September 2002

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 spouse’s 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 court’s reaction to a suit for intentional infliction of emotional distress against a spouse’s 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 one’s 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 spouse.

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 emotional distress.

The appellate court affirmed the dismissal of all the claims, stating:

[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 plaintiff’s 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 defendant’s conduct as a breach of contract, or negligence, or some other intentional tort.

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, aff’d. 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 wife’s 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) (clergyman’s 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 husband’s claim for intentional infliction of emotional distress failed because the psychiatrist’s conduct simply was not directed at the husband. Accord D.D. v. C.L.D., 600 So. 2d 219 (Ala. 1992) (husband’s 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 Kunau’s wife had affair with her dentist, dentist’s 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 spouse’s 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 plaintiff’s 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, aff’d. 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 spouse’s 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 be barred).

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 spouse’s 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 husband’s 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 husband’s whereabouts. Under today’s 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 wife’s lover for alienation of affections and criminal conversation, and was awarded punitive damages. In that case, the wife’s 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 husband’s 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 defendant’s conduct was of a wanton, brazen, and cruel type specifically calculated to increase injury to the plaintiff’s feelings).

If counsel wishes to allege intentional infliction of emotional distress against the wife’s 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 lover’s conduct, directed specifically at the plaintiff, that the average person would say, “Outrageous!”