APPEAL OF ASSISTANT PRINCIPAL WHO SUED STUDENTS FOR INFLICTION OF
EMOTIONAL DISTRESS BY DEFAMING HER ON THE INTERNET FAILS

School official's suit for Intentional Infliction of Emotional Distress against students who
created false derogatory MySpace profile on her fails. Court of appeals affirms dismissal
by the trial court. One judge on the three-member appellate panel, however, Justice
Catherine Stone, concurs only reluctantly in the dismissal of the educator's suit, and uses
the occasion to criticize the Texas Supreme Court for restricting the tort of intentional
infliction of emotional distress to the point were it is virtually impossible to ever prevail.  

Draker v. Schreiber, No. 04-07-00692-CV (Tex.App.- San Antonio, Aug. 13, 2008) (Angelini)
(affirming dismissal of school administrator's cyberspace defamation case against students complaining of
intentional infliction of emotional distress)  

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Justice Stone's Concurring Opinion in

Draker v. Schreiber (Tex.App.- San Antonio, Aug. 13, 2008)

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CONCURRING OPINION

Delivered and Filed: August 13, 2008
        
I concur in the opinion and judgment of the court. I write separately, however, to express frustration with the
current state of Texas law regarding the tort of intentional infliction of emotional distress.
        
The conduct of the students in this case is, in my opinion, outrageous. Simply stated, it is not acceptable
conduct in our society. The school children of this state should know that appropriating the identity of a
teacher or school administrator to create a fraudulent internet social profile is unacceptable, and that
engaging in such conduct will have consequences. In this case, however, there is no civil legal consequence
for the unacceptable conduct. The lack of a consequence is because, in Texas, a claim for intentional
infliction of emotional distress exists only in theory.
        
Texas has recognized the independent tort of intentional infliction of emotional distress since the 1993
supreme court decision in Twyman v. Twyman, 855 S.W.2d 619, 621-22 (Tex. 1993) (adopting the elements
of the Restatement (Second) of Torts § 46 (1965)). Since that time, however, the opinions addressing the
tort have enlarged the requirements to such an extent that it is virtually impossible for a litigant to
successfully pursue a claim for intentional infliction of emotional distress.

The tort is a “gap-filler” tort, not meant to circumvent limitations placed on recovery under more established
tort doctrines. Standard Fruit & Vegetable Co. v. Johnson, 985 S.W.2d 62, 68 (Tex. 1998). The tort is
reserved for those rare instances where a defendant engages in extreme and outrageous egregious
conduct and intentionally inflicts severe emotional distress. Id.

If the gravamen of the plaintiff’s complaint is covered by a statute or another tort, then the claim for
intentional infliction of emotional distress will fail, even if the plaintiff does not make a claim under another
tort or cannot succeed in making a claim under another tort. Hoffmann-LaRoche Inc. v. Zeltwanger, 144 S.W.
3d 438, 448 (Tex. 2004).

Even as onerous as these standards are, Texas jurists have expressed dissatisfaction with the tort.
Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 815 (Tex. 2005) (noting that “[f]or the tenth time in little more
than six years, we must reverse an intentional infliction of emotional distress claim for failing to meet the
exacting requirements of that tort”); Hoffmann-LaRoche Inc., 144 S.W.3d at 450-51 (Hecht, J., concurring)
(stating “fundamental position that the tort of intentional infliction of emotional distress should not exist at
all”); Id. at 451 (O’Neill, J., concurring) (describing the “gap-filler” approach to the tort as “a cure worse than
the disease”).
        
The internet capabilities of modern society present numerous opportunities for individuals to engage in
extreme and outrageous conduct that can produce severe emotional distress. See Layshock v. Hermitage
Sch. Dist., 496 F. Supp.2d 587, 590-91 (W.D. Pa. 2007) (discussing student’s creation of a false MySpace
profile of his high school principal); David L. Hudson, Jr., Taming the Gossipmongers, 94 A.B.A. J. 19 (2008)
(reviewing the use of the 1996 Communications Decency Act to protect Web publishers, such as
juicycampus.com, from liability for content created by third parties); John Seigenthaler, Op-Ed, A false
Wikipedia ‘biography,’ USA Today, November 29, 2005, available at http://www.usatoday.
com/news/opinion/editorials/2005-11-29-wikipedia-edit_x.htm (detailing “Internet character assassination” of
former government official with internet “biography” reference indicating official was suspected of
involvement in the assassinations of President John Kennedy and Attorney General Robert Kennedy); Linda
Deutsch, Woman pleads not guilty in Internet suicide case, USA Today, June 16, 2008, available at http:
//www.usatoday.com/news/nation/2008-06-16-327594069_x.htm (discussing 13-year-old girl’s suicide after
receiving more than a dozen cruel messages from a nonexistent teen boy via a false MySpace profile).

There appears to be little civil remedy for the injured targets of these internet communications. Intentional
infliction of emotional distress would seem to be one option. But as it has developed, the tort is nearly
impossible to establish. The citizens of Texas would be better served by a fair and workable framework in
which to present their claims, or by an honest statement that there is, in fact, no remedy for their damages.

Catherine Stone, Justice