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Henderson v. The Vanderbilt University

Court of Appeals of Tennessee, Nashville

May 31, 2017


          Session March 22, 2017

         Appeal from the Circuit Court for Davidson County No. 14C2903 Joseph P. Binkley, Jr., Judge

         The 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.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed and Remanded

          Gary K. Smith v. Karen M. Campbell, Memphis, Tennessee, for the appellants, Rodney Henderson, and Tammy Henderson.

          Thomas A. Wiseman and Kimberly G. Silvus, Nashville, Tennessee, for the appellee, The Vanderbilt University.

          J. Steven Stafford, P.J., W.S., delivered the opinion of the court, in which Kenny Armstrong, J., joined.




         Plaintiffs/Appellants 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.[1] 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.

         The 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.

         Vanderbilt 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."

         Mr. 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.

         On July 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."

         Appellants 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.

         In 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.

         Although 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 cardiac arrest.

         With 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.

         The 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.


         This 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.[2] 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).

         Additionally, 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. 1995).


         Simply 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.

         The 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. Id.

         In 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.

         The 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.

         The 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 at 531.

         The 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.

         The 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.

         Another 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.

         Several 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)).

         In 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).

         In 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 Court explained:

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 ...

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