Koestler v. Pollard 162 Wis. 2d 797, 471 N.W.2d 7

LOUIS J. CECI, J.

This case is before the court on certification from the court of appeals, pursuant to sec. (Rule) 809.61, Stats. The plaintiff, Richard J. Koestler, Jr. (Koestler), commenced this action against Donald E. Pollard (Pollard), seeking damages for the intentional infliction of emotional distress. Koestler alleged that Pollard intentionally concealed from him the fact that Pollard was the biological father of a child born to Koestler's wife during their marriage and revealed said fact after Koestler developed a bond with the child.

Koestler appeals from the decision and order of the circuit court for Waukesha county, Willis J. Zick, Circuit Judge, dismissing the action. In granting the motion to dismiss, the circuit court reasoned that the legislature intended to abolish claims such as Koestler's when it abolished actions for criminal conversation and alienation of affection.1

One issue is presented by this review — whether a complaint alleging the following states a claim for relief: (1) the defendant intentionally concealed from the plaintiff the fact that the defendant is the biological father of *801a child born to the plaintiffs wife during their marriage, and (2) the defendant revealed the child's paternity after the plaintiff developed a bond with the child. We hold that a complaint which alleges the facts necessary to state a claim for criminal conversation does not state a claim for relief even if it alleges additional facts which need not be alleged to state a claim for criminal conversation. Accordingly, we conclude that Koestler's complaint fails to state a claim upon which relief may be granted.

The facts relevant to this appeal are not in dispute. On June 14, 1989, Koestler commenced this action. Koestler alleged, inter alia, that while he was married to Vickie Lynn Koestler, Pollard engaged in sexual intercourse with Vickie which resulted in the birth of a child, C.K., in 1983. Koestler further alleged that Pollard knew he was the biological father of C.K. but intentionally caused this information to be kept from Koestler until June 17,1987. As a result of the initial concealment and eventual disclosure of the paternity of C.K., Koestler alleged that he suffered an extreme and disabling emotional response which disturbed his relationship with C.K. and with his other child.

On August 23, 1989, Pollard moved the court to dismiss Koestler's complaint for failure to state a claim upon which relief may be granted. Pollard argued that public policy bars Koestler's claim.

The circuit court heard Pollard's motion to dismiss on March 9,1990. By order entered March 27,1990, the circuit court granted Pollard's motion to dismiss. In granting the motion, the circuit court reasoned that the legislature intended to abolish Koestler's claim when it abolished claims for criminal conversation and alienation of affection.

*802Koestler appealed from the decision of the circuit court, and the court of appeals certified the appeal to this court.

Whether a complaint states a claim upon which relief may be granted is a question of law which we decide independently and without deference to the decisions of lower courts. Blue Cross v. Fireman's Fund, 140 Wis. 2d 544, 548, 411 N.W.2d 133 (1987). In reviewing the grant of a motion to dismiss for failure to state a claim upon which relief may be granted, we take the facts stated in the complaint as true. Id. at 546.

As Koestler's counsel admitted at oral argument, the facts alleged in Koestler's complaint include those facts which constitute the basis for a claim of criminal conversation. Therefore, Koestler's claim is barred by the legislature's abolition of claims for criminal conversation. Moreover, the public policy underlying the legislature's abolition of claims for criminal conversation dictates that the courts should not administer heart balm in the form of civil liability.

At common law, a spouse could bring an action for criminal conversation against a third party who engaged in adultery with the spouse's marriage partner. The plaintiff in an action for criminal conversation had to prove the following facts:

(1) an actual marriage between the spouses, and

(2) sexual intercourse between the defendant and the guilty spouse during coverture [marriage].

Schneider v. Místele, 39 Wis. 2d 137, 140, 158 N.W.2d 383 (1968). Koestler's complaint alleges the following facts:

*803(1) an actual marriage between Koestler and Vickie Lynn Koestler;

(2) sexual intercourse between Pollard and Vickie Lynn Koestler during the Koestlers' marriage;

(3) the birth of a child, C.K., during the marriage as a result of the aforementioned sexual intercourse; and

(4) the initial concealment and eventual disclosure of the fact that Pollard is the biological father of C.K.2

The first two facts contained in Koestler's complaint are identical to the facts necessary to plead and prove a claim for criminal conversation. Moreover, the third fact contained in Koestler's complaint, the birth of a child, is a natural and probable consequence of the second fact contained in Koestler's complaint, sexual intercourse. Finally, the fourth fact contained in Koestler's complaint, concealment and eventual disclosure of the paternity of the child born as a result of the adulterous intercourse, is undoubtedly a common occurrence in cases of criminal conversation which result in pregnancy.

While the third and fourth facts contained in Koestler's complaint are not essential to a claim for criminal conversation, they all flow directly from the facts constituting criminal conversation which are alleged in Koestler's complaint. Therefore, Koestler's complaint in essence states a claim for criminal conversation and is barred by sec. 768.01, Stats.3 To hold oth*804erwise would violate the legislature's directive that ch. 768, Stats., should be liberally construed4 and would subvert the policies underlying sec. 768.01. Furthermore, Koestler's claim violates public policy because claims such as his embroil the courts in disputes in which judicial intervention is inappropriate.

When it enacted ch. 768, the legislature provided in sec. 768.08 that "[t]his chapter shall be liberally construed to effectuate the object thereof." The court of appeals decision in Prill v. Hampton, 154 Wis. 2d 667, 453 N.W.2d 909 (Ct. App. 1990), illustrates just how liberally the provisions of ch. 768 should be construed. In Prill, one of the plaintiffs argued that she should be *805permitted to prove that her husband's injuries caused their divorce. Id. at 681.

The court of appeals rejected the wife's contention that she had a claim for "wrongful divorce" because it was "essentially an alienation of affections claim." Id.5 The court of appeals reached this conclusion despite the fact that the wife's claim was based on the negligent conduct of the defendant, and alienation of affection claims, when they were allowed, were based on the defendant's intentional interference in the marital relationship.6 If sec. 768.01 bars a negligence claim even though it expressly abolishes only intentional torts, it should be liberally construed to bar claims which allege that a criminal conversation produced a child whose paternity was intentionally kept from the innocent spouse, since it expressly abolishes criminal conversation actions.

Furthermore, if Koestler can evade the provisions of sec. 768.01 simply by pleading facts which naturally flow from the facts that constitute criminal conversation, sec. 768.01 will be destroyed by artful pleading. No just or *806sensible distinction could be drawn between complaints that allege criminal conversation and, therefore, are barred by sec. 768.01 and complaints that allege the facts of criminal conversation and enough additional facts to evade sec. 768.01's prohibition. For example, if we hold that sec. 768.01 does not bar Koestler's complaint, a plaintiff could state a claim for intentional infliction of emotional distress by alleging that an extramarital affair was carried on in a public manner with the intent of inflicting emotional distress upon him or her. Such a claim is clearly the type of claim the legislature intended to abolish by enacting sec. 768.01 and by providing that it should be liberally construed.

Moreover, the policy underlying sec. 768.01 would be subverted if a plaintiff could state a claim for relief simply by alleging facts in addition to the elements of criminal conversation. As one court noted when rejecting claims for the intentional infliction of emotional distress arising out of adulterous conduct:

Assuming that [the] law now permits 'recovery for the intentional infliction of mental distress without proof of the breach of any duty other than the duty to refrain from inflicting it' . . ., strong public policy considerations militate against judicially applying these recent developments in this area of the law to the factual context of a dispute arising out of matrimonial differences. To sustain the claim for damages would result in a revival of evils not unlike those which prompted the Legislature in 1935 to outlaw actions for alienation of affections and criminal conversation . . ..

Weicker v. Weicker, 22 N.Y.2d 8, 11, 237 N.E.2d 876, 876-77, 290 N.Y.S.2d 732, 733-34 (1968) (citations omitted).

*807The evils that legislatures and courts intended to eliminate by outlawing claims of criminal conversation included the harm that claims for criminal conversation:

afforded a fertile field for blackmail and extortion by means of manufactured suits in which the threat of publicity is used to force a settlement.

W. Prosser & W. Keeton, The Law of Torts, sec. 124 at 929 (5th ed. 1984) [hereinafter The Law of Torts]. The evil of using the threat of publicity to extort settlements is not diminished simply because the plaintiff is seeking recovery under the label of emotional distress instead of the label of criminal conversation when, as in the case at bar, the facts alleged in a complaint for the former are nearly identical to the facts that would be alleged in a complaint for the latter.

Another evil which prompted legislatures and courts to abolish claims for alienation of affection and criminal conversation was that "even genuine actions of this type [alienation of affection and criminal conversation] [were] brought more frequently than not with purely mercenary or vindictive motives . . .." The Law of Torts, sec. 124 at 929. The risk of this evil is even greater in cases such as the one at bar when a child is born as a result of the criminal conversation.7

*808Furthermore, the type of injury for which Koestler seeks to recover is not the type of injury for which the law can, or should, provide a remedy. Therefore, public policy bars Koestler's claim. In Richard P. v. Superior Court, 202 Cal. App. 3d 1089, 249 Cal. Rptr. 246 (1988), the court dismissed on public policy grounds a complaint that alleged the same facts and stated the same claim as Koestler's complaint in the case at bar. The Richard P. court's analysis illustrates why claims such as Koestler's should not be allowed:

We agree with real parties in interest [the parties who stood in Koestler's position] that they have alleged words which normally would suffice to state [a] tort [cause] of action for . . . intentional infliction of emotional distress. We feel that the subject matter of the action, however, is not one in which it is appropriate for the courts to intervene. 'Broadly speaking, the word "tort," means a civil wrong, other than a breach of contract, for which the law will provide a remedy in the form of an action for damages. It does not lie within the power of any judicial system, however, to remedy all human wrongs. There are many wrongs which in themselves are flagrant. For instance, such wrongs as betrayal, brutal words, and heartless disregard of the feelings of others are beyond any effective legal remedy and any practical administration of law. ... To attempt to correct such wrongs or give relief from their effects "may do more social damage than if the law leaves them alone." ' . . .

We conclude here that any wrong which has occurred as a result of Richard's [the party who stood in Pollard's position] actions is not one which can be *809redressed in a tort action. We do not doubt that this lawsuit emanated from an unhappy situation in which the real parties in interest suffered grief. We feel, however, that the innocent children here may suffer significant harm from having their family involved in litigation such as this and that this is exactly the type of lawsuit which, if allowed to proceed, might result in more social damage than will occur if the courts decline to intervene. 'We do not believe the law should provide a basis for such interfamilial warfare.'

Id. at 202 Cal. App. 3d at 1093-94, 249 Cal. Rptr. at 249 (citations omitted).

We are persuaded by the Richard P. court's analysis. Public policy bars Koestler's claim because more harm than good will result if Koestler is allowed to pursue this action.8 Moreover, Koestler's claim is barred by the policies underlying sec. 768.01, if not by sec. 768.01 itself, because allowing claims such as Koestler's will result in many of the evils which occurred when claims for criminal conversation were allowed.

By the Court — The decision and order of the circuit court are affirmed.

SHIRLEY S. ABRAHAMSON, J.

(dissenting). Although the facts of this case might also have formerly given rise to an alienation of affection and *810criminal conversation action, I would hold that the plaintiffs claim for intentional infliction of emotional distress is not expressly barred by sec. 768.01, which eliminated alienation of affection and criminal conversation actions, and is not barred by public policy. Accordingly, I would reverse the order of the circuit court and hold that the complaint states a claim for which relief may be granted.

HH

While sec. 768.01, Stats. 1987-88, specifically abolishes all causes of action for alienation of affections and criminal conversation, it does not expressly abolish the tort action of intentional infliction of emotional distress, an action recognized in this state when sec. 768.01 was enacted. Nor does sec. 768.01 have a catch-all clause saying torts similar to alienation of affections or criminal conversation are abolished. While sec. 768.08 provides that chapter 768 shall be liberally construed to effectuate the object thereof, it does not authorize this court to rewrite sec. 768.01 to add causes of action not enumerated therein.

When I compare the plaintiffs intentional infliction of emotional distress claim with alienation of affections and criminal conversation claims, I conclude that the plaintiffs claim in this case is so dissimilar to those claims that it is not barred by sec. 768.01.1

*811The gravamen of the tort action of alienation of affections was a spouse's loss of the love, society, companionship and comfort of the other spouse. The complaining party had to prove (1) wrongful conduct by the defendant; (2) loss of affection or consortium of the spouse; and (3) a causal connection between the wrongful conduct and the loss. Dobrient v. Ciskowski, 54 Wis. 2d 419, 422, 195 N.W.2d 449 (1972). The tort focused not on the sexual intimacy of the plaintiffs spouse with the defendant but on the defendant's interference with the marital relationship that changed the plaintiff's spouse's mental attitude toward the plaintiff.2

The tort action of criminal conversation, a civil tort action for adultery, focused on the marriage. The elements of a claim for criminal conversation were (1) an actual marriage between the spouses and (2) sexual intercourse during the marriage between the defendant and the plaintiffs spouse. Schneider v. Mistele, 39 Wis. 2d 137, 140, 158 N.W.2d 383 (1968).3

In contrast to these two abolished actions, intentional infliction of emotional distress is a tort action arising from interference with the person, for injury to *812the plaintiffs well-being.4 The four elements of intentional infliction of emotional distress are: (1) the defendant's purpose was to cause the plaintiff emotional distress, (2) the defendant's conduct was extreme and outrageous, (3) the defendant's conduct was the cause in fact of the plaintiffs injury, and (4) the plaintiff suffered an extreme disabling emotional response. Anderson v. Continental Ins. Co., 85 Wis. 2d 675, 695, 271 N.W.2d 368 (1978); McKissick v. Schroeder, 70 Wis. 2d 825, 832, 235 N.W.2d 686 (1975); Alsteen v. Gehl, 21 Wis. 2d 349, 124 N.W.2d 312 (1963).5

Although a particular fact situation arising out of a marital relationship might support all three causes of action, the three causes of action are separate and distinct.

The elements of each action are different. Alienation of affections and criminal conversation actions required marriage as a predicate for the tort; both actions protected the husband-wife relationship. Intentional infliction of emotional distress neither requires nor is specifically designed to protect the marital relationship. Criminal conversation is the tort analogue to the crime of adultery; sexual conduct is an essential element of the tort. Sexual conduct is not a necessary element in an action for intentional infliction of emotional distress.

An action for alienation of affections focused on the effect of the defendant's conduct on the plaintiffs spouse. An action for criminal conversation focused on the defendant's sexual relationship with the plaintiffs spouse. An action for intentional infliction of emotional *813distress focuses on the defendant's conduct towards the plaintiff and the effect of the defendant's conduct on the plaintiff.6

The three tort actions protect different interests and compensate different injuries. In an alienation of affections or criminal conversation action the plaintiff seeks compensation for disruption of the marital relationship. In an action for intentional infliction of emotional distress, the plaintiff seeks compensation for injury to his or her own person; the severe emotional harm to the plaintiff is an essential element of the tort. The plaintiffs claim in this case alleges that the defendant caused emotional harm to the plaintiff. The plaintiff does not allege adultery or harm to his marital relationship. An alienation of affections or criminal conversation action does not require emotional harm to the plaintiff, although the fact-finder may consider emotional harm as a factor in assessing damages.

*814Because the plaintiffs claim for intentional infliction of emotional distress requires proof of different elements and redresses a different harm than an alienation of affections or a criminal conversation action, I conclude that the legislature did not abolish intentional infliction of emotional distress when it abolished alienation of affections and criminal conversation actions in sec. 768.01, Stats. 1989-90.7

hH I — I

I further conclude that the public policy considerations that impelled the legislature to abolish alienation of affections and criminal conversation actions do not require affirmance of the circuit court's dismissal of the complaint.

While the integrity of the marital relationship deserves legal protection, many states have abolished or restricted alienation of affections and criminal conversation claims by statute or judicial decision.8 These states have determined that the social harm engendered by *815these torts outweighs the goals they attempt to serve. Legislatures and commentators give several reasons for abolishing alienation of affections and criminal conversation actions.9 These reasons do not apply with the same force to the plaintiffs claim of intentional infliction of emotional distress, even though it is predicated on facts arising out of a marital relationship that might in the past have also been the basis of an alienation of affections or criminal conversation action.

First, the abolished actions were not generally credited with having a significant deterrent effect on tortious conduct or a significant effect on protecting or preserving the marital relationship. Presumably the marriage was not harmonious before the misconduct and was not apt to be improved by the threat of a civil action. In contrast, individuals considering intentionally inflicting emotional distress on another may be deterred by the prospect of a civil tort action.

Second, the abolished actions, often involving an accusation of sexual misconduct, had a great potential for abuse. The abolished actions allowed society's intrusion into the emotional, marital, and sexual aspects of individuals’ lives and may have unreasonably interfered with an individual's interest in personal privacy. The abolished actions could have been used for blackmail. The threat of reputation-damaging publicity could force *816a spouse to accept an unfavorable divorce settlement or to force the third party to pay money.

While actions for intentional infliction of emotional distress predicated on facts arising out of a marital relationship also raise the possibility of blackmail suits and intrusion into privacy, they do not carry the sanie potential for abuse as did the two abolished actions.10 One reason is that intentional infliction of emotional distress is harder to prove than the two abolished actions. In an action for alienation of affections the plaintiff was assisted by both the law's presumption of affection between the spouses and the presumption that if no affection existed between the spouses reconciliation might have been possible had the defendant not interfered. These presumptions eased the plaintiffs burden of proof and left the defendant with a difficult burden.11 In a criminal conversation action, the plaintiff had to prove only two elements and could establish adulterous conduct through circumstantial evidence. In contrast, a plaintiff who alleges intentional infliction of emotional distress must establish that the defendant intended to cause the plaintiff emotional distress, that the defendant's conduct was extreme and outrageous, and that the plaintiffs resulting emotional distress was severe. The two abolished actions required none of these elements. The elements of the tort of intentional infliction of emo*817tional distress and the difficulty of proof provide built-in safeguards to prevent its abuse.

Third, judgments in alienation of affections and criminal conversation actions compensate intangible injuries and may be excessive and arbitrary. Juries may have awarded damages in the two abolished actions to punish the defendant's misconduct rather than for the harm inflicted.

In intentional infliction of emotional distress, the measure of damage is serious emotional harm. All com-pensable personal injuries, including physical harm, pain and suffering, and emotional distress, carry the risk of excessive and arbitrary awards. Compensation for serious emotional distress is, however, the only basis for damages in an intentional infliction of emotional distress action.12 Proof of the severity of the emotional distress affords evidence of the genuineness of the distress.

Through the tort of intentional infliction of emotional distress society recognizes that emotional distress is as significant as physical injury. Our court has recognized the fact-finder's ability to assess damages in intentional infliction of emotional distress actions. See Alsteen v. Gehl, 21 Wis. 2d 349, 359, 124 N.W.2d 312 (1963).

Fourth, the difficulty of determining liability made the alienation of affections tort inequitable. In alienation of affections actions the plaintiff had to prove that the defendant was the controlling cause of the loss of affections. The tort concept of causation is too simplistic when the interest protected is the marital relationship. Marriages vulnerable to a third party's interference are *818often troubled ones for a number of reasons. Assigning blame and causation for interference with the complex relationship of marriage is extraordinarily difficult, if not impossible. To mask the difficulties of proving causation a plaintiff may manipulate the sympathies, prejudices and passions of a jury by stressing the defendant's misconduct.

The tort concept of causation is more applicable in intentional infliction of emotional distress actions because the fact-finder need not examine the complex causes of the dissolution of a marriage.

Fifth and finally, alienation of affections and criminal conversation actions rest on the outmoded view that the husband and wife are one under the law and that each has a property interest in the other's person. Alienation of affections actions derive from the master-servant action of enticement; the law treated the wife as the husband's property, and the action sought to protect the husband's interest in his wife's services. Criminal conversation, the tort version of criminal adultery, protected the husband's interest in exclusive sexual intercourse with his wife; the husband could recover damages even when the wife consented to or initiated intercourse with another man. With the adoption of the Married Women's Property Act in Wisconsin in the 19th century, the courts extended the proprietary concept of these two causes of action to wives. Unlike the two abolished actions, intentional infliction of emotional distress is not based on dated property law concepts of marriage.

Individuals may intentionally inflict emotional distress in circumstances other than the marital relationship. The plaintiffs complaint in this case does not allege an interference with the marital relationship. The defendant's conduct thus constitutes a tort separate and independent from the torts of alienation of affections *819and criminal conversation. Intentionally inflicted emotional distress is no less emotional distress and no less an actionable tort because the emotional distress was intentionally inflicted in a fact situation which may have, in another era, given rise to a claim for alienation of affections or criminal conversation.

I conclude, as several courts have concluded in similar cases, that the legislature did not intend to abolish a claim for the separate tort of intentional infliction of emotional distress when it abolished the causes of action described in sec. 768.01, because intentional infliction of emotional distress does not implicate the same public policies.13 I therefore conclude that the plaintiff should be afforded the opportunity to attempt to prove his cause of action.

*820For the reasons set forth, I dissent. I would reverse the order of the circuit court and remand the cause to the circuit court.

I am authorized to state that Chief Justice Nathan S. Heffernan joins this dissent.