law-IIED Intentional-Infliction of Emotional Distress Claim Cases | defamation libel slander |
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
LEWIS TURNER v. LINDA TURNER; from Montgomery County; 9th district (09‑06‑00570‑CV, ___ SW3d ___,
Recent Cases from Texas Courts of Appeals:
Intentional Infliction of Emotional Distress Claim in Employment Context Fails
According to Wal-Mart and Garza, the evidence is legally insufficient to support the jury's finding that Wal-Mart and Garza intentionally
inflicted emotional distress on Guerra. We agree.
The elements of the cause of action of intentional infliction of emotional distress are (1)
the defendant acted intentionally or recklessly; (2) the defendant's 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. Texas Farm Bureau Mut. Ins.
Co. v. Sears, 84 S.W.3d 604, 610 (Tex. 2002). Extreme and outrageous conduct is conduct 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 society. Id. Texas has adopted a strict approach to intentional
infliction of emotional distress claims arising in the workplace. GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605, 612-
13 (Tex. 1999) (holding supervisor's ongoing acts of harassment, intimidation, and humiliation, and daily obscene
and vulgar behavior went beyond the bounds of tolerable work behavior and were within the realm of extreme and
outrageous conduct). While an employer's conduct in the workplace may sometimes be unpleasant for the
employee, the employer must have some discretion to supervise, review, criticize, demote, transfer, and discipline
its workers. Sears, 84 S.W.3d at 611. Thus, Texas courts decline to recognize intentional infliction of distress
claims for ordinary employment disputes, recognizing that extreme conduct in this context exists only in the most
unusual circumstances. Id.
09-0674 JOHN CLYDE GUERRA v. WAL-MART STORES, INC. AND ED GARZA, INDIVIDUALLY AND AS AGENT
FOR WAL-MART; from Starr County;
4th district (04-08-00146-CV, ___ SW3d ___, 07-01-09, pet. denied Oct 2009)(employment dispute, at will
employment, no employment contract - no breach of contract, no agency, actual or apparent authority to enter
contract for life-long employment, intentional infliction of emotional distress claim fails on appeal)
Here, Guerra's intentional infliction of emotional distress claim focused on Garza's conduct at a meeting held
shortly after Wal-Mart received the complaint against Guerra. According to Guerra, Garza's conduct was extreme
and outrageous because Guerra was "lured" into Garza's office in the guise of a business meeting, and then, in
violation of well-established company policy, was confronted with an unfounded, uncorroborated and
uninvestigated allegation that he had stolen from Wal-Mart.
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
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
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.
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