OCTOBER 3, 2016
REASSIGNED ON SEPTEMBER 8, 2017
FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA THE HONORABLE ROBERT GUSINSKY
D. PASQUALUCCI Rapid City, South Dakota Attorney for
plaintiff and appellant.
TIMOTHY RENSCH of Rensch Law Office Rapid City, South Dakota
Attorneys for defendant and appellee.
JUSTICE (ON REASSIGNMENT)
Sally Richardson alleged that her husband Michael forced her
to work as a prostitute during the course of their marriage.
Sally also alleged that Michael emotionally, physically, and
sexually abused her, causing both humiliation and serious
health problems. Sally divorced Michael on the grounds of
irreconcilable differences, reserving by stipulation the
right to bring other nonproperty causes of action against
him. Following the divorce, Sally brought suit against
Michael, alleging intentional infliction of emotional
distress (IIED). The court, bound by our precedent in
Pickering v. Pickering, 434 N.W.2d 758, 761 (S.D.
1989), dismissed Sally's suit for failing to state a
claim upon which relief can be granted. We take this
opportunity to overrule Pickering and reverse and
remand the court's order dismissing Sally's suit.
and Procedural History
The circuit court did not hold any evidentiary hearings or
make any findings of fact. Because the court dismissed the
claim pursuant to Rule 12(b)(5), we reiterate the facts set
forth in Sally's complaint. In 2013, Sally worked as a
part-time escort. In February, Michael solicited Sally by
phone, but the two did not arrange a meeting. In May 2013,
Sally met Michael at a Walmart in Rapid City, South Dakota,
by happenstance. By then, Sally had ceased working as an
escort. Michael did not initially recognize her as the woman
he had solicited in February. After talking, the two decided
to schedule a date. Ultimately, Sally and Michael began a
During their relationship, Michael recognized Sally as the
person he had once solicited, and Sally disclosed her past as
an escort. In response, Michael wanted Sally to continue
working as an escort. He provided her a cellphone and
business cards and began prostituting her online through
various websites. Michael also drove Sally to her
appointments and watched her liaisons with clients through a
laptop or iPad.
Michael became physically and verbally abusive toward Sally
early on in the relationship. He repeatedly threatened to
kill Sally or himself, and in January 2014, Michael attempted
suicide. Despite continually claiming Sally could stop
working as an escort in six months' time, Michael became
violent whenever she proposed quitting. Law enforcement
received numerous 911 calls reporting domestic abuse. In May
2014, despite Michael's abusive treatment, Sally married
Michael. According to Sally, she still cared for Michael and
wanted to make the relationship work. However, Sally claimed
she continually lived in fear for her life and developed
Post-Traumatic Stress Disorder.
In addition to physical and verbal abuse, Michael sexually
abused Sally. He demanded she engage in infantilizing
conduct. Further, Michael forced Sally to perform unsafe and
demeaning sexual acts against her will. Because of this
mistreatment, Sally suffered life-threatening health
In September 2014, the two separated. Michael filed for
divorce citing irreconcilable differences, and Sally
counterclaimed for divorce based on adultery, extreme
cruelty, and habitual intemperance. The parties ultimately
settled and divorced on grounds of irreconcilable
differences. The settlement agreement contained a mutual
release; however, it provided an exception permitting either
party to pursue nonproperty causes of action against the
other. In April 2015, a decree of divorce was granted.
Approximately four months after the divorce, Sally sued
Michael for IIED. The complaint alleged that Michael engaged
in "extreme and outrageous conduct" and
"intentionally and recklessly force[d] . . . [Sally] to
continue in prostitution against [her] wishes . . . caus[ing]
[Sally] severe emotional distress." Michael moved to
dismiss for failure to state a claim and moved for summary
judgment in the alternative. Michael's motion cited
Pickering and asserted that Pickering bars
former spouses from suing each other for IIED when the claim
is based on conduct that served as the basis for the
On January 12, 2016, the circuit court held a hearing on
Michael's motion to dismiss. The court acknowledged the
severity of Michael's alleged conduct, stating, "If
true, what went on here is despicable, outrageous, and the
court can't find strong enough words to condemn
[it]." Nevertheless, the court observed that
Pickering, as a matter of public policy, prohibited
"causes of action predicated on conduct which leads to
the dissolution of marriage, even if such conduct is
severe." See 434 N.W.2d at 761. The circuit
court granted Michael's motion to dismiss for failure to
state a claim under SDCL 15-6-12(b)(5). Sally appeals,
arguing the circuit court erred in determining she failed to
state a claim upon which relief may be granted.
Sally argues that the circuit court erred in relying on
Pickering to dismiss her case. Sally contends
that Pickering does not control this case because
the facts in Pickering and the case it cites as
support, Richard P. v. Superior Court (Gerald B.),
249 Cal.Rptr. 246 (Cal.Ct.App. 1988), involved extramarital
affairs that resulted in the birth of children out of
wedlock. See Pickering, 434 N.W.2d at 761-62. In her
view, Michael's conduct warrants a different rule because
of its abusive nature. Further, Sally observes that the
Legislature previously abolished the common-law doctrine of
interspousal immunity and permitted tort suits between
spouses. Therefore, she claims that Pickering is
inconsistent with this abrogation. See Scotvold v.
Scotvold, 68 S.D. 53, 298 N.W. 266, 272 (1941)
("[A] civil action is maintainable in this jurisdiction
between husband and wife for damages for personal tort
committed by one against the other . . . ."). Sally
urges this Court to abandon its reliance on
Pickering and join the many other states that permit
a suit for tortious conduct occurring within the marriage.
In Pickering, a woman became pregnant during an
extramarital affair. When she exhibited signs of pregnancy,
she fooled her husband into believing he fathered the child.
The husband eventually learned of the deception and filed for
divorce. The husband also sued his estranged wife and her
paramour for their deceitful conduct, alleging a variety of
causes of action, including IIED. The circuit court granted
the wife summary judgment, and this Court affirmed, holding
that "the tort of [IIED] should be unavailable as a
matter of public policy when it is predicated on
conduct which leads to the dissolution of a marriage."
Pickering, 434 N.W.2d at 761 (emphasis added). While
the facts of Sally's case may be distinguishable from the
facts in Pickering, Pickering's broad
holding makes no exception for a case such as hers.
Distilled to its core, this case comes down to a single
question: Should we uphold the judicially created rule in
Pickering? We think not. Pickering is ripe
for reexamination for a number of reasons. We observe that in
deciding whether to overturn long-standing precedent, our
decision in State v. Plastow examined: (1) whether
the rule is "no longer necessary to achieve [its] valid
purposes"; (2) whether "the rule may operate to
obstruct justice"; and (3) decisions of other courts.
2015 S.D. 100, ¶¶ 15-17, 873 N.W.2d 222, 227-29.
Based in part on these criteria, we adopted a new rule
because the old rule was "too rigid in its approach, too
narrow in its application, and too capable of working
injustice[.]" Id. ¶ 19, 873 N.W.2d at 229.
So, too, is the rule in Pickering.
Here, in determining whether the Pickering rule
serves a valid purpose, we note that before this Court
decided Pickering, a victim could sue his or her
spouse for IIED because the Legislature abolished
interspousal tort immunity. Pickering, 434 N.W.2d at
763. Interspousal tort immunity is a common-law rule that
arose from the doctrine of coverture, which only allowed a
married woman to sue through the personality of her husband.
Immunity, Black's Law Dictionary (10th ed.
2014). Common law held that the unity of spouses created a
"merger of legal identity[.]" Scotvold, 68
S.D. 53, 298 N.W. at 267 (quoting William F. McCurdy,
Torts Between Persons in Domestic Relation, 43 Harv.
L. Rev. 1030, 1035 (1930)). Thus, before the Legislature
abolished interspousal immunity, it was "impossible at
common law for one spouse ever to be civilly liable to the
other for an act which would be a tort if the relation did
not exist." Scotvold, 68 S.D. 53, 298 N.W.2d at
267 (quoting McCurdy, supra, at 1033). But
the majority of states have long since abandoned this
antiquated doctrine. "[Interspousal tort immunity] was