact issues about the willfulness and outrageousness of Marshall's conduct in causing the accident. Specifically, Johnson noted: (1) the absence of any corroboration of the presence of a red container truck that Marshall claimed, after the fact, blocked his view; (2) the clear view a driver would have had for a mile even with a container truck in front; (3) Marshall's admission at the time of the accident that he was very tired and could have possibly fallen asleep while driving; and (4) skid marks that indicated very little braking before impact. Next, Johnson pointed out that even though he admitted to not being physically injured in the accident, he suffered physical injury as it is legally defined, i.e., as the result of fear or mental shock caused by negligence.

Johnson's response then presented reasons for recovery for emotional injuries under four causes of action: (1) intentional infliction of emotional distress, raising fact issues as to recklessness and outrageousness; (2) the validity of a cause of action for violation of the common-law or traffic-regulation duty of a driver to keep a vigilant lookout for a pedestrian under Boyles v. Kerr, 855 S.W.2d 593 (Tex.1993); (3) the validity of a cause of action for gross negligence, a theory not denied in Boyles; and (4) a bystander's claim, raising a fact issue that Johnson's relationship with one of the injured marchers was sufficiently close because she was an officer of a veteran's organization run by Johnson.

The trial court granted appellees' motion for summary judgment without specifying a particular basis.

Limited Appeal

In one point of error, Johnson limits his appeal to only two of his theories of recovery. He claims there are genuine issues of material fact which precluded summary judgment for both intentional infliction of emotional distress and emotional distress damages proximately caused by breach of a driver's duty to highway users on a public road.

A. Standard of Review

A defendant-movant must present summary judgment proof establishing, as a matter of law, there is no genuine issue of material fact on one or more of the essential elements of the plaintiff's cause of action. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970). If the defendant produces sufficient evidence to establish the right to a summary judgment, the plaintiff must set forth sufficient evidence to give rise to a fact issue pertaining to that element to avoid a summary judgment. "Moore" Burger, Inc. v. Phillips Petroleum Co., 492 S.W.2d 934, 936-37 (Tex.1972). In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant is taken as true. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985); RTC v. Ammons, 836 S.W.2d 705, 709 (Tex.App.--Houston [1st Dist.] 1992, no writ). Thus, every reasonable inference must be indulged in favor of the nonmovant and any doubts must be resolved in his favor. Continental Casing Corp. v. Samedan Oil Corp., 751 S.W.2d 499, 501 (Tex.1988).

B. Negligent Infliction of Emotional Distress

1. Historical Development

The tort of negligent infliction of emotional distress was first thought to have been created by Hill v. Kimball, 76 Tex. 210, 13 S.W. 59 (1890) (recognizing tort of negligent infliction of emotional distress). ³ See Boyles, 855 S.W.2d at 595. In Hill, a pregnant woman suffered a miscarriage when she witnessed the defendant brutally beat two men in her yard. The defendant knew Hill and knew of her pregnancy. Hill sued for her physical injuries under a negligence cause of action, asserting that (1) the emotional distress of witnessing the beatings produced her injuries and (2) the defendant should have reasonably anticipated the danger to her. The court concluded that the defendant caused Hill bodily injury by means of emotional distress, and it was for the physical injury, not the emotional distress for which recovery was sought and for which recovery was granted. Hill, 13 S.W. at 59.

The court in St. Elizabeth Hospital v. Garrard, 730 S.W.2d 649 (Tex.1987), actually created the tort of negligent infliction of emotional distress. Boyles, 855 S.W.2d at 595. In Garrard, a hospital negligently disposed of the Garrards' stillborn baby in an unmarked, common grave without their knowledge or consent. The Garrards asserted a cause of action for negligent infliction of emotional distress, without alleging that they suffered any physical manifestation. The court in Garrard expanded Hill by eliminating the physical manifestation element, reasoning that the physical manifestation element was an arbitrary indication of one's emotional distress because it is both "overinclusive" and "underinclusive." ⁴ Thus, the court created a negligence cause of action solely for the infliction of emotional distress. Based upon its conclusion that Garrard erroneously interpreted Hill, the court in Boyles abolished the negligent infliction of emotional distress cause of action. Boyles, 855 S.W.2d at 595-96.

In Boyles, Kerr sued Boyles after Boyles surreptitiously videotaped their sexual intercourse and subsequently showed the tape to several of his friends. Kerr originally brought suit asserting claims for intentional invasion of privacy, negligent invasion of privacy, and negligent infliction of emotional distress. However, Kerr abandoned her actions for intentional and negligent...