More information continues to be leaked to the media about Tiger Woods’ alleged mistresses, and news reports indicate that at least one of them has confirmed a long-lasting affair.
What does the law of torts say about this? Alienation of affections, criminal conversation, and reckless infliction of emotional distress immediately come to mind as potential claims that Ms.Nordegren could assert any woman who had a sexual relationship with her husband.
What is alienation of affections? In Tennessee, alienation of affections "is the willful and malicious interference with the marriage relation by a third party, without justification or excuse." Donnell v. Donnell, 220 Tenn. 169, 415 S.W.2d 127, 132 (1967). The cause of action was abolished by statute in Tennessee in 1989.
Criminal conversation is sometimes referred to as the tort of seduction. In Tennessee, "a prima facie case merely requires proof of a valid marriage between the spouses and sexual intercourse between defendant and plaintiff’s spouse during coverture." Hanover v. Ruch, 809 S.W.2d 893 (Tenn. 1991.) Hanover abolished criminal conversation as a tort in Tennessee.
Very few states still recognize these causes of action. (I do not have the time to do a 50-state search to ascertain the exact answer to the question of which states still recognize these claims.) Nor do I know how conflict of law principles would apply to the question of whether a tort claim could be brought. What do I mean by that? Well, the Woods family seems to have their principle place of residence in Florida. I do not believe either tort is recognized in Florida. But, assuming that Mr. Woods did have sexual intercourse with a woman other than his wife in a state where one or both of these causes of actions still exist, one could make an argument that the law of that state should apply and give rise to a cause of action to his wife against the mistress. Why? That is the place where the tort occurred. As indicated, this would turn on a conflict of laws question – should the governing law be the law where the tort occurred or where the injury occurred? And that in turn would depend on the law of conflicts of law in the state where such an action was filed.
The reckless infliction of emotional distress claim is a little different. Also known as the tort of outrageous conduct, it has three elements: first, "the conduct complained of must be intentional or reckless"; second, "the conduct must be so outrageous that it is not tolerated by civilized society"; and third, "the conduct complained of must result in serious mental injury." (Read more about reckless infliction of emotional distress in the opinion on the case we filed against the Diocese of Nashville concerning its efforts to conceal the acts of a priest who had abused numerous boys, Doe 1 v. Diocese of Nashville, 154 S.W.3d 22 (Tenn. 2005)). If a state abolished the torts of alienation of affections and criminal conversation on public policy grounds, it is reasonable to assume that the state would hold that a RIED claim could not be asserted for conduct that was covered by the abolished torts.
However, the more interesting issue is whether Ms.Nordegren has a RIED claim against a woman for talking to the press about the affair – which understandably would cause severe emotional distress to Tiger’s wife and his children. For instance, the press has reported that one woman supplied a voice mail and emails to the press. If this is true, one might argue that she is engaging in conduct that is outrageous. Why? When viewed In the light most favorable to the Ms. Nordegren, the mistress is deliberately giving very personal information to the media about an affair she voluntarily entered into with a man she knew was married and who had children knowing that it will be widely reported in the media- and for what purpose?
I am not excusing Tiger’s conduct, but there is no good reason I can think of for any person he was involved with during his marriage to give interviews and personal information about the relationship to the press. Such conduct simply fans the flames of a burning press – and causes more heartache for all involved. Perhaps Tiger deserves the bad publicity – maybe he deserves a swift kick in the butt – but his wife and children do not.
Now, I am not saying that Ms.Nordegren should assert any of these claims or even hire a lawyer to investigate them. Nor am I saying that she could win the claims – indeed, I can think of several potential affirmative defenses to a RIED claim. Filing such claims would simply fan the flames of the press even more and cause additional stress in an already stressful situation. At best, it would result in a judgment against a person who, after consuming their 15 seconds of fame ( which is usually followed by relentless whining about being "forced" into the public spotlight), will simply be known as a person who slept with Tiger Woods and wasn’t mature enough to keep the fact and details to herself.