Full opinion text
OPINION CORNYN, Justice. In this case we decide whether a claim for infliction of emotional distress can be brought in a divorce proceeding. Because the judgment of the court of appeals is based on negligent infliction of emotional distress, and cannot be affirmed on that or any other basis, we reverse the judgment of that court and remand this cause for a new trial in the interest of justice. Tex. R.App.P. 180. We deem a new trial appropriate because of our recent decision that no cause of action for negligent infliction of emotional distress exists in Texas. Today, however, we expressly adopt the tort of intentional infliction of emotional distress, and hold that such a claim can be brought in a divorce proceeding. I. Sheila and William Twyman married in 1969. Sheila filed for divorce in 1985. She later amended her divorce petition to add a general claim for emotional harm without specifying whether the claim was based on negligent or intentional infliction of emotional distress. In her amended petition, Sheila alleged that William “intentionally and cruelly” attempted to engage her in “deviate sexual acts.” Following a bench trial, the court rendered judgment dissolving the marriage, dividing the marital estate, awarding conservatorship of the children to Sheila, ordering William to pay child support, and awarding Sheila $15,000 plus interest for her claim for emotional distress. William appealed that portion of the judgment based on emotional distress, contending that interspousal tort immunity precluded Sheila’s recovery for negligent infliction of emotional distress. The court of appeals affirmed the judgment, holding that Sheila could recover for William’s negligent infliction of emotional distress. 790 S.W.2d 819. While this case has been pending, we have refused to adopt the tort of negligent infliction of emotional distress. See Boyles v. Kerr, 855 S.W.2d 593 (Tex.1993). Thus the judgment of the court of appeals cannot be affirmed. We consider, therefore, whether the court of appeals’ judgment may be affirmed on alternative grounds. Because Sheila’s pleadings alleging a general claim for emotional harm are broad enough to encompass a claim for intentional infliction of emotional distress, we consider whether the trial court’s judgment may be sustained on that legal theory. While this court has never expressly recognized the tort of intentional infliction of emotional distress, we found no reversible error in the court of appeals’ opinion in Tidelands Automobile Club v. Walters, which did so. 699 S.W.2d 939 (Tex.App.-Beaumont 1985, writ ref’d n.r.e.). There, the court of appeals adopted the elements of the tort as expressed in the Restatement (Second) of Torts § 46 (1965). The Restatement elements of intentional infliction of emotional distress are: 1) the defendant acted intentionally or recklessly, 2) the conduct was extreme and outrageous, 3) the actions of the defendant caused the plaintiff emotional distress, and 4) the emotional distress suffered by the plaintiff was severe. Id. According to the Restatement, liability for outrageous conduct should be found “only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Id. cmt. d. Of the forty-six states that have recognized this tort, forty-three have adopted this Restatement formulation. The other three states, although not adopting the Restatement definition, require the equivalent of “outrageous” conduct. Today we become the forty-seventh state to adopt the tort of intentional infliction of emotional distress as set out in § 46(1) of the Restatement (Second) of ToRts. We do not, however, adopt this tort only because of its broad acceptance in jurisdictions throughout the United States. As distinguished from the tort of negligent infliction of emotional distress, we believe the rigorous legal standards of the Restatement formulation of intentional infliction of emotional distress help to assure a meaningful delineation between inadvertence and intentionally or recklessly outrageous misconduct. The requirements of intent, extreme and outrageous conduct, and severe emotional distress before liability can be established will, we think, strike a proper balance between diverse interests in a free society. That balance, at minimum, must allow freedom of individual action while providing reasonable opportunity for redress for victims of conduct that is determined to be utterly intolerable in a civilized community. This holding represents a middle ground between the polar positions adopted by various members of the court. JUSTICE HECHT, joined by JUSTICE ENOCH, in arguing against our express adoption of the tort of intentional infliction of emotional distress, maintains 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 patterns, and that the sensitivities of aggrieved people are entirely too subjective and unpredictable. We disagree, and believe that such objections could just as easily be made to well-established causes of action in Texas. For example, one might also contend that the legal standards for ordinary negligence are vague, and that juries must necessarily rely on their own notions of fault. Because jurors’ ideas about what is “ordinary” and “reasonable” may vary, the same arguments about lack of uniformity, unpredictability, and personal sensitivities could be made. Yet just as we trust juries to decide questions of negligence, proximate cause, and damages, when guided by appropriate legal standards we think them equally capable of resolving factual disputes giving rise to the tort of intentional infliction of emotional distress. JUSTICE SPECTOR, joined by JUSTICE DOGGETT, on the other hand, agrees with us that this tort should be adopted, but uses this case as another opportunity to question the wisdom of our decision in Boyles, in which we refused to adopt the tort of negligent infliction of emotional distress. They join some amici curiae in implying that the court has disregarded the tort’s unique role in addressing women’s psychic injuries. One need only identify those who have brought claims for negligent infliction of emotional distress, however, to dispel the suggestion that women will be disproportionately affected. • Of the thirty-four Texas appellate cases in which a claim for negligent infliction of emotional distress was alleged, thirteen were brought by women, twelve were brought by men, seven by husbands and wives jointly, one by an executrix on behalf of an estate, and one by a corporation. These cases demonstrate that the tort has been alleged by litigants in a wide variety of circumstances. There is simply no factual or legal basis for the suggestion that by choosing not to recognize this particular tort, the court demonstrates insensitivity to female claimants. JUSTICE SPECTOR also argues that because of our refusal to recognize the tort of negligent infliction of emotional distress some wrongs will go uncompensated because of the difficulty in proving the actor’s intent when the actor intends nothing more than to satisfy his own desires. Infra, 855 S.W.2d at 644. But in Sheila Twy-man’s case, and in countless other cases involving both men and women, we believe that our adoption of the Restatement formulation of the tort of intentional infliction of emotional distress provides a reasonable opportunity for redress for outrageous conduct. Of course, rarely will a defendant admit knowing of a substantial certainty that emotional harm would befall the victim. Juries, however, are free to discredit the defendant's protestations that no harm was intended and to draw necessary inferences to establish intent. See McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex.1986); Fichtner v. Richardson, 708 S.W.2d 479, 483 (Tex.App.—Dallas 1986, writ ref’d n.r.e.) (“The jury may believe all, part, or none of the testimony in arriving at the finding it concludes is the most reasonable”); see also Walters v. American States Ins. Co., 654 S.W.2d 423, 426 (Tex.1983) (holding that jury is free to make a reasonable inferential leap based on evidence). Ironically, for JUSTICE SPECTOR to argue in favor of applying a negligence standard to this case is to argue that as a matter of law the emotional harm William caused was foreseeable but not substantially certain to occur. We disagree with that characterization and believe that on retrial the factfinder should be permitted to consider whether William knew with substantial certainty that his actions would probably cause Sheila emotional harm. Moreover, Section 46 of the Restatement definition of the tort expressly includes situations in which the actor recklessly inflicts emotional distress. An actor is reckless when he “knows or has reason to know ... of facts which create a high degree of risk of ... harm to another, and deliberately proceeds to act, or fails to act, in conscious disregard of, or indifference to that risk.” Restatement (Second) § 500, cmt. a. Again, on retrial, the jury may consider whether William acted recklessly toward Sheila. II. We now consider whether the cause of action for intentional infliction of emotional distress may be brought in a divorce proceeding. In Bounds v. Caudle, this court unanimously .abolished the doctrine of interspousal immunity for intentional torts. 560 S.W.2d 925 (Tex.1977). Ten years later, we abrogated interspousal immunity “completely as to any cause of action,” including negligence actions for personal injuries. Price v. Price, 732 S.W.2d 316, 319 (Tex.1987). Under the rules established in Caudle and Price, there appears to be no legal impediment to bringing a tort claim in a divorce action based on either negligence or an intentional act such as assault or battery. The more difficult issue is when the tort claim must be brought and how the tort award should be considered when making a “just and right” division of the marital estate. See Tex.Fam.Code § 3.63(b). Of the states that have answered this question, several have held that the tort case and the divorce case must be litigated separately. See e.g. Walther v. Walther, 709 P.2d 387, 388 (Utah 1985); Windauer v. O’Connor, 107 Ariz. 267, 485 P.2d 1157 (1971); Simmons v. Simmons, 773 P.2d 602, 605 (Colo.Ct.App.1988). Other states require joinder of the two actions. See, e.g. Tevis v. Tevis, 79 N.J. 422, 400 A.2d 1189, 1196 (1979); Weil v. Lammon, 503 So.2d 830, 832 (Ala.1987). We believe that the best approach lies between these two extremes. As in other civil actions, joinder of the tort cause of action should be permitted, but subject to the principles of res judicata. See Barr v. The Resolution Trust Corp., 837 S.W.2d 627, 631 (Tex.1992) (reaffirming the transactional approach to res judicata analysis). See also Tex.R.Civ.P. 51; Henriksen v. Cameron, 622 A.2d 1135 (Me.1993). Of course, how such claims are ultimately tried is within the sound discretion of the trial court. See Tex.R.Civ.P. 174. But join-der of tort claims with the divorce, when feasible, is encouraged. Resolving both the tort and divorce actions in the same proceeding avoids two trials based at least in part on the same facts, and settles in one suit “all matters existing between the parties.” Mogford, 616 S.W.2d at 940 (citing Parkhill Produce Co. v. Pecos Valley S. Ry., 348 S.W.2d 208, 209 (Tex.Civ.App.—San Antonio 1961) writ ref'd n.r.e. per curiam, 163 Tex. 88, 352 S.W.2d 723 (1961)). When a tort action is tried with the divorce, however, it is imperative that the court avoid awarding a double recovery. When dividing the marital estate, the court may take into account several factors, including the fault of the parties if pleaded. See Murff v. Murff, 615 S.W.2d 696, 699 (Tex.1981). The trial court may also consider “such factors as the spouses’ capacities and abilities, benefits which the party not at fault would have derived from continuation of the marriage, business opportunities, education, relative physical conditions, relative financial condition and obligations, disparity of ages, size of separate estates, and the nature to the property.” Id. See also Young v. Young, 609 S.W.2d 758, 761 (Tex.1980); Bell v. Bell, 513 S.W.2d 20, 22 (Tex.1974). However, a spouse should not be allowed to recover tort damages and a disproportionate division of the community estate based on the same conduct. Therefore, when a factfin-der awards tort damages to a divorcing spouse, the court may not consider the same tortious acts when dividing the marital estate. Contrary to CHIEF JUSTICE PHILLIPS’ contention, an award for tor-tious conduct does not replace an analysis of the remaining factors to be considered when the trial court divides the marital estate. 855 S.W.2d at 626 (Phillips, C.J., dissenting). The court may still award a disproportionate division of property for reasons other than the tortious conduct. To avoid the potential problem of double recovery, the factfinder should consider the damages awarded in the tort action when dividing the parties’ property. If a jury is used to render an advisory division of the parties’ estate, the judge should limit, by appropriate instruction, the jury’s consideration of the alleged tortious acts and later consider the award of damages in determining a just and right division of the marital estate. Sheila Twyman cannot recover based on the findings of fact made by the trial court in this case. It is likely, however, that this case proceeded on a theory of negligent infliction of emotional distress in reliance on this court’s holding in St. Elizabeth Hospital v. Garrard, 730 S.W.2d 649 (Tex.1987), which we recently overruled. See Boyles v. Kerr, 855 S.W.2d 593 (Tex.1992). As we noted in Boyles, this court has broad discretion to remand for a new trial in the interest of justice when it appears that a case proceeded under the wrong legal theory, and when it appears that the facts when developed on retrial may support recovery on an alternative theory. Id. at 603. See also 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). When, as here, a party presents her case in reliance on precedent that has been recently overruled, remand is appropriate. See Scott v. Liebman, 404 S.W.2d 288, 294 (Tex.1966). Therefore, in the interest of justice, we reverse the judgment of the court of appeals and remand this cause to the trial court for a new trial. Concurring opinion by Justice GONZALEZ. Concurring and Dissenting opinion by Chief Justice PHILLIPS. Concurring and Dissenting opinion by Justice HECHT joined by Justice ENOCH. Dissenting opinion by Justice SPECTOR joined by Justice DOGGETT. (Justice GAMMAGE not sitting) . At trial, Sheila testified that William pursued sadomasochistic bondage activities with her, even though he knew that she feared such activities because she had been raped at knife-point before their marriage. The trial court found that William “attempted to emotionally coerce [Sheila] in 'bondage' on an ongoing basis ...” and "engaged in a continuing course of conduct of attempting to coerce her to join in his practices of ‘bondage’ by continually asserting that their marriage could be saved only by [Sheila] participating with him in his practices of ‘bondage.’ ” . See American Road Serv. Co. v. Inmon, 394 So.2d 361, 365 (Ala.1980); Richardson v. Fairbanks N. Star Borough, 705 P.2d 454, 456 (Alaska 1985); Savage v. Boies, 77 Ariz. 355, 272 P.2d 349, 351 (1954); M.B.M. Co. v. Counce, 268 Ark. 269, 596 S.W.2d 681, 687 (1980); State Rubbish Collectors Ass'n v. Siliznoff, 38 Cal.2d 330, 240 P.2d 282, 285 (1952); Rugg v. McCarty, 173 Colo. 170, 476 P.2d 753, 756 (1970); Petyan v. Ellis, 200 Conn. 243, 510 A.2d 1337, 1342 (1986); Cummings v. Pinder, 574 A.2d 843, 845 (Del.1990); Metropolitan Life Ins. Co. v. McCarson, 467 So.2d 277, 278 (Fla.1985); Yarbray v. Southern Bell Tel. & Tel. Co., 261 Ga. 703, 409 S.E.2d 835, 837 (1991); Hatfield v. Max Rouse & Sons N.W., 100 Idaho 840, 606 P.2d 944, 953 (1980); Knierim v. Izzo, 22 Ill.2d 73, 174 N.E.2d 157, 165 (1961); Cullison v. Medley, 570 N.E.2d 27, 31 (Ind.1991); Amsden v. Grinnell Mut. Reinsurance Co., 203 N.W.2d 252, 253 (Iowa 1972); Dawson v. Assocs. Fin. Servs. Co. of Kan., 215 Kan. 814, 529 P.2d 104, 113 (1974); Craft v. Rice, 671 S.W.2d 247, 249 (Ky.1984); White v. Monsanto Co., 585 So.2d 1205, 1209 (La.1991); Vicnire v. Ford Motor Credit Co., 401 A.2d 148, 154 (Me.1979); Harris v. Jones, 281 Md. 560, 380 A.2d 611, 613 (1977); George v. Jordan Marsh Co., 359 Mass. 244, 268 N.E.2d 915, 921 (1971); Hubbard v. United Press Int'l, Inc., 330 N.W.2d 428, 438 (Minn.1983); Pretsky v. Southwestern Bell Tel. Co., 396 S.W.2d 566, 568 (Mo.1965); Paasch v. Brown, 193 Neb. 368, 227 N.W.2d 402, 404 (1975); Star v. Rabello, 97 Nev. 124, 625 P.2d 90, 92 (1981); Morancy v. Morancy, 134 N.H. 493, 593 A.2d 1158, 1159 (1991); Buckley v. Trenton Saving Fund Soc., 111 N.J. 355, 544 A.2d 857, 864 (1988); Newberry v. Allied Stores, Inc., 108 N.M. 424, 773 P.2d 1231, 1239 (1989); Fischer v. Maloney, 43 N.Y.2d 553, 402 N.Y.S.2d 991, 373 N.E.2d 1215, 1217 (1978); Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d 325, 335 (1981); Muchow v. Linblad, 435 N.W.2d 918, 923-24 (N.D.1989); Yeager v. Local Union 20, Teamsters, Chauffeurs, Warehousemen & Helpers of Am., 6 Ohio St.3d 369, 453 N.E.2d 666, 671 (1983); Breeden v. League Servs. Corp., 575 P.2d 1374, 1376 (Okla.1978); Champlin v. Washington Trust Co., of Westerly, 478 A.2d 985, 988 (R.I.1984); Ford v. Hutson, 276 S.C. 157, 276 S.E.2d 776, 778 (1981); Groseth Intern., Inc. v. Tenneco, Inc., 410 N.W.2d 159, 169 (S.D.1987); Medlin v. Allied Inv. Co., 217 Tenn. 469, 398 S.W.2d 270, 272 (1966); Samms v. Eccles, 11 Utah 2d 289, 358 P.2d 344, 346-47 (1961); Sheltra v. Smith, 136 Vt. 472, 392 A.2d 431, 432 (1978); Womack v. Eldridge, 215 Va. 338, 210 S.E.2d 145, 148 (1974); Grimsby v. Samson, 85 Wash.2d 52, 530 P.2d 291, 295 (1975); Harless v. First Nat'l Bank, 169 W.Va. 673, 289 S.E.2d 692, 703-05 (1982); Alsteen v. Gehl, 21 Wis.2d 349, 124 N.W.2d 312, 316 (1963); Leithead v. American Colloid Co., 721 P.2d 1059, 1065 (Wyo.1986). . See Hall v. The May Dept Stores Co., 292 Or. 131, 637 P.2d 126, 129 (1981) (requiring “some extraordinary transgression of the bounds of socially tolerable conduct”); Chedester v. Stecker, 64 Haw. 464, 643 P.2d 532, 535 (1982) (requiring the conduct to be "unreasonable,” which the court equated with "outrageous” as defined in Restatement § 46); Sears Roebuck & Co. v. Devers, 405 So.2d 898, 901 (Miss.1981) (finding liability may exist "where there is something about the defendant’s conduct which evokes outrage or revulsion”). .Five members of the court — CHIEF JUSTICE PHILLIPS AND JUSTICES GONZALEZ, HIGH-TOWER, DOGGETT, SPECTOR and myself— agree that the judgment of the court of appeals must be reversed: JUSTICES GONZALEZ, HIGHTOWER, and I form a plurality of the court who recognize the tort of intentional infliction of emotional distress in the marital context and who remand this case for a new trial in the interests of justice; CHIEF JUSTICE PHILLIPS would recognize the tort, but not apply it to married couples and would reverse and render; JUSTICES HECHT and ENOCH would not recognize the tort under any circumstances and would reverse and render. JUSTICES DOG-GETT AND SPECTOR would recognize the tort in the marital context but would affirm the judgment of the court of appeals. . E.g., Women and the Law Section of the State Bar of Texas. . We note these cases not for their precedential value, but as examples of cases in which a claimant brought an action for negligent infliction of emotional distress. . Boyles v. Kerr, 855 S.W.2d 593 (Tex.1993); Smith v. Chasewood Bank, No. B14-92-00302-CV, 1993 WL 81584 (Tex.App.—Houston [14th Dist.], March 25, 1993, n.w.h.) (not designated for publication) (brought individually and on behalf of husband’s estate); Schauer v. Koperwhats, 856 S.W.2d 437 (Tex.App.—Houston [1st Dist.], 1993, n.w.h.); Hennigan v. I.P. Petroleum Co., 848 S.W.2d 276 (Tex.App.-Beaumont, 1993, n.w.h.); Jones v. Legal Copy, Inc., 846 S.W.2d 922 (Tex.App.-Houston [1st Dist.] 1993, no writ); Gibson v. Matrix Resources, Inc. of Texas, 05-91-01502-CV, 1993 WL 42881 (Tex.App.—Dallas, Feb. 17, 1993) (not designated for publication); Weirich v. Weirich, 833 S.W.2d 942 (Tex.1992); Natividad v. Alexsis, Inc., 833 S.W.2d 545 (Tex.App.-El Paso 1992, writ granted); McAlister v. Medina Elec. Co-op., Inc., 830 S.W.2d 659 (Tex.App.—San Antonio, 1992, writ denied); Massey v. Massey, 807 S.W.2d 391 (Tex.App.—Houston [1st Dist.] 1991, writ pending); Blair v. Blair, 01-89-01035-CV, 1991 WL 9266 (Tex.App.—Houston [1st Dist.] 1991, writ denied) (not designated for publication); Twyman v. Twyman, 790 S.W.2d 819 (Tex.App.—Austin 1990, writ granted); Chiles v. Chiles, 779 S.W.2d 127 (Tex.App.-Houston [14th Dist.] 1989, writ denied). . Izen v. Royall, 01-92-1216-CV, 1993 WL 66813 (Tex.App.—Houston [1st Dist.], March 11, 1993, n.w.h.); Garcia v. San Antonio Hous. Auth., 859 S.W.2d 78 (Tex.App.-San Antonio, 1993, n.w.h.); Krupka v. U.S. Videotel and Encode Intern., No. B14-92-00398-CV, 1993 WL 46571 (Tex.App.—Houston [14th Dist.], Feb. 25, 1993, n.w.h.) (not designated for publication); Birdo v. Williams, — S.W.2d -, No. 01-91-00294-CV, 1992 WL 347121 (Tex.App.—Houston [1st Dist.], Nov. 25, 1992, n.w.h.); Daniels v. Pecan Valley Ranch, Inc., 831 S.W.2d 372 (Tex.App.—San Antonio 1992, writ denied); C.T.W. v. B.C.G., 809 S.W.2d 788, 796 (Tex.App.—Beaumont 1991, no writ) (brought on behalf of two male children); Johnson v. Rollen, 818 S.W.2d 180 (Tex.App.—Houston [1st Dist.] 1991, no writ); Gumm v. Owen, 815 S.W.2d 259 (Tex.App.—El Paso 1991, no writ); Wavell v. Caller Times Pub. Co., 809 S.W.2d 633 (Tex.App.-Corpus Christi 1991, writ denied); McNamara v. Freedom Newspapers, Inc., 802 S.W.2d 901 (Tex.App.-Corpus Christi 1991, writ denied); Southwestern Bell Tel. Co. v. Wilson, 768 S.W.2d 755 (Tex.App.—Corpus Christi 1988, writ denied); Hinojosa v. South Texas Drilling & Exploration, Inc., 727 S.W.2d 320 (Tex.App.—San Antonio 1987, no writ). . Channel 4, KGBT v. Briggs, 759 S.W.2d 939 (Tex.1988); St. Elizabeth Hosp. v. Garrard, 730 S.W.2d 649 (Tex.1987), overruled by Boyles v. Kerr, 855 S.W.2d 593; Resolution Trust Corp. v. Cook, 840 S.W.2d 42 (Tex.App.—Amarillo 1992, writ denied) (awarding damages for negligent infliction of emotional distress to both spouses); Campos v. Ysleta General Hosp., Inc., 836 S.W.2d 791 (Tex.App.—San Antonio 1992, writ denied); Valenzuela v. Aquino, 800 S.W.2d 301 (Tex.App.—Corpus Christi 1990, writ granted); State Nat. Bank v. Academia, Inc., 802 S.W.2d 282 (Tex.App.—Corpus Christi 1990, writ denied); Hewitt v. Chadwick, 760 S.W.2d 333 (Tex.App.—Texarkana 1988, no writ). . Godinet v. Thomas, 824 S.W.2d 632 (Tex.App.-Houston [14th Dist.] 1991, writ denied) (brought on behalf of a woman). . Brazosport Bank of Tex. v. Oak Park Townhouses, 837 S.W.2d 652 (Tex.App.-Houston [14th Dist.] 1992) rev’d and remanded, 851 S.W.2d 189 (Tex.1993). . One amicus asserts that such a "twisted" classification of this conduct is due to the struggle to bring a claim within insurance coverage. See Amicus Brief of United States Automobile Association, p. 5. . CHIEF JUSTICE PHILLIPS, and JUSTICES HECHT and ENOCH rue the court’s decision to permit the tort of intentional infliction of emotional distress to be brought in divorce proceedings. But it appears that much of what they disapprove of is related to the consequences of recognizing any tort action between divorcing spouses. Their criticisms would seem to be better directed at the court’s earlier decisions to abrogate the doctrine of interspousal tort immunity in Bounds v. Caudle, 560 S.W.2d 925 (Tex.1977), and Price v. Price, 732 S.W.2d 316 (Tex.1987). . CHIEF JUSTICE PHILLIPS’ statement that “all conduct actionable between strangers is [not] automatically actionable between spouses” cannot be reconciled with this language. See 855 S.W.2d at 627 (Phillips, C.J., dissenting). . We necessarily disapprove of the contrary holding in Chiles v. Chiles, 779 S.W.2d 127 (Tex. App. — Houston [14th Dist.] 1989, writ denied) (declining to recognize intentional infliction of emotional distress as a separate cause of action in a divorce suit). . A [divorce action] plaintiff ... may join as independent claims any or as many claims either legal or equitable or both as he may have against the opposing party.... Further ... [either] party may state as many separate claims as he or she has regardless of consistency and whether they are based on legal or equitable grounds or both. Mogford v. Mogford, 616 S.W.2d 936, 940 (Tex.Civ.App.-San Antonio 1981, writ ref'd n.r.e.). . We anticipate that most tort cases between spouses will be joined with the divorce proceeding, however, situations may exist in which the facts supporting the tort action will be different from those supporting a petition for divorce. . By holding that these actions may be brought in a single lawsuit we are not authorizing the use of contingent fee arrangements in family law matters. See Tex.Disciplinary R.Prof.Conduct 1.04 & cmt. 9 (1989), reprinted in Tex.Gov't Code Ann., tit. 2, subtit. G app. (Vernon Supp.1993) (State Bar Rules art. 10, § 9). Rather, attorneys should enter two separate fee arrangements, one for the divorce and the other for the tort claim. See Andrew Schepard, Divorce, Interspousal Torts, and Res Judicata, 24 Fam.L.Q. 127, 151-52 (1990). . For a discussion of the possibility of double recovery in this type of case, see Schepard, supra at 146-47. . In Texas, recovery for personal injuries of a spouse, including pain and suffering, is the separate property of that spouse. Tex.Fam.Code § 5.01(a)(3); Graham v. Franco, 488 S.W.2d 390, 396 (Tex.1972). Therefore, an award to one spouse from the other does not add to the marital estate, and raises no possibility that the tort award becomes "self-offsetting.” See Barbara H. Young, Interspousal Torts and Divorce: Problems, Policies, Procedures, 27 J.Fam.L. 489, 511 (1989). .The Restatement calls for the court to first determine whether the conduct may be reasonably regarded as so extreme and outrageous as to allow recovery and whether severe emotional distress can be found. Restatement (Second) of Torts § 46 (1965) cmt. h; see also Horton v. Montgomery Ward & Co., 827 S.W.2d 361, 369 (Tex.App.-San Antonio 1992, writ denied); Tidelands Auto. Club v. Walters, 699 S.W.2d 939, 945 (Tex.App.-Beaumont 1985, writ ref'd n.r.e.). The trial court made no findings of outrageous behavior or severe emotional distress, and the judgment was based specifically and exclusively on negligent infliction of emotional distress. The divorce decree recites: After considering the pleadings, the evidence, and the arguments of the attorneys, the Court finds the facts and law support judgment for Petition [sic] in her tort for negligent infliction of emotional distress upon Petitioner. Additionally, the trial court made a disproportionate property division based on William’s cruel treatment and adultery. It appears that such an award may allow Sheila a double recovery based on the same conduct. A new trial conducted in accordance with the principles announced in this decision should rectify this problem.
GONZALEZ, Justice, concurring. What happened to Sheila Twyman in this case involves grossly offensive conduct which warrants judicial relief and the length of time it took this Court to decide this case is regrettable. However, the actions of William Twyman in engaging in bondage activities with Sheila Twyman, under the rationale that such activities were necessary to the future of their marriage, were all intentional in nature. None of William Twyman’s actions could be in any way described as negligent, or careless, or accidental. After Twyman was granted there was great debate on and off this Court as to the scope of St. Elizabeth Hospital v. Garrard, 730 S.W.2d 649 (Tex.1987). The debate centered on whether the Court in this 5-4 opinion created an all purpose, free standing tort. Also, divorce was only one factual scenario in which we were reviewing this tort. Almost contemporaneously with Twyman, the Court was reviewing this tort in a child abduction context, Weirich v. Weirich, 833 S.W.2d 942 (Tex.1992); as an independent tort, Boyles v. Kerr, 855 S.W.2d 593, 599 n. 3 (Tex.1993); and in the free speech context, Valenzuela v. Aquino, 853 S.W.2d 512, 514 (Tex.1993). Harmon v. Grande Tire Co., 821 F.2d 252, 258 (5th Cir.1987), decided after Garrard, stated “[wjhile the majority opinion in Garrard is broadly written, we read it as being directed only to the matter of proof.” See also In re Air Crash at Dallas/Ft. Worth Airport, 856 F.2d 28 (5th Cir.1988); Fiorenza v. First City Bank-Central, 710 F.Supp. 1104, 1105 (E.D.Tex.1988). Therefore, for the reasons stated in my concurring opinion on motion for rehearing in Boyles v. Kerr, 855 S.W.2d 593, 603 (Tex.1993), I agree with the judgment of the Court.
PHILLIPS, Chief Justice, concurring and dissenting. I join in the Court’s recognition of the tort of intentional infliction of emotional distress. Unlike negligent infliction of emotional, distress, which we rejected in Boyles v. Kerr, 855 S.W.2d 593 (Tex.1993), recovery for intentional infliction of emotional distress is permitted in almost every other state. While not free from conceptual difficulties, this cause of action has proved useful because it “provides a convenient mechanism for achieving a just result in a given case without either dissembling about the facts, manipulating doctrine, or creating new rules regulating the underlying relationship.” Daniel Givelber, The Right to Minimum Social Decency and the Limits of Evenhandedness: Intentional Infliction of Emotional Distress by Outrageous Conduct, 82 Colum.L.Rev. 42, 74 (1982). See also Towards a Jurisprudence of Injury: The Continuing Creation of a System of Substantive Justice in American Law 5-11, 5-17 (Report to the. American Bar Association from the Special Committee on the Tort Liability System, 1984) (the doctrine “represents a synthesis of ideas developed by many courts reacting to numerous factual situations,” and is “an excellent modern example of the common law tradition”). It is not, as one concurring and dissenting opinion suggests, merely a tort which “makes outrageous conduct tortious.” 855 S.W.2d at 629 (Hecht, J., concurring and dissenting). A successful plaintiff must prove not merely outrageous conduct, but outrageous conduct committed by the defendant with the intention of, or reckless disregard to the probability of, inflicting severe emotional distress on the plaintiff. Thus, unlike claims for negligent infliction of emotional distress, actions for intentional infliction can and have been successfully pursued in Texas for a number of years without any demonstrated harm to the orderly administration of justice. In recognizing this tort, however, I would not extend it to actions between spouses or former spouses for conduct occurring during their marriage. Although this Court has abolished interspousal immunity, Price v. Price, 732 S.W.2d 316 (Tex.1987); Bounds v. Caudle, 560 S.W.2d 925 (Tex.1977), it does not necessarily follow that all conduct actionable between strangers is automatically actionable between spouses. Several courts in other jurisdictions have expressly made such a reservation when abolishing interspousal immunity. For example, the Utah Supreme Court wrote in abolishing inter-spousal immunity: The marriage relation is created by the consent of both of the parties; inherently within such relationship is the consent of both parties to physical contacts with the other, personal dealings and ways of living which would be unpermitted and in some cases unlawful as between other persons. Stoker v. Stoker, 616 P.2d 590, 592 (Utah 1980). See also Brown v. Brown, 381 Mass. 231, 409 N.E.2d 717, 718-19 (1980); Imig v. March, 203 Neb. 537, 279 N.W.2d 382, 386 (1979); Beaudette v. Frana, 285 Minn. 366, 173 N.W.2d 416, 420 (1969). In accordance with these sentiments, I believe that a tort which is grounded solely on a duty not to inflict emotional distress should not be cognizable in the context of marriage. Married couples share an intensely personal and intimate relationship. When discord arises, it is inevitable that the parties will suffer emotional distress, often severe. In the present case, for example, Ms. Twy-man testified that she suffered “utter despair” and “fell apart” upon learning that her husband was seeing another woman. She further testified that “[t]he mental anguish was unbelievable to realize, hoping every time, when he went off to Houston, that he was just going to fly and not be with her.” Yet Ms. Twyman seeks no recovery for this distress, and apparently cannot do so under Texas law. Cf Tex. Fam.Code §§ 4.05; 4.06. In such circumstances, the fact finder is left to draw a virtually impossible distinction between recoverable and disallowed injuries. Furthermore, recognition of this tort in the context of a divorce unnecessarily restricts the trial court’s discretion in dividing the marital estate. Prior to today’s opinion, the trial court could, but was not required to, consider fault in dividing the community property. See Murff v. Murff, 615 S.W.2d 696, 698 (Tex.1981). The court had broad discretion to weigh any fault along with other appropriate factors, such as relative financial condition, disparity of ages, and the needs of the children. Id. at 698-699. Now, however, where fault takes the form of “outrageous” conduct intentionally or recklessly inflicted, it becomes a dominant factor that must be considered at the expense of the other factors. Unlike battery, fraud, or other torts resting on more objective conduct, a colorable allegation of intentional infliction of emotional distress could arguably be raised by one or both parties in most intimate relationships. As the court noted in Chiles v. Chiles, 779 S.W.2d 127, 131 (Tex.App.—Houston [14th Dist.] 1989, writ denied): While we recognize the trial court may consider fault in the distribution of community property, we believe permitting such separate damages [for intentional infliction of emotional distress] in divorce actions would result in evils similar to those avoided by the legislature’s abrogation of fault as a ground for divorce. See also Henriksen v. Cameron, 622 A.2d 1135, 1151 (Me.1993) (Glassman, J., dissenting) (recognizing the common-law tort of intentional infliction of emotional distress in the marriage context skews “a carefully constructed scheme of legislation governing the marriage relationship”). Perhaps because of these difficulties, the tort of intentional infliction of emotional distress has not been generally recognized in the marital context. Although most states, like Texas, have abolished inter-spousal immunity, it appears that, until today, only two state supreme courts have expressly held that intentional infliction of emotional distress may be applied to marital conduct. See Henriksen, supra; Davis v. Bostick, 282 Or. 667, 580 P.2d 544 (1978). Moreover, these two decisions do not appear to represent typical actions for the recovery of emotional distress damages. In Henriksen, the husband inflicted on his wife not only verbal abuse but also physical attacks, including multiple assaults and rapes. 622 A.2d at 1139. Similarly in Bos-tick, the husband broke his wife’s nose, choked her, and threatened her with a loaded pistol. 580 P.2d at 545-46. To the extent that emotional distress results from a physical attack or threat of attack, it is already compensable under tort theories previously recognized in Texas. The court in Henriksen apparently recognized the risk of spurious claims in the divorce context, noting that “to protect defendants from the possibility of long and intrusive trials on meritless claims, motions for summary judgment should ... be viewed sympathetically in interspousal cases.” 622 A.2d at 1139. By contrast, it is far from clear that Texas’ strict summary judgment standard will allow our trial courts to use this procedure in weeding out meritless or trivial claims. I recognize that a few intermediate appellate courts have also applied the tort to spousal disputes. Simmons v. Simmons, 773 P.2d 602 (Colo.App.1988, appeal denied); McCoy v. Cooke, 165 Mich.App. 662, 419 N.W.2d 44 (1988, appeal denied); Koepke v. Koepke, 52 Ohio App.3d 47, 556 N.E.2d 1198 (1989). See also Hakkila v. Hakkila, 112 N.M. 172, 812 P.2d 1320 (App.1991), appeal denied, 112 N.M. 77, 811 P.2d 575 (recognizing the tort in extremely limited situations); Ruprecht v. Ruprecht, 252 N.J.Super. 230, 599 A.2d 604 (1991) (trial court opinion). On the other hand, at least two high courts have expressly rejected the cause of action as between spouses. Weicker v. Weicker, 22 N.Y.2d 8, 290 N.Y.S.2d 732, 733, 237 N.E.2d 876, 877 (1968); Pickering v. Pickering, 434 N.W.2d 758 (S.D.1988). See also Browning v. Browning, 584 S.W.2d 406 (Ky.App.1979). Just as I join the Court’s decision to recognize a tort now available in nearly every American jurisdiction, I depart from the Court’s decision to extend that tort to a type of dispute where it is not generally applied in other states. I fail to understand how, lexigraphically or logically, it can be “medieval” or “archaic” to decline to adopt a position which has been expressly embraced by only two other state supreme courts. 855 S.W.2d at 643 (Spector, J., dissenting). I therefore would reverse the judgment of the court of appeals and render judgment that Sheila Twyman take nothing on her tort claim. . The plurality and one dissenting justice are incorrect in suggesting that I would reverse all abrogations of interspousal immunity, 855 S.W.2d at 624 n. 15; 855 S.W.2d at 640 (Spector, J., dissenting), or that I believe "spouses should be shielded from liability for even the most outrageous acts against one another.” 855 S.W.2d at 644 (Spector, J., dissenting).
HECHT, Justice, concurring and dissenting. The wrongful conduct for which the common law offers redress by an award of damages should be defined by standards sufficiently objective and particular to allow a reasonable assessment of the likelihood that certain behavior may be found to be culpable, and to adjudicate liability with some consistency in the various cases that arise. The tort of intentional or reckless infliction of emotional distress which the Court adopts for the first time today does not meet these standards. As proof, even the Court itself is unable to say whether the conduct complained of in this case either is, might be, or is not tortious. The fault lies in the principal element of the tort, the requirement that a defendant’s conduct be outrageous. Outrageousness, like obscenity, is a very subjective, value-laden concept; what is outrageous to one may be entirely acceptable to another. To award damages on an I-know-it-when-I-see-it basis is neither principled nor practical. The diverse perspectives present in a free society make decisions about what is outrageous controversial and uncertain in all but the clearest cases; even then, the law must guard against the danger that a consensus against certain conduct is forged of prejudice and passion rather than indignation against intolerable behavior. A law which made outrageous conduct criminal would almost certainly be unconstitutionally vague. A law which makes outrageous conduct tortious, while it may not offend the constitution, is equally injudicious. For this reason and others, a general, independent tort of intentional or reckless infliction of emotional distress either should not be recognized or should at least be carefully restricted. The plurality opinion gives little indication that it has considered, or why it has rejected, the arguments against adopting this tort. It bases its decision solely on the fact that the high courts of almost all the other states have at one time or another recognized a tort of intentional infliction of emotional distress in some context, and on the conclusion that this tort is more manageable than negligent infliction of emotional distress. While a consensus of our sister courts on a proposition may be some indication of its merit, that circumstance alone has not always been, and should never be, reason enough to justify our concurrence. Besides, our sister courts have agreed only that some intentional infliction of emotional distress should be actionable, a proposition which is virtually irrefutable but which does not support the conclusion that all such conduct should be actionable. Of all the courts which have endorsed the general proposition, only two have ever applied it to allow an action for intentional or reckless infliction of emotional distress between spouses, and two have refused to do so. To the extent we should be guided by the decisions of other courts, they counsel against the Court’s holding in this case. As for the argument that intentional infliction of emotional distress is a more manageable tort than negligent infliction of emotional distress, while it is no doubt true, it proves far too little. A new cause of action, especially one as significant as intentional infliction of emotional distress, should not be adopted simply because it is not as ill advised as other actions which can be imagined. Slight though the foundation is for today’s decision, its effects are far-reaching. There is little doubt that the new tort will be asserted in many if not most contested divorce cases. The Family Law Section of the State Bar of Texas has filed a brief as amicus curiae assessing the impact of spouses’ suing one another for intentional infliction of emotional distress, discussing the arguments for and against allowing such an action without taking a position on the issue, and urging us to exercise caution in considering these arguments. The plurality opinion makes no mention of the family bar’s arguments. But the impact of this case is not limited to divorce litigation; this new general tort may be, and certainly will be, asserted in other contexts. The effect of this change on relationships like employee-employer, insured-insurer, debt- or-creditor, patient-physician, client-lawyer, and buyer-seller, as well as the public generally has not been assessed. Nor has the Court considered the burden of additional jury trials in divorce cases on the judicial system. This Court, as steward of the common law, possesses the power to recognize new causes of action, but the mere existence of that power cannot justify its exercise. There must be well-considered, even compelling grounds for changing the law so significantly. Where, as here, no such grounds are given, the decision is more an exercise of will than of reason. In my view, intentional or reckless infliction of emotional distress is too broad a rubric to describe actionable conduct, as this case illustrates. Accordingly, I dissent from the Court’s decision to remand this case for trial on such a cause of action. I concur only in the reversal of the court of appeals’ judgment allowing recovery for negligent infliction of emotional distress. I The Court accepts section 46 of the Restatement (Second) of Torts [“the Restatement”] as the definitive description of the tort it calls intentional infliction of emotional distress. Section 46(1) states: “One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.” The tort has four elements: (1) extreme and outrageous conduct (2) done intentionally or recklessly (3) causing (4) severe emotional distress. Although the tort is referred to as the intentional infliction of emotional distress, it includes reckless conduct. A person acts with intent if he “ ‘desires to cause the consequences of his act, or ... believes that the consequences are substantially certain to result from it.’ ” Reed Tool Co. v. Copelin, 689 S.W.2d 404, 406 (Tex.1985), (citing Restatement § 8A (1965)). Recklessness is a lesser standard. A person acts recklessly if he knows or should know that there is a strong probability that harm may result. Restatement § 500, pamph. 2, at 590. The tort is thus broader than its name suggests. The central element of the tort is extreme and outrageous conduct. Comment d to section 46 of the Restatement describes this conduct as follows: The cases thus far decided have found liability only where the defendant’s conduct has been extreme and outrageous. It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by “malice,” or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!” The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. The rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. There is no occasion for the law to intervene in every case where some one’s feelings are hurt. There must still be freedom to express an unflattering opinion, and some safety valve must be left through which irascible tempers may blow off relatively harmless steam. This language describes a very narrow category of behavior which, to summarize, does not include insults, indignities, threats, annoyances, petty oppression, rough language, inconsiderate or unkind acts, or conduct which is only tortious, criminal, intended to inflict emotional distress, malicious, or w;orthy of punitive damages. Outrageous conduct is “extreme”, “beyond all possible bounds of decency”, “atrocious”, and “utterly intolerable in a civilized community.” How much worse than criminal or malicious must conduct be to be beyond all possible bounds of decency,. and not merely offensive, deplorable or even unbearable, but utterly intolerable in a civilized community? Only the most extremely egregious conduct would seem to qualify. Applying comment d, is it extreme and outrageous conduct — for one person to tell another, as a practical joke, that the other’s spouse has been badly injured in an accident and is in the hospital with both legs broken? —for a man, knowing of another person’s pathological fear of men in women’s clothing, to dress as a woman to surprise and startle the other person? —for the president of a rubbish collectors association to summon a member to a meeting, accuse him of working in another member’s exclusive territory, and threaten that if he does not pay over what he has earned he will be physically beaten and his business destroyed? —for a man to give a woman a bathing suit which dissolves in water, leaving her naked in front of strangers? —for a person to “hex” the farm of a superstitious landowner to force him to sell it? Many would agree that one or more of these situations involves truly outrageous conduct, but I doubt whether there would be much consensus among judges, let alone juries, that the conduct in every instance is “beyond all possible bounds of decency” and “utterly intolerable in a civilized community.” Those who considered one such situation to fall into this narrow category might even object to equating it with others of these examples. In some instances, conduct is more or less reprehensible depending upon the setting in which it occurred and the personalities involved. If comment d were taken literally, truly outrageous conduct would be rare indeed, yet the illustrations in the comments to section 46, taken from actual cases, reflect a less exacting view of outrageousness: in all of these examples a court has determined the conduct to be outrageous, giving rise to liability. The Restatement’s illustrations of outrageous conduct suggest that comment d, though rigid in word, is much more flexible in application. The vice in such indeterminacy is not that the tort sweeps too broadly, resulting in liability more often than it should. A review of the cases in which intentional or reckless infliction of emotional distress is alleged indicates that while the claim is routinely asserted, it is seldom successful. See Annotation, Modern Status of Intentional Infliction of Mental Distress as Independent Tort; “Outrage”, 38 A.L.R.4th 998 (1985). The vice in the nebulous standard of outrageousness is rather that it results in erratic decisions which appear to have no unifying principle. The cases reveal no clear patterns of application of the standard, nor should they be expected to. What is outrageous unavoidably depends upon the sensitivities of the person asked to decide and to some extent the community in which the conduct occurs. “The term ‘outrageous’ is neither value-free nor exacting.” Daniel Givelber, The Right to Minimum Social Decency and the Limits of Evenhandedness: Intentional Infliction of Emotional Distress by Outrageous Conduct, 82 Colum.L.Rev. 42, 51 (1982). Because outrageousness is a subjective, almost personal, notion, its application is as much a matter of who decides as of what happened. Proving that conduct is or is not outrageous is virtually impossible. What evidence is there which tends to prove that certain behavior was or was not outrageous? The issue is certainly not a factual one, like whether the traffic light was red or green, on which a witness can be called to testify. It is a matter of opinion, but it involves no “scientific, technical, or other specialized knowledge” as to which a witness could be qualified as an expert “by knowledge, skill, experience, training, or education”. Tex.R.Civ.Evid. 702. The only possible evidence which could be offered on the issue would be the opinion of a lay witness, but it is difficult to conceive of an instance in which a lay opinion would be helpful to a determination of outrageousness and thus admissible. See Tex.R.Civ. Evid. 701. The rules would certainly not allow witness after witness to be called to testify one by one that, “Yes, in my opinion defendant’s conduct was outrageous,” or “No, in my opinion it was not.” Quite simply, the principal element of the tort-of intentional or reckless infliction of emotional distress is something on which testimony cannot be offered and which can neither be proved nor disproved. This is not a flaw in the tort’s design; it is the design itself. The Restatement contemplates that outrageousness is not to be determined by evidence but according to the views of judges and jurors. Comment h to section 46 states: It is for the court to determine, in the first instance, whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery, or whether it is necessarily so. Where reasonable men may differ, it is for the jury, subject to the control of the court, to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability. Comment h, which the plurality opinion attempts to follow in this ease without actually adopting it, leaves the respective roles of judges and juries ill-defined. Judges are to make the determination whether conduct is outrageous unless “reasonable men may differ”. But how does a judge know whether reasonable people would differ in their view of specific conduct? Are the parties to present affidavits of people who actually do differ? If so, then I suspect it will not be difficult to do so in almost every case, and a threshold judicial determination of outrageousness will be rare. May a judge take judicial notice that reasonable differences of opinion exist or do not exist? If so, then again, it would be a rare situation in which the issue should not be given to the jury to decide. May a judge rely simply on personal knowledge and experience? This is what comment h seems to intend, but to allow a judge to rule on the basis of personal views alone is not only broad discretion indeed but a violation of the rule of law. May special exceptions to pleadings be sustained or summary judgment granted solely because the judge believes that no reasonable person would consider the alleged conduct outrageous? How are such rulings to be reviewed on appeal? As in the trial court, the only standard available on appeal is the personal view of the judge. Whether a judge or a jury decides the issue of outrageousness, neither has a standard for doing so. Without evidence or rules to guide a decision, both can resort only to their own views, and their own prejudices. Opinions about outrageous conduct may vary widely in various contexts. An employee may accuse his employer of behaving outrageously in terminating him, an insured may accuse his insurer of denying a claim outrageously, or a debtor may accuse a creditor of outrageous conduct in attempting to collect the debt. That class of persons to which each plaintiff or defendant belongs will almost certainly not share the same view of the alleged conduct as that class which includes the other party. To be sure, there will be a few instances when almost everyone is in accord, but in the vast majority of cases, creditors, for example, are less likely to be outraged by aggressive debt collection than debtors. What rule or standard can a judge or jury use to resolve such disputes? There is none. The composition of the jury, whether of bankers or borrowers, is likely to play heavily in the verdict delivered. Ordinarily the law forbids factfinders from relying upon personal prejudices in deciding a case, but with this tort there is no alternative. “To suggest, as the Restatement does, that civil liability should turn on the resentments of the average member of the community appears to turn the passions of the moment into law.” Givelber, supra, at 52. Contrary to the assertions of some of my colleagues, I am certainly not critical of the ability of either judges or juries to make reasoned decisions, based upon the evidence and the law. My point is that we should not make judges or juries Rumpelstiltskins, spinning legal decisions out of personal attitudes. I am not aware of any other instance when a judge or juror is asked to decide the determinative issue in a case solely upon his personal views. How can such a decision be reviewed on appeal? There is no level of evidence which is legally or factually sufficient to establish the appropriate standard, for there is no evidence at all. The only issue for appeal is whether another set of judges has a different view of outra-geousness. Outrageousness is thus different from other amorphous legal standards, such as ordinary care, the core concept of negligence. The issue [in negligence cases] will frequently be whether there were alternative means of achieving the same end that would have eliminated the particular risk from which plaintiff’s injury resulted, and safety statutes and customs within the industry may provide explicit guidance on this point. Even where they do not (and certainly where they do) expert testimony may serve the function of identifying alternatives and placing a cost upon them. Even when the question cannot be intelligently viewed in terms of alternatives — e.g., where the defendant did not come to a full stop at the stop sign — there may be statutes that inform the decision. The issue of negligence is seldom decided without guidance from some external source: custom, relevant statutes and regulations, eviden-tiary doctrines such as res ipsa loquitur, or expert testimony on alternatives. In other words, a jury is rarely presented a story and asked to decide whether the defendant behaved reasonably simply by referring to its own sense of appropriate behavior. Yet this is what juries are asked to do with regard to the intentional infliction of emotional distress: there are no external standards for outrageousness comparable to those available in the negligence area. Givelber, supra, at 56. Evidence is always available on the standard of care to which a reasonable person can be expected to adhere in a given situation; in many cases, such as professional malpractice, such' evidence is required. The jury is obliged to confine its deliberations to that evidence and cannot create its own standard of care. Thus, jurors who regularly drive in excess of the speed limit cannot equate ordinary care with their own conduct. But evidence of what is outrageous in a given situation is never available. Jurors are not only permitted to judge a defendant’s conduct by their own personal experiences; they are required to do so. There are also moral overtones to outra-geousness that are absent in ordinary care. Conduct which negligently causes an accident is not “beyond all possible bounds of decency” and “utterly intolerable in a civilized community.” In a negligence action a jury must decide whether the defendant was careless; in an action for intentional or reckless infliction of emotional distress, the jury must decide whether the defendant was bad. A finding that conduct was outrageous is qualitatively different from a finding that it was negligent. The Court’s sole response to all these criticisms is this: we trust juries to decide. This truism simply does not address the problems raised by the standardless tort the Court recognizes. The issue is not whether juries are qualified to decide fact issues — certainly they are — but what standards they are to employ in doing so. In a society ruled by law and not by men, we do not allow judges or juries to base adjudications on personal predilections. This is not a matter of trust, but of power properly exercised. We trust juries to judge according to the law; we trust no one to judge according to his own views. Because outrageousness depends almost entirely upon the views of the judge or jury in each case, it is difficult to know whether any particular conduct will give rise to liability. “[Ajssuming that there were a class of defendants who wanted to alter their behavior in order to conform to the dictates of this tort, the decided eases would not provide much clear instruction with respect to what activities are forbidden.” Givelber, supra, at 75. Plaintiffs also are given little firm indication whether particular conduct is outrageous. The result, as the experience of other jurisdictions indicates, is that claims for intentional or reckless infliction of emotional distress are asserted in a large number of cases in the sincere but usually unrealized anticipation that a judge or jury may view them favorably. See Annotation, supra. The burden of so many meritless claims on the judicial system is significant; the Court simply assumes that this burden is outweighed by the benefits of such claims. In his separate opinion, Chief Justice Phillips calls the tort of intentional inflic