Rethinking Intentional Infliction of Emotional Distress
![handle is hein.journals/gmlr25 and id is 297 raw text is:
2018]
RETHINKING INTENTIONAL INFLICTION OF
EMOTIONAL DISTRESS
David Crump*
INTRODUCTION
A malicious defendant creates a fictional boyfriend on the intemet for a
thirteen-year-old girl and then has the boyfriend reject her, prompting her to
commit suicide. ' A group of hooligans carries signs in the middle of a funeral
accusing the deceased of various unsavory acts, simply as a means of getting
revenge against the surviving spouse.2 A man surreptitiously videotapes his
girlfriend having sex with him and shows the video to others where she goes
to school.3 These situations, or events close to them, have actually occurred.
The tort of intentional infliction of emotional distress is a claim that may
provide redress in cases like these.
But the issue is not simple; there are cases that arguably do not merit
redress. A plaintiff is upset over a political cartoon about him and files suit
under the banner of the intentional infliction claim.4 A wife sues her husband
for divorce and adds a claim for intentional infliction based upon communi-
cations within the marital relationship.5 A law firm suing under recognized
employment law torts routinely adds intentional infliction claims covering
the same alleged conduct.6 These situations also describe cases that have oc-
curred.
Intentional infliction of emotional distress is an established tort. Like
most torts, it allows redress to victims of seriously harmful conduct. The
problems that it creates, however, are also serious. In the first place, there
have been advocates of claims that rest upon lesser mental states than intent.
For example, negligent infliction of emotional distress has been proposed as
a general-purpose tort and accepted by some courts,7 even though it creates
A.B., Harvard College; J.D., University of Texas School of Law. John B. Neibel Professor of
Law, University of Houston.
1 These facts resemble those in United States v. Drew, 259 F.R.D. 449,452 (C.D. Cal. 2009).
2 This hypothetical case is loosely based on Snyder v. Phelps, 562 U.S. 443, 448 (2011), but the
proximity of activity and motivation are different.
3 These facts resemble these in Boyles v. Kerr, 855 S.W.2d 593, 594 (Tex. 1993).
4 These facts resemble those in Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 48 (1988).
5 These facts resemble those in Twyman v. Twyrnan, 855 S.W.2d 619, 620 (Tex. 1993).
6 See infra Part IILA.
7 See, e.g., Osborne v. Keeney, 399 S.W.3d 1, 17-18 (Ky. 2012); Vincent v. DeVrics, 72 A.3d 886,
897 (Vt. 2013) ([a]ssuming without deciding but appearing to favor claim).](ViewImageLocal?handle=hein.journals/gmlr25&div=15&collection=&method=preview&ext=.png&size=3)
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Rethinking Intentional Infliction of Emotional Distress
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