Intentional Infliction of Emotional
Distress as a Substitute for Alienation of Affections
Laura W. Morgan
At common law, a spouse had two causes of action for offenses
against the marriage relation: enticement or alienation of
affections, and seduction or criminal conversation. Most often,
these actions were brought against the guilty spouses
paramour. An action for alienation of affections could, however,
be brought against any person, not just a lover, who enticed
a spouse away from the marital relationship. Thus, an action
for alienation of affections could lie against an in-law,
a friend, a professional counselor, or even a member of the
clergy who counsels divorce.
Forty-two of the fifty-one jurisdictions in the United States
have abolished the cause of action for alienation of affections.
Laura W. Morgan, Actions Against a Third Party for Torts
Against the Marriage Relation, 7 Divorce Litig. 181,
183 (1995); see generally Annotation, Constitutionality,
Construction, and Application of Statutes Abolishing Civil
Action for Alienation of Affections, Criminal Conversation,
Seduction, and Breach of Promise to Marry, 158 A.L.R.
617, 619 (1945), supplemented by 167 A.L.R. 235 (1947). See,
e.g., Rotwein v. Gersten, 160 Fla. 736, 36 So.2d
419 (1948) (although actions for alienation of affections,
criminal conversation, and breach of contract to marry were
a part of the common law and have long been a part of the
law of this country, when they became an instrument of destruction
and blackmail, act abolishing them was within legislative
power). Kansas abolished the cause of action for alienation
of affections by Kan. Stat. Ann. § 23-208. See also
Long v. Fischer, 210 Kan. 21, 499 P.2d 1063 (1972)
(severely restricting action).
In an attempt to avoid heart balm statutes and court decisions
abolishing alienation of affections and criminal conversation,
wronged spouses have tried various other causes of action
to soothe the aching heart. Among the most common is intentional
infliction of emotional distress. See generally Whitesell,
Loss of Consortium and Intentional Infliction of Emotional
Distress: Alternative Theories to Alienation of Affections,
67 Iowa L. Rev. 859 (1982).
To recover in an action for intentional infliction of emotional
distress, a plaintiff must show (1) conduct that is intentional
or reckless; (2) conduct that is also extreme and outrageous;
(3) a causal connection between the wrongful conduct and the
emotional distress; and (4) emotional distress that is severe.
W. Keeton, Prosser and Keeton on the Law of Torts
at 12 (5th ed. 1984). The courts approach a claim for intentional
infliction of emotional distress in the marital context with
extreme caution. See Heather S. Call, Intentional
Infliction of Emotional Distress in the Marital Context,
23 N.M. L. Rev. 387 (1993).
Typical of the courts reaction to a suit for intentional
infliction of emotional distress against a spouses lover
is Scamardo v. Dunaway, 650 So. 2d 417 (La. Ct. App.
1995). In that case, the husband, Donald Scamardo, alleged
that while he and his wife were consulting Dr. Heber Dunaway
for problems with infertility, Dr. Dunaway and Mrs. Scamardo
engaged in an adulterous affair. As a result, Mrs. Scamardo
left her husband; the couple eventually divorced.
Mr. Scamardo sued Dunaway for intentional infliction of emotional
distress. The trial court dismissed the action, finding it
indistinguishable from alienation of affections, which Louisiana
does not recognize. The appellate court reversed,
finding that alienation of affections and intentional infliction
of emotional distress are distinguishable:
In comparing the two theories of recovery, we find
that they are distinguishable. Neither the policies nor legal
principles giving rise to the claims for framing the rights
are the same. Although both have the emotional distress of
plaintiff as a primary element of damages, and thus, may appear
to overlap, the infliction of emotional distress is a separate,
recognizable tort. The law does not limit the action to non-marital
situations. However, the mere seduction and loss of ones
spouse due to the seduction or affair cannot be the basis
for the action. There must be proof that defendant violated
some legal duty to plaintiff, so that plaintiff is in fact
the victim and not just the jilted party. Further, the burden
of outrageous conduct is a heavy one. Otherwise, the cause
of action is for alienation of affections, which is not legally
recognized in this state.
650 So. 2d at 420-21. Thus, if the plaintiff qua plaintiff
can show a duty owed to him, a cause of action for intentional
infliction of emotional distress can be stated by the victim
This principle was also stated in Gasper v. Lighthouse,
Inc., 73 Md. App. 367, 533 A.2d 1358 (1987), cert.
denied, 311 Md. 718, 537 A.2d 272 (1988). In that case,
Mr. and Mrs. Gasper had been referred to the corporate defendant
for marriage counseling. In the course of the counseling,
the counselor commenced an adulterous relationship with Mrs.
Gasper. The husband sued for breach of contract, breach of
fiduciary duty, negligence, and intentional infliction of
The appellate court affirmed the dismissal of all the claims,
[W]e wish to make clear that abolition of the actions
for alienation of affections and criminal conversation does
not preclude a person from maintaining a traditional breach
of contract action merely because the breach arose from an
improper liaison with the plaintiffs spouse or because
the effect of the alleged breach or tortious conduct was a
disruption or breakup of his or her marriage.... What is precluded,
however, is the refitting of the abolished actions into other
forms. One cannot sue to recover for injuries resulting from
defilement of the marriage bed or from interference with the
marriage by simply casting the defendants conduct as
a breach of contract, or negligence, or some other intentional
73 Md. App. 367, 533 A.2d 1358, 1363 (1987), cert. denied,
311 Md. 718, 537 A.2d 272 (1988). Accord Van
Meter v. Van Meter, 328 N.W.2d 497 (Iowa 1983) (intentional
infliction of emotional distress may be available against
a third party for conduct that leads to the dissolution of
a marriage); Spiess v. Johnson, 89 Or. App. 289,
748 P.2d 1020, affd. 307 Or. 242, 765 P.2d
811 (1988) (distinguishing between alienation of affections
and intentional infliction of emotional distress as a distinction
between the loss suffered; in the former, the loss complained
of is the loss of affection of the spouse; in the latter,
the loss is emotional distress as a result of the intentional
act of causing a loss of affection). See also Heiner
v. Simpson, 23 P.3d 1041 (Utah 2001) (in Utah, which
still recognizes alienation of affections, court held that
plaintiff could assert both alienation of affections and intentional
infliction of emotional distress, since the two causes of
action are distinct and require different proof).
Consequently, a court will not allow a claim for intentional
infliction of emotional distress where the act giving rise
to the emotional distress is seduction of a spouse. Seduction
of a spouse, the courts have held, is simply not outrageous
conduct directed at the other spouse. Rather, the act giving
rise to the emotional distress must be specifically directed
at the plaintiff.
This general rule has been applied in a number of cases.
Based on an application of the rule, a claim for intentional
infliction of emotional distress was allowed in Figueiredo-Torres
v. Nickel, 321 Md. 642, 584 A.2d 69 (1991). In that case,
the husband and wife were undergoing marriage counseling with
a psychologist. During the course of the counseling, the psychologist
advised the husband to distance himself from his wife and
to separate from her. At the same time, the psychologist began
a sexual relationship with the wife.
The court of appeals held that the husband stated a claim
for intentional infliction of emotional distress and professional
negligence because of the acts specifically directed toward
the husband, i.e., treating the husband in the confines of
the office and then undermining that treatment outside the
therapy session. The gravamen of the intentional infliction
of emotional distress claim, the court concluded, was not
the sexual act or the alienation of the wifes affections.
It was the entire course of conduct engaged in by the psychologist
as directed toward the husband. Accord Payne
v. Osborne, No. 1997-CA-001818-MR (Ky. App. 06/04/1999)
(clergymans affair with wife during pastoral counseling
amounted to intentional infliction of emotional distress);
Erickson v. Christenson, 781 P.2d 383, 385-86 (Or.
Ct. App. 1989) (church parishioner allowed to sue her pastor
for sexual abuse and intentional infliction of emotional distress).
A claim for intentional infliction of emotional distress
was not allowed in Homer v. Long, 90 Md. App. 1,
599 A.2d 1193 (1992). In that case, the wife was seeing a
psychiatrist, but the husband was not his patient as well.
During the course of treatment, the psychiatrist and the wife
began an affair. The husbands claim for intentional
infliction of emotional distress failed because the psychiatrists
conduct simply was not directed at the husband. Accord
D.D. v. C.L.D., 600 So. 2d 219 (Ala. 1992) (husbands
claim for intentional infliction of emotional distress would
fail, where it was based on conduct that was merely alienation
of affections); Haldane v. Bogy, 208 Cal. App. 2d
302, 25 Cal. Rptr. 392 (1962); Destefano v. Grabrian
, 763 P.2d 275 (Colo. 1988) (finding claims for mental pain
and suffering, based on theories of negligence and intentional
infliction of emotional distress, plainly set forth
claims for alienation of affections and criminal conversation);
Strauss v. Cilek, 418 N.W.2d 378 (Iowa Ct. App. 1987)
(average member of community would not consider affair with
wife outrageous conduct to husband); Kunau v. Pillers,
Pillers & Pillers, 404 N.W.2d 573 (Iowa Ct. App.
1987) (where Kunaus wife had affair with her dentist,
dentists conduct was not outrageous to husband); Browning
v. Browning, 584 S.W.2d 406 (Ky. Ct. App. 1979) (intentional
infliction of emotional distress should not be recognized
where it arises out of spouses conduct with third party);
Quinn v. Walsh, 49 Mass. App. Ct. 696, 732 N.E.2d
330 (2000) (by abolishing these common law torts [of
alienation of affections and criminal conversation], the legislature
has registered its intent to preclude recovery for emotional
distress resulting from adultery); Nicholson v.
Han , 12 Mich. App. 35, 162 N.W.2d 313 (1968) (concluding
the plaintiff could not maintain his action for breach of
contract because the claimed damages, pain and suffering,
demonstrated his reliance on a prohibited tort theory); Hafner
v. Hafner, 135 N.J. Super. 328, 343 A.2d 166 (Law Div.
1975); Padwa v. Hadley, 127 N.M. 416, 981 P.2d 1234
(Ct. App. 1999) (mere adultery, though persistent, cannot
rise to level of intentional infliction of emotional distress);
Weicker v. Weicker, 22 N.Y.2d 8, 290 N.Y.S.2d 732
(1968) (strong policy reasons weighed against applying intentional
infliction of emotional distress to dispute arising out of
matrimonial differences); Wilson v. Still, 819 P.2d
714 (Okla. 1991) (act of woman stealing plaintiffs husband
was not sufficiently outrageous); Rosenthal v. Erven,
172 Or. App. 20, 17 P.3d 558 (2001) (conduct of having affair
not sufficiently outrageous); Spiess v. Johnson,
89 Or. App. 289, 748 P.2d 1020, affd. 307 Or.
242, 765 P.2d 811 (1988) (abolition of criminal conversation
precludes action for intentional infliction of emotional distress);
Pickering v. Pickering, 434 N.W.2d 758 (S.D. 1989)
(tort of intentional infliction of emotional distress should
be unavailable as a matter of public policy when it is predicated
on conduct that leads to the dissolution of marriage); Alexander
v. Inman, 825 S.W.2d 102 (Tenn. Ct. App. 1991) (in these
days, the court cannot consider the act of adultery to be
outrageous and beyond the bounds of decency); Truitt v.
Carnley, 836 S.W.2d 786 (Tex. Civ. App. 1992) (both intentional
infliction of emotional distress and negligent infliction
of emotional distress based on spouses affair would
not be recognized); Koestler v. Pollard, 162 Wis.
2d 797, 471 N.W.2d 7 (1991) (where cause of action flows directly
from facts constituting criminal conversation, cause of action
labeled as intentional infliction of emotional distress would
Given the current judicial attitude that adultery does not
constitute outrageous behavior, one might be tempted to think
that an action for intentional infliction of emotional distress
based on a spouses adultery will always fail. It may
be argued, however, that those cases that allow a claim for
intentional infliction of emotional distress are analogous
to those older cases brought as alienation of affections actions
where punitive damages were allowed. In both instances, the
conduct complained of was outrageous and directed toward the
plaintiff spouse. See Annotation, Punitive or
Exemplary Damages in Action by Spouse for Alienation of Affections
or Criminal Conversation, 31 A.L.R.2d 713 (1956).
For example, in Jennings v. Jennings, 103 N.C. App.
739, 407 S.E.2d 264 (1991), the court upheld an award of punitive
damages in the amount of $300,000 against the husbands
paramour, holding that her conduct was willful, aggravated,
malicious, and of wanton character. In that case, the paramour
told the wife of the affair, and then repeatedly called the
wife at home attempting to discover the husbands whereabouts.
Under todays standards for intentional infliction of
emotional distress, this conduct was directed toward the wife
and therefore should sustain an intentional infliction of
emotional distress claim.
Similarly, in Gray v. Hoover, 94 N.C. App. 724,
381 S.E.2d 472, review denied, 325 N.C. 545, 385 S.E.2d 498
(1989), the husband sued the wifes lover for alienation
of affections and criminal conversation, and was awarded punitive
damages. In that case, the wifes lover called the husband
and told the husband he was going to have sex with his wife.
On another occasion, the lover drove up to the husbands
house with the wife in the car, blew the horn, and when the
lover was sure the husband was looking, the lover kissed the
wife and placed his hand on her breast. It seems unlikely
that a court today would fail to find this conduct outrageous
and directed toward the plaintiff. See also Vogel v. Sylvester,
148 Conn. 666, 174 A.2d 122 (1961) (court held that the jury
could have found that the defendants conduct was of
a wanton, brazen, and cruel type specifically calculated to
increase injury to the plaintiffs feelings).
If counsel wishes to allege intentional infliction of emotional
distress against the wifes lover, counsel must be careful
to allege all the necessary elements of the tort, and not
rely on the mere fact of adultery as the outrageous conduct.
Counsel must allege something so outrageous about the lovers
conduct, directed specifically at the plaintiff, that the
average person would say, Outrageous!