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

• Decision Date: 31 December 1998
• Docket Number: No. 97-0976,97-0976
• Parties: 42 Tex. Sup. Ct. J. 274 STANDARD FRUIT AND VEGETABLE CO., INC., Bright Truck Leasing Corporation, and James William Marshall, Petitioners, v. Rueben C. JOHNSON, Respondent.
• Court: Texas Supreme Court

Page 62

985 S.W.2d 62

42 Tex. Sup. Ct. J. 274

STANDARD FRUIT AND VEGETABLE CO., INC., Bright Truck Leasing

Corporation, and James William Marshall, Petitioners, v. Rueben C. JOHNSON, Respondent.

No. 97-0976.

Supreme Court of Texas.

Argued Sept. 10, 1998.

Decided Dec. 31, 1998.

Catherine B. Smith, John H. Boswell, Terry M. Womac, Marie R. Yeates, Raymond A. Just, Houston, for Petitioners.

Frank W. Mitchell, Shelton Smith, Jonathan Erik Axelrad, Houston, for Respondent.

PHILLIPS, Chief Justice.

In this case, we again explore the parameters of the tort of intentional infliction of emotional distress. A truck driver drove a tractor-trailer rig into a parade, killing one participant and injuring two others. Another participant, Rueben C. Johnson, was not himself struck, but witnessed the accident. Johnson brought this suit for emotional distress against the truck driver, the driver's employer, and the lessor of the rig (the "Defendants"). The trial court granted summary judgment for all Defendants. The court of appeals reversed, however, holding that Defendants failed to establish as a matter of law that: (1) the truck driver had not intentionally or recklessly inflicted emotional distress on Johnson; and (2) his conduct was not "extreme and outrageous". 984 S.W.2d 633.

We hold that intentional infliction of emotional distress is not available as an independent cause of action unless the actor intends to cause severe emotional distress or severe emotional distress is the primary risk created by the actor's reckless conduct. Johnson does not allege that the truck driver intentionally caused the accident. Instead, he argues that the truck driver recklessly caused his emotional distress. Because the primary risk of reckless driving is physical injury rather than emotional distress, we reverse the judgment of the court of appeals and render judgment that Johnson take nothing.

I

Viewing the evidence in the light most favorable to Johnson, see El Chico Corp. v. Poole, 732 S.W.2d 306, 315 (Tex.1987), the summary judgment record reflects the following: The march, which Johnson organized to bring attention to issues regarding Vietnam veterans, was about five car-lengths long and included both vehicles and pedestrians. It began in Cleveland, Texas, and proceeded along U.S. Highway 59 to Houston. During the march, Johnson, who has used a wheelchair since losing both legs in a landmine explosion in Vietnam, was positioned immediately behind three flag bearers who led the parade. Johnson in turn was followed by about twenty pedestrians marching two-by-two, a mule-drawn wagon, and two pick-up trucks. A trooper from the Liberty County Sheriff's Department followed the procession, flashing the emergency lights of his squad car.

Shortly after the march began, a tractor-trailer rig driven by James W. Marshall, an employee of Standard Fruit and Vegetable Company, Inc., rear-ended the trooper's vehicle. On impact, Marshall's rig became airborne, landing on the bed of the pick-up truck at the back of the parade. The trooper was killed, while the pick-up driver and her passenger suffered physical injuries. Johnson did not see the initial impact with the trooper's car, but he turned around in time to see the tractor-trailer rig land on the pick-up truck. The tractor-trailer finally stopped about two car lengths from Johnson. When impact occurred, Marshall was traveling 5 to 15 miles per hour above the 55 miles per hour speed limit, and he may have fallen asleep at the wheel.

Although Johnson suffered no physical impact, the accident aggravated a pre-existing post-traumatic stress disorder (PTSD) that arose from his war experiences. Johnson's PTSD symptoms, which first appeared several years after his combat injury, included trembling, twitching, feeling shaky, tense or achy muscles, restlessness, fatigue, shortness of breath with anxiety, heart pounding and racing, frequent sweating, dryness in the mouth, gastro-intestinal distress, hot flashes, frequent urination, a sense of being "keyed up" or "on edge," startle phenomena, difficulty concentrating, marked irritability, and sleep disturbances. Although his condition had gradually improved, the accident aggravated and exacerbated all the symptoms.

Johnson sued the Defendants in Harris County district court, alleging five grounds for recovery: (1) "[n]egligent infliction of physical injury [by mental shock] ... as recognized and defined in Boyles [v. Kerr, 855 S.W.2d 593 (Tex.1993) ];" (2) intentional infliction of emotional distress based on reckless driving; (3) negligent infliction of physical and emotional injuries based on a "special relationship" between the Defendants and the driving public created by state and federal safety regulations; (4) infliction of physical and mental injuries by "egregious conduct"; and (5) "grossly negligent" infliction of mental anguish and physical injuries.

After discovery, Defendants moved for summary judgment on all claims, asserting that Johnson had failed to state a cause of action under Texas law because he sustained no physical injury in the accident, was not a statutory beneficiary under the wrongful death statute, and did not qualify for bystander recovery. Furthermore, Defendants maintained that, as a matter of law, Marshall had not engaged in willful, wanton, or extreme and outrageous conduct, and Defendants had no special relationship with travelers on public highways. Finally, Defendants argued that Johnson's claims for emotional distress based on egregious or grossly negligent conduct were simply not recognized under Texas law. The trial court granted summary judgment on all claims.

Johnson appealed on only two claims, intentional infliction of emotional distress and negligent infliction of emotional distress based on breach of the duty Defendants allegedly owed to highway users under state and federal traffic laws. The court of appeals affirmed summary judgment on Johnson's negligent infliction of emotional distress claim, concluding that traffic laws do not create a "special relationship" giving rise to compensable mental anguish damages. 684 S.W.2d at 635. It reversed summary judgment on the intentional infliction of emotional distress claim, however, holding that Defendants failed to establish as a matter of law that Marshall's conduct was not extreme and outrageous and that Johnson was not a "direct victim" of Marshall's reckless driving. 684 S.W.2d at 638-639.

We granted Defendants' petition for review. Before considering their claims, however, we first consider Johnson's cross-point that the court of appeals erred in holding that he waived his claim on a third ground, negligent infliction of physical injuries by mental shock.

II

In his initial brief to the court of appeals, filed November 17, 1995, Johnson expressly limited his appeal in the following manner:

This appeal will be limited to only two of the Plaintiff's theories of recovery. First, Plaintiff intends to establish there are genuine issues of material facts which precludes [sic] the trial court from ruling that Defendants did not commit the tort of intentional infliction of emotional distress. Second, Plaintiff intends to establish that there are genuine issues of fact which support emotional distress damages proximately caused by an automobile driver's breach of duty to traffic on a public road.

On July 8, 1996, two months after oral argument in the court of appeals, this Court handed down its decision in Motor Express Inc. v. Rodriguez, 925 S.W.2d 638 (Tex.1996), ¹ in which we held that breach of the duty imposed by the landowner-invitee relationship would not give rise to a claim for mental anguish damages alone. 925 S.W.2d at 639. While not precisely on point, this decision was not helpful to Johnson's second argument that state and federal traffic laws created a "special relationship" between Defendants and the driving public that gave rise to a duty, the breach of which would support a claim for emotional distress even absent proof of bodily injury.

Five months after Rodriguez was decided, Defendants filed a supplemental brief to the court of appeals arguing that the holding in Rodriguez made it impossible for Johnson to prevail on his negligent infliction of emotional distress claim. In response, Johnson filed a supplemental brief on January 27, 1997, arguing that, despite Rodriguez, he was entitled under Texas law "to recover for physical injuries under standard negligence principles notwithstanding that the physical injury is produced indirectly through emotional trauma." The court of appeals treated Johnson's supplemental brief as an attempt to assert a new claim, and held without discussion that Johnson waived that claim. 684 S.W.2d at 637. In his brief to this Court, Johnson recognizes that he was attempting to add a new claim, but argues that he was entitled to supplement in the interest of "justice" because Rodriguez weakened his claim that under our language in Boyles v. Kerr, 855 S.W.2d 593 (Tex.1993), breach of any distinct underlying duty would support a claim for mental anguish damages alone. ²

Under former rule of appellate procedure 74(o), a brief "may be amended or supplemented at any time when justice requires upon such reasonable terms as the court may prescribe." TEX.R.APP. P. 74(o) (emphasis added)(superseded Sept. 1, 1997, currently at TEX.R.APP. P. 38.7). ³ Generally, a party must seek leave of court to file an amended or supplemental brief, and the appellate court has some discretion in deciding whether to allow the filing. See Fredonia State Bank v. General Am. Life Ins. Co., 881 S.W.2d 279, 284-85 (Tex.1994). Johnson did not seek leave to file his supplemental brief; but even if he had, we would conclude that the court of appeals did not abuse its discretion in declining to consider Johnson's new point of error. Regardless of whether Johnson's assertion that Rodriguez narrowed the law in Texas is correct, he...