finding the defendant’s actions of “making continuous and repeated advances towards [plaintiff’s wife] indicate[d] a conscious disregard on his part of the high degree of probability that mental distress could follow from his conduct”
How later courts described this case
- finding the defendant’s actions of “making continuous and repeated advances towards [plaintiff’s wife] indicate[d] a conscious disregard on his part of the high degree of probability that mental distress could follow from his conduct”
Written by the judges who cited it.
The opinion
Hendrickson, P.J.,
concurring in part and dissenting in part. I concur with the majority’s disposition of the first and second assignments of error, but I must dissent from their disposition of the third assignment because I am not convinced that the Supreme Court has “implicitly resurrected” civil actions for alienation of affection by recognizing actions for negligent or intentional infliction of emotional distress.
Before the advent of R.C. 2305.29, which abolished civil actions for alienation of affection, a cause of action for alienation of affections existed if the aggrieved spouse could prove that defendant “wrongfully, maliciously and intentionally enticed, induced, persuaded and caused” plaintiff’s spouse to lose affection for plaintiff.
Lewis
v.
Bauer
(App. 1964), 93 Ohio Law Abs. 457, 460 [ 29 O.O.2d 144 ]. The gist of the cause of action is the loss of the society, affection and consortium of one’s spouse by the wrongful act of another.
Smith
v.
Lyon
(1918), 9 Ohio App. 141 . Although what was compensated was not purported to be the emotional distress caused by the purposeful alienation of affections, such was strongly implied in the cause of action. Losses of “society,” “consortium” and “affection” are surely losses of an emotional nature. In fact, if it appeared that there was no “affection” between plaintiff and his or her spouse, there was nothing to alienate and no recovery could be had.
Booth
v.
Krause
(1946), 78 Ohio App. 461 [ 34 O.O. 189 ].
In response to appellant’s third assignment of error, the majority has now resurrected the civil action for alienation of affections, which was specifically abolished by statute, by assigning it a new title, namely intentional infliction of emotional distress. In order to recover, plaintiff must prove exactly what a plaintiff was previously required to prove in order to recover for alienation of affections, except that he or she must now explicitly rather than implicitly document the emotional damage inflicted by the defendant’s action. However, none of the cases cited by the majority in support of their position arose as a result of conduct which would have provided the basis for any of the amatory actions described in R.C. 2305.29.
It therefore follows that if the interests protected by the cause of action for alienation of affections are no longer interests recognized and protected by law (see
Haskins
v.
Bias
[1981], 2 Ohio App. 3d 297 ), the resurrection of these
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interests under a different name is fallacious and improper. Therefore, I find appellant’s third assignment of error not to be well-taken and would affirm the judgment rendered below.