Full opinion text
OPINION ON MOTION FOR REHEARING PHILLIPS, Chief Justice. Respondent’s motion for rehearing is overruled. Our opinion of December 2, 1992, is withdrawn and the following is substituted in its place. This is a suit for the negligent infliction of emotional distress. We hold that there is no general duty in Texas not to negligently inflict emotional distress. A claimant may recover mental anguish damages only in connection with defendant’s breach of some other legal duty. Because Respondent proceeded below only on the theory of negligent infliction of emotional distress, we reverse the judgment of the court of appeals in her favor. 806 S.W.2d 255. However, in the interest of justice, we remand for a new trial. I On August 10, 1985, Petitioner Dan Boyles, Jr., then seventeen, covertly videotaped nineteen-year-old Respondent Susan Leigh Kerr engaging in sexual intercourse with him. Although not dating steadily, they had known each other a few months and had shared several previous sexual encounters. Kerr testified that she had not had sexual intercourse prior to her relationship with Boyles. Kerr and Boyles, who were both home in Houston for the summer, had made plans to go out on the night of the incident. Before picking Kerr up, Boyles arranged with a friend, Karl Broesche, to use the Broesche house for sexual intercourse with Kerr. Broesche suggested videotaping the activity, and Boyles agreed. Broesche and two friends, Ray Widner and John Paul Tamborello, hid a camera in a bedroom before Kerr and Boyles arrived. After setting up the camera, the three videotaped themselves making crude comments and jokes about the activity that was to follow. They left with the camera running, and the ensuing activities were recorded. Boyles took possession of the tape shortly after it was made, and subsequently showed it on three occasions, each time at a private residence. Although he showed the tape to only ten friends, gossip about the incident soon spread among many of Kerr and Boyles’ friends in Houston. Soon many students at Kerr’s school, Southwest Texas State University, and Boyles’ school, the University of Texas at Austin, also became aware of the story. Kerr did not learn of the video until December 1985, long after she and Boyles had stopped seeing each other. After she confronted him, Boyles eventually admitted what he had done and surrendered the tape to Kerr. No copies had been made. Kerr alleges that she suffered humiliation and severe emotional distress from the videotape and the gossip surrounding it. At social gatherings, friends and even casual acquaintances would approach her and comment about the video, wanting to know “what [she] was going to do” or “why did [she] do it.” The tape stigmatized Kerr with the reputation of “porno queen” among some of her friends, and she claimed that the embarrassment and notoriety affected her academic performance. Kerr also claimed that the incident made it difficult for her to relate to men, although she testified to having had subsequent sexually-active relationships. Eventually, she sought psychological counselling. Kerr sued Boyles, Broesche, Widner and Tamborello, alleging intentional invasion of privacy, negligent invasion of privacy, and negligent (but not intentional) infliction of emotional distress. Before the case was submitted to the jury, however, Kerr dropped all causes of action except for negligent infliction of emotional distress. The jury returned a verdict for Kerr on that claim, assessing $500,000 in actual damages. The jury also found that all defendants were grossly negligent, awarding an additional $500,000 in punitive damages, $350,000 of which was assessed against Boyles. The trial court rendered judgment in accordance with the jury’s verdict. Only Boyles appealed to the court of appeals. That court affirmed the judgment against him, concluding that Kerr established negligent infliction of emotional distress under the facts of this case. The court of appeals also affirmed based on negligent invasion of privacy, even though Kerr abandoned this theory prior to submission of the case to the jury and did not brief or argue it as a basis for affirmance in the court of appeals. II Initially, we must determine whether negligent infliction of emotional distress constitutes an independent cause of action in Texas. Kerr claims that we recognized a broad right to recover for negligently inflicted emotional distress in St. Elizabeth Hospital v. Garrard, 730 S.W.2d 649 (Tex.1987). Boyles contends that the Garrard holding is limited to the particular facts of that case. In Garrard, a hospital negligently disposed of the Garrards’ stillborn baby in an unmarked, common grave without the plaintiffs’ knowledge or consent. The Gar-rards sued for negligent infliction of emotional distress, without alleging that they suffered any physical injury. This Court nonetheless concluded that they had stated a cause of action. We determined that “Texas first recognized the tort of negligent infliction of mental anguish in Hill v. Kimball, 76 Tex. 210, 13 S.W. 59 (1890).” 730 S.W.2d at 652. This tort, we said, had been administered under traditional tort concepts, subject only to a refinement on the element of damages: the mental suffering is not compensable unless it manifests itself physically. Id. After determining that the physical manifestation requirement was arbitrary because it “denies court access to persons with valid claims they could prove if permitted to do so,” id., we proceeded to abolish it. 730 S.W.2d at 654. The Court then proceeded, we believe, to create a general duty not to inflict reasonably foreseeable emotional distress. The Court said: Clearly, freedom from severe emotional distress is an interest which the law should serve to protect_ Having recognized that an interest merits protection, it is the duty of this court to continually monitor the legal doctrines of this state to insure the public is free from unwarranted restrictions on the right to seek redress for wrongs committed against them.... Thus, we hold that proof of physical injury resulting from mental anguish is no longer an element of the common law action for negligent infliction of mental anguish. 730 S.W.2d at 653-54. Four justices joined in the judgment, but concurred on the grounds that the same result could be reached under the traditional Texas rule allowing emotional distress damages arising from the mishandling of a corpse. Id. at 654. If the Court’s holding was, as Boyles contends, limited to the mishandling of corpses, the concurring opinion would not need to have been written, as its rationale would have been incorporated in the majority opinion. The liability standard under this new tort, however, was never entirely clear. Garrard seemed to indicate that “trivial” emotional distress should not be compensated, 730 S.W.2d at 652, and similarly that the law should protect against “severe” emotional distress. Id. at 653. Rather than articulating any threshold level of severity, however, the Court concluded that “[¡jurors are best suited to determine whether and to what extent the defendant’s conduct caused compensable mental anguish by referring to their own experience.” Id. at 654. While the holding of Garrard was correct, we conclude that its reasoning was based on an erroneous interpretation of Hill v. Kimball, and is out of step with most American jurisdictions. Therefore, we overrule the language of Garrard to the extent that it recognizes an independent right to recover for negligently inflicted emotional distress. Instead, mental anguish damages should be compensated only in connection with defendant’s breach of some other duty imposed by law. This was the basis for recovery prior to Garrard, which expanded the scope of liability based on a misconstruction of Hill v. Kimball. In Hill, a pregnant woman suffered a miscarriage when she witnessed the defendant severely beating two men in her yard. The woman sued for her physical injuries under negligence, claiming that the emotional trauma of witnessing the beatings produced the miscarriage and that the defendant should have reasonably anticipated the danger to her. The Court found that the plaintiff had stated a cause of action. The basis, however, was the physical injury she had suffered, together with her allegation of foreseeability. The Court reasoned as follows: That a physical personal injury may be produced through a strong emotion of the mind there can be no doubt. The fact that it is more difficult to produce such an injury through the operation of the mind than by direct physical means affords no sufficient ground for refusing compensation, in an action at law, when the injury is intentionally or negligently inflicted_ Here, according to the allegations of the petition, the defendant has produced a bodily injury by means of that emotion, and it is for that injury that the recovery is sought. 76 Tex. at 215, 13 S.W. at 59. The Court considered only whether the plaintiff could recover for her physical injuries, not whether she could otherwise recover for her emotional distress or mental anguish caused by witnessing the beatings. Furthermore, the Court noted that liability would depend on “whether, under the circumstances, and with the lights before him, a reasonably prudent man would have anticipated the danger to her or not.” Id. In other words, the defendant was negligent if he should have known that he was imposing an unreasonable risk of physical injury to the plaintiff, not if he merely should have anticipated that the plaintiff would suffer emotional distress. Hill, therefore, did not recognize a cause of action for negligent infliction of emotional distress. It merely recognized the right to recover for physical injuries under standard negligence principles, notwithstanding that the physical injury is produced indirectly through emotional trauma. Gar-rard thus did not merely modify Hill, but created an entirely new cause of action. The dissent vigorously denounces our abolition of the tort created in Garrard, calling it “controlling precedent” that contains a “rather clear pronouncement” of a new tort affirming “the respect for human dignity.” 855 S.W.2d at 608, 607, 605 (Doggett, J., dissenting on rehearing). Gar-rard, however, ill deserves the lofty pedestal to which the dissent has belatedly elevated it. Even today, the justices of this Court cannot agree on the extent of Garrard’ s reach, see infra at 604 (Gonzalez, J., concurring on motion for rehearing), and we have never embraced its broad holding. Thus, in Freeman v. City of Pasadena, 744 S.W.2d 923 (Tex.1988), we limited the bystander cause of action to those persons meeting the criteria of Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 80, 441 P.2d 912, 920 (1968), without even citing Gar-rard as a potential basis for broader liability. Justice Ray, the author of the Court’s opinion in Garrard, while noting in a concurring opinion in Freeman that, because of Garrard, “perhaps the need for a bystander cause of action is now without a basis,” 744 S.W.2d at 925, did not explain why the plaintiff in Freeman could not recover under the Garrard tort. Further, the Court held in Reagan v. Vaughn, 804 S.W.2d 463, 466-67 (Tex.1990), that a child could not recover mental anguish damages resulting from a severe injury to a parent, without considering Garrard as a basis for recovery. Even Justice Doggett, who now views Garrard as a landmark in the recovery of emotional distress damages, did not deem it worthy of citation in his vigorous concurring and dissenting in Reagan. In fact, this Court has never upheld a recovery under the Garrard tort. Were we the only Court struggling with Garrard, we could perhaps limit the case to its facts and let it slip into quiet oblivion. But other courts must try to understand it as well. Thus, while many lower Texas courts have read Garrard as creating an independent cause of action for negligent infliction of emotional distress, see, e.g., Campos v. Ysleta Gen. Hosp., Inc., 836 S.W.2d 791, 795 (Tex.App.—El Paso 1992, writ denied); C.T.W. v. B.C.G., 809 S.W.2d 788, 796 (Tex.App.—Beaumont 1991, no writ); Massey v. Massey, 807 S.W.2d 391, 397 (Tex.App.—Houston [1st Dist.] 1991, writ requested); McNamara v. Freedom Newspapers, Inc., 802 S.W.2d 901, 903 n. 2 (Tex.App.—Corpus Christi 1991, writ denied); Dominguez v. Kelly, 786 S.W.2d 749, 753 (Tex.App.—El Paso 1990, writ denied); Orkin Exterminating Co. v. Williamson, 785 S.W.2d 905, 912 (Tex.App.—Austin 1990, writ denied); Texas Dep’t of Corrections v. Winters, 765 S.W.2d 531, 532 (Tex.App.—Beaumont 1989, writ denied); City of Watauga v. Taylor, 752 S.W.2d 199, 204 (Tex.App.—Fort Worth 1988, no writ); see also Blankenship v. Kerr County, 878 F.2d 893, 897 (5th Cir.1989), other “courts of appeals have not fully embraced [its] holding.” Chiles v. Chiles, 779 S.W.2d 127, 130 (Tex.App.—Houston [14th Dist.1989, writ denied). Moreover, some federal decisions have dealt with Garrard by limiting the decision to its particular facts. For example, in Harmon v. Grande Tire Co., 821 F.2d 252, 258 (5th Cir.1987), decided shortly after Garrard, the court stated that “[w]hile the majority opinion in Garrard is broadly written, we read it as being directed only to the matter of proof.” The court thus concluded that Garrard did not create a new duty that would allow a non-eyewitness bystander to recover for negligently inflicted emotional distress. Id. See also In re Air Crash at Dallas/Ft. Worth Airport, 856 F.2d 28 (5th Cir.1988). In Fiorenza v. First City Bank-Central, 710 F.Supp. 1104, 1105 (E.D.Tex.1988), the court held that “[t]he Texas Supreme Court does not yet recognize a separate cause of action in the employee/employer relationship for negligent infliction of emotional distress,” apparently concluding that Garrard was limited to its facts. Professor Crump, one of Boyles’ appellate counsel, has argued that “[i]t is important ... not to lose sight of the contractual relationship between hospital and patient as the source of the underlying duty [in Garrard].” David Crump, Evaluating Independent Torts Based upon “Intentional" or “Negligent” Infliction of Emotional Distress: How Can We Keep the Baby From Dissolving in the Bath Water?, 34 Ariz.L.Rev. 439, 458 (1992). Considering our opinions and those of other Texas courts, as well as the law in most American jurisdictions, Garrard could fairly be characterized as an anomaly rather than a landmark. We believe the jurisprudence of our state is better served by overruling Garrard’s broad language outright, rather than ignoring it as in Freeman, limiting the case to its facts as in Harmon and Delta, or pretending that the concurring opinion was in fact the rationale of the majority. By overruling the language of Garrard, we hold only that there is no general duty not to negligently inflict emotional distress. Our decision does not affect a claimant’s right to recover mental anguish damages caused by defendant’s breach of some other legal duty. See, e.g., Fisher v. Coastal Transp. Co., 149 Tex. 224, 230 S.W.2d 522 (1950) (negligent infliction of direct physical injury); Moore v. Lillebo, 722 S.W.2d 683 (Tex.1986) (wrongful death); Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627 (Tex.1967) (battery); Stuart v. Western Union Tel. Co., 66 Tex. 580, 18 S.W. 351 (1885) (failure of telegraph company to timely deliver death message); Billings v. Atkinson, 489 S.W.2d 858 (Tex.1973) (invasion of privacy); Leyendecker & Assocs., Inc., v. Wechter, 683 S.W.2d 369 (Tex.1984) (defamation); Pat H. Foley & Co. v. Wyatt, 442 S.W.2d 904 (Tex.Civ.App.—Houston [14th Dist.] 1969, writ ref’d n.r.e.) (negligent handling of corpse). Also, our holding does not affect the right of bystanders to recover emotional distress damages suffered as a result of witnessing a serious or fatal accident. Texas has adopted the bystander rules originally promulgated by the California Supreme Court in Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 80, 441 P.2d 912, 920 (1968): (1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it; (2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence; and (3) Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship. Freeman v. City of Pasadena, 744 S.W.2d 923 (Tex.1988). See also Reagan v. Vaughn, 804 S.W.2d 463, 466-67 (Tex.1990). The policy concerns that require limiting the emotional distress cause of action in the direct victim case generally do not apply in the bystander case. Before a bystander may recover, he or she must establish that the defendant has negligently inflicted serious or fatal injuries on the primary victim. We emphasize that we are not broadening a claimant’s right to recover mental anguish damages caused by breach of a particular duty; we ieave such right unaffected. For example, a claimant may not recover mental anguish damages in connection with negligent misrepresentation. Federal Land Bank Assoc. v. Sloane, 825 S.W.2d 439 (Tex.1991). Also, mental anguish damages may not be recovered under the Texas Deceptive Trade Practices Act, Tex.Bus. & Com.Code §§17.41-17.63, absent proof of a willful or grossly negligent violation. See Luna v. North Star Dodge Sales, Inc., 667 S.W.2d 115 (Tex.1984); Duncan v. Luke Johnson Ford, Inc., 603 S.W.2d 777 (Tex.1980). Our holding today does not extend these rules. We also are not imposing a requirement that emotional distress manifest itself physically to be compensable. As explained in Garrard, the sole purpose of the physical manifestation rule is to ensure the genuineness of claims for emotional distress. 730 S.W.2d at 652. Garrard criticized this requirement as both under- and overinclusive, id., and we agree. See Julie A. Davies, Direct Actions for Emotional Harm: Is Compromise Possible?, 67 Wash.L.Rev. 1, 24-25 (1992) (the physical manifestation rule “has been criticized on the ground that it has no obvious relation to emotional harm”). Where emotional distress is a recognized element of damages for breach of a legal duty, the claimant may recover without demonstrating a physical manifestation of the emotional distress. This has long been the rule, even before Garrard. See, e.g., Leyendecker & Assocs., Inc., v. Wechter, 683 S.W.2d 369, 374 (Tex.1984). Most other jurisdictions do not recognize a general duty not to negligently inflict emotional distress. Many limit recovery by requiring proof of a physical manifestation. Others allow recovery where the claimant establishes the breach of some independent duty. A few jurisdictions recognize a general right to recover for negligently inflicted emotional distress, but these jurisdictions are squarely in the minority. We find the experience in California to be instructive. In Molien v. Kaiser Foundation Hospitals, 27 Cal.3d 916, 167 Cal.Rptr. 831, 838-39, 616 P.2d 813, 820-21 (1980), the California Supreme Court abolished the physical injury requirement, apparently creating an independent cause of action for negligently inflicted “serious” emotional distress. Nine years later, however, the court declared that “the negligent causing of emotional distress is not an independent tort....”, Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc., 48 Cal.3d 583, 257 Cal.Rptr. 98, 101, 770 P.2d 278, 281 (1989), and that damages are recoverable only where there is a “breach of a duty owed the plaintiff that is assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of a relationship between the two.” Id. 257 Cal.Rptr. at 102, 770 P.2d at 282. In another case decided shortly after Marlene F., the California Supreme Court further explained as follows: [I]t is clear that foreseeability of the injury alone is not a useful “guideline” or a meaningful restriction on the scope of the [negligent infliction of emotional distress] action. The Dillon experience confirms, as one commentator observed, that “[fjoreseeability proves too much.... Although it may set tolerable limits for most types of physical harm, it provides virtually no limit on liability for nonphysical harm.” [citing Rabin, Tort Recovery for Negligently Inflicted Economic Loss: A Reassessment, 37 Stan. L.Rev. 1513, 1526 (1985) ]. It is apparent that reliance on foreseeability of injury alone in finding a duty, and thus a right to recover, is not adequate when the damages sought are for an intangible injury. In order to avoid limitless liability out of all proportion to the degree of a defendant’s negligence, and against which it is impossible to insure without imposing unacceptable costs on those among whom the risk is spread, the right to recover for negligently caused emotional distress must be limited. Thing v. La Chusa, 48 Cal.3d 644, 257 Cal.Rptr. 865, 877-78, 771 P.2d 814, 826-27 (1989). Last year, the court confirmed that Mol-ien should not be relied on as creating an independent tort for negligent infliction of emotional distress, but that recovery may lie “where a duty arising from a preexisting relationship is negligently breached.” Burgess v. Superior Court, 2 Cal.4th 1064, 9 Cal.Rptr.2d 615, 619, 831 P.2d 1197, 1201 (1992). In Burgess, the plaintiff sued her obstetrician for emotional distress caused by the doctor’s negligent delivery of the plaintiff’s child. The court viewed the claim as a traditional professional malpractice cause of action, which, under California law, supported mental anguish damages. Id. 9 Cal.Rptr.2d at 621, 831 P.2d at 1203. The duty allegedly breached was that arising from the doctor-patient relationship. Id. Some courts have recognized an independent cause of action for “serious” or “severe” emotional distress. See Schultz v. Barberton Glass Co., 4 Ohio St.3d 131, 447 N.E.2d 109 (1983); Bass v. Nooney Co., 646 S.W.2d 765 (Mo.1983); Rodrigues v. State, 52 Haw. 156, 472 P.2d 509 (1970). This standard, however, fails to delineate meaningfully those situations where recovery should be allowed. As one commentator has explained: It is difficult to imagine how a set of rules could be developed and applied on a case-by-case basis to distinguish severe from nonsevere emotional harm. Severity is not an either/or proposition; it is rather a matter of degree. Thus, any attempt to formulate a general rule would almost inevitably result in a threshold requirement of severity so high that only a handful would meet it, or so low that it would be an ineffective screen. A middle-ground rule would be doomed, for it would call upon courts to distinguish between large numbers of cases factually too similar to warrant different treatment. Such a rule would, of course, be arbitrary in its application. Richard N. Pearson, Liability to Bystanders for Negligently Inflicted Emotional Harm — A Comment on the Nature of Arbitrary Rules, 34 U.Fla.L.Rev. 477, 511 (1982). We therefore reverse the judgment of the court of appeals in favor of Kerr on the ground of negligent infliction of emotional distress. Ill The dissent recognizes that foreseeability of injury is not an adequate basis to impose liability for unintentionally inflicted emotional distress. 855 S.W.2d at 614. The dissent therefore proposes a test that would allow recovery where defendant breaches “some legal duty not to cause harm to another beyond that created by foreseeability_” 855 S.W.2d at 615. This duty may arise “from the voluntary undertaking of an affirmative action that puts another at risk....” Id. We believe that the dissent’s “duty” limitation is no limitation at all. A “voluntary undertaking ... that puts another at risk” is simply another way of saying that the emotional distress is foreseeable. The dissent also would find a duty based on a “special relationship” between the parties. We agree that certain relationships may give rise to a duty which, if breached, would support an emotional distress award. See Stuart v. Western Union Tel. Co., 66 Tex. 580, 18 S.W. 351 (1885) (failure of telegraph company to timely deliver death message); Pat H. Foley & Co. v. Wyatt, 442 S.W.2d 904 (Tex.Civ.App.—Houston [14th Dist.] 1969, writ ref’d n.r.e.) (funeral home’s negligent handling of a corpse). However, there must be some specific duty of care that, under the law, arises from the relationship. The dissent can point to no such duty in this case. The law has heretofore not sought to impose specific legal duties based solely on a personal relationship, even an intimate one. The duties that Boyles owed to Kerr included the general duty not to willfully invade the other’s privacy and the duty not to intentionally inflict emotional distress by outrageous conduct. It is unnecessary to recognize some other “special duty” based on the parties’ intimate relationship to provide a basis for recovery. IV Kerr argues that even if we do not recognize recovery for negligent infliction of emotional distress, we should recognize a cause of action for grossly negligent infliction of emotional distress. She contends that the judgment should be affirmed under this alternative cause of action as she obtained a jury finding, in connection with her claim for punitive damages, that Boyles was grossly negligent. Even assuming that such a cause of action were recognized in Texas, Kerr could not recover on it under the record before us because she did not plead or preserve this theory of recovery. Kerr’s trial pleading asserted claims only for intentional invasion of privacy, negligent invasion of privacy and negligent infliction of emotional distress. The petition does assert that Boyles’ conduct was “willful,” “malicious,” and “grossly negligent,” but these allegations were made only in support of the punitive damages claim, not as a separate cause of action. Moreover, the petition never asserts that Boyles’ conduct was outrageous. A pleading should contain “a short statement of the cause of action sufficient to give fair notice of the claim in-volved_” Tex.R.Civ.P. 47(a). We have recognized that, in the absence of special exceptions, the petition should be construed liberally in favor of the pleader. Roark v. Allen, 633 S.W.2d 804, 809 (Tex.1982). A court should uphold the petition as to a cause of action that may be reasonably inferred from what is specifically stated, even if an element of the cause of action is not specifically alleged. See id.; Gulf, Colo. & S.F. Ry. v. Bliss, 368 S.W.2d 594, 599 (Tex.1963). In the present case, however, it may not be reasonably inferred that Kerr intended to plead an independent cause of action for grossly negligent infliction of emotional distress. Her petition contained specific causes of action on which she was seeking to recover, and there was nothing contained in the petition that gave fair notice to Boyles that Kerr would also seek to recover under a separate cause of action for “grossly negligent” infliction of emotional distress by outrageous conduct. Nor was this cause of action tried by consent, as Kerr’s presentation of the evidence did not put Boyles on notice that she was seeking to recover under such a theory. Although Kerr’s proof was perhaps relevant to a Restatement § 46 cause of action, it was also relevant to her pled causes of action, and thus Boyles’ failure to object did not constitute trial by consent. See Austin Area Teachers Fed. Credit Union v. First City Bank—Northwest Hills, 825 S.W.2d 795, 800 (Tex.App.—Austin 1992, writ denied); City of San Antonio v. Lopez, 754 S.W.2d 749, 751 (Tex.App.—San Antonio 1988, writ denied). Any remaining doubt about Kerr’s intention was laid to rest by her actions in response to Boyles’ motion for instructed verdict. When Boyles’ counsel contended that Kerr could not recover for negligence because the “the case has been tried from start to finish as an intentional tort ...,” Kerr’s counsel objected strenuously, pointedly remarking that “should the Court adopt counsel’s suggestion, counsel would have dropped his client in the grease in that he would have gotten totally out of coverage.” Moreover, before the court ruled on Boyles’ motion, Kerr’s counsel abandoned her actions for intentional invasion of privacy and negligent invasion of privacy, explaining that rather than get into a complicated charge and long drawn questions that might not be clearly defined, we have reduced our offensive thrust by way of our requested submissions to negligence — negligent infliction of emotional distress and mental anguish. (emphasis supplied). Kerr thus unequivocally waived all theories other than negligent infliction of emotional distress, and the court submitted only that theory to the jury. Regardless of the proof, she cannot now claim that she either pled or tried by consent an action on any separate theory. V In rejecting negligent infliction of emotional distress as an independent cause of action, we stated in the original opinion that “[t]ort law cannot and should not attempt to provide redress for every instance of rude, insensitive or distasteful behavior, even though it may result in hurt feelings, embarrassment, or even humiliation.” We made clear, however, that we did not consider Boyles’ conduct to fall into that category, stating in part as follows: The tort system can and does provide a remedy against those who engage in such conduct. But an independent cause of action for negligent infliction of emotional distress would encompass conduct far less outrageous than that involved here, and such a broad tort is not necessary to allow compensation in a truly egregious case such as this. (emphasis supplied). We denied recovery not because Boyles breached no duty toward Kerr, but because the only theory which she chose to assert — negligent infliction of emotional distress — was overly broad and would encompass other cases involving merely rude or insensitive behavior. We reaffirm that conclusion today. The original dissent mischaracterized the Court’s opinion, stating that “[t]o the majority what happened to this woman is indistinguishable from a mere trifle....” 855 S.W.2d at 618. According to the dissent, the Court held that Boyles owed and breached no duty toward Kerr. The dissent referred to “the majority’s unilateral choice to reject Susan Kerr’s claim that these four men owed a duty not to inflict severe harm on her,” id. at 618, and later stated that “[i]n refusing to discuss why no duty arises from Boyles’ sexual exploitation of Susan Kerr, the majority abdicates its responsibility.” Id. at 617-618. These characterizations are completely inaccurate. The Court expressly noted that Kerr’s injuries were not a “trifle.” It did not hold that Boyles breached no tort duty, and it labeled Boyles’ conduct as “truly egregious.” Susan Kerr did not misunderstand our original opinion. She contends on rehearing that our characterizations were sufficiently strong to constitute a holding that Boyles’ conduct was outrageous as a matter of law: No new jury is needed to say Dan Boyles’ conduct was outrageous. This fact is established in this record as a matter of law. This Court has stated as much in its majority opinion. Motion for Rehearing at 9. Although our characterizations might have suggested this conclusion, we did not then, nor do we now, intimate any holding on this issue, as we are remanding this cause for a new trial. Nevertheless, some amici curiae on rehearing make assertions more akin to the dissent’s inventions than our actual holdings. The Association of Women Attorneys, for example, asserts that we held that Boyles’ conduct was as a matter of law not outrageous, when, as discussed above, our opinion was read by Kerr as supporting the opposite result. The Women’s Advocacy Project, contends that “this Court has summarily removed the only redress for the tens of thousands of Texans, both men and women, who are survivors of sexual and emotional abuse,” when in fact we remand for a trial on other actionable grounds. Finally, the brief of the Women and the Law Section of the State Bar of Texas asserts that “if the tables had been turned, and Kerr had peddled the videotape as a vignette of Boyles’ sexual performance ..., the all-male majority in this case would have reached a decidedly different result.” This is a grave charge, and one wholly without merit. The cause of action under review in this case would be available to both men and women to be used against both men and women, and our decision reflected our considered judgment of the appropriate development of the common law of Texas. See, e.g., Twyman v. Twyman, 859 S.W.2d 619, 623-624 (Tex.1993). One might as well argue that the dissenters in Bexar County Sheriff’s Civil Service Comm. v. Davis, 802 S.W.2d 659, 665 (Tex.1990) (Doggett, J., dissenting), were biased against women because they voted that a police captain fired for repeated sexual harassment of women subordinates had been denied due process. VI Kerr cannot recover based on the cause of action under which she proceeded. It may well be, however, that she failed to assert and preserve alternative causes of action because of her reliance on our holding in Garrard. We have broad discretion to remand for a new trial in the interest of justice where it appears that a party may have proceeded under the wrong legal theory. See American Title Ins. Co. v. Byrd, 384 S.W.2d 683 (Tex.1964); Dahlberg v. Holden, 150 Tex. 179, 238 S.W.2d 699 (1951). Remand is particularly appropriate where the losing party may have presented his or her case in reliance on controlling precedent that was subsequently overruled. See Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 830 (Tex.1990) (case remanded because plaintiff might have relied on subsequently overruled precedent in preparing her summary judgment response); Scott v. Liebman, 404 S.W.2d 288, 294 (Tex.1966) (remand in the interest of justice appropriate where defendant requested jury issues in reliance on precedent no longer controlling). See generally Robert W. Calvert, “... In the Interest of Justice.”, 4 St. Mary’s L.J. 291 (1972). It is even more appropriate where we have also subsequently given formal recognition to a cause of action which might be applicable to the facts of this case. See Twyman, supra (expressly recognizing the tort of intentional infliction of emotional distress). We therefore reverse the judgment of the court of appeals and remand this cause to the trial court for a new trial. Concurring opinion on rehearing by GONZALEZ, J. Supplemental dissenting opinion on rehearing by DOGGETT, J., joined by GAMMAGE and SPECTOR, JJ. . Broesche settled with Kerr after the judgment was rendered; Widner and Tamborello did not appeal. . See, e.g., Keck v. Jackson, 122 Ariz. 114, 115, 593 P.2d 668, 669 (1979); Towns v. Anderson, 195 Colo. 517, 579 P.2d 1163, 1165 (1978); Robb v. Pennsylvania R.R., 210 A.2d 709, 715 (Del.1965); Champion v. Gray, 478 So.2d 17 (Fla.1985); Hamilton v. Powell, Goldstein, Frazer & Murphy, 252 Ga. 149, 311 S.E.2d 818 (1984); Hatfield v. Max Rouse & Sons Northwest, Inc., 100 Idaho 840, 851, 606 P.2d 944, 955 (1980); Hoard v. Shawnee Mission Medical Ctr., 233 Kan. 267, 662 P.2d 1214 (1983); Vance v. Vance, 286 Md. 490, 408 A.2d 728 (1979); Payton v. Abbott Labs, 386 Mass. 540, 437 N.E.2d 171, 174 (1982); Daley v. LaCroix, 384 Mich. 4, 179 N.W.2d 390, 395 (1970); Okrina v. Midwestern Corp., 282 Minn. 400, 165 N.W.2d 259 (1979); Sears, Roebuck & Co. v. Young, 384 So.2d 69, 71 (Miss.1980); Corso v. Merrill, 119 N.H. 647, 406 A.2d 300 (1979); Jines v. City of Norman, 351 P.2d 1048, 1052 (Okla.1960); Melton v. Allen, 282 Or. 731, 580 P.2d 1019, 1021-22 (1978); Banyas v. Lower Bucks Hosp., 293 Pa.Super. 122, 437 A.2d 1236, 1239 (1981); Reilly v. United States, 547 A.2d 894, 895 (R.I.1988); Dooley v. Richland Memorial Hospital, 283 S.C. 372, 322 S.E.2d 669 (1984); Chisum v. Behrens, 283 N.W.2d 235, 240 (S.D.1979); Laxton v. Orkin Exterminating Co., 639 S.W.2d 431, 433-434 (Tenn.1982); Vaillancourt v. Medical Ctr., 139 Vt. 138, 425 A.2d 92, 95 (1980); Hughes v. Moore, 214 Va. 27, 197 S.E.2d 214, 219 (1973); Meracle v. Children’s Serv. Soc’y, 149 Wis.2d 19, 437 N.W.2d 532 (1989). . See Burgess v. Superior Court, 2 Cal.4th 1064, 9 Cal.Rptr.2d 615, 831 P.2d 1197 (1992); Corgan v. Muehling, 143 Ill.2d 296, 158 Ill.Dec. 489, 574 N.E.2d 602 (1991); Oswald v. Legrand, 453 N.W.2d 634 (Iowa 1990); Clomon v. Monroe City Sch. Bd., 572 So.2d 571 (La.1990). . See Taylor v. Baptist Medical Ctr., Inc., 400 So.2d 369 (Ala.1981); Montinieri v. Southern New England Tel. Co., 175 Conn. 337, 398 A.2d 1180 (1978); Rodrigues v. State, 52 Haw. 156, 472 P.2d 509 (1970); Gammon v. Osteopathic Hosp. of Maine, Inc., 534 A.2d 1282 (Me.1987); Johnson v. Supersave Markets, Inc., 211 Mont. 465, 686 P.2d 209 (1984); Bass v. Nooney Co., 646 S.W.2d 765 (Mo.1983); Johnson v. Ruark Obstetrics and Gynecology Assoc., 327 N.C. 283, 395 S.E.2d 85 (1990); Schultz v. Barberton Glass Co., 4 Ohio St.3d 131, 447 N.E.2d 109 (1983). . Boyles also argues that Kerr cannot recover for intentional conduct under a negligence theory, citing Fulmer v. Rider, 635 S.W.2d 875, 881 (Tex.App.—Tyler 1982, writ ref'd n.r.e.); National Union Fire Ins. Co. v. Bourn, 441 S.W.2d 592, 596 (Tex.Civ.App.—Fort Worth 1969, writ ref'd n.r.e.). Because we decide the case on other grounds, we do not reach this issue, and we express no opinion thereon. . On rehearing, Kerr equates this purported cause of action with intentional or reckless infliction of emotional distress under Restatement (Second) of Torts § 46, contending that gross negligence and recklessness refer to the same mental state in Texas. She further argues that outrageous conduct, a necessary element under Section 46, is established in the record as a matter of law. Because we conclude that grossly negligent infliction of emotional distress was not plead as a separate cause of action, we express no opinion on these issues. . Because Kerr’s earlier petitions are not contained in the appellate record, we are unable to determine whether intentional or reckless infliction of emotional distress was previously pled and abandoned. . We have previously recognized a cause of action for intentional invasion of privacy. See Billings v. Atkinson, 489 S.W.2d 858, 860-61 (Tex.1973). . According to its amicus brief, the Women’s Advocacy Project is a statewide agency providing social and legal services to victims of sexual, physical, and emotional abuse. . This amicus also charges that the Court, in the original opinion, "failfed] to mention in its summary of the facts that Boyles charged and collected money to see the tape.” This "charging and collecting" of money consisted of one person, after viewing the tape, telling Boyles not to “worry” about a $20-$25 football bet. There was no evidence of an advance agreement that the debt would be forgiven or that Boyles solicited this consideration.
CONCURRING OPINION ON MOTION FOR REHEARING [Filed May 5, 1993] GONZALEZ, Justice. What happened to Ms. Kerr in this case is grossly offensive conduct which no one should tolerate. As such the law should, and does, provide a remedy. However, as a result of the posturing by the dissenting justices, what has been lost in the shuffle is the pivotal role that insurance played in this case. The young men who videotaped Ms. Kerr’s sexual encounter intentionally positioned the camera to capture the event on film. They intentionally showed the videotape to their friends. There was nothing accidental or careless about their outrageous conduct. However, Ms. Kerr intentionally gave up her right to receive redress under two other theories of recovery which she had pleaded: willful invasion of privacy, a cause of action which was recognized by this Court sixteen years before the jury verdict in this case in Billings v. Atkinson, 489 S.W.2d 858, 860-61 (Tex.1973), and intentional infliction of emotional distress, a cause of action that was recognized by the Restatement (Second) of Torts in 1965 and was adopted by the Beaumont court of appeals four years prior to the jury verdict in this case in Tidelands Automobile Club v. Walters, 699 S.W.2d 939 (Tex.App.—Beaumont 1985, writ ref’d n.r.e.) (relying on Duty v. General Finance Co., 154 Tex. 16, 273 S.W.2d 64 (1954)). Therefore, contrary to Justice Doggett’s suggestion in his dissent, these two causes of action were established in the jurisprudence of this state prior to Ms. Kerr’s case proceeding to trial. Her lawyers gambled when they made a strategic decision to proceed only with the questionable legal theory of negligent infliction of emotional distress. At the time this case was tried, there was controversy and confusion about the state of the law regarding the tort of negligent infliction of emotional distress. See In re Air Crash at Dallas/Ft. Worth Airport, 856 F.2d 28 (5th Cir.1988); Harmon v. Grande Tire Co., Inc., 821 F.2d 252 (5th Cir.1987). Our Court had limited this tort as a separate and independent cause of action to negligent handling of a corpse, see St. Elizabeth Hospital v. Garrard, 730 S.W.2d 649, 652 (Tex.1987), and “bystander” cases which allow those who contemporaneously perceive an accident involving a close relative to recover for negligently inflicted emotional distress. See Freeman v. Pasadena, 744 S.W.2d 923, 923-24 (Tex.1988); see also Reagan v. Vaughn, 804 S.W.2d 463 (Tex.1990) (recovery for negligent infliction of emotional distress denied because Bystander Rule not satisfied). In Reagan, the Court did not even mention our prior holding in Garrard, much less state that Garrard had created an all encompassing tort of negligent infliction of emotional distress. Therefore, to the extent that the 5-4 opinion in Garrard can be read otherwise, it is an aberration, and for the reasons stated in the majority opinion, it is out of step with the majority view. It does not take a rocket scientist to determine why Ms. Kerr’s lawyers elected to proceed solely on the tort of negligent infliction of emotional distress. In fact, her lawyers explained their strategy to the trial court. At the close of the evidence, the defense attorneys made a motion for directed verdict on the negligence theories of recovery: The COURT: Under what basis? MR. DRABECK [defendant’s attorney]: Under the basis that intentional tort cannot be the result of negligent conduct. That the case has been tried from start to finish as an intentional tort by the lawyers over here. We’d ask that the Court recognize that. There has never been one question asked of anybody as to whether or not they failed to exercise ordinary care on the occasion in question, whether they negligently inflicted some sort of mental distress on her. It would appear by virtue of the record as placed by the plaintiffs themselves that every single question was directed toward intentional conduct. MR. KRIST: [plaintiff’s attorney]: Your Honor, the — to begin with, let the record reveal, for whatever purposes, it might be at a later date, that should the Court adopt counsel’s suggestion, counsel would have dropped his client in the grease in that he would have gotten totally out of coverage— THE COURT: It’s your case ... and I am going to give you your requested charge. If you don’t ask for an intentional tort, I ain’t asking it, ... I’m not going to make you prosecute a lawsuit that you didn’t want to prosecute. So don’t worry about that. Nobody is going to get intentional tort unless they ask for it. In Texas, a home owners policy covers only accidents or careless conduct and excludes intentional acts. Ms. Kerr’s lawyers may have believed that if they obtained a judgment declaring that Boyles’ conduct came within the rubric of “negligence” (inadvertence or carelessness), they could tap the homeowners policies owned by the parents of Boyles and the other defendants. Thus, this case has a lot to do with a search for a “deep pocket” who can pay. If the purpose of awarding damages is to punish the wrongdoer and deter such conduct in the future, then the individuals responsible for these reprehensible actions are the ones who should suffer, not the people of Texas in the form of higher insurance premiums for home owners. This case has nothing to do with gender-based discrimination or an assault on women’s rights. There is no reason, other than stereotype, to assume that emotional distress is unique only to women. In fact, as noted in Justice Cornyn’s plurality opinion in Twyman v. Twyman, 855 S.W.2d 619, 623 (Tex.1993), almost as many men as women have brought claims for negligent infliction of emotional distress. Furthermore, women as well as men will have to pay higher premiums for their home owners policies if the dissenting justices’ views were to prevail. In sum, Susan Kerr does not need this amorphous cause of action in order to obtain a judgment against the parties actually responsible for her traumatic experience. I concur in the Court’s judgment and opinion. . Justice Doggett does not offer any explanation for Ms. Kerr’s decision to waive her willful invasion of privacy claim.
SUPPLEMENTAL DISSENTING OPINION ON MOTION FOR REHEARING [Filed May 5, 1993] DOGGETT, Justice. Today the majority reaffirms its recent reversal of the judgment for Susan Kerr. What has occurred here with the issuance of a revised opinion on rehearing is roughly comparable to Dan Boyles having erased those portions of the videotape featuring his friends making crude remarks, then replaying the remainder of the tape so damaging to Susan Kerr. Excising a few insensitive phrases in no way alters the insensitivity of the majority’s opinion. Continuing to reject St. Elizabeth Hospital v. Garrard, 730 S.W.2d 649 (Tex.1987), the majority has, according to the Women and the Law Section of the State Bar of Texas, “turn[ed] back the clock to a time when the sexual exploitation of unwilling women was socially acceptable, without regard to negligently inflicted emotional distress.” Amicus Brief at 7. See also pro se amicus letter brief of a group of women dentists at 1 (“decision sends a message to the women of Texas that sexual harassment and abuse is OK”). No matter how intolerable the negligent conduct, no matter how severe the resulting emotional harm, relief is declared unwarranted. I believe that this court should not reject the respect for human dignity affirmed in St. Elizabeth Hospital. Normally a court that boldly overrules controlling precedent to declare no duty is owed to someone like Susan Kerr at least provides some explanation of its reasoning. This the majority again steadfastly refuses to do. Even while recognizing that “certain relationships may give rise to a duty which, if breached, would support an emotional distress award,” 855 S.W.2d at 600, the majority refuses to explain why Boyles does not owe such a duty to Susan Kerr. The existence of a duty is a question of law that this court must decide. Totally ignored today is the most recent statement of the law by this court on this very subject: In determining whether the defendant was under a duty, the court will consider several interrelated factors, including the risk, foreseeability, and likelihood of injury weighed against the social utility of the actor’s conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on the defendant. Of all these factors, foreseeability of the risk is “the foremost and dominant consideration.” Greater Houston Transportation Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.1990) (citations omitted). The majority once again wholly refuses to analyze these factors because any fair, balanced analysis would produce a different result. Conceding the foreseeability of emotional harm to Susan Kerr caused by making and replaying the videotape, the majority summarily dismisses this “foremost and dominant consideration” as an inadequate basis to impose liability for unintentionally inflicted emotional distress. How, then, do the other factors weigh? What is the social utility of Boyles’ conduct? What is the magnitude of guarding against the injury— how difficult is it for Boyles to refrain from videotaping and displaying his secret tape compared to imposing on Kerr the obligation to protect herself by searching a room for hidden cameras? Is it too great a burden to require Boyles to be responsible for his actions? Rather than explaining why Dan Boyles owed no duty not to negligently inflict emotional distress on Susan Kerr, the majority offers the handy excuse that it has belatedly discovered a brand new, narrowly-drawn alternative intentional infliction cause of action. Twyman v. Twyman, 855 S.W.2d 619 (Tex.1993), is seized upon as essentially a companion case to Boyles v. Kerr, then used as an excuse to avoid the question of duty here. Because Susan Kerr now has available an action for intentional infliction of emotional distress, the majority summarily declares: “It is unnecessary” to examine duty further. 855 S.W.2d at 600. This is tantamount to concluding that a court should not hold accountable one who, through negligence, discharges a loaded gun within inches of another’s head because there is a duty not to shoot intentionally. This logic fossilizes the concept of duty, precluding any further expansion and foreshadowing further retreats far beyond today’s misadventure. Why should Boyles be held to a lesser standard than morticians and telegraph companies? Why should our law of duty be irretrievably locked in a pre-video era? The majority will not say. What has happened to this court’s multiple pronouncements that the common law concept of duty is not frozen or stagnant, but must change to reflect current social conditions and technological advances? In turning back the clock, the majority has turned its back on those who suffer severe harm in new ways, and on women in particular. See Twyman, 855 S.W.2d at 640 (Spector, J., dissenting). Why is the door closed for Susan Kerr? Why does her truly unfortunate situation necessitate the retreat from St. Elizabeth Hospital, which recognized a cause of action for negligently inflicted emotional distress? This abrupt reversal in the law, we discover, is not attributable to difficulties in her particular case but to the majority’s fear of “ ‘limitless liability.’ ” 855 S.W.2d at 599. ' Perhaps Justice Gonzalez is correct in asserting that insurance “played the pivotal role in this case,” 855 S.W.2d at 603 (Gonzalez, J., concurring on rehearing)— pivotal in the sense that excessive concern for the effect of every opinion on insurance companies seems to have become the predominant and overriding issue here, even to the exclusion of a woman’s most basic rights. Susan Kerr loses today because of the majority’s misdirected concern about the potential liability of insurers for some hypothetical rude behavior that might some day give rise to a lawsuit: We denied recovery ... because the only theory which [Kerr] chose to assert— negligent infliction of emotional distress — was overly broad and would encompass in other cases behavior that was merely rude or insensitive. Id. at 602. Why not await that mythical case, if and when it ever arises, to address this question? If “merely rude and insensitive” behavior is involved in some future litigation, there will be ample opportunity for this majority to say so then instead of being wholly insensitive now. If, in fact, as the majority asserts, “this Court has never upheld a recovery under the Gar-rard tort,” id. at 596, the fear of limitless liability has no foundation. But what is most clear is that the tragic events that befell Susan Kerr — events described by the Association of Women Attorneys as “not mere name-calling” but “tantamount to rape” — are all irrelevant. Indeed, the majority’s insistence on reviewing Kerr’s sexual history, a discussion wholly unnecessary to the legal issues presented, 855 S.W.2d at 594, is not dissimilar from a now rejected tactic frequently employed in the past against rape victims. See Tex. R.Crim.Ev. 412 (adopted to bar generally the common defense strategy of discussing a rape victim’s prior sexual conduct); James A. Vaught & Margaret Henning, Admissibility of a Rape Victim’s Prior Sexual Conduct in Texas: A Contemporary Review and Analysis, 23 St. Mary’s L.J. 893 (1992). Today we should focus on the facts presented here, which amply demonstrate the very real emotional harm that Susan Kerr has truly suffered. Instead, she is damned with faint empathy, reflecting little real concern for or understanding of her trauma. In addition, Kerr is regrettably criticized for both relying upon a well-established cause of action under the existing decisional law of Texas and failing to pursue a claim that the majority insists it had never recognized until today’s much delayed announcement in its new companion case, Twyman. Justice Gonzalez claims Kerr took a “strategic gamble” based on “a questionable legal theory” in pursuing a negligence action under St. Elizabeth Hospital, 730 S.W.2d 649 (Tex.1987), decided two years prior to the trial, rather than for intentional infliction of emotional distress under Twyman, a decision handed down four years after the jury verdict in this case. 855 S.W.2d at 604 (Gonzalez, J., concurring on rehearing). Although initially recognized by the majority as a rather clear pronouncement allowing recovery for negligently inflicted emotional distress, St. Elizabeth Hospital has, for the first time on rehearing, oddly become an “anomaly” that is “not entirely clear to the bench and bar,” 855 S.W.2d at 602, and an “aberration” giving rise to “controversy and confusion.” Id. at 604 (Gonzalez, J., concurring on rehearing). Both Chief Justice Phillips and Justice Gonzalez rely primarily on federal law for this strange new proposition, citing In re Air Crash at Dallas/Ft. Worth, 856 F.2d 28 (5th Cir.1988), and the decision upon which it relies, Harmon v. Grande Tire Co., 821 F.2d 252 (5th Cir.1987). Yet the same Fifth Circuit in Blankenship v. Kerr County, 878 F.2d 893, 897 (5th Cir.1989), later made clear that the language relied upon from Harmon in the majority and concurring opinions today was “ambiguous dictum” that by no means undercut the Texas Supreme Court’s having “unambiguously declared” in St. Elizabeth Hospital the existence of a cause of action for negligent infliction of emotional distress. Not only is federal law misrepresented, but the numerous decisions of Texas appellate courts that had no difficulty comprehending the scope of St. Elizabeth Hospital are ignored. Instead, the majority chooses to cite dictum from Chiles v. Chiles, 779 S.W.2d 127, 130 (Tex.App.—Houston [14th Dist.] 1989, writ denied), a single appellate opinion that is necessarily disapproved by the companion writing today in Twyman. That ease presented only the issue of intentional infliction of emotional distress and held, contrary to Twyman, that such action could not be maintained in a divorce suit. Nor did that writing dispute this court’s prior holding: “St. Elizabeth Hospital v. Garrard ... established that proof of physical injury is no longer required to recover for negligent infliction of emotional distress.” 779 S.W.2d at 130. To bootstrap its new discovery that the law of emotional distress is racked with confusion, the majority next relies on an article that originated in the appellate briefs in this case and was written by counsel for Dan Boyles. 855 S.W.2d at 597, citing David Crump, Evaluating Independent Torts Based upon “Intentional" or “Negligent” Infliction of Emotional Distress: How Can We Keep the Baby From Dissolving in the Bath Water?, 34 Ariz. L.Rev. 439 (1992). As a final belated justification for its sudden awareness that this previously well-accepted law is now in disarray, the majority cites to Justice Gonzalez’s concurring opinion not issued until today on rehearing. Id. at 596. This self-created uncertainty is then quickly resolved with unqualified certainty — by barring completely the well-worn path of negligent infliction to those suffering severe emotional harm. The choice of action today is presented as “overruling Garrard’s broad language outright, ... ignoring it ..., limiting the case to its facts ... or pretending that the concurring opinion was in fact the rationale of the majority.” Id. at 597. Most revealing is the majority’s failure to even consider the option of simply respecting this court’s prior decision as controlling precedent and allowing Susan Kerr to recover. The path which the majority announces Susan Kerr should have followed — intentional infliction of emotional distress — is one initially rejected in this very case and which the author of today’s majority opinion continues personally to view as rife with “difficulties.” Most likely being led down the garden path, Susan Kerr is now directed back to the trial court to pursue this new cause of action, in which those who are injured are “seldom successful.” Twyman, 855 S.W.2d at 631 (Hecht, J., dissenting). Rejected again today is a “moderate course crafted from Texas precedent and a growing body of law nationally that would limit liability for the trivial while recompensing the truly grievous,” as outlined in my prior writing. 855 S.W.2d at 616 (Dog-gett, J., dissenting). Abolition of a well established cause of action should be a last resort employed only after modification and restriction have first been proven unsuccessful. As Justice Cornyn observes today in his companion writing in Twyman, any “well-established cause[] of action in Texas” can be attacked on grounds that judges and juries are guided by insufficient standards, that liability may be imposed arbitrarily, that reported cases either supporting or refusing to support an award of damages disclose no uniform pattern, and that the sensitivities of aggrieved people are entirely too subjective and unpredictable. 855 S.W.2d at 622. Oddly, Justice Cornyn congratulates the plurality on rejecting such an attack in Twyman while at the same time joining identical criticism in Boyles to justify evisceration of the tort of negligent infliction of emotional distress. Not explaining this inconsistency, he declares himself enlightened keeper of the “middle ground,” who leads the court in following well established law so that Texas can become “the forty-seventh state to adopt the tort of intentional infliction of emotional distress.” Id. at 622. The false “middle ground” staked out in Twyman is between following existing Texas law permitting recovery for negligently inflicted emotional distress and rejecting an intentional tort that is “seldom successful,” id. at 631 (Hecht, J., dissenting). In disavowing the previous law of Texas, the Twyman plurality only offers women a choice between slim and none. The majority then rewrites its excuse for refusing to affirm the judgment for Susan Kerr on alternative grounds. In its prior opinion disregarding the jury’s finding of gross negligence, the majority insisted that Kerr must lose because of her failure to submit a jury issue as to whether Boyles’ conduct was outrageous. But now this approach must be abandoned. With the recognition of a cause of action for intentional infliction of emotional distress today in Twyman that encompasses even “reckless” conduct, the majority cannot explain why the finding of gross negligence already obtained here will not support recovery. Nor is the majority willing to even consider a legal question that might call for their unqualified assessment of Boyles’ behavior. While professing disapproval of his conduct, the majority hastens to add that it is n