Washburn Law Journal
Winter 1998
TORT LAW'S ROLE AS A TOOL FOR SOCIAL JUSTICE STRUGGLE
Leslie Bender
Copyright © 1998 Washburn Law Journal; Leslie Bender
Good afternoon. It is a pleasure to be here. Before I start, I would like to take a moment to thank all of you for coming
today, to thank the generous funding of this lecture series, and to thank your professors, Charlene Smith and Rogelio
Lasso, and student assistant, Shayla Johnston, who have skillfully organized this class and afforded me the opportunity to
be here with Professors Marshall Shapo and David Bernstein. Our pre- conference conversations these last few days were
so enriching about where I should focus my talk, that I decided to hastily reorient my presentation this morning. Instead
of what I had planned to do today, I decided to tell you where I am going in my current research, then specifically focus
on one portion of the argument I am using to support this project.
The core of my current research is the thesis that tort law's role for the 21st century will be as a tool for social justice
struggle. Today I will address my comments to the theoretical underpinnings of this thesis. In other parts of my work, I
examine ways in which tort has been successfully deployed for social justice ends. Ultimately I conclude with a proposal
for a new tort cause of action to respond to tort's changing role in the next century. The new tort cause of action has come
under various names in my work, from abuse of power, misuse of privilege or power, dignitary assault, to a social
equality tort. I won't have an opportunity to go through how I develop the tort here today or its elements and proof, but I
give this introduction so you can see where my argument is going. This new tort will be accompanied by new kinds of
remedies which are responsive to the argument I make today about tort law as a tool for social equality and justice
struggle, rather than as a purely compensatory regime.
A Brief Historical Perspective on Tort Law in the 20th Century
In the 20th century, tort law was needed to secure compensation for economic losses due to personal injuries. Our ways
of living and working together, our modes of transportation, our neighborhoods and communities changed significantly in
the last quarter of the 19th century and throughout the 20th century in ways that created pervasive physical injuries due to
the rough and tumble of increased social interactions. Accompanying the physical injuries were serious needs for redress.
In the absence of social programs, legal remedies, and anti- discrimination laws for citizens with disabilities, injured
people were forced to suffer the indignities of their impaired abilities to support themselves and their families, plus the
indignity of having to rely on and ask for the charity of others - religious institutions, family members, and moral
community sensibilities. Tort law has achieved the end of convincing us that we need a social system that provides legal
redress for economic losses from physical injuries. This was a change from the time when our social consciousness and
our legal consciousness did not recognize this need. Criminal law punished those persons who intentionally injured
others, when punishment seemed the socially appropriate response. But transferring the costs of less-than- criminallyintended injuries to harm- causers and creating adequate insurance mechanisms for personal injuries only became part of
our legal consciousness through tort law's intervention. Tort moved redress for physical injuries from moral and
charitable responses to the legal realm of common law rights and to political consciousness.
Just as tort was used to raise consciousness about the need for economic compensation in the 20th century, it
simultaneously raised our consciousness about some of the other dignitary interests that accompany physical injuries. Tort
law struggled through the late 19th and 20th century to recognize and redress emotional and psychological injuries - pain
and suffering, mental anguish, dignitary offenses, disfigurement, emotional distress, loss of society and comfort, loss of
enjoyment of life, loss of chance, fear of cancer, and fear of AIDS remedies. Tort law has worked to reconstitute the
whole human being, rather than viewing people as solely physical bodies. Human dignity is advanced when injury law
comes to view people as having emotional and psychological components. Because monetary compensation worked so
well to redress the dignitary interests involved in the economic losses, the same remedy was used to redress the dignitary
interests in psychological well- being that are transgressed by personal injury.
Economic compensation is only part of a solution to address the dignitary affront of an other- caused physical injury.
Injured people suffer two distinct assaults to their dignity from other- caused physical injuries - the economic and
emotional consequences of the physical injury itself, which if uncompensated can encroach upon one's dignity, and the
dignitary injuries imposed by a social order that seems to permit people to conduct themselves in ways that injure others
for their own benefit or in promoting their own interests. Giving people who are injured compensation from their harmcausers is one way our social order can help promote their dignity and their ability to be social equals. Legally requiring
harm- causers to compensate the parties they injure rectifies the social harm of permitting one person to injure another
with impunity and prevents one party's well- being from being valued more highly than another's. Focusing on monetary
compensation to redress the first dignitary assault of the economic and emotional consequences of the injury was a
strategy of tort law to achieve the end of dignity and social equality. The end, achieved through monetary compensation,
was not the compensation itself, but one kind of remedy to forms of social inequality and one means of respecting the
dignity of each person. Somehow though, the means of monetary compensation came to be understood as the end of tort
litigation and was substituted in much of tort theory for the ends of social justice and promotion of human dignity.
Tort theorists of the 20th century were not ignorant of tort's potential and usefulness as a tool for social justice struggle.
They participated in the struggle, but at an earlier junction, when they were faced with different needs and formidable
resistance to satisfying those societal needs. It was of the first order that tort theorists and practitioners promote social
justice by raising our consciousness about the injustices caused by physical injuries and shaping the law to provide
compensation for economic losses due to injuries. They did so with aplomb. During this last century by developing
compensatory solutions to personal injury problems through tort litigation and tort common law doctrinal development,
the consciousness- raising work was completed. Today we do not doubt that persons injured physically need monetary
compensation for their economic losses, for medical costs, for wage loss, for loss of services, for rehabilitative expenses.
Nor do we question that society has a legal and political responsibility to create mechanisms to redress those losses. How
we do it is still up for grabs, but we now recognize the political and social necessity of legally enforceable, economic
solutions.
However, in the process of translating the means of monetary compensation into the end or goal of tort litigation, tort
scholars veered dramatically from tort law's purpose as a social justice tool. That we got off course is not surprising,
particularly in light of our repeated failures as a nation to develop comprehensive political solutions to physical injury
problems, rather than relying on individualized tort law litigation for compensation for direct economic losses. Many
scholars during this last century have advocated alternative compensation systems. Such political solutions are so
imperative, that I have to believe it is only a matter of time before they will be implemented. Just as tort law's
inadequacies in the workplace context yielded the workers' compensation compromise for workplace injury remedies at
the beginning of the 20th century and no- fault solutions or compulsory automobile insurance for vehicle accidents after
mid- century, so will political pressures and tort law's inadequacies produce appropriate administrative and insurance
responses to physical injuries in all other contexts in the 21st century. Naturally, we need tort law to serve that function
until feasible working alternatives are enacted. But in this role, I believe tort law is merely a stand- in until another system
can adequately take responsibility for economic losses due to physical injury. Just because we have made tort law do the
work of providing compensation for economic losses due to physical injuries doesn't mean that this is tort law's strength
and purpose. The sooner we recognize tort law's most effective role for the 21st century as a remedy for social inequality
and a promoter of dignitary interests, and the sooner we design the appropriate administrative and insurance
compensation schemes for economic losses due to injuries, the sooner tort law can do the work for which it is best suited
and be restored to its rightful place in the common law.
Tort litigation was an excellent vehicle for beginning the struggle, but it became the struggle itself and there developed a
flaw. Tort litigation is not the solution to the problem, the solution must be found elsewhere. Tort litigation was the
mechanism to make the problem known and highlight the need for redress. It has been the instrument that people used to
name the problem - to raise our consciousness. Now we need to design effective, appropriate administrative and insurance
compensation schemes for monetary losses due to injuries. The last decade's assaults on tort law are really assaults on
using it as a compensatory tool. We rarely, if ever, hear about political movements to fundamentally reform contract law
or to abolish property law - the other cornerstones of our civil common law - but almost weekly we're deluged with
stories and assaults about the end of tort law, new reforms for tort law, or arguments about how tort law has to be
fundamentally reformed. These assaults on tort law occur in large part, I would argue, because most tort theorists, jurists,
practitioners, and members of the public have gotten stuck conceptualizing tort law in one of its historical manifestations,
as a compensatory mechanism for physical injuries, and erroneously interpret that manifestation as what tort law is
fundamentally about. This historically specific approach to tort law's role in society makes us lose sight of what gives tort
law its power and meaning. The form and shape of tort doctrine, tort litigation, and tort remedies as we know them today
are tied to a particular historical need of the late 19th and full 20th century and are not inherent in or basic to tort's place
in our legal system. If we believe these rules and remedies are the end- all and be- all of tort law, it is no wonder that we
think that tort law is or at least soon will be no longer necessary. Even if we take compensatory damage remedies and
economic loss remedies completely out of the tort system, there is still a very important place for tort law. Here is where
we need to focus our attention. What is it that tort does other than compensate for economic losses due to physical
injuries? I ask that we try to think about tort law and not think about monetary compensation for a moment. Tort law
protects human dignity and promotes social cohesion.
One of the beauties of the common law, and of tort law in particular, is its capacity to respond to changing historical
contexts. Tort responses to products liability are a prime example. As goods became mass produced and mass marketed,
tort law responded to the changing historical context. Likewise, as women moved in society from men's chattel or
servants to independently recognized legal persons, tort law changed to afford us the same rights and remedies as men
had, including allowing women to sue in their own right for personal injuries, abolishing intraspousal immunities, and
permitting women loss of consortium causes of action for injuries to their husbands. As relations of workers to employers
evolved and as institutional structures of production changed, tort law, and agency law, which has been incorporated into
tort law, again responded.
We are faced with an equally significant change in our culture and society at the end of the 20th century that will require
tort law to adapt to continue its effectiveness as a component of our common law. The end of the 20th century reflects our
movement from solving logistical problems of colliding physical relationships to social dignitary problems that interfere
with our efforts at social cohesion. Questions of relationships between groups or classes of people, issues about systemic
oppression and inequalities, harms created by abuses of power, and misuses of unearned privilege have increasingly
impeded our progress toward social harmony. And social harmony is just what the common law is designed to facilitate.
Tort law is now poised to move from primarily a compensatory mechanism as it was understood in the 20th century to
primarily a mechanism to enhance social equality and dignitary interests for the 21st century.
Tort law, as currently theorized and most often deployed, has outlived its effectiveness as a compensatory remedy for
physical injuries. The social, economic, and political context in which tort law developed at the end of the 19th and
through most of the 20th century may have led scholars to describe tort law as an ex post or after- the- fact market
regulator. Tort law may have needed to focus on markets and economic losses from injuries when we were experiencing
enormous change in our physical ways of living together in communities, in the manufacture and distribution of goods,
and in our modes of transportation. But the challenges at the beginning of the 20th century were different from the
challenges at the beginning of the 21st. Rather than being primarily about monetary compensation for physical injuries or
economics at all, my theory is that tort law is the common law's tool to address issues of personal dignity and social
justice and will be used for these ends in the next century, after we develop the necessary insurance and administrative
programs to compensate for physical injuries.
And I would say the ground work for tort law serving these functions other than monetary compensation has been laid in
the 20th century. Tort law has been increasingly understood as the appropriate tool to remedy indignities that undermine
our social cohesion and to challenge abuses of power and authority. The 21st century will be the time to weave these
strands together, and I would argue that it would be most effective to weave them into a new cause of action, even though
these remedies may in diverse ways be available through different tactics using existing causes of action.
Tort Law's Function in the Common Law
Tort law spent much of the 20th century wearing a business suit in order to effectively raise the consciousness of people
about the needs for monetary compensation for personal injuries. As explained before, out of the necessity of the
historical context, of the time and place, it focused on monetary damages. And because tort theorists and practitioners
fought so tenaciously and so well on that front, tort law became so identified with the fight for monetary compensation
that people today have confused the suit of clothing with the essence of tort law itself or, to continue the analogy, with the
woman wearing it. How often do we read that the primary purpose of tort law is compensation for personal injury? But
clothes do not make the woman or man, so to speak. Tort law should be wearing the long, flowing robes of Justice rather
than the business suit it has paraded around in during the last century.
Have you ever had the experience of not recognizing someone you know quite well in a particular job or role when
unexpectedly you see them in completely different attire in a very different setting? Face looks familiar, but you can't
place the person because the context and usual identifying signals you use are so different? That may be how you are
feeling about my description of tort law compared to how you understood it. But you are just seeing a familiar face in a
different context, in the context of my understanding of its role for the next century. In the next few minutes I will support
my theory that tort law is fundamentally a tool for social justice struggle and its primary purpose should be to redress
dignitary injuries, promote social equality, and facilitate cooperation in the 21st century.
Despite liberal theory's continued declarations that it advances no particular end, nor any vision of human nature, our
common law, which is rooted in that liberal theory, would not exist if we didn't seek the end of social harmony and
peaceful coexistence and if we didn't understand human nature as interdependent and social. If we were all purely
autonomous, independent beings, we would not create societies dependent upon human interactions and cooperation.
Very few of us are self- sufficient (either as individuals or as families) as we enter the 21st century. Everything about our
daily lives is imbued with connections and dependencies. How we live, how we work, how we worship, how we learn,
how we play, how we travel, how we eat, how we get our goods, how we entertain ourselves, and what we create are all
about people interacting with each other. We have created laws to respond to our social nature and to regulate or facilitate
our interactions.
The common law contains an implicit commitment to our living together in harmony; otherwise, we would settle for
'might makes right' or 'economic power makes right,' and we certainly wouldn't worry about personal injuries and
breaches of social articles of trust and faith in one another. The common law regulates the minimal ways in which we can
expect to be treated and are required to treat others. Failure to behave in those ways results in legally enforceable
remedies in contracts, property, and tort law. Contract laws protect our ability to rely on one another's promises and
commitments. We depend on a legally enforceable model of cooperative social interactions that honors mutual promises
and agreements and uses our collective power to secure our ability to rely on one another. Because we are interdependent,
we need to be able to rely or depend upon one another's words and actions. In this way, contract law facilitates social
harmony, the function of the common law. Property law protects an understanding of human nature whereby we are
entitled to the fruits of our labor, and that those fruits and other things we possess may not be taken from us, at least not
without our consent or compensation. Further, property law recognizes that human beings need security and safety in their
interests in property, because property rights and interests can advance our personhood, our life goals, and our ability to
live in harmony.
So what is tort law for? Tort law protects our interests in physical integrity, emotional health, individual and collective
safety, and in personal human dignity through respect and social equality, because we recognize that those aspects of our
human nature are as much prerequisites to our harmonious and cooperative social relationships as enforceable promises
and possessory privileges are. The human dignity protected by tort law is fortified by social equality. Social inequalities
directly assault dignitary interests. Social equality requires that each and every one of us be treated fairly and with
appropriate respect as a member of our human community. To properly fulfill this purpose in redressing assaults on
human dignity, tort law must work to eradicate social inequality. Our constitutional law protects political and legal
equality, but has not been able to establish social equality. Hopefully, as we mature as a society, our Constitution will be
amended clearly to include rights to social equality. In the meantime, we have made some inroads in achieving social
equality through civil rights laws and statutes. As helpful as those statutes are, they hardly address the panorama of issues
of social justice struggle. The rest of the work of social justice struggle is left to the common law, and more specifically to
tort law.
Tort law provides remedies for personal injuries. Social inequality and social injustices hurt people. People who act in
ways that reproduce rather than destroy social inequality cause harm. These harms and hurts are real personal injuries.
Social inequalities and abuses of power assault dignity. They create hostility and undermine social cooperation. They are
a direct threat to peace and social cohesion. But, first and foremost, they are personal injuries, the very things that tort law
was designed to remedy. If the wrongs of social inequality and social injustice are that they cause personal injury, and tort
law is designed to redress personal injury, then tort law is the most appropriate place to struggle for social justice and
realize social equality. Here is tort law's strength and here is where tort law is most useful and most non- replaceable by
administrative systems or insurance compensation schemes. When we talk about tort law, we should start with the
premise that it is designed to protect dignity and promote social equality and social justice. Our causes of action and
remedies should be tailored to best achieve those ends.
Tort law in the 20th century has consistently moved to protect dignitary interests. There is a large panoply of tort actions
and precedents with which to work in reinforcing tort's social justice ends. For example, causes of action have developed
for offensive battery, assault, intentional infliction of emotional distress and negligent infliction of emotional distress,
litigation over sexual and racial harassment, privacy actions, breach of fiduciary duty and breach of confidentiality,
nuisance, fraud and deceit actions, actions for loss of chance and increased risks, to name a few. If we add to these actions
traditional principles of equity based on which courts were empowered to intervene when the power of the parties was
unbalanced and to develop appropriate remedies from constructive trusts to injunctions and from restitution to
abatements, we have a substantial beginning repertoire for remedying harms to dignity and social inequalities. As I
mentioned previously, in later parts of my work, I propose that we add a new cause of action for social inequality torts
with new remedies, but that is a subject for another day. I urge us to rethink causes of action and rethink remedies.
Flawed Theories
Most theories about tort law today are misguided because they disregard or undervalue tort law's role in the social justice
struggle. As I mentioned earlier, many theorists view tort law as an ex post or after- the- fact market regulator. Arguably
these theorists have exacerbated our misunderstandings about tort in the past. But regardless of whether they accurately
reflected tort's role in the 20th century, they pervert our understandings at the close of this century and will continue to
disable tort law from fulfilling its rightful place in the common law in the 21st century, if we cling to them. The same can
be said for other dominant tort theories in the last quarter of the 20th century. They have skewed courts' and lawyers'
conceptualizations of what tort is and its possibilities. It is not surprising that this happened. Because the common law is
built on precedent, we often look to the past to understand it. This technique works for discerning trends in the law and
for finding the roots of doctrine. It is a critical part of building legal arguments. But we err if we rely solely on this
technique to theorize about tort in the future. We come to confuse responses to historical contexts with role and purpose.
That is precisely what happened with tort. The peculiar 20th century problems, needs and legal responses of monetary
compensation for physical injuries that currently define tort and underlie tort theories will not be the problems, needs and
legal responses needed in the 21st century. The theory must respond to the changing historical context and must reassess
its underlying purposes and goals.
For example, all the tort theorizing about utilitarianism and tort law (primarily interpreting the utility that tort law seeks
as economic efficiency, wealth maximization or reduction in the cost of accidents) obscures tort's fundamental role in
facilitating social harmony. Tort theories incorporating Aristotelian notions of corrective justice about wrongful gains and
losses miss the place of dignity and social justice at the heart of tort law. Tort theory relying on distributive justice
concepts about wealth redistribution (unfortunate as this conclusion is in my mind) counters contemporary political
trends, economic policies, and economic realities. And the libertarian tort theories about maximizing individual autonomy
and promoting negative liberty (freedom from rather than freedom to) ultimately do little or nothing to solve problems of
personal injury or redress harms resulting from the interdependent social context in which we all function, the raison
d'etre of tort law. It is not that these aren't powerful ideas that need further development, but they have been wrongfully
situated at tort's center. They may suggest some of tort law's secondary and tertiary rationales more than elucidate its
essential role and purpose, much in the way deterrence and punishment are subsidiary effects of tort law today. Whatever
tort laws we develop to respond to social injustices will serve deterrent and punishment functions, will foster autonomy,
increase utility, correct injustices, and distribute valuable resources to the same extent that tort laws do today. Utility,
autonomy, and corrective justice are all important concerns of tort law, but its primary focus must be on the promotion of
human dignity and social harmony, because it is only through those ends that we flourish. The more we facilitate social
justice and human dignity, the more we create opportunities for peace, creativity, and better lives for all of us. Is there any
doubt that people are at their best when they are treated with respect and dignity? That cooperation relies on mutual
respect and dignity? What better role for tort law than to redress injuries that undermine self- respect and dignity?
Conclusion
For tort law to fulfill its role in the common law of promoting social equality and protecting human dignity, we will have
to refine existing torts and develop new causes of action. While monetary remedies can restore some aspects of damaged
dignity when there are physical injuries, money is a poor substitute for being treated with respect and dignity, particularly
in the face of social inequalities. We will have to develop creative new remedies that more effectively respond to
dignitary injuries and abuses of power. And, while we're at it, we may find that alternative methods of dispute resolution
serve these ends better than traditional tort litigation.
Tort law is potentially an empowering medium for those injured, and it will be especially empowering for victims of
social injustice and dignitary harms. Tort law gives injured parties the power to choose whether to assert their rights and
how to frame their claims. Injured parties are empowered by their access to a public forum and the judgment of
community members in the halls of justice. They have a respected governmental place to voice their claims of injustice
and harm. Tort law empowers injured parties to call the harm- causing defendants to court and to require them to justify
themselves and defend their actions. A tort lawsuit cannot be ignored without consequences. The defendant must listen
and respond. Tort provides injured parties with court- ordered remedies and even more importantly with a public
acknowledgment that they were wronged. A tort judgment can psychologically vindicate and emotionally validate
plaintiffs' or defendants' senses of fairness and justice. Tort judgments assessing liability against defendants for
blameworthy conduct also have reverberating social and reputational consequences which often satisfy injured plaintiffs'
desires for punishment or vengeance. In addition, tort judgments imposing liability can set precedents that benefit groups
of similarly situated injured parties, deter harmful conduct by similarly situated defendants and punish wrongdoers who
benefit by intentionally or recklessly imposing harm and risks of harms on others. Even if injured parties settle their cases,
rather than bring them to trial, many of these interests are championed. Finally, because the American justice system
currently allows contingency fee contracts in personal injury cases, legal representation is much more available to the
general public. We can continue to give the widest array of people access to private attorneys working for their personal
interests, if courts and legislatures award attorneys fees to prevailing plaintiffs, as is done in federal civil rights actions.
These functions of tort law are very important because if we don't have someplace where injured people can go on their
own initiative, they have to rely upon the criminal prosecution of defendants or regulatory agencies and their
administrative processes. As we all know, these can be good tools, but they are inadequate to solve all of our problems.
Even with the best intentions, their limited personnel and budgets restrict their abilities to investigate and prosecute all
wrongdoers. And the legislatures are not the structurally appropriate institutions for meting out individualized justice.
Tort law can better respond to changing contexts and particularized facts.
Tort law in the 20th century focused its attention on monetary compensation for physical injuries. Tort law has
accomplished its goal of raising our legal consciousness about the necessity for monetary compensation for economic
losses. Now that that battle is won, tort law must move on to its next task of raising our legal consciousness about the
necessity for appropriate remedies for dignitary harms and personal harms caused by social inequalities. Tort law in the
21st century must be restored to its proper role in the common law as an effective tool in social justice struggle.
Supreme Court of Texas.
William E. TWYMAN, Petitioner,
v.
Sheila Kay TWYMAN, Respondent.
May 5, 1993.
Wife filed suit for divorce and for infliction of emotional distress. The 353rd District Court, Travis County, B.F. Coker,
J., held for wife, and husband appealed. The Austin Court of Appeals, 790 S.W.2d 819, Gammage, J., affirmed, and
further appeal was taken. The Supreme Court, Cornyn, J., held that: (1) although there is no cause of action for
negligent infliction of emotional distress, tort of intentional infliction of emotional distress is recognized, and (2) such
claim can be brought in divorce proceeding.
Reversed and remanded.
SPECTOR, Justice, dissenting.
Over five years ago, a trial court issued a divorce decree that included an award to Sheila Twyman of $15,000 for the
years of abuse she had suffered at the hands of her husband. At the time, the award was consistent with prevailing Texas
law. Today, the plurality sets aside the trial court's award and sends Sheila Twyman back to start the process over in a
new trial. Because justice for Sheila Twyman has been both delayed and denied, I dissent.
I.
At trial, Sheila testified that her husband, William Twyman, introduced bondage activities into their relationship after
their marriage. Sheila told William that she could not endure these activities because of the trauma of having been raped
several years earlier. She also informed William that she had been cut with a knife during the rape, and had been placed
in fear for her life. Although William understood that Sheila equated bondage with her prior experience of being raped,
he told Sheila that if she would not satisfy his desires by engaging in bondage, there would be no future to their marriage.
As a result, Sheila experienced "utter despair" and "devastation," as well as physical problems--weight loss and, after one
encounter, prolonged bleeding that necessitated gynecological treatment. The pain and humiliation of the bondage
activity caused her to seek help from three professional counselors.
The trial court found that William "engaged in a continuing course of conduct of attempting to coerce [Sheila] to join in
his practices of 'bondage' by continually asserting that [their] marriage could be saved only by [Sheila] participating with
[William] in his practices of 'bondage.' " The trial court also determined that Sheila's suffering was certainly foreseeable
from William's continuing course of conduct, "in light of his existing knowledge of her long-existing emotional state,
which was caused by her having been forcibly raped prior to their marriage." Finally, the trial court found that Sheila's
mental anguish was a direct proximate result of William's sexual practices.
Based on the pleadings, evidence, and arguments, the trial court concluded that the facts and the law supported Sheila's
recovery of $15,000 for William's negligent infliction of emotional distress. The court of appeals, in an opinion by
Justice Gammage, affirmed the trial court's judgment under prevailing tort law and noted that this court had expressly
approved the recovery of damages on a negligence claim in a divorce action. 790 S.W.2d 819, 823 (citing Price v. Price,
732 S.W.2d 316 (Tex.1987)).
This court, however, has now rejected Texas law established to provide redress for injuries of the kind inflicted by
William Twyman. While allowing some tort claims to be brought in a divorce action, the plurality forbids recovery for
negligent infliction of emotional distress, and insists that Sheila Twyman proceed on a theory of intentional infliction of
emotional distress.
II.
Today's decision is handed down contemporaneously with the overruling of the motion for rehearing in Boyles v. Kerr,
855 S.W.2d 593 (Tex.1993), in which this court reversed a judgment in favor of a woman who was surreptitiously
videotaped during intercourse, then subjected to humiliation and ridicule when the tape was displayed to others. In
Boyles, as in this case, a majority of this court has determined that severe, negligently-inflicted emotional distress does
not warrant judicial relief--no matter how intolerable the injurious conduct. The reasoning originally articulated in
Boyles, and now implied in this case, is that "[t]ort law cannot and should not attempt to provide redress for every
instance of rude, insensitive, or distasteful behavior"; providing such relief, the Boyles majority explained, "would
dignify most disputes far beyond their social importance." 36 Tex. S.Ct.J. 231, 233-234 (Dec. 2, 1992). 1
.
Neither of these cases involves "rude, insensitive, or distasteful behavior"; they involve grossly offensive conduct that
was appropriately found to warrant judicial relief. The decision in Boyles overturns well-reasoned case law, and I
strongly agree with the dissenting opinion in that case. For the same reasons, I strongly disagree with the plurality here;
the rule embodied in Boyles is no less objectionable when applied to the facts of this case. Sheila Twyman is entitled to
recover the amount awarded by the trial court for the injuries inflicted by her husband.
III.
It is no coincidence that both this cause and Boyles involve serious emotional distress claims asserted by women against
men. From the beginning, tort recovery for infliction of emotional distress has developed primarily as a means of
compensating women for injuries inflicted by men insensitive to the harm caused by their conduct. In "[t]he leading case
which broke through the shackles," 2 a man amused himself by falsely informing a woman that her husband had been
gravely injured, causing a serious and permanent shock to her nervous system. Wilkinson v. Downton, 2 Q.B.D. 57
(1897). Similarly, in the watershed Texas case, a man severely beat two others in the presence of a pregnant woman,
who suffered a miscarriage as a result of her emotional distress. Hill v. Kimball, 76 Tex. 210, 13 S.W. 59 (1890). By
World War II, the pattern was well-established: one survey of psychic injury claims found that the ratio of female to male
plaintiffs was five to one. Hubert Winston Smith, Relation of Emotions to Injury and Disease: Legal Liability for
Psychic Stimuli, 30 Va.L.Rev. 193 (1944).
Even today, when emotional distress claims by both sexes have become more widely accepted, women's claims against
men predominate. Of the thirty-four Texas cases cited by the plurality--all decided since 1987--women's claims
outnumbered men's by a ratio of five to four; and only four of the thirty-four involved any female defendants. Of those
cases involving relations between two individuals--with no corporations involved--five involved a woman's claim against
a man; none involved a man's claim against a woman.
I do not argue that women alone have an interest in recovery for emotional distress. However, since the overwhelming
majority of emotional distress claims have arisen from harmful conduct by men, rather than women, I do argue that men
have had a disproportionate interest in downplaying such claims.
Like the struggle for women's rights, the movement toward recovery for emotional distress has been long and tortuous.
See Peter A. Bell, The Bell Tolls: Toward Full Tort Recovery for Psychic Injury, 36 U.Fla.L.Rev. 333, 336-40 (1984).
In the judicial system dominated by men, emotional distress claims have historically been marginalized:
The law of torts values physical security and property more highly than emotional security and human relationships.
This apparently gender-neutral hierarchy of values has privileged men, as the traditional owners and managers of
property, and has burdened women, to whom the emotional work of maintaining human relationships has commonly
been assigned. The law has often failed to compensate women for recurring harms--serious though they may be in the
lives of women--for which there is no precise masculine analogue.
Martha Chamallas and Linda K. Kerber, Women, Mothers, and the Law of Fright: A History, 88 Mich.L.Rev. 814
(1990). Even Prosser recognizes the role of gender in the historical treatment of claims like that involved in Hill v.
Kimball:
It is not difficult to discover in the earlier opinions a distinctly masculine astonishment that any woman should ever
allow herself to be frightened or shocked into a miscarriage.
W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 12, at 55-56 (5th ed. 1984).
Displaying a comparable "masculine astonishment," the dissenting opinion by Justice Hecht insists that, with a few
possible exceptions, women have played no distinct part in the development of tort recovery for emotional distress. As a
general matter, Justice Hecht questions how a legal system dominated by men could develop a tort to compensate women
even while marginalizing women's claims. The answer is amply illustrated by the present case: to provide some
appearance of relief for Sheila Twyman, the court recognizes the tort of intentional infliction of emotional distress; but in
doing so, it restricts her to a theory which, as Justice Hecht observes, is "seldom successful." 855 S.W.2d at 631.
Justice Hecht acknowledges that in the early cases, recovery for emotional distress "frequently involved female
plaintiffs." 855 S.W.2d at 631. However, rather than viewing this phenomenon as an indication of actual, serious injuries,
Justice Hecht suggests that it may have been due to a patronizing attitude on the part of the courts.
There is little doubt that some of the case law in this area, as in any other, reflects a patronizing view of women. More
often, though, the case law reflects the logical application of existing law to a wide range of claims. For example, in the
only case cited by Justice Hecht to illustrate an arguably patronizing view of women, there was evidence that men
employed by a railroad had humiliated a man's ten-year-old daughter by subjecting her to obscene language; but there
1
On rehearing, the Boyles majority has reworded slightly its discussion but reiterated its reasoning and result. The
majority's overriding concern there has remained the avoidance of relief for "merely rude or insensitive behavior." 855
S.W.2d 593, 602
2
FN2. William L. Prosser, Insult and Outrage, 44 Cal.L.Rev. 40, 42 (1956).
was no evidence that the language had humiliated the father. Fort Worth & Rio Grande Ry. Co. v. Bryant, 210 S.W. 556
(Tex.Civ.App.--Fort Worth 1918, writ ref'd). There is nothing patronizing about holding a railroad company responsible
for the harm caused by its employees' conduct.
I would group Bryant with the many other common carrier cases that were decided, in Justice Hecht's terms, "without
particular regard for gender." 855 S.W.2d at 639. Neither the Fort Worth Court of Appeals, nor any of the other courts at
the time were primarily concerned with protecting women's rights. But in Bryant, as in so many of the other cases, the
evolution of the law regarding emotional distress claims did enable a female to recover for emotional harm inflicted by
men. This fact does not reflect a charitable desire to help women; it reflects the fact that the serious emotional distress
claims usually involved injuries inflicted by men upon women.
Given this history, the plurality's emphatic rejection of infliction of emotional distress claims based on negligence is
especially troubling. Today, when the widespread mistreatment of women is being documented throughout the country-for instance, in the areas of sexual harassment and domestic violence a majority of this court takes a step backward and
abolishes one way of righting this grievous wrong.
IV.
Rather than dismissing Sheila's claim outright, the plurality remands this cause to the trial court to allow Sheila to seek
recovery under an alternative theory. I agree that Sheila is entitled to pursue a claim based upon intentional infliction of
emotional distress, as set out in section 46 of the Restatement (2d) of Torts.
However, in restricting recovery for emotional distress to claims based upon intent, the plurality, joined by Justice
Gonzalez's concurring opinion, demonstrates a basic misunderstanding of claims like those presented by Susan Kerr and
Sheila Twyman. While recognizing that recovery should be allowed for conduct intended to inflict injury, the plurality
fails to acknowledge the severe emotional distress often caused unintentionally.
This court has previously made clear that the distinguishing feature of an intentional tort is "the specific intent to inflict
injury." Reed Tool Co. v. Copelin, 689 S.W.2d 404, 406 (Tex.1985) (citing Restatement (2d) of Torts § 8A (1965)); see
also Rodriguez v. Naylor Indus., 763 S.W.2d 411, 412 (Tex.1988). This definition of an "intentional" injury is echoed in
the portion of the Restatement governing intentional infliction of emotional distress:
The rule stated in this Section applies where the actor desires to inflict severe emotional distress, and also where he
knows that such distress is certain, or substantially certain, to result from his conduct.
Restatement (2d) of Torts § 46 cmt. i (1965).
Unfortunately, in many cases, severe emotional distress is caused by an actor who does not actually desire to inflict
severe emotional distress, and who is even oblivious to the fact that such distress is certain, or substantially certain, to
result from his conduct. It may well be the case, for example, that William Twyman never actually intended to inflict
emotional distress upon Sheila, and never expected the injury that his conduct caused. Rather, he may have insisted on
bondage activities solely for the purpose of satisfying his own desires. Similarly, Dan Boyles may have videotaped his
activities with Susan Kerr not for the purpose of injuring her, but rather for the purpose of amusing himself and his
friends.
I do not argue, as the plurality asserts, that "the emotional harm William caused was foreseeable but not substantially
certain to occur." 855 S.W.2d at 624. I do argue, though, that Sheila's recovery for William's conduct should not depend
upon proof of William's sensitivity. To apply a standard based on intent is to excuse William's conduct so long as he
believed his actions were harmless.
Brutish behavior that causes severe injury, even though unintentionally, should not be trivialized. Foreclosing recovery
for such behavior may prevent litigation of frivolous claims; but it also denies redress in exactly those instances where it
is most needed.
V.
While the plurality would allow some possibility of recovery for injuries like Sheila Twyman's, the dissenting opinions
by Chief Justice Phillips and Justice Hecht would allow none at all. Adopting the medieval view of marital relations,
Chief Justice Phillips argues that spouses should be shielded from liability for even the most outrageous acts against one
another. This view echoes William Twyman's assertion at trial that, by consenting to marriage, Sheila Twyman assumed
the risk of physical injury and emotional harm. Fortunately, in Texas, this archaic view has been soundly rejected;
interspousal immunity has been abolished "completely as to any cause of action." Price v. Price, 732 S.W.2d 316, 320
(Tex.1987). Insulating spouses from liability, we have noted, "would amount to a repudiation of the constitutional
guarantee of equal protection of the laws." Id. Thus, recovery for intentional infliction of emotional distress should be
available to spouses and non-spouses alike, as other states have recognized. 3
Justice Hecht not only agrees that spouses should have special protection from liability, but further argues that recovery
for intentional infliction of emotional distress should never be allowed in any case. In Justice Hecht's view, the tort set
3
The state supreme court that reexamined this issue most recently noted, "Courts around the country have recognized that
public policy considerations should not bar actions for intentional infliction of emotional distress between spouses or
former spouses based on conduct occurring during the marriage." Henriksen v. Cameron, 622 A.2d 1135, 1140
(Me.1993) (citations omitted).
out in section 46 of the Restatement is "too broad a rubric to describe actionable conduct, as this case illustrates." 855
S.W.2d at 630. Cases from the forty-six jurisdictions that recognize this tort comprise a unified body of law that would
suggest otherwise. As Justice Hecht acknowledges, claims under section 46 are "seldom successful"; defendants have
been held subject to liability only in those instances in which the defendant's conduct was clearly "beyond the bounds of
decency." [FN9] Unlike Justice Hecht, I believe the judicial system is fully capable of distinguishing trivial acts from
those acts that are sufficiently outrageous to warrant relief.
FN9. See, e.g., Whelan v. Whelan, 41 Conn.Supp. 519, 588 A.2d 251, 253 (1991) (in divorce action, wife stated
a claim for intentional infliction of emotional distress based on husband's false statement to her that he had
AIDS); Lapinad v. Pacific Oldsmobile-GMC, Inc., 679 F.Supp. 991, 996 (D.Hawaii 1988) (recognizing that
"[s]exually harassing behavior is outrageous").
VI.
The claim asserted by Sheila Twyman was based on a simple premise: her husband should be held accountable for the
foreseeable consequences of his conduct. The courts below, in applying the law, understood the nature and extent of
such conduct; the plurality does not. Tragically, the lack of understanding shown today will only lead to more delay and
more injustice.