Clayton v. Wisener
2005 WL 1404992, 190 S.W.3d 685 (2005)
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Rule of Law:
A continuous course of harassing conduct involving vulgar sexual propositions and offensive comments over several months constitutes extreme and outrageous conduct sufficient to support a claim for intentional infliction of emotional distress. However, a claim for invasion of privacy by intrusion requires a physical invasion or eavesdropping, not merely offensive verbal conduct.
Facts:
- In 1995, Susan Wisener began working as an account representative for Medaphis, a medical billing company.
- Wisener was assigned to the account of Dr. Tom Clayton, a radiologist.
- Beginning in November 1995 and continuing for several months, Dr. Clayton frequently called Wisener and made offensive comments, propositions of a sexual nature, and asked inappropriate questions about her sex life.
- This conduct included asking for her breast size, repeatedly using vulgar language to proposition her for sex, and asking if she had affairs.
- In April 1996, Wisener was hospitalized for abdominal pain, and Dr. Clayton, who read the results of her HIDA scan, made inappropriate comments to her during her hospital stay, including asking her to remove her shirt.
- Wisener continued to suffer pain after Dr. Clayton reported her scan as normal, and another physician subsequently determined her gallbladder was abnormal and removed it.
Procedural Posture:
- Susan Wisener sued Dr. Tom Clayton in a Texas state trial court, alleging invasion of privacy.
- Wisener later amended her petition to add a claim for intentional infliction of emotional distress.
- Following a trial, the jury returned a verdict in favor of Wisener, finding that Dr. Clayton was liable for both intentional infliction of emotional distress and invasion of privacy.
- The jury awarded Wisener $20,000 for past mental anguish, $72,488 for past lost earning capacity, and $500,000 in exemplary damages.
- The trial court entered a judgment on the verdict but reduced the exemplary damages award to $200,000 pursuant to a statutory cap.
- Dr. Clayton filed motions for a new trial and for judgment notwithstanding the verdict, which the trial court denied.
- Dr. Clayton, as appellant, perfected an appeal to the Texas Court of Appeals.
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Issue:
Does a continuous course of offensive, vulgar, and indecent sexual propositions over several months constitute extreme and outrageous conduct sufficient to support a claim for intentional infliction of emotional distress?
Opinions:
Majority - DeVasto, J.
Yes. A continuous course of conduct involving indecent propositions and vulgar or obscene behavior can be so outrageous in character and extreme in degree as to support a claim for intentional infliction of emotional distress. The court found that Dr. Clayton's repeated sexual propositions, use of vulgar language, and intrusive personal questions over a period of several months were not mere insults but a pattern of harassment that a jury could reasonably find to be 'atrocious, and utterly intolerable in a civilized community.' This behavior satisfies the 'extreme and outrageous' element of the tort. However, the court reversed the jury's finding on invasion of privacy, holding that this tort typically requires a physical invasion or technological eavesdropping, which did not occur here. The court also reversed the damages for lost earning capacity due to lack of evidence and the exemplary damages because there was no clear and convincing evidence of malice.
Analysis:
This case clarifies the high threshold for 'extreme and outrageous' conduct required for an intentional infliction of emotional distress (IIED) claim in Texas. It establishes that a sustained campaign of severe verbal sexual harassment, even without physical contact or threats, can satisfy this standard, distinguishing it from mere insults or trivialities. The decision reinforces that IIED claims based on harassment are evaluated based on the entirety of the conduct over time. It also helpfully distinguishes the IIED tort from invasion of privacy by intrusion, confirming that the latter generally requires a physical or technological trespass rather than purely verbal harassment.
