Session March 22, 2017
from the Circuit Court for Davidson County No. 14C2903 Joseph
P. Binkley, Jr., Judge
trial court granted partial summary judgment to the defendant
hospital on the ground that the plaintiffs could not
establish that they witnessed or perceived an
injury-producing event for purposes of their negligent
infliction of emotional distress claims. We hold that the
alleged failure of the defendant hospital to provide care to
the plaintiffs' daughter, despite repeated assurances
from the hospital that it would occur, constitutes an
injury-producing event that was witnessed by plaintiffs.
Accordingly, the trial court erred in dismissing
plaintiffs' negligent infliction of emotional distress
claims on this basis.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Reversed and Remanded
K. Smith v. Karen M. Campbell, Memphis, Tennessee, for the
appellants, Rodney Henderson, and Tammy Henderson.
A. Wiseman and Kimberly G. Silvus, Nashville, Tennessee, for
the appellee, The Vanderbilt University.
Steven Stafford, P.J., W.S., delivered the opinion of the
court, in which Kenny Armstrong, J., joined.
STEVEN STAFFORD, JUDGE
Rodney and Tammy Henderson, individually and on behalf of
their deceased minor daughter ("Appellants"), filed
a complaint against Defendant/Appellee The Vanderbilt
University ("Vanderbilt") on July 7, 2014. Therein,
Appellants alleged that their ten-year old daughter, Halle,
was admitted to the Vanderbilt Pediatric Intensive Care Unit
("PICU") for septic shock related to the flu on
March 23, 2013. Although the child was given fluids and other
medicines, "[n]o central line was placed, no
echocardiogram was performed; no one called for a cardiology
consult." In the evening of March 24, the child's
care was transferred from the attending physician to a
resident. The complaint alleged that after that time, the
attending physician did not see the child. In the morning of
March 25, Appellants alleged that they witnessed their
daughter go into cardiac arrest. After two hours of CPR, the
child was placed on extracorporeal membrane
oxygenation. Appellants alleged that after the
arrest, the child's condition continued to deteriorate.
During a procedure on April 4, 2013, the child suffered a
stroke and was ultimately diagnosed with brain death.
Accordingly, Appellants stated that "a decision was made
to withdraw care." As a result, the child passed away on
April 5, 2013.
complaint alleged various forms of negligence against
Vanderbilt, all generally relating to Vanderbilt's
failure "to provide reasonable medical care and
treatment and services" to the child. In addition to a
wrongful death claim, Appellants also included a claim for
negligent infliction of emotional distress
("NIED"). Only Appellants' NIED claim is at
issue in this appeal.
filed an answer on September 12, 2014. Relevant to this
appeal, Vanderbilt denied that it, its employees, or its
agents committed any negligence and averred that Appellants
failed to state a claim upon which relief could be granted
with regard to their NIED claim. Mr. Henderson's
deposition was taken on August 28, 2015. Therein, Mr.
Henderson detailed the medical treatment provided to his
daughter leading up to her cardiac arrest on the morning of
March 24, 2013, and her eventual death on April 5, 2013.
According to Mr. Henderson, he and his wife repeatedly asked
that the child receive additional care during the
approximately twelve hours between her admittance to
Vanderbilt and her arrest. Specifically, Mr. Henderson
testified that he spoke with Vanderbilt staff about the child
receiving a cardiology consult at 1:00 a.m., 2:00 a.m., 3:00
a.m., and 4:15 a.m. At around 5:00 a.m., Mr. Henderson was in
the hallway speaking with a doctor again about the promised
cardiology consult, while Mrs. Henderson was in the
child's room. At this time, the child went into cardiac
arrest. Mr. Henderson testified that although he was in the
hallway, he heard his wife screaming and the child's
machines sounding. Mr. Henderson further testified that he
saw the child "arch up" and urinate during the
cardiac arrest. Mr. Henderson and his wife stayed in the room
for a few minutes while doctors and nurses rushed in but were
soon ushered into the hallway. Mr. Henderson testified that
they later learned that Vanderbilt staff performed CPR on the
child for over an hour. Mr. Henderson described the
child's cardiac arrest as "a shock."
Henderson testified that the trauma from the ordeal and the
child's death has been devastating for his family. Mr.
Henderson takes medication for depression and anxiety but was
eventually able to return to work after several months. The
same was not true for Mrs. Henderson. According to Mr.
Henderson, Mrs. Henderson takes up to four Xanax per day to
cope with her depression and anxiety, which prevents her from
taking care of Appellants' other child. In addition, Mr.
Henderson testified that Mrs. Henderson twice attempted to
end her life, resulting in in-patient psychiatric treatment.
Mr. Henderson explained that Mrs. Henderson now reads her
Bible and goes to church but otherwise does not participate
in the daily activities of life.
6, 2016, Vanderbilt filed a motion for partial summary
judgment, arguing that Appellants' NIED claim should be
dismissed because Appellants had not witnessed an
injury-producing event necessary to sustain their NIED claim.
Specifically, Vanderbilt asserted that the only
"event" that formed the basis of the NIED claim was
"complications, " which is insufficient to serve as
the factual predicate for an NIED claim. Vanderbilt also
asserted that Appellants did not witness the actual event
that caused the child's death-her stroke-nor did
Appellants witness the efforts to resuscitate the child after
her cardiac arrest. Attached to Vanderbilt's motion was a
statement of undisputed material facts. Therein, Vanderbilt
admitted that Appellants were with the child "nearly the
entire time that she was in the PICU, " and that
Appellants "were present when their daughter arrested,
but they were ushered out of their daughter's room when
the physicians and nurses responded to that event."
responded in opposition, arguing that Vanderbilt incorrectly
characterized the child's stroke as the sole cause of her
death. Rather, Appellants alleged that Vanderbilt's
failure to appropriately treat the child's shock caused a
chain reaction that ultimately led to the child's stroke
and death. According to Appellants, had the child's shock
been appropriately managed, the child would not have gone
into cardiac arrest, would not have had a stroke, and would
not have died. As such, Appellants asserted that they had
witnessed the injury-producing event, which Appellants
defined as "multiple care failures, " and the
deterioration and suffering of the child, while Mr. Henderson
repeatedly requested a cardiology consult.
support, Appellants submitted the affidavit of an expert who
opined that the child's death was caused by
Vanderbilt's failure to appropriately manage the
child's shock. According to the expert, had Vanderbilt
appropriately managed the shock, "it is more probable
than not that the child would not have reached the point of
suffering a cardiac arrest or any of the other complications
that resulted in her death." Appellants also submitted
the affidavits of three experts to support their claims of
severe emotional injuries. A psychiatrist who had performed
consultations on Appellants stated that Ms. Henderson
specifically cited "March 24, 2013" as her
"chief complaint" and the cause of her severe
depression and anxiety. Likewise, a licensed psychiatric
nurse practitioner who was providing treatment for Appellants
detailed their severe emotional injuries and opined that
these injuries resulted from the events of "what
transpired at Vanderbilt" leading to the child's
cardiac arrest and eventual death.
Appellants generally agreed with Vanderbilt's statement
of undisputed material facts for purposes of summary
judgment, Appellants submitted their own statement of facts,
which they argued were undisputed. This statement detailed
the suffering of the child leading up to her death, Mr.
Henderson's multiple requests for a cardiology consult,
Appellants' medical expert's opinion that the
child's death was a result of untreated shock, and
Appellants' experts' opinions regarding the resulting
severe emotional harm to Appellants. Specifically, Appellants
alleged that in the hours prior to her cardiac arrest, the
child was complaining that her chest was hurting and that she
was having difficulty breathing. At one point, the child
informed Mrs. Henderson that she was "scared."
According to Appellants, the child was also "panting
like an animal" and out of breath. Appellants further
alleged that they witnessed the child's distress,
understood that her heart rate was abnormal, and repeatedly
questioned Vanderbilt's staff about her not receiving any
treatment or testing. Appellants also asserted that
Vanderbilt staff repeatedly assured Mr. Henderson that a
cardiology consultation had been ordered. Nevertheless, no
cardiology consultation occurred prior to the child's
cardiac arrest. As a result, Mr. Henderson alleged that he
was "quite upset" even before the child went into
regard to Appellants' emotional injuries, Appellants'
statement of undisputed material facts contained the opinions
of three qualified experts, a licensed social worker, a
psychiatrist, and a psychiatric mental health nurse
practitioner. The experts were in agreement that Appellants
both suffered severe or serious emotional injuries. As to the
cause of these injuries, the experts generally pointed to
"the events of March 23, 2013 and March 24, 2013 in
which [the child] suffered from shock and ultimately went
into cardiac arrest." In reaching this conclusion, both
the psychiatrist and the licensed social worker noted that
parents were present when the child's condition
deteriorated and that Appellants "were expressing great
worry and asking health care providers for additional care
measures." Vanderbilt later admitted all of
Appellants' undisputed material facts for purposes of the
motion for partial summary judgment.
trial court held a hearing on the motion for partial summary
judgment on August 16, 2016. At the conclusion of the
hearing, the trial court orally ruled that it was granting
Vanderbilt's partial motion for summary judgment. A
written order was entered incorporating the trial court's
oral ruling on September 2, 2016. In granting partial summary
judgment to Vanderbilt on Appellants' NIED claim, the
trial court ruled that Appellants "were not in
sufficient proximity to the injury-producing event and did
not meaningfully comprehend the injury producing event."
Specifically, the trial court ruled that because Appellants
did not observe or comprehend the injury-producing event,
which the trial court characterized as Vanderbilt's
"inadequate medical care over a period of approximately
[twelve] hours leading up to the seizure and cardiac arrest,
" their claim for NIED could not lie. In reaching this
result, the trial court relied on a California Supreme Court
case, Bird v. Saenz, 51 P.3d 324 (Cal. 2002), which
held that in order to sustain an NIED claim, the plaintiff
must have been aware of the defendant's negligence at the
time of the injury-producing event. On the same day, the
trial court granted Appellants' request for an
interlocutory appeal. This Court likewise granted
Appellants' request for an interlocutory appeal on
September 28, 2016.
case presents a single issue: whether the trial court erred
in granting Vanderbilt's motion for partial summary
judgment with regard to Appellants' NIED
claims. Summary judgment is appropriate where:
(1) there is no genuine issue with regard to the material
facts relevant to the claim or defense contained in the
motion; and (2) the moving party is entitled to judgment as a
matter of law on the undisputed facts. Tenn. R. Civ. P.
56.04. Our Supreme Court in Rye v. Women's Care
Center of Memphis, MPLLC recently explained the
burden-shifting analysis to be employed by courts tasked with
deciding a motion for summary judgment:
[I]n Tennessee, as in the federal system, when the moving
party does not bear the burden of proof at trial, the moving
party may satisfy its burden of production either (1) by
affirmatively negating an essential element of the nonmoving
party's claim or (2) by demonstrating that the nonmoving
party's evidence at the summary judgment stage
is insufficient to establish the nonmoving party's claim
or defense. We reiterate that a moving party seeking summary
judgment by attacking the nonmoving party's evidence must
do more than make a conclusory assertion that summary
judgment is appropriate on this basis. Rather, Tennessee Rule
56.03 requires the moving party to support its motion with
"a separate concise statement of material facts as to
which the moving party contends there is no genuine issue for
trial." Tenn. R. Civ. P. 56.03. "Each fact is to be
set forth in a separate, numbered paragraph and supported by
a specific citation to the record." Id. When
such a motion is made, any party opposing summary judgment
must file a response to each fact set forth by the movant in
the manner provided in Tennessee Rule 56.03. "[W]hen a
motion for summary judgment is made [and] . . . supported as
provided in [Tennessee Rule 56], " to survive summary
judgment, the nonmoving party "may not rest upon the
mere allegations or denials of [its] pleading, " but
must respond, and by affidavits or one of the other means
provided in Tennessee Rule 56, "set forth specific
facts" at the summary judgment stage
"showing that there is a genuine issue for trial."
Tenn. R. Civ. P. 56.06.
Rye v. Women's Care Ctr. of Memphis, MPLLC, 477
S.W.3d 235, 264-65 (Tenn. 2015) (judicially adopting a
summary judgment parallel to the statutory version contained
in Tenn. Code Ann. § 20-16-101); see also Tenn.
Code Ann. § 20-16-101 (applying to cases filed after
July 1, 2011).
on appeal, this Court reviews a trial court's grant of
summary judgment de novo with no presumption of correctness.
See City of Tullahoma v. Bedford Cnty., 938 S.W.2d
408, 412 (Tenn. 1997). In reviewing the trial court's
decision, we must view all of the evidence in the light most
favorable to the nonmoving party and resolve all factual
inferences in the nonmoving party's favor. Luther v.
Compton, 5 S.W.3d 635, 639 (Tenn. 1999); Muhlheim v.
Knox. Cnty. Bd. of Educ., 2 S.W.3d 927, 929 (Tenn.
1999). If the undisputed facts support only one conclusion,
then the court's summary judgment will be upheld because
the moving party was entitled to judgment as a matter of law.
See White v. Lawrence, 975 S.W.2d 525, 529 (Tenn.
1998); McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn.
put, an NIED claim is an avenue for a plaintiff to recover
for emotional injuries that result from another's
negligence. See generally Marla H. v. Knox Cty., 361
S.W.3d 518, 528-29 (Tenn. Ct. App. 2011); Negligent
conduct causing emotional injury-In general, 4 Modern
Tort Law: Liability and Litigation § 32:13 (2d ed.).
Despite this seemingly simple explanation, Tennessee courts
have often remarked that the law surrounding NIED claims is
murky and difficult. See Ramsey v. Beavers, 931
S.W.2d 527, 530 (Tenn. 1996) (describing NIED as an
"interesting, but difficult, area of the law");
Camper v. Minor, 915 S.W.2d 437, 440 (Tenn. 1996)
(describing NIED law at the time as "inconsisten[t] and
incoheren[t]"). From 1996 to 2008, the Tennessee Supreme
Court addressed the substantive merits of NIED claims on
seven occasions. See generally Flax v. DaimlerChrysler
Corp., 272 S.W.3d 521 (Tenn. 2008); Eskin v.
Bartee, 262 S.W.3d 727 (Tenn. 2008); Lourcey v.
Estate of Scarlett, 146 S.W.3d 48 (Tenn. 2004);
Estate of Amos v. Vanderbilt Univ., 62 S.W.3d 133
(Tenn. 2001); Bain v. Wells, 936 S.W.2d 618 (Tenn.
1997); Ramsey, 931 S.W.2d 527; Camper, 915
S.W.2d 437. Vanderbilt argues that Appellants now desire to
"change" Tennessee law by "[e]xpanding the
application of [the NIED] tort claim[.]" To allow the
claim in this case, Vanderbilt contends, would "undo
twenty years of precedent" and inject uncertainty into
NIED law. In contrast, Appellants assert that Vanderbilt
seeks to impose a new limitation on NIED claims that has
never before been recognized by Tennessee courts. In support,
Appellants note that the main support for Vanderbilt's
argument comes from outside our jurisdiction. Accordingly,
Appellants ask this court to reject Vanderbilt's effort
to place new limitations on otherwise meritorious NIED claims
in furtherance of the Tennessee Supreme Court's clear
effort to "expand the ability of bystanders to recover
damages" for emotional injuries. Eskin, 262
S.W.3d at 735. In order to determine this question, a review
of NIED jurisprudence is helpful.
Tennessee Supreme Court's first expansion of the NIED
tort occurred in Camper v. Minor. In
Camper, the Tennessee Supreme Court rejected
Tennessee's previously adopted "physical impact
rule" as "seriously flawed." Camper,
915 S.W.2d at 441. Accordingly, rather than requiring that
the plaintiff suffer a physical injury in addition to
emotional damages as a result of the defendant's conduct,
the Camper court recognized for the first time that
emotional injuries could be serious and yet not accompanied
by physical injuries. Id. at 446. In order to
balance the need to compensate those who have sustained
emotional injuries as a result of the negligence of others
with the need to "winnow out" frivolous claims at
the summary judgment stage, the Camper court
considered several other methods of delineating meritorious
claims from those not allowed under Tennessee law, such as
the physical manifestation rule, the zone of danger rule, the
foreseeability approach, and the general negligence approach.
Id. at 440-443. Ultimately, the Camper
court adopted the general negligence test, coupled with a
requirement that the plaintiff's emotional injuries be
serious or severe. Accordingly, the Camper court
adopted the following rule:
[T]he plaintiff must present material evidence as to each of
the five elements of general negligence-duty, breach of duty,
injury or loss, causation in fact, and proximate, or legal,
cause. . . in order to avoid summary judgment. Furthermore,
we agree that in order to guard against trivial or fraudulent
actions, the law ought to provide a recovery only for
"serious" or "severe" emotional injury. .
. . A "serious" or "severe" emotional
injury occurs "where a reasonable person, normally
constituted, would be unable to adequately cope with the
mental stress engendered by the circumstances of the
case." . . . Finally, we conclude that the claimed
injury or impairment must be supported by expert medical or
scientific proof. . . .
Camper, 915 S.W.2d at 446 (citations omitted). Thus,
a plaintiff raising an NIED claim must present evidence
regarding the essential elements of negligence, as well as a
severe or serious emotional injury. The injury element is
subject to a heightened standard of proof requiring expert
medical or scientific evidence to support the injury.
reaching this result, the Camper Court noted the
policy that would guide the Tennessee Supreme Court and this
Court for the next thirty years: to avoid arbitrary rules
that eliminate otherwise meritorious NIED claims. Indeed, the
Tennessee Supreme Court specifically noted it was rejecting
the physical impact rule as "an arbitrary and inadequate
means of reconciling the competing concerns of the law."
Camper, 915 S.W.2d at 442. The Court specifically
held that it and other similar requirements were
"underinclusive" in that they "unfairly and
arbitrarily exclude plaintiffs with meritorious claims of
serious emotional injury." Id. With
Camper, the Tennessee Supreme Court's first
expansion of the tort of NIED was complete.
doorway nudged open by the Camper court was soon
enlarged. Less than a year after issuing its decision in
Camper, the Tennessee Supreme Court authored a
second opinion regarding NIED claims. See Ramsey v.
Beavers, 931 S.W.2d 527, 530 (Tenn. 1996). In
Ramsey, the Tennessee Supreme Court expressly
recognized a new class of NIED claims-bystander claims. The
plaintiff in Ramsey witnessed the death of his
mother in an automobile accident. Unlike the plaintiff in
Camper, however, the Ramsey plaintiff was
not involved in the accident and therefore was not a victim
of the defendant's negligence except to the extent of his
emotional injuries resulting from witnessing his mother's
death. Id. The Tennessee Supreme Court again applied
the general negligence test, reaffirming that such a test is
intended to "dissolve rigid, often nonsensical . . .
requirements." Id. at 531.
Ramsey court therefore held that, in a bystander
case, the plaintiff must establish, in addition to the
essential elements of negligence, that the defendant's
negligence was the cause in fact and proximate cause of the
third party's death or serious injury "as well
as plaintiff's emotional injury." Id.
In this regard, both the third party's injury and the
plaintiff's emotional injury must be the "proximate
and foreseeable results of [the] [tortfeasor's]
negligence." Id. Particularly instructive was
the Ramsey court's discussion of the
foreseeability prong of the general negligence test:
Establishing foreseeability, and therefore a duty of care to
plaintiff, requires consideration of a number of relevant
factors. The plaintiff's physical location at the time of
the event or accident and awareness of the accident are
essential factors. Obviously, it is more foreseeable that one
witnessing or having a sensory observation of the event will
suffer effects from it. As has been explained:
The impact of personally observing the injury-producing event
in most, although concededly not all, cases distinguishes the
plaintiff's resultant emotional distress from the emotion
felt when one learns of the injury or death of a loved one
from another, or observes pain and suffering but not the
traumatic cause of the injury.
Thing v. La Chusa, 48 Cal.3d 644, 257 Cal.Rptr. 865,
879, 771 P.2d 814, 828 ([Cal.] 1989). Thus, plaintiff must
establish sufficient proximity to the injury-producing event
to allow sensory observation by plaintiff.
Ramsey, 931 S.W.2d at 531 (footnote omitted). In
determining the foreseeability of the plaintiff's
emotional injuries, the Tennessee Supreme Court also directed
that courts should consider the degree of injury to the third
person and noted that a compensable emotional injury most
likely occurs "'[w]hen confronted with accidental
death[.]'" Id. (quoting Portee v.
Jaffee, 84 N.J. 88, 417 A.2d 521, 528 (N.J. 1980)).
Finally, the Ramsey court indicated that another
significant factor was the "plaintiff's relationship
to the injured third party." Ramsey, 931 S.W.2d
next NIED case considered by the Tennessee Supreme Court was
Bain v. Wells, 936 S.W.2d 618 (Tenn. 1997). In
Bain, a patient sued the defendant medical providers
for NIED alleging that he was emotionally injured when he was
placed in the same hospital room with another patient
infected with human immunodeficiency virus ("HIV")
without giving warning or obtaining consent. Id. at
620. The defendant medical providers filed a motion for
summary judgment, arguing, inter alia, that the
plaintiff patient was not actually exposed to HIV and should
have had no reasonable fear of contracting the virus.
Id. at 621. The trial court denied the motion for
summary judgment but allowed the defendant to seek an
interlocutory appeal. Id. The Court of Appeals
granted the interlocutory appeal but affirmed the trial
court's judgment. Id. The Tennessee Supreme
Court disagreed, reaffirming a 1993 case in which it had held
that in order to recover for emotional damages resulting from
negligent exposure to HIV, the plaintiff must show
"actual exposure to HIV." Id. at 624
(citing Carroll v. Sisters of Saint Francis, 868
S.W.2d 585 (Tenn. 1993)). In reaching this result, the
Tennessee Supreme Court held that an individual's fear of
contracting HIV is not reasonable "unless the plaintiff
actually has been exposed to HIV."
Bain, 936 S.W.2d at 624 (footnote omitted). The
Court noted that its rule was based upon the public policy
consideration that to allow NIED claims even where an
individual "may have been exposed to HIV" would be
to "open a Pandora's Box of 'AIDS-phobia'
claims by individuals whose ignorance, unreasonable suspicion
or general paranoia cause them apprehension over the
slightest of contact with HIV-infected individuals or
objects." Id. at 624 (quoting Brzoska v.
Olson, 668 A.2d 1355, 1363 (Del. 1995)). Because of the
undisputed medical evidence that the plaintiff patient was
not actually at risk of contracting HIV during his stay in
the hospital, the Tennessee Supreme Court concluded that the
plaintiff failed to establish the essential element of
proximate cause to support his NIED claim. Bain, 936
S.W.2d at 625-26.
Tennessee Supreme Court was again called upon to clarify the
law concerning NIED in 2001 in Estate of Amos v.
Vanderbilt University, 62 S.W.3d 133 (Tenn. 2001). In
Estate of Amos, a patient sued the defendant
hospital for NIED based upon emotional damages she suffered
after being infected with HIV during a blood transfusion in
1984 and never informed about the possible infection.
Id. at 135. Years after her exposure, the patient
learned of her infection when her child contracted HIV in
utero and died as a result. Id. The patient and her
husband sued the defendant hospital for wrongful birth,
failure to warn, and NIED. Ultimately, a jury awarded the
plaintiffs substantial damages. Id. at 136. The
Court of Appeals, however, reversed, holding that the NIED
claim failed as a matter of law due to plaintiffs'
failure to present expert medical proof of serious or severe
emotional injury, i.e., the plaintiffs' failure to meet
the heightened proof standard outlined in Camper.
Id. Ultimately, the Tennessee Supreme Court reversed
the Court of Appeals and held that, where a plaintiff raises
other claims that include requests for damages for emotional
injuries, such as the failure to warn claim averred by the
plaintiffs in Estate of Amos, the plaintiff's
NIED claim is parasitic to his or her other claims and need
not be supported by expert proof. Id. at 137. As
such, only "standalone" NIED claims need be
supported by expert proof on the issue of the plaintiff's
severe or serious emotional injury.
NIED case was heard by the Tennessee Supreme Court in 2004.
See Lourcey v. Estate of Scarlett, 146 S.W.3d 48
(Tenn. 2004). In Lourcey, the plaintiff mail carrier
witnessed a man shoot his wife and then commit suicide.
Id. at 50. The plaintiff then sued the estate of the
perpetrator for intentional and negligent infliction of
emotional distress. The trial court dismissed the NIED claim
because the plaintiff was not closely associated with the
victim or perpetrator. Id. The Tennessee Supreme
Court, however, reversed the judgment of the trial court,
holding that "the element of foreseeability does not
require a plaintiff to establish a relationship to the
injured third party." Id. at 53 (citing
Thurmon v. Sellers, 62 S.W.3d 145, 163 (Tenn. Ct.
App. 2001)). Instead, the key factors in establishing the
foreseeability of the plaintiff's emotional injuries
"are whether a plaintiff's proximity to the
injury-causing event allowed for 'sensory
observation' and whether the injury 'was, or was
reasonably perceived to be, serious or fatal.'"
Lourcey, 146 S.W.3d at 53 (quoting Thurmon,
62 S.W.3d at 163). Accordingly, the Tennessee Supreme Court
concluded that the plaintiff's NIED claim could proceed
even in the absence of a close relationship between the
plaintiff and the victim, where the plaintiff directly
observed the death of the victim and the perpetrator
"knew that [the plaintiff] was in close physical
proximity[.]" Lourcey, 146 S.W.3d at 53.
years passed until another NIED case was considered by the
Tennessee Supreme Court. In 2008, however, the Tennessee
Supreme Court again took up the question of the appropriate
parameters of NIED claims in Eskin v. Bartee, 262
S.W.3d 727 (Tenn. 2008). In Eskin, the plaintiffs
alleged that they suffered severe emotional injuries after
they observed a close family member "lying in a pool of
blood" and "lifeless" after an automobile
accident. The injured child suffered permanent injuries as a
result of the accident. Eventually, the plaintiffs sued, and
the defendant insurance company filed a motion for partial
summary judgment seeking to dismiss the plaintiffs' NIED
claims. The trial court granted the motion for partial
summary judgment because it was undisputed that the
plaintiffs were not present when the accident occurred and
therefore "did not 'observe the accident occur
through one of . . . [their] senses.'" Id.
at 731 (quoting the trial court's order). The Court of
Appeals reversed, holding that sensory observation of the
injury producing event was not an absolute prerequisite to an
NIED claim. Id. (citing Eskin v. Bartee,
No. W2006-01336-COA-R3-CV, 2006 WL 3787823 (Tenn. Ct. App.
Dec. 27, 2006)).
determining the issue before it, the Tennessee Supreme Court
first considered the increasing recognition of the tort of
NIED not only in Tennessee, but elsewhere across the country.
In Tennessee particularly, the Eskin court
characterized the trend with regard to NIED claims as a
"dilution" of the harsh requirements previously
imposed in favor of permitting recovery in increasingly broad
circumstances. Eskin, 262 S.W.3d at 734-35 (noting
that "the direction of the development of the law . . .
relating to negligent infliction of emotional distress claims
has been to enlarge rather than to restrict the circumstances
amenable to the filing of a negligent infliction of emotional
distress claim"). As the Tennessee Supreme Court noted:
"The courts have not hesitated to permit the recovery of
damages for negligent infliction of emotional distress when
justice and fairness require it." Id. at 738.
The Court noted, however, the overarching "'desire
to separate, at the prima facie stage and in a meaningful and
rational manner, the meritorious cases from the
nonmeritorious ones.'" Id. at 734 (quoting
Camper, 915 S.W.2d at 445). The Eskin court
therefore distilled the holding in Ramsey to four
"objective standards" to be utilized by courts in
determining whether to allow NIED claims to proceed beyond
summary judgment, namely: (1) the "'plaintiff's
physical location at the time of the . . .
accident'"; (2) the plaintiff's
"'awareness of the accident'"; (3)
"the apparent seriousness of the victim's
injuries"; and (4) "[t]he closeness of the
relationship between the plaintiff and the victim."
Eskin, 262 S.W.3d at 736 (quoting Ramsey,
931 S.W.2d at 531).
applying these factors, the Tennessee Supreme Court concluded
that the plaintiff parent in Eskin should be
permitted to pursue her claim for NIED. In reaching this
result, the Court noted that, unlike in Camper or
Lourcey, the plaintiff had a close familial
relationship with the victim. Eskin, 262 S.W.3d at
738. While this factor strongly militated in favor of
allowing the plaintiff to pursue her claim, another factor
militated against that result: the fact that the plaintiff
"did not see or hear the automobile strike her
son." Id. Nevertheless, the Tennessee Supreme
Court concluded that the plaintiff's proximity to the
"injury-producing incident" was sufficient under
Ramsey's objective standards because the
plaintiff was "able to arrive at the accident scene
quickly before it had significantly changed and before the
injured person had been moved." Id. As the
In other words, while the bystanders did not have a sensory
perception of the accident as it occurred, they had a direct
sensory perception of the accident scene and the results of
the accident soon after the accident occurred. In this
circumstance, we 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 ...