law-IIED Intentional-Infliction of Emotional Distress Claim Cases | defamation libel slander |  

INTENTIONAL TORTS:

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (IIED) TORT IN TEXAS

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)

CASES FROM TEXAS COURTS OF APPEALS IN WHICH THE SUPREME COURT
DENIED REVIEW

08-0461
THOMAS LOUIS v. MOBIL CHEMICAL COMPANY, A DIVISION OF EXXON MOBIL OIL CORPORATION, JAMES
BOWSER AND RANDALL ROY; from Jefferson County; 9th district (09-06-00568-CV, 254 SW3d 602, 05-01-08,
pet denied Aug. 1 2008) (Justice O'Neill not sitting) (employment dispute, IIED, defamation, retaliation)

In the first instance, whether a defendant's conduct may reasonably be regarded as so extreme and outrageous
as to permit recovery for intentional infliction of emotional distress is a question of law. Wornick Co. v. Casas, 856
S.W.2d 732, 734 (Tex. 1993). "[I]ntentional infliction of emotional distress is a 'gap-filler' tort never intended to
supplant or duplicate existing statutory or common-law remedies." Creditwatch, Inc. v. Jackson, 157 S.W.3d 814,
816 (Tex. 2005)(footnote omitted). Where the gravamen of the complaint is really another tort, intentional infliction
of emotional distress is unavailable even if the evidence would be sufficient to support a claim for intentional
infliction of emotional distress in the absence of another remedy. See Hoffmann-La Roche Inc. v. Zeltwanger, 144
S.W.3d 438, 441 (Tex. 2004). "Even if other remedies do not explicitly preempt the tort, their availability leaves no
gap to fill." Creditwatch, 157 S.W.3d at 816.

Louis argues that the fact that the speakers were of the same race as Louis does not mitigate the effect of the
racist term and that the repeated threats to end Louis's career, intertwined with humiliating language and
compelling Louis to falsify documentation, created an intolerable and outrageous environment. However, racial
discrimination in the workplace is actionable through employment discrimination statutes. For instance,
Creditwatch concerned lewd advances by the company's chief executive officer and subsequent retaliation, which
included refusing to provide a reference letter, announcing a company policy prohibiting contact with former
employees, and having the plaintiff evicted. Id. at 816-17. Because all of her claims were covered by other
remedies, the wronged employee could not sue for intentional infliction of emotional distress. Id. Zeltwanger also
involved sexual harassment by a supervisor and another supervisor's failure to report the objectionable conduct.
Zeltwanger, 144 S.W.3d at 448. Those elements of the employee's claim for intentional infliction that arguably fell
outside the sexual harassment claim did not rise to the level of extreme and outrageous conduct. Id. at 449.

Louis contends the use of profane and inflammatory language caused him emotional distress. Such conduct falls
within the statutory cause of action for racial discrimination or harassment. See EEOC v. WC&M Enters., Inc., 496
F.3d 393, 399 (5th Cir. 2007)(citing elements of hostile work environment claim under Title VII). Those actions
identified by Louis that arguably fall outside the scope of racial discrimination in employment do not rise to the
level of extreme and outrageous. In GTE, the supervisor repeatedly physically and verbally threatened and
terrorized female employees. GTE Sw., Inc., 998 S.W.2d at 613-14. Viewed in the light most favorable to the non-
movant in this case, Bowser and Roy threatened to trigger a negative termination of employment unless Louis
produced paperwork showing work had been performed that Roy knew Louis did not have time to perform. A
threat to fire someone and ruin their career falls within the type of ordinary business dispute that is not actionable
as a claim for intentional infliction of emotional distress. See Tex. Farm Bureau Mut. Ins. Co. v. Sears, 84 S.W.3d
604, 610-11 (Tex. 2002) (mere threats do not rise to the level of extreme and outrageous conduct); Rescar, Inc.
v. Ward, 60 S.W.3d 169, 180 (Tex. App.--Houston [1st Dist.] 2001, pet. granted, judgm't vacated)(threat to
"blackball" worker). After all, an employer "generally can terminate an at-will employee for any reason or no
reason at all." See Mission Petroleum Carriers, Inc. v. Solomon, 106 S.W.3d 705, 715 (Tex. 2003).

Louis depends upon the objective to be achieved by the harassing conduct to provide the extreme degree
required to pursue a claim for intentional infliction of emotional distress in the workplace. Louis alleged Bowser
and Roy threatened to ruin his career unless Louis falsified preventive maintenance records for equipment "used
by Defendant to monitor the flow and release of dangerous chemicals into the environment." Louis alleged that
some or all of the reports "were required by Federal and State health and environmental laws." Retaliatory
discharge for refusal to perform an illegal act the employee reasonably believed would subject him to criminal
penalties is actionable as an exception to the employment-at-will doctrine. Sabine Pilot Serv., Inc. v. Hauck, 687 S.
W.2d 733, 735 (Tex. 1985).

Louis's situation is distinguishable from Sabine Pilot in three respects: (1) Louis did not refuse to do the allegedly
illegal act; (2) Roy and Bowser did not cause Louis's discharge -- instead, Ken Jackson terminated Louis for
violating the company's ethics policy; and (3) Mobil fired Louis for performing the allegedly illegal act, not for
refusing to do it. Those distinctions indicate Louis could not prevail on a Sabine Pilot claim, but the likelihood of
success on the claim does not affect the gravamen of his complaint. The nature of the complained-of conduct by
Bowser and Roy is the threat to wrongfully discharge Louis unless he falsified his reports. That conduct would
give rise to a Sabine Pilot claim but for Louis's participation in the allegedly illegal conduct. Where the gravamen
of the complaint is really another tort, intentional infliction of emotional distress is unavailable. Creditwatch, 157 S.
W.3d at 816; Zeltwanger, 144 S.W.3d at 441. We hold that the trial court did not err in granting a motion for
summary judgment on Louis's claims for intentional infliction of emotional distress.