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DAN BOYLES v. SUSAN LEIGH KERR (01/08/91)

January 8, 1991

DAN BOYLES, JR., APPELLANT
v.
SUSAN LEIGH KERR, APPELLEE



On Appeal from the 269th Judicial District Court; Harris County, Texas; Trial Court No. 86-29876.

COUNSEL

Hon. Barry A. Chasnoff, Akin, Gump, Strauss, Hauer & Feld, San Antonio, Texas, Hon. Lynne Liberato, Attorney at Law, Houston, Texas, Hon. David Crump, Johnson & Gibbs, Houston, Texas, for Appellant.

Hon. Kenneth W. Burch, Gray, Burch & Haddad, Houston, Texas, Hon. Ronald D. Krist, Attorney at Law, Houston, Texas, for Appellee.

Cornelius, C.j., Bleil and Ben Z. Grant, JJ. Opinion by Justice Ben Z. Grant.

Author: Grant

Dan Boyles, Jr. appeals from a judgment rendered against him and Karl Broesche, Ray Widner, and John Paul Tamborello*fn1 for $1,000,000 in favor of Susan Leigh Kerr. The jury awarded Kerr $250,000 for mental pain and anguish caused by the defendants' tortious acts, $250,000 for future mental pain and anguish, and $500,000 in punitive damages, which was divided among the defendants.

On appeal, Boyles brings four points of error and argues them jointly in his brief. He contends that the trial court erred in rendering judgment because the cause of action upon which the case was tried does not exist, because there was no evidence of negligence, because there was no duty which would support the finding of negligence and because the jury verdict cannot support the judgment rendered.

The evidence reflects that Boyles and Kerr went on their first date to her senior prom in May, 1985, and that the date ended in a sexual encounter. Boyles was seventeen years old at the time, and Kerr was nineteen years old. They met several times afterwards in other locations, with each meeting ending in sexual activity. On August 10, 1985, Kerr asked Boyles to accompany her to a wedding. He declined but agreed to pick her up afterwards. Before picking her up, Boyles spoke with Broesche and arranged to use Broesche's parents' home as a place to engage in sexual intercourse. Broesche suggested videotaping the activity. Boyles went to pick up Kerr while Broesche, Widner, and Tamborello set up a hidden video camera focused on the bed. While setting up the camera, the three engaged in a taped conversation, identifying each other for the camera's benefit and making vulgar comments and predictions about the activity which was about to occur. They left the room with the camera running, and later the sexual intercourse between Boyles and Kerr was videotaped.

Boyles obtained the videotape shortly after it was made, and he showed it on three different occasions in private residences to a total of ten people. Kerr testified that there was considerable gossip about the tape going around the Southwest Texas State University campus, where she attended school, and the University of Texas campus, where Boyles attended. She further testified that the gossip had spread to some of her friends at other college campuses. In early December of that year, she demanded that Boyles give her the tape, which he did.

Kerr testified that she had experienced severe emotional distress from these events, that she had been highly embarrassed, that she had experienced nightmares, shaking, dizziness and stomach upsets, and that she had difficulty working and taking her college finals. She also testified that she had some difficulty relating to men, although she testified to having had several lengthy and sexually active relationships since this occurrence.

The jury found that the defendants' negligence had proximately caused Kerr to suffer mental anguish; that the percentage of negligence attributable to Boyles was sixty percent, to Broesche was twenty percent, and to Tamborello and Widner, ten percent each; and that each of the defendants had been grossly negligent. The jury awarded exemplary damages of $350,000 against Boyles, $100,000 against Broesche, and $25,000 each against Tamborello and Widner.

We first examine Boyles' contention that the trial court erred in rendering judgment because the cause of action upon which the case was tried does not exist. Kerr went to trial on her eighth amended original petition. In that petition, she alleged that she was entitled to damages for the intentional, as well as the negligent, invasion of her privacy and the repeated public disclosure of embarrassing private matters concerning her. She also alleged that she ...


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