Arguing Intentional Infliction of Emotional Distress in the Texas Supreme Court
by Michael Fox
The Texas Supreme Court heard arguments yesterday in Hoffman-LaRoche v. Zeltwanger. The Corpus Christi Court of Appeals decision can be found here.. It involves a matter of no small significance to the defendant employer, since Zeltwanger recovered a judgment in excess of $10,000,000. Zeltwanger sued for both sexual harassment and intentional infliction of emotional distress. The largest part of the award was attributable to the intentional infliction of emotional distress award.
The court's decision could substantially impact the employment law jurisprudence in Texas if it accepts the employer's argument that the tort of intentional infliction of emotional distress is not available where there is another legal remedy (in this case, a TCHRA claim for sexual harassment) for emotional stress damages. I filed an amicus brief on that point on behalf of the Texas Association of Business.
My brief, and the contention of the company, is that intentional infliction of emotional distress is a 'gap-filler' tort, created to provide a remedy only in those cases where there was outrageous conduct and no other remedy.
The Court seemed to understand that the argument being made by the defendant was not pre-emption of intentional infliction of emotional distress by the TCHRA, but rather a defining of the common law claim that only became available in Texas when the Supreme Court adopted it. The Court did seem concerned about how to craft a workable rule if it were to accept the employer's argument. Chief Justice Phillips raised an interesting question about whether the decision might be almost 'theoretical' since even if the employer escaped direct liability, it might be vicariously liable for the act of its supervisor who was also found guilty of intentional infliction of emotional distress.
As with many cases that come before the Court, there are many options available. The case could be a vehicle for a wide ranging decision that could effectively limit the tort of intentional infliction of emotional distress in employment cases, the Court could use it to try to set a more defined standard for what constitutes intentional infliction of emotional distress, or the Court might look for a more narrow path and leave those questions for another day.