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Conley v. Driver10/25/2005
. Intentional infliction of emotional distress is not available as a cause of action unless the actor intended to cause severe emotional distress, or such distress is a primary risk of the conduct. If conduct is intended or primarily likely to produce severe emotional distress, Section 46 of the Restatement of Torts is the applicable theory of recovery, even if the actor's conduct also produces some other harm. Johnson, 985 S.W.2d at 68. Properly limited, the tort is not available when the actor "'intends to invade some other legally protected interest,' even if emotional distress results." Zeltwanger, 144 S.W.3d at 447. Even if the evidence of intentional infliction of emotional distress is independent of that necessary to establish another tort claim, the extraneous actions must be "extreme or outrageous as a matter of law." Id. " xcept in circumstances bordering on serious criminal acts," even heinous acts "will rarely have merit as intentional infliction claims." Jackson, 157 S.W.3d at 818 (emphasis added).
Though Conley's counsel admitted in oral argument that the tort of intentional infliction of emotional distress had been committed, any damages for that tort must be shown to have arisen from the tort, within the framework for that tort as set out by the Texas Supreme Court. We conclude Driver has made such a showing. The evidence of damages detailed above qualifies under the above authority because the evidence supports findings that (a) the damages for intentional infliction of emotional distress came from Conley's actions, which were separate and apart from his assaultive behavior; (b) those separate actions intentionally inflicted emotional distress on Driver or were likely to produce that result in her; and (c) those separate actions were extreme and outrageous as a matter of law, either being or bordering on criminal behavior. Therefore, the damages for intentional infliction of emotional distress were recoverable in addition to the damages for assault under the facts of this case.
We affirm the judgment of the trial court.
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