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25 Geo. Mason L. Rev. 287 (2017-2018)
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).