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§31.11 Negligent Infliction of Emotional Distress

The Case: Sallee v. Barrett , 171 S.W.3d 822 (Tenn. 2005).

The Basic Facts: Plaintiff sued police officer after he negligently discharged a gun and startled plaintiff. Plaintiff sued for negligent infliction of emotional distress.

The Bottom Line:

  • "Barrett filed a motion to dismiss for failure to state a claim pursuant to Tennessee Rule of Civil Procedure 12.02(6). Barrett argued that he was immune from suit pursuant to the provisions of the Governmental Tort Liability Act ('GTLA'), Tennessee Code Annotated sections 29-20-101 et seq. It was his position that the City of Clarksville was the proper party because governmental entities are subject to liability for the negligent acts of its employees, and there is no exception for negligent infliction of emotional distress. Sallee countered that one of the exceptions to the general waiver of immunity for negligent acts is for 'infliction of mental anguish,' Tennessee Code Annotated 29-20-205(2) (2000), and this includes both negligent and intentional infliction of emotional distress. As such, the City of Clarksville would be immune from suit for negligent infliction of emotional distress caused by its employees, making Barrett the proper party to this lawsuit. Sallee also filed a motion to amend his complaint to add the City of Clarksville as a defendant." 171 S.W.3d at 825.
  • "The primary issue in this case is whether 'infliction of mental anguish,' as used in Tennessee Code Annotated section 29-20-205(2) (2000), encompasses both the tort of negligent infliction of emotional distress as well as the tort of intentional infliction of emotional distress. If both torts are included in the statutory language, then the Court of Appeals correctly concluded that Barrett was the proper party defendant. On the other hand, if the words as used in the statute include only the tort of intentional infliction of emotional distress, then the trial court was correct in holding that the City of Clarksville, and not officer Barrett, was the proper party defendant." Id. at 826.
  • "We begin our analysis by noting that historically, governmental entities have been held immune from suit absent their express waiver of that immunity. See Limbaugh v. Coffee Med. Ctr., [59 S.W.3d 73, 79 (Tenn. 2001)]. In 1973, the General Assembly enacted the Tennessee Governmental Tort Liability Act (GTLA), which waived in part the immunity previously afforded to governmental entities. 1973 Tenn. Pub. Acts ch 345, codified at Tenn. Code Ann. § 29-20-101 et seq. (2000). Specifically, section 29-20-205 removes immunity 'for injury proximately caused by a negligent act or omission of any employee within the scope of his employment....' Where immunity has been waived, such as for the negligent acts of governmental employees, the governmental entity is the proper party-defendant. In such circumstances, the employee is, by statute, immune from suit. [Tenn. Code Ann. § 29-20-310(b) (2000)]." Id.
  • "While generally waiving governmental immunity for the negligent acts committed by employees of governmental entities, Tennessee Code Annotated section 29-20-205(2) (2000) specifically preserves immunity from claims arising out of 'false imprisonment pursuant to a mittimus from a court, false arrest, malicious prosecution, intentional trespass, abuse of process, libel, slander, deceit, interference with contract rights, infliction of mental anguish, invasion of right of privacy, or civil rights.' (Emphasis added.) Therefore, our task in this case is to determine whether the legislature intended to preserve immunity for claims arising out of negligent infliction of emotional distress as well as the intentional infliction of emotional distress." Id.
  • "To assist in our interpretation of the statute, it is helpful to review the historical underpinnings and emergence of claims for negligent infliction of emotional distress. Historically, courts denied recovery where the defendant's negligence caused mental disturbance without accompanying physical injury or physical consequences, or without other independent basis for tort liability. See, e.g., Laxton v. Orkin Exterminating Co., [639 S.W.2d 431 (Tenn. 1982)]; Medlin v. Allied Inv. Co., [398 S.W.2d 270 (Tenn. 1966)] abrogated by Camper v. Minor, [915 S.W.2d 437 (Tenn. 1996)]; Bowers v. Colonial Stages Interstate Transit, Inc., [43 S.W.2d 497 (Tenn. 1931)] abrogated by Camper v. Minor, [915 S.W.2d 437 (Tenn. 1996)]; see also [RESTATEMENT (SECOND) OF TORTS § 436 cmt. c (1965)]." Id.
  • "Over the years, this Court has carved out exceptions to the general rule, allowing recovery for mental disturbance alone in certain limited circumstances. For example, in Hill v. Travelers' Ins. Co., [294 S.W. 1097 (Tenn. 1927)], the plaintiff was allowed to recover for mental damages occasioned by the defendants' mutilation of her husband's dead body during an autopsy, notwithstanding the fact that the plaintiff had not suffered either a contemporaneous physical injury or exhibited physical symptoms of her alleged mental injuries. Hill, 294 S.W. at 1099; Wadsworth v. W. Union Tel. Co., [8 S.W. 574 (Tenn. 1888)] (establishing a similar exception for the negligent failure to deliver a telegraph regarding imminent death of plaintiff's brother, thus preventing her from sitting by his bedside when he died)." Id. at 826-27.
  • "The 'physical manifestation' rule, however, was not fully rejected until our decision Camper v. Minor, [915 S.W.2d 437 (Tenn. 1996)]. In Camper, we held that negligent infliction of emotional distress must be analyzed under the general negligence approach, requiring the five elements of general negligence: duty, breach of duty, injury or loss, causation in fact, and proximate or legal cause. Camper, 915 S.W.2d at 446. Proof of an accompanying or consequential physical injury was no longer required." Id.
  • "At the time the GTLA was enacted in 1973, the physical manifestation rule was still in effect. In almost all circumstances, the tort of negligent infliction of emotional distress then still required proof of physical injury or must accompany another independent basis for tort liability. Thus, negligent infliction of emotional distress was not yet recognized fully as its own stand-alone tort in the same way that it now is following our decision in Camper." Id.
  • "On the other hand, the tort of intentional infliction of emotional distress was fully recognized by this Court prior to 1973. Medlin v. Allied Inv. Co., [398 S.W.2d 270 (Tenn. 1966)]. In Medlin, this Court held that in the context of intentional conduct, a plaintiff does have a right to emotional tranquility that, if violated, gives rise to an independent cause of action for intentional infliction of emotional distress. Id. at 273-74; Miller v. Willbanks, [8 S.W.3d 607, 610-12 (Tenn. 1999)] (discussing the history and evolution of the tort of intentional infliction of emotional distress in Tennessee)." Id.
  • "The Court of Appeals in this case adopted the rationale and conclusions previously adopted by the Western Section of the Court of Appeals Lockhart v. Jackson-Madison County Gen. Hosp., [793 S.W.2d 943 (Tenn. Ct. App. 1990)], that 'the plain language of the statute justifies no other construction of the legislature's intent' than the intent to have section 29-20-205(2) include negligent infliction of emotional distress. Lockhart, 793 S.W.2d at 946. Specifically, the court concluded that because both the torts of negligent infliction of emotional distress and intentional infliction of emotional distress existed prior to the enactment of the GTLA, and because the legislature is presumed to know the existence of the two separate torts but chose not to make a distinction in the statute, the legislature intended to include both in the statutory language." Id.
  • "The flaw in this rationale is that, as discussed above, the tort of negligent infliction of emotional distress was at best in its embryotic stage at the time the GTLA was enacted, while intentional infliction of emotional distress had already been fully established and recognized by the courts. Unlike the Court of Appeals, we are persuaded, based upon the development of the common law at the time the GTLA was enacted, that the legislature most likely intended that only the tort of intentional infliction of emotional distress would be included in the section preserving immunity for governmental entities." Id.
  • "In addition to the status of the common law at the time the GTLA was enacted, we are persuaded by the application of well-known principles of statutory construction that this was the legislature's intent." Id. at 827-28.
  • "There has been some dispute as to whether the phrase 'infliction of mental anguish,' as used in Tennessee Code Annotated section 29-20-205(2), was meant to refer only to the intentional tort or to both the intentional and negligent torts. Limbaugh v. Coffee Med. Ctr., [59 S.W.3d 73 (Tenn. 2001)], this Court referred to section 29-20-205(2) as the 'intentional tort exception' to the general waiver of immunity for negligent acts of employees. Id. at 81. In Elmore v. Cruz, [No. E2001-03136-COA-R3-CV, 2003 WL 239169 (Tenn. Ct. App. Feb.4, 2003)], the Eastern Section of the Court of Appeals concluded that Limbaugh 'recognized that [section 29-20-205(2)] applies to intentional torts' and, therefore, that governmental entities were only immune from suit for intentional infliction of emotional distress and waived immunity for negligent infliction of emotional distress. However, in Lockhart, (decided prior to Limbaugh) the Western Section of the Court of Appeals held that the phrase 'infliction of mental anguish' in section 29-20-205(2) included both negligent and intentional infliction of mental anguish, thus preserving immunity for the governmental entity in the event of the negligent infliction of mental anguish caused by an employee. 793 S.W.2d at 943. In this case, the Middle Section of the Court of Appeals disagreed with the decision in Elmore, and instead reached the same conclusion as the court in Lockhart, that 'infliction of mental anguish' included negligent infliction of mental anguish." Id.
  • "In construing statutes, this Court's role is ''to ascertain and give effect to the legislative intent without unduly restricting or expanding a statute's coverage beyond its intended scope.'' Houghton v. Aramark Educ. Res., Inc., [90 S.W.3d 676, 678 (Tenn. 2002)] (quoting Owens v. State, [908 S.W.2d 923, 926 (Tenn. 1995)]); Mooney v. Sneed, [30 S.W.3d 304, 306 (Tenn. 2000)]. Legislative intent is derived from the plain and ordinary meaning of the statutory language unless the statute is ambiguous. See State v. Blackstock, [19 S.W.3d 200, 210 (Tenn. 2000)]; Owens, 908 S.W.2d at 926. Additionally, because the GTLA's limited waiver of governmental immunity is in derogation of the common law, it is to be strictly construed and confined to its express terms. Doyle, 49 S.W.3d at 858." Id.
  • "If statutory language is ambiguous, we must look to the entire statutory scheme to determine legislative intent. Owens, 908 S.W.2d at 926. ''A statute is ambiguous if the statute is capable of conveying more than one meaning.'' LeTellier v. LeTellier, [40 S.W.3d 490, 498 (Tenn. 2001)] (quoting Bryant v. HCA Health Servs. of N. Tenn., Inc., [15 S.W.3d 804, 809 (Tenn. 2000)]). In ascertaining the legislature's intent, ''[w]e must seek a reasonable construction in light of the purposes, objectives, and spirit of the statute based on good sound reasoning.'' Scott v. Ashland Healthcare Ctr., Inc., [49 S.W.3d 281, 286 (Tenn. 2001)] (quoting State v. Turner, [913 S.W.2d 158, 160 (Tenn. 1995)]). Component parts of a statute are to be construed, if possible, consistently and reasonably. See State v. Alford, [970 S.W.2d 944, 946 (Tenn. 1998)]." Id.
  • "Aiding in our interpretation of legislative intent are the maxims of noscitur a sociis and ejusdem generis. Under the doctrine of noscitur a sociis, 'the meaning of questionable or doubtful words or phrases in a statute may be ascertained by reference to the meaning of other words or phrases associated with it.' [Black's Law Dictionary 1060 (6th ed. 1990)]; Hammer v. Franklin Interurban Co., [354 S.W.2d 241, 242 (Tenn. 1962)] (holding that statutory terms should be construed with reference to their associated words and phrases). The doctrine of noscitur a sociis permits courts to modify and limit subordinate words and phrases in order to harmonize them with each other and with the evident purpose of the statute. See Scopes v. State, [289 S.W. 363, 364 (Tenn. 1927)]." Id. at 828-29.
  • "Ejusdem generis is an illustration of the broader maxim of noscitur a sociis. Under this doctrine of statutory construction, 'where general words follow the enumeration of particular classes of things, the general words will be construed as applying only to things of the same general class as those enumerated.' [Black's Law Dictionary 517 (6th ed. 1990)]; Lyons v. Rasar, [872 S.W.2d 895, 897 (Tenn. 1994)] (citing Nance ex rel. Nance v. Westside Hosp., [750 S.W.2d 740, 743 (Tenn. 1988)]); State v. Sims, [909 S.W.2d 46, 49 (Tenn. Crim. App. 1995)]. In other words, ''where it clearly appears that the lawmaker was thinking of a particular class of persons or objects, his words of more general description may not have been intended to embrace any other than those within the class.'' Automatic Merch. Co. v. Atkins, [327 S.W.2d 328, 333 (Tenn. 1959)] (quoting State v. Grosvenor, [258 S.W. 140, 141 (Tenn. 1924)])." Id. at 829.
  • "By way of example, the court in Sims applied the ejusdem generis canon of statutory construction to construe the meaning of 'extreme physical pain' as found in the definition of 'serious bodily injury,' Tennessee Code Annotated section 39-11-106(a)(33). The court held that the extreme physical pain definition of serious bodily injury must be read as applying to the same class of injuries as those enumerated, i.e. those causing a substantial risk of death, protracted unconsciousness, protracted or permanent disfigurement or the loss or impairment of the use of a bodily member, organ or mental faculty. Sims, 909 S.W.2d at 49." Id.
  • "The statutory language at issue in this case provides that exceptions to a governmental entity's general waiver of immunity for negligent acts include injuries arising out of 'false imprisonment pursuant to a mittimus from a court, false arrest, malicious prosecution, intentional trespass, abuse of process, libel, slander, deceit, interference with contract rights, infliction of mental anguish, invasion of right of privacy, or civil rights.' Tenn. Code Ann. § 29-20-205(2) (2000) (emphasis added). All of the other torts listed are intentional torts. Applying the doctrines of noscitur a sociis and ejusdem generis, we interpret the phrase 'infliction of mental anguish' with reference to the other words and phrases used with it in this section of the act. Accordingly, the tort of infliction of mental anguish must be read as applying to the same class of torts as the rest of those enumerated. See Sims, 909 S.W.2d at 49. Because the rest of the enumerated torts are all intentional torts, we conclude that 'infliction of mental anguish' is also meant to include only the intentional tort." Id.
  • "In sum, considering the ambiguity of the statutory language, the state of the law at the time the statute was enacted, and general principles of statutory construction, we hold that the legislature intended the phrase 'infliction of mental anguish' to apply only to the intentional infliction of emotional distress. The City of Clarksville does not retain immunity for claims of negligent infliction of emotional distress, and is the proper party-defendant, while Barrett is immune from suit." Id. at 831.

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The foregoing is an excerpt from Day on Torts: Leading Cases in Tennessee Tort Law, published by John A. Day, Civil Trial Specialist, Fellow in the American College of Trial Lawyers, recipient of Best Lawyers in America recognition, Martindale-Hubbell AV® Preeminent™ rated attorney, and Top 100 Tennessee Mid-South Super Lawyers designee. Read John’s full bio here.

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