SUPPLEMENTAL DISSENTING OPINION ON MOTION FOR REHEARING1
[Filed May 5, 1993]
DOGGETT, Justice.Today the majority reaffirms its recent reversal of the judgment for Susan Kerr. What has occurred here with the issuance of a revised opinion on rehearing is roughly comparable to Dan Boyles having erased those portions of the videotape featuring his friends making crude remarks, then replaying the remainder of the tape so damaging to Susan Kerr. Excising a few insensitive phrases in no way alters the insensitivity of the majority’s opinion.
Continuing to reject St. Elizabeth Hospital v. Garrard, 730 S.W.2d 649 (Tex.1987), the majority has, according to the Women and the Law Section of the State Bar of Texas, “turn[ed] back the clock to a time when the sexual exploitation of unwilling women was socially acceptable, without regard to negligently inflicted emotional distress.” Amicus Brief at 7. See also pro se amicus letter brief of a group of women dentists at 1 (“decision sends a message to the women of Texas that sexual harassment and abuse is OK”). No matter how intolerable the negligent conduct, no matter how severe the resulting emotional harm, relief is declared unwarranted. I believe that this court should not reject the respect for human dignity affirmed in St. Elizabeth Hospital.
Normally a court that boldly overrules controlling precedent to declare no duty is owed to someone like Susan Kerr at least provides some explanation of its reasoning. This the majority again steadfastly refuses to do. Even while recognizing that “certain relationships may give rise to a duty which, if breached, would support an emotional distress award,” 855 S.W.2d at 600, the majority refuses to explain why Boyles does not owe such a duty to Susan Kerr. The existence of a duty is a question of law that this court must decide. Totally ignored today is the most recent statement of the law by this court on this very subject:
In determining whether the defendant was under a duty, the court will consider several interrelated factors, including the risk, foreseeability, and likelihood of injury weighed against the social utility of the actor’s conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on the defendant. Of all these factors, foreseeability of the risk is “the foremost and dominant consideration.”
Greater Houston Transportation Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.1990) (citations omitted). The majority once again wholly refuses to analyze these factors because any fair, balanced analysis would produce a different result.2
Conceding the foreseeability of emotional harm to Susan Kerr caused by making and replaying the videotape, the majority summarily dismisses this “foremost and dominant consideration” as an inadequate basis to impose liability for unintentionally inflicted emotional distress. How, then, do the other factors weigh? What is the social utility of Boyles’ conduct? What is the *606magnitude of guarding against the injury— how difficult is it for Boyles to refrain from videotaping and displaying his secret tape compared to imposing on Kerr the obligation to protect herself by searching a room for hidden cameras? Is it too great a burden to require Boyles to be responsible for his actions?
Rather than explaining why Dan Boyles owed no duty not to negligently inflict emotional distress on Susan Kerr, the majority offers the handy excuse that it has belatedly discovered a brand new, narrowly-drawn alternative intentional infliction cause of action. Twyman v. Twyman, 855 S.W.2d 619 (Tex.1993), is seized upon as essentially a companion case to Boyles v. Kerr, then used as an excuse to avoid the question of duty here. Because Susan Kerr now has available an action for intentional infliction of emotional distress, the majority summarily declares: “It is unnecessary” to examine duty further. 855 S.W.2d at 600. This is tantamount to concluding that a court should not hold accountable one who, through negligence, discharges a loaded gun within inches of another’s head because there is a duty not to shoot intentionally. This logic fossilizes the concept of duty, precluding any further expansion and foreshadowing further retreats far beyond today’s misadventure.
Why should Boyles be held to a lesser standard than morticians and telegraph companies? 3 Why should our law of duty be irretrievably locked in a pre-video era? 4 The majority will not say. What has happened to this court’s multiple pronouncements that the common law concept of duty is not frozen or stagnant, but must change to reflect current social conditions and technological advances? 5 In turning back the clock, the majority has turned its back on those who suffer severe harm in new ways, and on women in particular. See Twyman, 855 S.W.2d at 640 (Spector, J., dissenting).
Why is the door closed for Susan Kerr? Why does her truly unfortunate situation necessitate the retreat from St. Elizabeth Hospital, which recognized a cause of action for negligently inflicted emotional distress? This abrupt reversal in the law, we discover, is not attributable to difficulties in her particular case but to the majority’s fear of “ ‘limitless liability.’ ” 855 S.W.2d at 599. '
Perhaps Justice Gonzalez is correct in asserting that insurance “played the pivotal role in this case,” 855 S.W.2d at 603 (Gonzalez, J., concurring on rehearing)— pivotal in the sense that excessive concern for the effect of every opinion on insurance companies seems to have become the predominant and overriding issue here, even to the exclusion of a woman’s most basic rights. Susan Kerr loses today because of the majority’s misdirected concern about the potential liability of insurers for some *607hypothetical rude behavior that might some day give rise to a lawsuit:
We denied recovery ... because the only theory which [Kerr] chose to assert— negligent infliction of emotional distress — was overly broad and would encompass in other cases behavior that was merely rude or insensitive.
Id. at 602. Why not await that mythical case, if and when it ever arises, to address this question? If “merely rude and insensitive” behavior is involved in some future litigation, there will be ample opportunity for this majority to say so then instead of being wholly insensitive now. If, in fact, as the majority asserts, “this Court has never upheld a recovery under the Gar-rard tort,” id. at 596, the fear of limitless liability has no foundation.
But what is most clear is that the tragic events that befell Susan Kerr — events described by the Association of Women Attorneys as “not mere name-calling” but “tantamount to rape” 6 — are all irrelevant. Indeed, the majority’s insistence on reviewing Kerr’s sexual history, a discussion wholly unnecessary to the legal issues presented, 855 S.W.2d at 594, is not dissimilar from a now rejected tactic frequently employed in the past against rape victims. See Tex. R.Crim.Ev. 412 (adopted to bar generally the common defense strategy of discussing a rape victim’s prior sexual conduct); James A. Vaught & Margaret Henning, Admissibility of a Rape Victim’s Prior Sexual Conduct in Texas: A Contemporary Review and Analysis, 23 St. Mary’s L.J. 893 (1992). Today we should focus on the facts presented here, which amply demonstrate the very real emotional harm that Susan Kerr has truly suffered. Instead, she is damned with faint empathy,7 reflecting little real concern for or understanding of her trauma.
In addition, Kerr is regrettably criticized for both relying upon a well-established cause of action under the existing decisional law of Texas and failing to pursue a claim that the majority insists it had never recognized until today’s much delayed announcement in its new companion case, Twyman. Justice Gonzalez claims Kerr took a “strategic gamble” based on “a questionable legal theory” in pursuing a negligence action under St. Elizabeth Hospital, 730 S.W.2d 649 (Tex.1987), decided two years prior to the trial, rather than for intentional infliction of emotional distress under Twyman, a decision handed down four years after the jury verdict in this case. 855 S.W.2d at 604 (Gonzalez, J., concurring on rehearing).8
Although initially recognized by the majority as a rather clear pronouncement allowing recovery for negligently inflicted emotional distress, St. Elizabeth Hospital has, for the first time on rehearing, oddly become an “anomaly” that is “not entirely clear to the bench and bar,” 855 S.W.2d at 602, and an “aberration” giving rise to “controversy and confusion.” Id. at 604 (Gonzalez, J., concurring on rehearing). Both Chief Justice Phillips and Justice Gonzalez rely primarily on federal law for this strange new proposition, citing In re Air Crash at Dallas/Ft. Worth, 856 F.2d 28 (5th Cir.1988), and the decision upon which it relies, Harmon v. Grande Tire Co., 821 F.2d 252 (5th Cir.1987). Yet the same Fifth Circuit in Blankenship v. Kerr County, 878 F.2d 893, 897 (5th Cir.1989), later made clear that the language relied upon from Harmon in the majority and concurring opinions today was “ambiguous dictum” that by no means undercut the Texas Supreme Court’s having “unambiguously declared” in St. Elizabeth Hospital the exis*608tence of a cause of action for negligent infliction of emotional distress.
Not only is federal law misrepresented, but the numerous decisions of Texas appellate courts that had no difficulty comprehending the scope of St. Elizabeth Hospital are ignored.9 Instead, the majority chooses to cite dictum from Chiles v. Chiles, 779 S.W.2d 127, 130 (Tex.App.—Houston [14th Dist.] 1989, writ denied), a single appellate opinion that is necessarily disapproved by the companion writing today in Twyman. That ease presented only the issue of intentional infliction of emotional distress and held, contrary to Twyman, that such action could not be maintained in a divorce suit. Nor did that writing dispute this court’s prior holding: “St. Elizabeth Hospital v. Garrard ... established that proof of physical injury is no longer required to recover for negligent infliction of emotional distress.” 779 S.W.2d at 130.
To bootstrap its new discovery that the law of emotional distress is racked with confusion, the majority next relies on an article that originated in the appellate briefs in this case and was written by counsel for Dan Boyles. 855 S.W.2d at 597, citing David Crump, Evaluating Independent Torts Based upon “Intentional" or “Negligent” Infliction of Emotional Distress: How Can We Keep the Baby From Dissolving in the Bath Water?, 34 Ariz. L.Rev. 439 (1992). As a final belated justification for its sudden awareness that this previously well-accepted law is now in disarray, the majority cites to Justice Gonzalez’s concurring opinion not issued until today on rehearing. Id. at 596.
This self-created uncertainty is then quickly resolved with unqualified certainty — by barring completely the well-worn path of negligent infliction to those suffering severe emotional harm. The choice of action today is presented as “overruling Garrard’s broad language outright, ... ignoring it ..., limiting the case to its facts ... or pretending that the concurring opinion was in fact the rationale of the majority.” Id. at 597. Most revealing is the majority’s failure to even consider the option of simply respecting this court’s prior decision as controlling precedent and allowing Susan Kerr to recover.
The path which the majority announces Susan Kerr should have followed — intentional infliction of emotional distress — is *609one initially rejected in this very case10 and which the author of today’s majority opinion continues personally to view as rife with “difficulties.” 11 Most likely being led down the garden path, Susan Kerr is now directed back to the trial court to pursue this new cause of action, in which those who are injured are “seldom successful.” Twyman, 855 S.W.2d at 631 (Hecht, J., dissenting).
Rejected again today is a “moderate course crafted from Texas precedent and a growing body of law nationally that would limit liability for the trivial while recompensing the truly grievous,” as outlined in my prior writing. 855 S.W.2d at 616 (Dog-gett, J., dissenting). Abolition of a well established cause of action should be a last resort employed only after modification and restriction have first been proven unsuccessful. As Justice Cornyn observes today in his companion writing in Twyman, any “well-established cause[] of action in Texas” can be attacked on grounds that
judges and juries are guided by insufficient standards, that liability may be imposed arbitrarily, that reported cases either supporting or refusing to support an award of damages disclose no uniform pattern, and that the sensitivities of aggrieved people are entirely too subjective and unpredictable.
855 S.W.2d at 622. Oddly, Justice Cornyn congratulates the plurality on rejecting such an attack in Twyman while at the same time joining identical criticism in Boyles to justify evisceration of the tort of negligent infliction of emotional distress. Not explaining this inconsistency, he declares himself enlightened keeper of the “middle ground,” who leads the court in following well established law so that Texas can become “the forty-seventh state to adopt the tort of intentional infliction of emotional distress.” Id. at 622. The false “middle ground” staked out in Twyman is between following existing Texas law permitting recovery for negligently inflicted emotional distress and rejecting an intentional tort that is “seldom successful,” id. at 631 (Hecht, J., dissenting). In disavowing the previous law of Texas, the Twyman plurality only offers women a choice between slim and none.
The majority then rewrites its excuse for refusing to affirm the judgment for Susan Kerr on alternative grounds. In its prior opinion disregarding the jury’s finding of gross negligence, the majority insisted that Kerr must lose because of her failure to submit a jury issue as to whether Boyles’ conduct was outrageous. But now this approach must be abandoned. With the recognition of a cause of action for intentional infliction of emotional distress today in Twyman that encompasses even “reckless” conduct, the majority cannot explain why the finding of gross negligence already obtained here will not support recovery.12 Nor is the majority willing to even consider a legal question that might call for their unqualified assessment of Boyles’ behavior. While professing disapproval of his conduct, the majority hastens to add that it is not “intimatpng] any holding” on the issue of whether his conduct is outra*610geous as a matter of law. 855 S.W.2d at 602.
So now the only way the majority can deny Kerr relief is to rewrite her pleadings and to disregard our procedural law that pleadings be broadly construed. Despite repeated references in Kerr’s very short petition to grossly negligent conduct, the majority incredibly concludes that Boyles did not have “fair notice” that she sought to recover for that behavior. Id. at 601. Although she described Boyles’ actions with great specificity, condemning them as “despicable” and “contemptible,” she did not use the magic word “outrageous;” the majority concludes that he then did not have “fair notice” that his conduct was beyond human decency. Id. at 601.
No credence is given to the views of those who urge the necessity and importance of preserving a cause of action for negligent infliction of emotional distress. The writings of Chief Justice Phillips and Justice Gonzalez attempt to rebut rather than to understand and analyze the many amicus briefs filed by women’s groups, id. at 601, 595, essentially suggesting that these women just took it wrong. Claiming the majority is a victim of widespread misunderstanding, Chief Justice Phillips dismisses the arguments advanced by these women nothing but “inventions” of overactive imaginations. Id. at 602. The Women’s Advocacy Project, which provides social and legal services to victims of sexual and emotional abuse, captures the widespread harm inflicted by the majority:
[T]he court has sent a message to all these Texans [who have suffered sexual and emotional abuse] that they are second class citizens. It defies logic to have a system of justice that will compensate the victim of a car wreck but that will refuse to compensate the recipients of the most devastating of emotional injuries. Perhaps more significantly, this Court has sent a message to these citizens that their injuries do not merit judicial redress, leaving them with no alternative but to take justice into their own hands.13
Instead of redress, the women of Texas today receive only excuses.
While the majority unsuccessfully attempts to rationalize the injustice done to Susan Kerr by belatedly linking her case to Twyman, Justice Gonzalez adopts a more direct approach. The real problem here, he declares, is the “posturing” of the dissent of December 2, 1992. 855 S.W.2d at 604 (Gonzalez, J., concurring on rehearing).14 He, of course, disregards the entire section IV of the majority’s original opinion attempting to rebut the substantive legal arguments of that dissent and offers no explanation of why he chose not to respond in December. Instead, on behalf of the majority he makes only passing reference to the law in his rush to come to the assistance of insurance companies.
Today’s writings seem designed to shift the focus anywhere but on the women that they affect. Chief Justice Phillips writes of future hypotheticals, id. at 603, Justice Gonzalez defends insurance companies while claiming to protect “home owners,” id. at 604, and, incredibly, Justice Cornyn claims that what is really important here is the “freedom of individual action” of people like Dan Boyles and William Twyman. Twyman, 855 S.W.2d at 622. The legal posture of this case remains unchanged; what is truly involved here is the public reaction to the majority’s prior writing, which has only generated more writing. Newspapers, not law books, appear to have *611been the principal inspiration for their new opinions.15
For her trouble, the majority imposes on Susan Kerr the obligation to pay eourt costs and reverses completely the judgment for damages awarded for the severe emotional distress she suffered when her most intimate act was videotaped and, with utter and complete disregard for her welfare, shared with others. Refusing to accept responsibility for overruling a century of Texas law in order to deny Susan Kerr recovery, then blaming the victim&emdash;this is not justice.
GAMMAGE and SPECTOR, JJ., join in this dissenting opinion.
. My dissenting opinion of December 2, 1992, is not withdrawn and the following is offered only as a supplement to that writing, a copy of which is attached as an appendix. Indeed, the magnitude of both the injustice which has occurred here and the determination of the majority to divert attention therefrom can only be fully appreciated by comparing the majority’s writing of today with that of December 2. See 36 Tex. Sup.Ct.J. 231 (Dec. 2, 1993).
. In a separate opinion today, Justice Gonzalez, the author of Greater Houston, makes no effort to reconcile or apply his prior writing, but only rationalizes the action taken here against Susan Kerr. 855 S.W.2d at 604 (Gonzalez, J., concurring on rehearing).
. See 855 S.W.2d at 597-598 (discussing previously recognized duties imposed on some not to negligently inflict emotional distress, citing "Stuart v. Western Union Tel. Co., 66 Tex. 580, 18 S.W. 351 (1885) (failure of telegraph company to timely deliver death message); Pat H. Foley & Co. v. Wyatt, 442 S.W.2d 904 (Tex.Civ.App.—Houston [14th Dist.] 1969, writ ref'd n.r.e.) (funeral home’s negligent handling of a corpse).").
. In a related context, the California Supreme Court emphasized the need for the law to keep pace with technology:
Development of photocopying machines, electronic computers and other sophisticated instruments have accelerated the ability ... to intrude into areas which a person normally chooses to exclude from prying eyes and inquisitive minds. Consequently judicial interpretations of the reach of the constitutional protection of individual privacy must keep pace with the perils created by these new devices.
Burrows v. Superior Court, 13 Cal.3d 238, 118 Cal.Rptr. 166, 529 P.2d 590, 596 (1974).
. See Reagan v. Vaughn, 804 S.W.2d 463, 465 (Tex.1990); El Chico v. Poole, 732 S.W.2d 306, 309-10 (Tex.1987); Sanchez v. Schindler, 651 S.W.2d 249, 252 (Tex.1983). See also J. Hadley Edgar, Jr. & James B. Sales, 1 Texas Torts & Remedies § 1.03 [2] (1990) (duty dependent upon “contemporary attitudes”); William W. Kilgarlin & Sandra Sterba-Boatwright, The Recent Evolution of Duty in Texas, 28 S.Tex.L.Rev. 241, 306 (1986) (“Tort law, in general, and duty, in particular, has long been the method of allocating the risks in society. When these risks change due to advanced technology and other factors, then it is necessary for duty to change as well.”).
. Amicus Brief at 1-2.
. Affecting an air of generosity, the majority recognizes that "Kerr’s injuries were not a 'trifle,' " 855 S.W.2d at 602, and condemns Boyles’ conduct as not in the "category" of " 'rude, insensitive or distasteful behavior.’ ” Id. at 602.
. Similarly regarding most recent precedent as tenuous, the majority repeatedly complains of Susan Kerr’s reliance on a previously well-accepted Texas Supreme Court opinion. See 855 S.W.2d at 602 ("[bjecause Respondent proceeded below only on the theory of negligent infliction of emotional distress’’); id. at 602 ("the only theory which she chose to assert — negligent infliction of emotional distress’’); id. at 603 (“Kerr cannot recover based on the cause of action under which she proceeded").
. See, e.g., Campos v. Ysleta Gen. Hosp., Inc., 836 S.W.2d 791, 795 (Tex.App.—El Paso 1992, writ denied) (“negligent infliction of emotional distress” is "recognized as independent theor[y] of recovery in Texas"); Dan Boone Mitsubishi, Inc. v. Ebrom, 830 S.W.2d 334, 337 (Tex.App.—Houston [14th Dist.] 1992, writ denied) ("In St. Elizabeth Hospital, the right of a plaintiff to bring suit only for negligent infliction of mental anguish was upheld.”); C.T.W. v. B.C.G., 809 S.W.2d 788, 796 (Tex.App.—Beaumont 1991, no writ) (“In the case of St. Elizabeth Hospital v. Garrard, our Supreme Court ... recognize[d] a tort of negligent infliction of mental anguish.”); State Farm Auto. Ins. Co. v. Zubiate, 808 S.W.2d 590, 599 (Tex.App.—El Paso 1991, writ denied) ("the Supreme Court fully recognized that proof of physical injury resulting from mental anguish is no longer an element of the common law action for negligent infliction of mental anguish”); Massey v. Massey, 807 S.W.2d 391, 397 (Tex.App.—Houston [1st Dist.] 1991, writ requested) (“Based upon the unlimited and unequivocal holding by the supreme court in St. Elizabeth Hospital v. Garrard, we hold that the tort of ... negligent infliction of emotional distress is an established cause of action that does not require proof of physical injury.”); McNamara v. Freedom Newspapers, Inc., 802 S.W.2d 901, 903 n. 2 (Tex.App.—Corpus Christi 1991, writ denied) ("The law of Texas also recognizes causes of action for ... negligent infliction of emotional distress.”); Dominguez v. Kelly, 786 S.W.2d 749, 753 (Tex.App.—El Paso 1990, writ denied) ("The Appellant also correctly pleads a cause of action for the negligent infliction of mental anguish as sanctioned in St. Elizabeth Hospital_”); Orkin Exterminating Co. v. Williamson, 785 S.W.2d 905, 912 (Tex.App.—Austin 1990, writ denied) (In St. Elizabeth Hospital, "[t]he Texas Supreme Court has eliminated the 'physical manifestation’ requirement as a prerequisite to the recovery of mental anguish damages in negligence actions.”); Texas Dep’t of Corrections v. Winters, 765 S.W.2d 531, 532 (Tex.App.—Beaumont 1989, writ denied) ("Damages for negligent infliction of mental anguish are now recoverable without proof of physical manifestation.”); City of Watauga v. Taylor, 752 S.W.2d 199, 204 (Tex.App.—Fort Worth 1988, no writ) ("Proof of physical injury is no longer an element of the common law action for negligent infliction of mental anguish.”); Padget v. Gray, 727 S.W.2d 706, 711 (Tex.App.—Amarillo 1987, no writ) ("Since the decision in Hill v. Kimball, 76 Tex. 210, 13 S.W. 59 (1890), Texas has recognized the right to recover for negligently inflicted emotional distress.”).
. See 36 Tex.Sup.Ct.J. at 236 n. 10 (Dec. 2, 1992) (“this Court has never expressly recognized this cause of action [for intentional infliction of emotional distress], and need not reach the issue today”). Contrary to the assertions of Justice Gonzalez, 855 S.W.2d at 603 (Gonzalez, J., concurring on rehearing), it is not my writing but the majority opinion which he joined that expressed doubt as to the existence of a cause of action for intentional infliction of emotional distress. In the few months since joining that opinion, Justice Gonzalez now pronounces intentional infliction one of the "well-established theories of recovery” that Kerr wrongly and "intentionally, gave up.” Id. at 603.
. See Twyman, 855 S.W.2d at 626 (Phillips, C.J., dissenting); this is consistent with his previous writing. See Diamond Shamrock Refining and Marketing Co. v. Mendez, 844 S.W.2d 198 (Tex.1992) (refusing to recognize intentional infliction but insisting that an employer’s falsely and deliberately spreading word that an employee was a thief would not be sufficiently "outrageous” to qualify anyway).
. I have previously explained why a finding of gross negligence was sufficient under existing Texas law to allow Susan Kerr to recover for the severe emotional distress she suffered. See 855 S.W.2d at 616 (Doggett, J., dissenting) ("As this court explained in Burk Royalty Co. v. Walls, 616 S.W.2d 911, 920 (Tex.1981), ‘"reckless disregard” and "gross negligence” are synonymous terms.’ ”).
. Amicus Brief at iii.
. This approach to issues affecting women is similar to that Justice Gonzalez has previously expressed. See Nelson v. Krusen, 678 S.W.2d 918, 935 (Tex.1984) (Gonzalez, J., concurring and dissenting) (criticizing a woman’s constitutionally-protected right to choose whether to have an abortion). Specifically, he insisted that:
Since the United States Supreme Court’s decision in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), we have witnessed a tremendous increase in the number of abortions in this country, all in the name of "free choice" or the "right of privacy." ... This policy has contributed to a "disposable society.”
Id. at 935.
. For a previous example of the effect of "newspaper pleadings” on the majority, see Edgewood Indep. Sch. Dist. v. Kirby, 804 S.W.2d 491, 502, 507 (Tex.1991) (Doggett, J., concurring on rehearing) (Appendix A).