dissenting.
[Filed Dec. 2, 1992]
[Fjreedom from severe emotional distress is an interest which the law should serve to protect.
St. Elizabeth Hospital v. Garrard, 730 S.W.2d 649, 653 (Tex.1987).
A young woman was found by a jury to have suffered severe emotional distress when her most intimate act was secretly videotaped and displayed to others. To deny her relief, the majority rewrites Texas law and recants the respect for human dignity affirmed by this court in St. Elizabeth Hospital. Having recently weakened the right to privacy1 and demonstrated its indifference to the plight of a rape victim,2 the majority now declares that in Texas no legal duty necessary to establish negligence arises from nonconsensual, surreptitious videotaping of a woman engaged in sexual intercourse. The rights of Texas women continue to slip away like sand through this majority’s fingers.
In St. Elizabeth Hospital, we recognized that an emotional loss can be “just as severe and debilitating” as a physical one. 730 S.W.2d at 653. The sexual exploitation of Susan Kerr vividly demonstrates that reality. Dan Boyles, Jr., planned an encounter with Kerr at the home of a friend, Karl Broesche, who suggested videotaping the event. While Boyles was meeting Susan Kerr, two other friends, Ray Widner and John Paul Tamborello, helped Broesche focus a hidden video camera on the bed. After recording themselves making crude jokes and vulgar predictions about the anticipated activities of Boyles and Susan Kerr, the three departed, leaving the camera operating to record the ensuing intercourse without her knowledge or consent.
The recorded tape, shown by Boyles on three occasions to various people, became a topic of conversation, particularly at each of the universities attended by the two. At social gatherings, friends and even casual acquaintances approached Susan Kerr about the video, asking “why [she] did ... it." Stigmatized with the reputation of “porno queen,” Susan Kerr alleged severe emotional distress and humiliation from the videotaping, the showing of the tape, and the ensuing notoriety. Eventually, she sought counselling for what a psychologist later diagnosed as “post-traumatic stress disorder.” A jury found that Susan Kerr had suffered severe emotional injury as a result of the negligence and gross negligence of the four men.
I.
With good reason this court has honored the principle that “freedom from severe *612emotional distress is an interest which the law should serve to protect.” St. Elizabeth Hospital, 730 S.W.2d at 654. Reviewing the outmoded rule that denied recovery unless a negligently produced emotional injury manifested itself physically, we concluded that such a restriction “arbitrarily denies court access to persons with valid claims.” Id. at 652. We thus held that “proof of physical injury resulting from mental anguish” would no longer be required to establish liability. Id. at 654.
Today, however, the majority denies Susan Kerr the protection promised by the law of Texas, criticizing her for preserving one well-established cause of action while “failpng] to assert and preserve alternative causes of action.” 855 S.W.2d at 603. Wholly disregarded is Kerr’s argument that she brought the only action against the four men who wronged her that she could legally prove. Faulting her choice of alternatives is designed solely to create the illusion that injustice is not the principal product of today’s opinion. With no other viable legal remedy available to her, Susan Kerr will, in fact, be left to resolve this “personal dispute[] through normal social means,” 36 Tex.Sup.Ct.J. at 234, however that can be arranged.
To deny Susan Kerr the relief of which the jury found she was so deserving, the majority must overrule yet another precedent. In St. Elizabeth Hospital, parents sued for negligent infliction of emotional distress resulting from a hospital’s negligent disposal of their stillborn daughter in an unmarked grave. In upholding such an action, we repeatedly referred to the “tort of negligent infliction of mental anguish.” 730 S.W.2d at 651-52. We also joined the “established trend in American jurisprudence” by rejecting as “arbitrary” and unreasonable the “physical manifestation requirement.” Id. at 654.
In overruling our prior decision, the majority diverts Texas from that national trend recognizing the physical manifestation requirement as outmoded.3 The majority’s claim that we have somehow fallen “out of step” with American jurisprudence completely misses the mark. 855 S.W.2d at 595. The only question is whether Texas steps forward as in St. Elizabeth Hospital or races backward as the majority insists. Nationally, our prior decision is considered an authority that has provided an example for other states to follow. See Gammon v. Osteopathic Hospital of Maine, Inc., 534 A.2d at 1285 & n. 7; see also Corgan v. Muehling, 158 Ill.Dec. at 495, 574 N.E.2d at 608. In the march to justice, Texas should not fear leadership.4 But rather than leading, today’s majority beats a quick retreat. If every such decision of this court is to be erased from the books as being “out of step,” Texas is doomed to last place in legal thinking.
And why the rush to retreat? The majority declares with vigor that “judicial resources” would be “strained,” 36 Tex.Sup. Ct.J. at 233, with the insignificant, the trivial, with other mere “intimate” affairs of *613the heart. 855 S.W.2d at 600. How can anyone view what happened here as just another “instance of rude, insensitive or distasteful behavior”? Id. at 601-02. When a surreptitiously produced videotape of a woman participating in sexual intercourse makes her the focus of public discussion, how can her injury be dismissed as unworthy of protection? How can the majority’s purported difficulty in “ ‘distin-guishpng] severe from nonsevere emotional harm,’ ” id. at 600, justify denying relief to Susan Kerr for the humiliation and lifelong disabling psychological disorder she suffered? How can Boyles’ conduct be so callously condoned by the majority’s announcement that they and other judges are just too busy to handle such matters? 36 Tex.Sup.CtJ. at 233.
To give this sudden and unjustifiable reversal of our jurisprudence some degree of respectability the majority employs an analysis apparently drawn from Section 436A of the Restatement (Second) of Torts (1965), a provision that has not changed since we correctly rejected it in St. Elizabeth Hospital. Three decades ago the Restatement approved a physical manifestation limitation based upon the misunderstanding that:
[Ejmotional disturbance which is not so severe and serious as to have physical consequences is normally in the realm of the trivial, and so falls within the maxim that the law does not concern itself with trifles.... so temporary, so evanescent, and so relatively harmless and unimportant, that the task of compensating for it would unduly burden the courts and the defendants.... [Ejmotional disturbance may be too easily feigned, depending, as it must, very largely upon the subjective testimony of the plaintiff; ... recovery for it might open too wide a door for false claimants who have suffered no real harm at all.
Restatement (Second) of Torts § 436A, comment b.
While a claimant can also feign physical injuries, this court does not yet deny all tort litigation on this basis. Instead, we have traditionally relied on the ability of twelve Texas citizens, empaneled as a jury, to distinguish between the fraudulent and the genuine. St. Elizabeth Hospital, 730 S.W.2d at 654. The majority’s increasing disdain for mere ordinary Texans making such determinations as jurors is once again apparent today. See 36 Tex.Sup.Ct.J. at 232 n. 2; see also Leleaux v. Hamshire-Fannett Indep. Sch. Dist., 835 S.W.2d 49, 54 (Tex.1992) (Doggett, J., dissenting); Reagan v. Vaughn, 804 S.W.2d 463, 491 (Tex.1991) (Doggett, J., concurring and dissenting). To deny a remedy to all because of the meritless actions of a few “arbitrarily den[iesj court access to persons with valid claims” and “do[esj not serve the best interests of the public.” St. Elizabeth Hospital, 730 S.W.2d at 652, 654. Certainly the existence of physical symptoms does not affect the authenticity of the emotional injury. A contrary conclusion in effect rewards the weak and punishes the strong, when the injury sustained may be identical:
Mental suffering is no more difficult to estimate in financial terms, and no less a real injury, than “physical” pain.... [Tjhe law is not for the protection of the physically sound alone.
W. Page Keeton, Prosser & Keeton on Torts § 54, at 360 (5th ed. 1984) (hereinafter Prosser & Keeton on Torts) (citations omitted).5 The degree of harm suffered does not change the nature of a wrongful act. If someone’s objectionable conduct inflicts severe emotional distress on two victims, only one of whom manifests that distress physically, why should the wrongdoer’s fault support recovery for one and not the other?
The unwarranted fear of unwarranted claims has been unequivocally rejected by one leading commentator who appropriately declared that:
[Tjhere has long been precedent enough [for emotional injury claims], and no *614great increase in litigation has been observed.
Prosser & Keeton on Torts § 54, at 360. This comports with the experience of other state courts that have not been overburdened with litigation. See James v. Lieb, 221 Neb. 47, 375 N.W.2d 109, 117 (1985); Schultz v. Barbeton Glass Co., 4 Ohio St.3d 131, 447 N.E.2d 109, 111-12 (Ohio 1983); see also Peter A. Bell, The Bell Tolls: Toward Full Tort Recovery for Psychic Injury, 36 U.Fla.L.Rev. 333, 362-65 (1984) (describing the threat of unlimited liability as a “conjured-up possibility which never materializes”). Nor is there the slightest indication that our decision in St. Elizabeth has strained Texas courts by requiring litigation of trivial claims.6
Texas need not and does not provide redress for every instance of rude or insensitive behavior that foreseeably results in hurt feelings or embarrassment. St. Elizabeth Hospital, 730 S.W.2d at 653 (extending protection to “severe” emotional injuries). We have sought to balance our desire not to expose parties to litigation over the trivial with our longstanding commitment to assuring redress for serious injuries. See id.; Hill v. Kimball, 76 Tex. 210, 13 S.W. 59, 59 (1890).
II.
Even if it feels compelled to repudiate St. Elizabeth Hospital, to reject totally “an independent cause of action ... for negligently inflicted emotional distress,”7 855 S.W.2d at 595, and to declare “there is no general duty in Texas not to negligently inflict emotional distress,” id. at 594, the majority’s refusal to recognize Susan Kerr’s claim remains groundless. She should be permitted to recover here in an ordinary negligence action, which initially requires proof of four elements: the existence of a duty, a breach of that duty, a resulting injury, and the foreseeability to a reasonably prudent person that such an injury was a likely result of the breach. See Rosas v. Buddies Food Store, 518 S.W.2d 534 (Tex.1975). Modifying these standards as they apply to cases involving emotional harm would preserve the ability of those suffering severe emotional injury to recover damages.
Ordinarily, there are a number of ways to establish a duty, including the undertaking of any conduct that could foreseeably cause an injury. In the context of psychic injuries, foreseeability alone has been viewed by some as insufficient to create an adequate duty. See Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc., 48 Cal.3d 583, 257 Cal.Rptr. 98, 102, 770 P.2d 278, 281 (1989) (foreseeability must be accompanied by a legal duty).8 Therefore, it is required that a duty be “owed the plaintiff that is assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of a relationship between the two.” Id. This duty requirement has also been expressed as “some special relationship between the plaintiff and the defendant establishing ■ a higher *615than usual duty for defendant toward plaintiff.” Hubbard v. Allied Van Lines, Inc., 540 F.2d 1224, 1230 (4th Cir.1976). Consistent with Texas law, a sufficient duty may arise from a statute or other legal obligation, or may be created when a party “voluntarily enters into an affirmative action affecting the interests of another,” and the harmful consequences of such conduct are reasonably foreseeable. Otis Engineering Corp. v. Clark, 668 S.W.2d 307, 309 (Tex.1983).9
To deter litigation over generally inoffensive or otherwise legally acceptable conduct that may produce mental anguish unaccompanied by physical injury, reference could be made to the Restatement of Torts requirement of “extreme and outrageous conduct” of either an intentional or “reckless” nature. Restatement (Second) of Torts § 46(1). See also id. § 313(1)(a); Hubbard, 540 F.2d at 1230 (conduct must be “extreme and outrageous”); Bass v. Nooney Co., 646 S.W.2d at 772; Schultz v. Barbeton Glass Co., 447 N.E.2d at 113. The Restatement also requires that the injury be “severe.” Restatement (Second) of Torts § 46; see also Marlene F., 257 Cal.Rptr. at 102, 770 P.2d at 282 (discussing “[djamages for severe emotional distress”). This conforms with our recognition in St. Elizabeth Hospital that there is a right to be free not from all psychic harm, such as that resulting from mere insults, but rather from “severe emotional distress.” 730 S.W.2d at 653. This threshold showing of injury establishes a “check on the ... conversion of] minor emotional blows into lawsuits.” Davies, Emotional Harm, at 49.
In the context of mental anguish, recovery may be had when an actor “should have realized that his conduct involved an unreasonable risk of causing the distress .... ” Restatement (Second) of Torts § 313(l)(a) (“Emotional Distress Unintended”). The requirement of foreseeability in this context has been expressed as conduct that is “likely to produce emotional distress in a person of ordinary sensibilities.” Hubbard, 540 F.2d at 1230. Inclusion of the reasonably prudent person standard avoids the specter of “compensation for the hurt feelings of the supersensitive plaintiff — the eggshell psyche.” Gammon v. Osteopathic Hosp. of Maine, Inc., 534 A.2d at 1285.
Unfortunately, today’s writing, unlike St. Elizabeth, fails to examine the relevant legal literature on emotional distress, including that which recommends permitting such an action with reasonable limitations as a part of negligence.10 If, as the majority insists, further restrictions are necessary for negligently produced mental anguish damages absent physical manifestation, these could be imposed without destroying all protection against emotional injury by the following conditions: (1) there must be some legal duty not to cause harm to another beyond that created by foreseeability of injury, such as that arising from a special relationship, a statutory duty, or from the voluntary undertaking of an affirmative action that puts another at risk; (2) that duty must be breached by conduct that is reckless, extreme or outrageous; (3) the resulting psychic harm must be severe; and (4) the likelihood of such an injury must be foreseeable to a reasonably prudent person. These standards would address in a more balanced way the majority’s single-minded interest in discouraging unmeritorious suits while maintaining the promised protection of the law to those sustaining severe emotional injuries.
*616The facts before us satisfy all of these conditions. Although Boyles clearly intended the act of engaging in intimate relations with Susan Kerr which would be videotaped, he did not intend the consequences, in this case the psychic injury suffered. Boyles stressed that he told Kerr that “he was sorry and had not meant to hurt her.” Counsel for Boyles conceded at oral argument that “certainly an argument can be made in this case that there was negligence also involved,” and that “there is evidence from which” negligence could be argued. By showing and then failing to destroy the tape, he negligently disregarded Kerr’s emotional well-being. By Boyle’s own admissions, his conduct was negligent; he did not intend to harm Kerr. Further, based on a charge defining “negligence” as “failing to do that which a person of ordinary prudence would have done under the same or similar circumstances,” the jury’s finding adequately constitutes a determination of foreseeability.
Under the circumstances presented, Boyles’ participation in the surreptitious videotaping and showing of the recording gave rise to a heightened duty of care. The majority opinion offers not the slightest explanation of why this does not create a duty not to inflict emotional distress that was breached by Boyles’ role in making, displaying, and failing to destroy the videotape, all of which conduct the jury found to constitute gross negligence, defined as:
such an entire want of care as to indicate that the act or omission in question was the result of conscious indifference to the rights, welfare or safety of the persons affected by it.
This finding of conscious indifference based on Boyles’ highly offensive behavior is sufficient to satisfy the prerequisite of outrageous or reckless conduct.11 See Underwriters Life Ins. Co. v. Cobb, 746 S.W.2d 810, 819 (Tex.App.—Corpus Christi 1988, no writ) (to recover mental anguish damages in an insurance code action “[i]t is necessary to show the tortfeasor acted knowingly or with conscious indifference”). 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.”
Similarly, there was an adequate finding of a severe emotional or psychic harm. The jury question on emotional distress defined “mental anguish” as:
[A] relatively high degree of mental pain and distress. It is more than mere disappointment, anger, resentment, or embarrassment, although it may include all of these. It includes a mental sensation of pain resulting from such painful emotion as grief, severe disappointment, indignation, wounded pride, shame, despair and/or public humiliation.12
By finding damages under this definition, the jury indicated that Kerr’s injury was not trivial or de minimis, but rather a “relatively high degree of mental pain and distress.” The severity of her injuries was supported by considerable evidence including expert testimony that this disorder would plague Kerr for the rest of her life. Hence, even if significant limitations were,,, imposed on recovery for emotional distress' in a negligence action, this jury’s findings are sufficient to support an award of damages to Susan Kerr.
In its haste to bar access to the courts, the majority prefers abolition of an action to consideration of a more 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. If restrictive standards are necessary, this court should first attempt modification and improvement, not evisceration of a cause of action. Cf. Cy*617press Creek Utility Co. v. Muller, 640 S.W.2d 860, 866 (Tex.1982).
III.
But moderation and balance are not qualities which this majority values. See, e.g., Walker v. Packer, 827 S.W.2d 833, 846 (Tex.1992) (Doggett, J., dissenting) (discussing majority’s alteration of mandamus procedures to protect those obstructing discovery while denying review to those seeking information). The only semblance of moderation associated with today’s writing is the strategic decision to overrule St. Elizabeth Hospital while apparently leaving all related law in place. This creates more anomalies than it purports to resolve.
Perhaps most curious is the majority’s insistence that it “continue[s] to reject the physical manifestation requirement.” 36 Tex.Sup.Ct.J. at 233, when, in fact, any such rejection is most narrowly limited. The majority continues to recognize recovery for negligent infliction of emotional distress without evidence of a physical injury for a few previously accepted categories such as the mistreatment of corpses or misdelivery of telegrams. See Pat H. Foley & Co. v. Wyatt, 442 S.W.2d 904 (Tex.Civ.App.—Houston [14th Dist.] 1969, writ ref’d n.r.e.) (negligent handling of corpse); Stuart v. Western Union Tel. Co., 66 Tex. 580, 18 S.W. 351 (1885) (negligent failure of telegraph company to deliver death message). See also Prosser and Keeton on Torts § 54, at 362; Cantu, Negligent Infliction, at 1565. Only because “a claimant’s right to recover” under the limited circumstances of these prior cases is left “unaffected” by today’s opinion, 855 S.W.2d at 597-98, can the majority claim it has not fully reinstituted the physical manifestation requirement.
Greater protection is thus extended to negligent mishandling of the dead than outrageous treatment of the living. Distinctions such as those between abuse to the living, whose parents may not recover for their distress, and abuse of the dead, whose parents may, are “surely no great triumph of logic.” Prosser & Keeton on Torts § 54, at 366. One commentator explains that the allowance of damages for mistreatment of corpses derives from little more than the “mysticism or aura of death.” Cantu, Negligent Infliction, at 1565. The law cannot stand on such arbitrary foundations. By recognizing the appropriateness of damages for emotional distress as a part of traditional negligence action when all necessary elements are established, arbitrary limitations can be permanently discarded so that any person directly victimized is treated no differently than the parents of dead children and the recipients of inaccurate telegrams.
What this court today classifies as a suit for personal injuries resulting from emotional harm is nothing more than a requirement that some physical injury be shown to recover in a negligence action seeking damages for emotional distress. In Moore v. Lillebo, 722 S.W.2d 683, 686 (Tex.1986), we concluded:
The physical manifestation rule has been expanded to include many symptoms. “Courts have gone to great lengths in order to find a physical injury.” Comment, Texas Bystander Recovery: In the Aftermath of Sanchez v. Schindler, 35 Baylor L.Rev. 896, 901 (1983). All manner of symptoms have qualified as physical manifestations.... Such a wide-ranging meaning has attached to “physical manifestation,” that the term has lost much of its former significance....
(Footnote added).13 The effect of today’s ruling is to preserve the holding that physical manifestation is meaningless in a wrongful death action while declaring it *618meaningful where only mere lifelong emotional harm is produced.
IV.
To the majority what happened to this woman is indistinguishable from a mere trifle or any other distress associated with daily existence. The public display of this woman’s most intimate act is compared to the termination of any “intimate relationship,” 855 S.W.2d at 600, and callously treated as just another affair of the heart. When these four men videotaped Susan Kerr during sexual intercourse, they grossly trespassed over the line of the ordinary and acceptable. And why should they not be legally accountable to her for the emotional scars inflicted by their misconduct? No answer of any kind is provided. Instead the majority disparages the victim with gratuitous comments that “[although not dating [Boyles] steadily,” Susan Kerr “shared several ... sexual encounters” soon after meeting him, id. at 594, and noting that, despite the emotional blow sustained, she “had subsequent sexually-active relationships.” Id. at 594.
While suggesting California law is “instructive,” id. at 599, the majority proceeds to disregard the fact that the definition of duty in that state is not limited to doctors, morticians and telegraph companies. But whether today’s writers looked to California or some other secret source to reject Susan Kerr’s claim, we can only surmise. No analysis or explanation of any kind is offered regarding what factors were determinative of the majority’s unilateral choice to reject Susan Kerr’s claim that these four men owed a duty not to inflict severe harm on her. The law is not irretrievably locked in the days before televisions and video-cameras, nor limited to operators of telegraphs and horse-drawn carriages. In refusing to discuss why no duty arises from Boyles’ sexual exploitation of Susan Kerr, the majority abdicates its responsibility. Until writings such as today’s, our court sought to fulfill its obligation to keep tort law apace with modern times: “The creation of new concepts of duty in tort is historically the province of the judiciary.” El Chico Corp. v. Poole, 732 S.W.2d 306, 314 (Tex.1987).14
The majority fails to acknowledge that the human psyche can be injured in a way that is every bit as real as slicing through flesh or crushing bones. Once again today’s opinion considers only one-half of the fairness equation:
And where the concern is to avoid excessive punishment upon a negligent defendant, it must be asked whether fairness will permit leaving the burden of loss instead upon the innocent victim.
Prosser & Keeton on Torts § 54, at 361. I believe we should adopt a balanced approach that strives for fairness to both. Instead, by the majority’s return to the physical manifestation rule, another “dead tort principle [has been] resuscitate[d].” See Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 18 (Tex.1992) (Doggett, J., dissenting). There I compared this reinvi-goration of such dead and unrealistic concepts to the awakening of “unthinking zombie[s] in The Night of the Living Dead,” id. at 12, and predicted that:
Like the movies, this opinion will have sequels. Unlike the movies, the havoc the court effects on our traditional tort law will cause direct harm to the lives of thousands of ordinary Texans.
Id. at 18. “Sequel” was perhaps an understatement; what is happening here is a Wednesday matinee serial where each such revisionist writing could appropriately end “To Be Continued.”
“Rude and callous behavior,” we are told, is only the price we must pay — what “must be tolerated in a free and open society.” 36 Tex.Sup.Ct.J. at 236. The conduct which occurred here has nothing to do with promoting a free and open society.
The message of the majority is clear: Don’t bother this court to separate injustice from the inconsequential, better to bar both. The cause is now remanded for Su*619san Kerr to endure the trauma of another trial “in the interest of justice.” 855 S.W.2d at 594. What a conflict in terms; no interest of justice has been served here today. I dissent.
MAUZY and GAMMAGE, JJ., join in this dissenting opinion.. Diamond Shamrock Refining and Marketing Co. v. Mendez, 844 S.W.2d 198, 213 (Tex.1992) (Doggett, J., dissenting) ("The assault on the right to privacy in Texas has begun.").
. See Delaney v. University of Houston, 835 S.W.2d 56, 61 (Doggett, J., concurring) ("rape victim relying on three-page affidavit [required] to wait seventeen months after [oral] argument [here for] a misleading answer”).
. See, e.g., Taylor v. Baptist Medical Center, Inc., 400 So.2d 369, 374 (Ala.1981); Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 398 A.2d 1180, 1184 (1986); Leong v. Takasaki, 55 Haw. 398, 520 P.2d 758, 762 (1974); Corgan v. Muehling, 143 Ill.2d 296, 158 Ill.Dec. 489, 495, 574 N.E.2d 602, 608 (1991); Lejeune v. Bayne Branch Hosp., 556 So.2d 559, 565 (La.1990); Gammon v. Osteopathic Hosp. of Maine, Inc., 534 A.2d 1282, 1285 (Me.1987); Bass v. Nooney Co., 646 S.W.2d 765, 772 (Mo.1983) (en banc); Johnson v. Supersave Markets, Inc., 211 Mont. 465, 686 P.2d 209, 213 (1984); James v. Lieb, 221 Neb. 47, 375 N.W.2d 109, 116 (1985); Ayers v. Township of Jackson, 106 N.J. 557, 525 A.2d 287, 295 (1987); Battalla v. State, 10 N.Y.2d 237, 219 N.Y.S.2d 34, 176 N.E.2d 729, 730 (1961); Johnson v. Ruark Obstetrics & Gynecology Assocs., 327 N.C. 283, 395 S.E.2d 85, 97 (1990); Paugh v. Hanks, 6 Ohio St.3d 72, 451 N.E.2d 759, 764 (1983); Hammond v. Central Lane Communications Center, 312 Or. 17, 816 P.2d 593, 598 (1991); Hunsley v. Giard, 87 Wash.2d 424, 553 P.2d 1096, 1102 (1976); Gates v. Richardson, 719 P.2d 193 (Wyo.1986); see also Barnhill v. Davis, 300 N.W.2d 104 (Iowa 1981).
. Reagan v. Vaughn, 804 S.W.2d 463, 465 n. 4 (Tex.1990) (recognizing cause of action for loss of parental consortium); see also Davenport v. Garcia, 834 S.W.2d 4, 22 (Tex.1992) (national jurisprudence benefits from contributions of individual states); Bexar County Sheriff's Civil Service Comm’n v. Davis, 802 S.W.2d 659, 668-69 (Doggett, J., dissenting) (calling for judicial initiative by Texas in resolving new legal issues).
. Accord St. Elizabeth Hospital, 730 S.W.2d at 652-54; Corgan v. Muehling, 158 Ill.Dec. at 495, 574 N.E.2d at 608; Schultz v. Barbeton Glass Co.. 4 Ohio St.3d 131. 447 N.E.2d 109. 111-13 (1983). See also Julie A. Davies, Direct Actions for Emotional Harm: Is Compromise Possible?, 67 Wash.L.Rev. 1, 24-25 (1992).
.A recovery in a negligence action following St. Elizabeth Hospital has been allowed in three other published appellate cases. See C.T.W. v. B.C.G. and D.T.G., 809 S.W.2d 788, 796 (Tex.App.-Beaumont 1991, no writ); Orkin Exterminating Co. v. Williamson, 785 S.W.2d 905, 912 (Tex.App.—Austin 1990, writ denied) (action brought both under DTPA and negligence); City of Watauga v. Taylor, 752 S.W.2d 199, 204 (Tex.App.-Fort Worth 1988, no writ). A fourth case followed St. Elizabeth Hospital, but was based on a separately actionable failure to deliver a telegram. Texas Dep’t of Corrections v. Winters, 765 S.W.2d 531, 532 (Tex.App.-Beaumont 1989, writ denied). In two other reported cases, recovery in negligence was found not to be warranted under the facts of the case. See Dominguez v. Kelly, 786 S.W.2d 749, 753 (Tex.App.-El Paso 1990, writ denied) (a proper cause of action was stated, but existence of a duty was never shown); Buffalo Marine Serv., Inc. v. Monteau, 761 S.W.2d 416, 425 (Tex.App.-Houston [14th Dist.] 1988, no writ) (recovery denied).
. Although in St. Elizabeth Hospital, we discussed recovery for emotional distress damages as a separate tort, it is more properly viewed as an element of damages in a general negligence action. See Johnson v. Ruark Obstetrics & Gynecology Assocs., 395 S.E.2d at 97.
. See Davies, Emotional Harm, at 25. But see Peter A. Bell, The Bell Tolls: Toward Full Tort Recovery for Psychic Injury, 36 U.Fla.L.Rev. 333, 362-65 (1984); Virginia E. Nolan & Edmund Ersin, Negligent Infliction of Emotional Distress: Coherence Emerging from Chaos, 33 Hastings LJ. 583, 609-11 (1982).
. Maintaining a duty requirement ensures that "recovery of damages can be achieved without triggering potentially limitless liability, and hence is not unfair to defendants,” Davies, Emotional Harm, at 51, while ensuring the standard’s flexibility avoids a static and unresponsive rule of law. Id.
. See, e.g., Julie A. Davies, Direct Actions for Emotional Harm: Is Compromise Possible?, 67 Wash.L.Rev. 1, 49-53 (1992) (hereinafter Davies, Emotional Harm); Charles E. Cantu, Negligent Infliction of Emotional Distress: Expanding the Rule Evolved Since Dillon, 17 Tex.Tech L.Rev. 1557, 1574-76 (1986) (hereinafter Cantu, Negligent Infliction); Peter A. Bell, The Bell Tolls: Toward Full Tort Recovery for Psychic Injury, 36 U.Fla.L.Rev. 333, 334-35 (1984); Virginia E. Nolan & Edmund Ersin, Negligent Infliction of Emotional Distress: Coherence Emerging from Chaos, 33 Hastings LJ. 583, 609-21 (1982).
. This heightened culpability addresses the only other justification for the physical manifestation rule advanced in Restatement (Second) of Torts § 436A comment b.
. This definition of mental anguish has been applied rather consistently, and comports with our definition in Burk Royalty Co., 616 S.W.2d at 920. See, e.g., How Ins. v. Patriot Fin. Servs., 786 S.W.2d 533, 542 (Tex.App.—Austin 1990, writ denied); Cobb, 746 S.W.2d at 819; Roberts v. U.S. Home Corp., 694 S.W.2d 129, 136 (Tex.App.—San Antonio 1985, no writ); Trevino v. Southwestern Bell Tel. Co., 582 S.W.2d 582, 584 (Tex.Civ.App.—Corpus Christi 1979, no writ).
. This court has not hesitated to permit recovery when emotional harm produces any physical symptoms. See, e.g., Gulf, C. & S.F. Ry. Co. v. Hayter, 93 Tex. 239, 54 S.W. 944, 944 (Tex.1900) (permitting recovery for fatigability, lack of energy, various aches and pains, and disinclination to activity); Houston Electric Co. v. Dor-sett, 145 Tex. 95, 194 S.W.2d 546, 546 (1946) (physical manifestation shown by "extreme nervousness, severe headaches, lapse of memory and brain deterioration”). See also Moore, 722 S.W.2d at 686 ("embarrassment” and "humiliation” suffice in other jurisdictions).
. This refusal to impose a duty to prevent outrageous and harmful conduct is not, however, a new phenomenon. See Greater Houston Transportation Co. v. Phillips, 801 S.W.2d 523, 527-28 (Tex.1990) (Doggett, J., dissenting).