§54.2 Cases Arising From Injuries to Another – Unwitnessed

The Case: Eskin v. Bartee , 262 S.W.3d 727, No. W2006-01336-SC-R11-CV, 2008 WL 3504934 (Tenn. Aug. 14, 2008).

The Facts: Mother came upon accident scene and saw her injured son laying a pool of blood suffering from injuries that occurred when he was struck by an automobile. The injured boy's brother was with his mother. Both of them filed a claim against the driver of the automobile that struck the son/brother for negligent infliction of emotional distress.

The Bottom Line:

• "[W]e have determined that it is appropriate and fair to permit recovery of damages for the negligent infliction of emotional distress by plaintiffs who have a close personal relationship with an injured party and who arrive at the scene of the accident while the scene is in essentially the same condition it was in immediately after the accident." 2008 WL 3504934 at *8.
• "Our decision is premised on two considerations. First, we have historically recognized that it is easily foreseeable that persons who have a close personal relationship with an injured party will suffer serious or severe emotional distress when they see someone 'near and dear' to them injured. Ramsey v. Beavers, 931 S.W.2d at 529; Shelton v. Russell Pipe & Foundry Co., 570 S.W.2d at 866. While we have not explained the basis for this recognition at great length, we find that the Supreme Court of New Jersey provided an eloquent explanation when it noted that

  [t]he knowledge that loved ones are safe and whole is the deepest wellspring of emotional welfare. Against that reassuring background, the flashes of anxiety and disappointment that mar our lives take on softer hues. No loss is greater than the loss of a loved one, and no tragedy is more wrenching than the helpless apprehension of the death or serious injury of one whose very existence is a precious treasure. The law should find more than pity for one who is stricken by seeing that a loved one has been critically injured or killed.

  Portee v. Jaffee , 417 A.2d 521, 526 (N.J. 1980)." Id.
• "The second consideration is the lack of a principled basis to differentiate between a parent who sees or hears the accident that seriously injures or kills his or her child and a parent who sees his or her injured or dead child at the scene shortly after the accident. It defies reason that the mental distress of the latter parent is less than the former parent." Id. at *9.
• "When a plaintiff did not witness the injury-producing event, the cause of action for negligent infliction of emotional distress requires proof of the following elements: (1) the actual or apparent death or serious physical injury of another caused by the defendant's negligence, (2) the existence of a close and intimate personal relationship between the plaintiff and the deceased or injured person, (3) the plaintiff's observation of the actual or apparent death or serious physical injury at the scene of the accident before the scene has been materially altered, and (4) the resulting serious or severe emotional injury to the plaintiff caused by the observation of the death or injury.^FN30 In reaching this conclusion, we do not intend to overrule our holdings in Camper v. Minor or Lourcey v. Estate of Scarlett that plaintiffs who witness the injury-producing event may recover without demonstrating the existence of a close and intimate personal relationship with the deceased or injured person.

  FN30 '... In light of our express desire to fashion objective standards that can be used at the prima facie stage to separate meritorious from nonmeritorious claims, Camper v. Minor, 915 S.W.2d at 445; Carroll v. Sisters of Saint Francis Health Servs., Inc., 868 S.W.2d at 594, we have incorporated the objective standards as integral elements of the cause of action. By doing so, it is our intention to enable courts in future cases to determine at an early stage whether a plaintiff should be permitted to pursue a negligent infliction of emotional distress claim. Having removed those objective standards from our duty analysis, we conclude that they are no longer matters of law to be determined by the trial court. See Staples v. CBL & Assoc., Inc., 15 S.W.3d at 89 (holding that the existence of duty is a legal issue to be determined by the courts). Rather, each of the objective standards presents a factual issue to be determined by the finder of fact.'"

  Id.
• "The required relationship between the plaintiff and the deceased or injured person is not necessarily limited to relationships by blood or marriage. While a parent-child relationship, a spousal relationship, a sibling relationship, or the relationship among immediate family members provides sufficient basis for a claim, other intimate relationships such as engaged parties or stepparents and step-children will also suffice. The burden is on the plaintiff to prove the existence of the close and intimate personal relationship, and the defendant may contest the existence of the relationship.^FN31

  FN31 For example, a biological parent who, as a practical matter, has no relationship with a child may not pursue a negligent infliction of emotional distress claim should he or she happen to see the child at the scene of an accident. The existence of a relationship in name only, without the accompanying intimate emotional bonds is not sufficient to support the claim we recognize today."

  Id.

Other Sources of Note: This section only addresses negligent infliction of emotional distress claims arising out of circumstances where the plaintiffs did not witness the injury causing event. Section 54.1 deals with these claims when the plaintiff actually witnessed the event.