Boyles v. Kerr

855 S.W.2d 593 (1993)

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Nature of the Case

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Facts

D, then seventeen, covertly videotaped P engaging in sexual intercourse with him. D wanted to have sex at a friend’s house. D agreed with that friend and two others to hide a camera in a bedroom. The three videotaped themselves making crude comments and jokes about the activity that was to follow. They left with the camera running, and the ensuing activities were recorded. D showed the tape to ten different friends a number of different times. Gossip about the incident soon spread like wildfire. Many students at P's school, Southwest Texas State University, and Ds' school, the University of Texas at Austin, also became aware of the story. P did not learn of the video until December 1985, long after she and D had stopped seeing each other. After she confronted him, D eventually admitted what he had done and surrendered the tape to P. No copies had been made. P sued Ds on a number of counts alleging intentional invasion of privacy, negligent invasion of privacy, and negligent (but not intentional) infliction of emotional distress. P dropped all causes of action except for negligent infliction of emotional distress. The jury returned a verdict for P on that claim, assessing $500,000 in actual damages. The jury also found that all Ds were grossly negligent, awarding an additional $500,000 in punitive damages, $350,000 of which was assessed against D. The trial court rendered judgment in accordance with the jury's verdict. D appealed to the court of appeals. n1 That court affirmed the judgment against him, concluding that P established negligent infliction of emotional distress under the facts of this case. The court of appeals also affirmed based on negligent invasion of privacy, even though P abandoned this theory prior to submission of the case to the jury and did not brief or argue it as a basis for affirmance in the court of appeals.