An Essay on the Tort of Negligent Infliction of Emotion Distress in Texas: Stop Saying It Does Not Exist.

The injury of emotional distress is an interesting tort, which has long perplexed the Anglo-American system of jurisprudence. While, originally, allegations of this kind did not constitute a cause of action, today, there is no question that an injured plaintiff may recover for the infliction of emotional distress. The majority and minority positions differ now only on what must be alleged and proved. Texas was the first jurisdiction in the United States to allow recovery for mental anguish.

However, in 1993 in the case of Boyles v. Kerr, the Texas Supreme Court appeared to depart from the majority view when it decided that negligent infliction of emotional distress alone was not compensable. As a result, some practitioners, and indeed some courts, state that the tort is no longer recognized. This is, in fact, not true. As a review of the Texas case history of emotional distress claims shows, the tort of negligently inflicted emotional distress is alive and well in Texas.

This review makes clear that the Texas Supreme Court never intended to completely eradicate negligent infliction of emotional distress as a cause of action. Rather, to recover for this injury, plaintiffs must only show that they have endured the breach of some other duty owed to them. Whether we think of this in terms of a parasitic recovery in the area of substantive law, or in terms of a requirement in pleading with regard to procedure, the result is the same.