law-IIED Intentional-Infliction of Emotional Distress Claim Cases | defamation libel slander |
IIED CLAIM
Intentional infliction of emotional distress is a gap-filler tort: “judicially created for the limited
purpose of allowing recovery in those rare instances in which a defendant intentionally inflicts
severe emotional distress in a manner so unusual that the victim has no other recognized theory
of redress.” Hoffman-La Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 447 (Tex. 2004). Where
the gravamen of a complaint is covered by another common-law or statutory tort, intentional
infliction of emotional distress is not available. Id. This is true even if plaintiff does not assert
the precluding claim in her petition—such as Chapter 21 of the Texas Labor Code in this
instance—or asserts the displacing claim but does not prevail—such as Title VII of the Civil
Rights Act of 1964 in this instance. See id. at 448. Shell and Penilla argued that Garcia’s
intentional infliction of emotional distress claims against them were precluded by Title VII and
Chapter 21 of the Texas Labor Code. See 42 U.S.C. § 2000e-2; TEX. LAB. CODE ANN. §
21.051 (Vernon 2006).
To prevail on a claim for intentional infliction of emotional distress, a plaintiff must establish that (1) the
defendant acted intentionally or recklessly; (2) its conduct was extreme and outrageous; (3) its actions
caused her emotional distress; and (4) the emotional distress was severe. Kroger Tex. Ltd. P'ship v.
Suberu, 216 S.W.3d 788, 796 (Tex. 2006); Tiller v. McLure, 121 S.W.3d 709, 713 (Tex. 2003) (per
curiam). An action that is intentional, malicious, or even criminal does not, standing alone, mean that it is
extreme or outrageous for purposes of intentional infliction of emotional distress. Brewerton v.
Dalrymple, 997 S.W.2d 212, 215-16 (Tex. 1999). The conduct must be "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. at 216. It is for the court to determine in the first
instance whether the defendant's conduct may reasonably be regarded as so extreme and outrageous
as to permit recovery. Id.
Under Texas law, an intentional-infliction-of-emotional-distress claim must be brought within two years
from the date the cause of action accrued. See Tex. Civ. Prac. & Rem. Code Ann. § 16.003; Bhalli v.
Methodist Hosp., 896 S.W.2d 207, 211 (Tex. App.-Houston [1st Dist.] 1995, writ denied). Generally, a
cause of action accrues when a wrongful act causes an injury. Childs v. Haussecker, 974 S.W.2d 31, 36
(Tex. 1998). The continuing-tort doctrine is an exception courts of appeals have used to toll limitations
until the last act of intentional infliction occurs. See Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 816 n.
8 (Tex. 2005) (noting that the supreme court has neither endorsed nor addressed the continuing-tort
doctrine). It applies to tortious acts inflicted over a period of time and repeated until desisted, and each
day creates a separate cause of action. Two Pesos, Inc. v. Gulf Ins. Co., 901 S.W.2d 495, 500 (Tex.
App.-Houston [14th Dist.] 1995, no writ); W.W. Laubach Trust/The Georgetown Corp., 80 S.W.3d 149,
159 (Tex. App.-Austin 2002, pet. denied). The doctrine only applies, however, if the last tortious act falls
within the limitations period. Bhalli, 896 S.W.2d at 212.
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (IIED) TORT IN TEXAS
Recently, the Texas Supreme Court clarified that an intentional infliction of emotional distress claim is
considered a "gap-filler" claim and cannot be used "'to circumvent the limitations placed on the recovery
of mental anguish damages under more established tort doctrines.'" Creditwatch, Inc. v. Jackson, 157 S.
W.3d 814, 816, 818 (Tex. 2005) (quoting Hoffmann-La Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 447
(Tex. 2004)). The tort's purpose is "'to supplement existing forms of recovery by providing a cause of
action for egregious conduct' that might otherwise go unremedied." Zeltwanger, 144 S.W.3d at 447
(quoting Standard Fruit & Vegetable Co. v. Johnson, 985 S.W.2d 62, 68 (Tex. 1998)). In Zeltwanger, the
Court stated: "Where the gravamen of a plaintiff's complaint is really another tort, intentional infliction of
emotional distress should not be available." Id. Among the cases cited as authority for this statement,
the Texas Supreme Court referenced a Washington Supreme Court assault case that held damages for
emotional distress could be awarded as part of the assault damages. Zeltwanger, 144 S.W.3d at 448
(citing Rice v. Janovich, 742 P.2d 1230, 1238 (Wash. 1987)).
The evidence Lewis presented at trial did not include evidence of mental cruelty or distress apart from
the assault. The trial testimony reflects that Linda's death threats were made to Lewis's daughter and
grandson; Lewis did not offer any evidence that he knew of these threats prior to being shot. Lewis's
assault claim provided a sufficient basis for an award of mental anguish damages for the events
described in the evidence that occurred on or after the date Linda shot him.
We find the trial court erred by awarding Lewis $50,000 for intentional infliction of emotional distress
when another recognized cause of action, assault, existed. See Creditwatch, 157 S.W.3d at 818;
Zeltwanger, 144 S.W.3d at 447, 450. We sustain Linda's second issue to the extent it challenges the
legal sufficiency of the evidence supporting the trial court's award of mental anguish based on a claim of
intentional infliction of emotional distress. Accordingly, we reverse the trial court's award and render that
Lewis take nothing on his intentional infliction of emotional distress claim. Tex. R. App. P. 43.2.
Conclusion
08‑0617
LEWIS TURNER v. LINDA TURNER; from Montgomery County; 9th district (09‑06‑00570‑CV, ___ SW3d
___, 06‑26‑08)
Recent Cases from Texas Courts of Appeals:
San Antonio Court of Appeals affirms dismissal of IIED claims in suit by teacher against
students, holding that it was no more than a defamation claim in disguise. Draker v. Schreiber,
a minor, No. 04-07-00692-CV (Tex.App.- San Antonio, Aug. 13, 2008)(Opinion by Justice Angelini,
Concurrence by Justice Stone) (Internet IIED claims was defamation claim)(summary judgment for
defendant students affirmed)
In three issues on appeal, Draker argues that the trial court erred in (1) granting summary judgment in
favor of the students on her claim of intentional infliction of emotional distress; (2) granting summary
judgment in favor of the parents on her claims of negligence and gross negligence; and (3) denying her
motion for continuance and thereby preventing her from conducting further discovery on her intentional
infliction of emotional distress and negligence causes of action.
Intentional Infliction of Emotional Distress
To recover damages for intentional infliction of emotional distress, a plaintiff must establish that (1) the
defendant acted intentionally or recklessly; (2) the defendant’s conduct was extreme and outrageous;
(3) the defendant’s actions caused the plaintiff emotional distress; and (4) the emotional distress
suffered by the plaintiff was severe. Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 740-41 (Tex.
2003); Morgan v. Anthony, 27 S.W.3d 928, 929 (Tex. 2000).
Furthermore, intentional infliction of emotional distress is a “gap-filler” tort, created to permit recovery in
“those rare instances in which a defendant intentionally inflicts severe emotional distress in a manner so
unusual that the victim has no other recognized theory of redress.” Hoffmann-La Roche, Inc. v.
Zeltwanger, 144 S.W.3d 438, 447 (Tex. 2004). It was never intended as an easier and broader way to
allege claims already addressed by our civil and criminal laws, nor was it intended to replace or
duplicate existing statutory or common law remedies. See Creditwatch, Inc. v. Jackson, 157 S.W.3d 814,
817-18 (Tex. 2005); Hoffmann-La Roche, Inc., 144 S.W.3d at 447. Thus, if the gravamen of a plaintiff’s
complaint is another tort, a claim for intentional infliction of emotional distress claim will not lie regardless
of whether the plaintiff succeeds on, or even makes the alternate claim. Hoffmann-La Roche, Inc., 144 S.
W.3d at 448; see also Creditwatch, Inc., 157 S.W.3d at 817 (“As [the plaintiff’s] complaints are covered
by other statutory remedies, she cannot assert them as intentional infliction claims just because those
avenues may now be barred.”); Louis v. Mobil Chem. Co., 254 S.W.3d 602, 610 (Tex. App.—Beaumont
2008, pet. filed) (“Where the gravamen of the complaint is really another tort, intentional infliction of
emotional distress is unavailable.”); Conley v. Driver, 175 S.W.3d 882, 887 n.4 (Tex. App.—Texarkana
2005, pet. denied) (explaining that intentional infliction of emotional distress tort “cannot be used as an
alternative to some other, more conventional tort [that] fits the facts but might be subject to some
structural impediment”).
* * *
The only facts “independent” of Draker’s defamation claim involve the students’ use of Draker’s identity
without her knowledge or permission and the portrayal of such facts as if they were from Draker.
However, these allegations stem from the students’ involvement in the creation and, more importantly,
the publication of the subject web page. Further, while Draker complains of the manner in which the
website was created (i.e. using her identity without her knowledge or permission), it was the content of
the website that caused Draker emotional distress. Thus, the essence of Draker’s complaint, that the
students “used Draker’s identity” in both creating and publishing the web page, is defamation. See
WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998) (explaining that to establish a
defamation claim, a plaintiff must demonstrate that the defendant published a factual statement that was
defamatory to the plaintiff while acting negligently as to the truth of the statement).
Because Draker failed to alleged facts independent of her defamation claim in support of her claim for
intentional infliction of emotional distress, the trial court did not err in granting summary judgment on this
claim. See Hoffmann-La Roche, Inc., 144 S.W.3d at 447. Draker’s first issue is denied.
TEXAS SUPREME COURT CASES
Creditwatch, Inc. v. Jackson, 157 S.W.3d, 814 (Tex. 2005)
Hoffmann-La Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 441 (Tex. 2004) (IIDE cause of action a gap-
filler tort)
814 (Tex. 2005)
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