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Moore v. Novark9/28/1995
verdict awarding damages for intentional infliction of emotional distress based on business owner's outrageous conduct in modifying former owner/consultant's health insurance, raising deductible from $300 to $50,000, knowing plaintiff was undergoing treatment for terminal cancer).
In this case, the jury discounted the deputies' version of events, effectively determining that they made false reports about Novark. Liability for intentional infliction of emotional distress may be imposed for making false statements when the falsity is serious and extreme and leads to severe emotional distress. See RESTATEMENT (SECOND) OF TORTS Section(s) 46 cmt. d, illus. 1 (1965) (liability may be imposed where A falsely tells B that her husband has been badly injured in an accident and is in the hospital, causing B to suffer severe emotional distress).
The Restatement permits recovery for intentional infliction of emotional distress if a defendant acts recklessly, in deliberate disregard of a high degree of probability that emotional distress will follow. RESTATEMENT (SECOND) Section(s) 46 cmt. i. It is very probable that serious consequences will result when a law enforcement officer accuses another officer of violating a prisoner's civil rights. Here, the deputies' actions in accusing Novark of playing Russian roulette with a prisoner during interrogation led to Novark's criminal indictment and trial. The deputies recklessly disregarded the risk that Novark would suffer severe emotional harm from their accusation. We conclude that the deputies' conduct in making a false allegation of serious misconduct, as found by the jury, constitutes outrageous conduct under the facts presented here. The only contrary evidence of any probative value was the deputies' testimony, which the jury was free to disbelieve.
We hold that the jury's finding of intentional infliction of emotional distress by the deputies is supported by both legally and factually sufficient evidence. We overrule their ninth point of error.
Exclusion of Evidence
In point of error thirteen, the deputies complain that the trial court erroneously and harmfully excluded evidence of Novark's work-related misconduct. They contend this evidence is necessary to assess Novark's entitlement to lost earnings and employments benefits. Specifically the deputies complain of the trial court's exclusion of the following exhibits incorporated in their bill of exceptions:
1. a written warning issued to Novark on April 8, 1982 by his supervisor at Precinct 4 documenting an incident of insubordination for failure to follow the appropriate chain of command (DX-3);
2. a memorandum documenting Novark's termination from the Harris County Sheriff's Department of December 31, 1980 (DX-8); and
3. a statement from Herschell McWalters to Don Lacy of the Willis Police Department dated August 26, 1984, relating McWalters' beating by two Willis police officers while he was in their custody (DX-10). For the exclusion of evidence to constitute reversible error, the complaining party must show: (1) that the trial court committed error; and (2) that the error was reasonably calculated to cause and probably did cause rendition of an improper judgment. McCraw v. Maris, 828 S.W.2d 756, 757 (Tex. 1992); TEX. R. APP. P. 81(b)(1). We must review the entire record to determine whether error is harmful. Gee v. Liberty Mut. Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989).
The trial court excluded DX-3, the written warning, as improper character evidence. Specific acts of misconduct are inadmissible to show a party acted in conformity with those acts. TEX. R. CIV. EVID. 404(b). The deputies contend on appe
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