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§54.4 Relationship Requirement

The Case: Lourcey v. Estate of Scarlett , 146 S.W.3d 48 (Tenn. 2004).

The Basic Facts: Plaintiff observed, at close proximity, a man commit suicide after attempting to murder his wife. Plaintiff subsequently brought action against the man's estate for intentional infliction of emotional distress and negligent infliction of emotional distress.

The Bottom Line:

  • "To resolve this issue, we begin the analysis by reviewing the elements of a claim for negligent infliction of emotional distress. In Tennessee, such a claim requires that the plaintiff establish the elements of a general negligence claim: (1) duty, (2) breach of duty, (3) injury or loss, (4) causation in fact, and (5) proximate causation. See Camper v. Minor, 915 S.W.2d 437, 446 (Tenn. 1996). In addition, the plaintiff must establish the existence of a serious or severe emotional injury that is supported by expert medical or scientific evidence. Id.; see also Ramsey v. Beavers, 931 S.W.2d 527, 531-32 (Tenn. 1996)." 146 S.W.3d at 52.
  • "In discussing these elements in Ramsey, we clarified that a negligent infliction of emotional distress claim premised upon witnessing the death or injury of a third person requires a plaintiff to show that a 'third person's death or injury and plaintiff's emotional injury were proximate and foreseeable results of defendant's negligence.' 931 S.W.2d at 531.FN2 We commented that foreseeability required consideration of a number of relevant factors but that only two of them were essential: (1) the plaintiff's physical location showed 'sufficient proximity to the injury‑producing event to allow sensory observation' by the plaintiff, and (2) the injury 'was, or reasonably was perceived to be, serious or fatal.' Id. Still another factor relating to foreseeability is the plaintiff's relationship to the injured party. Id. at 531-32.
    FN2 Indeed, our decisions have emphasized that foreseeability is essential in analyzing the duty and causation elements of a negligence claim. See, e.g., McCall v. Wilder, [913 S.W.2d 150, 153 (Tenn. 1995)] (stating that there is a duty to 'act with due care if the foreseeable probability and gravity of harm posed by defendant's conduct outweigh the burden upon defendant to engage in alternative conduct that would have prevented the harm')."
    Id . at 52-53.
  • "In applying our decision in Ramsey, the Court of Appeals has correctly recognized that the element of foreseeability does not require a plaintiff to establish a relationship to the injured third party. See Thurman v. Sellers, 62 S.W.3d 145, 163 (Tenn. Ct. App. 2001).FN3 In Thurman, the appellate court observed that the key factors for establishing foreseeability 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.' Id. at 163. Moreover, in noting that Ramsey did not expressly state that a plaintiff must have had a close relationship with the third party to establish foreseeability, the intermediate court explained that 'the nature of the plaintiff's relationship with the third party should play a pivotal role in determining the amount of damages to award, rather than being a prerequisite for establishing foreseeability . . . .' Id. at 164.
    FN3 Prior to Thurman, however, an unpublished Court of Appeals' decision had held that a plaintiff must establish a close relationship to state a claim for the negligent infliction of emotional distress. See Browning v. Vandergriff, [No. E1999-02711-COA-R3-CV, 2001 WL 47674 (Tenn. Ct. App. E.S., Jan. 22, 2001)]."
    Id . at 53.
  • "In our view, the intermediate court's analysis in Thurman properly recognized that a plaintiff is not required to establish a close relationship to the injured party to state a claim for negligent infliction of emotional distress. There are several reasons why a relationship is not required." Id.
  • "First, our decision in Ramsey rejected a rigid 'zone of danger' requirement and clarified that a plaintiff must establish that his or her injuries were foreseeable in accordance with traditional negligence principles. Although we discussed several considerations in analyzing foreseeability in Ramsey, including the plaintiff's relationship to the injured party, we did not hold that the plaintiff's relationship to the injured party was itself an element for stating or establishing a claim for negligent infliction of emotional distress. See Ramsey, 931 S.W.2d at 531." Id.
  • "Second, a review of Camper v. Minor shows that we remanded the plaintiff's claim for negligent infliction of emotional distress for the application of general negligence principles even though the plaintiff in that case had no relationship to the injured party. Camper, 915 S.W.2d at 446. Indeed, similar to the present case, the plaintiff in Camper was the driver of a truck whose claim was based on mental harm suffered after seeing the dead body of an unrelated motorist who was killed in an accident. Id. at 439. In sum, there is simply no basis upon which to conclude that Ramsey, which was released only nine months after Camper by the same Court, adopted without comment an entirely new element for stating a claim of negligent infliction of emotional distress." Id. at 53-54
  • "Finally, we observe that courts in other jurisdictions have encountered numerous obstacles when defining a 'relationship' for negligent infliction of emotional distress cases and in applying that element to myriad cases involving relatives by blood, relatives by marriage, co-habitants, friends, and acquaintances.FN4
    FN4 See [Annotation, Relationship Between Victim and Plaintiff-Witness As Affecting Right to Recover Under State Law For Negligent Infliction of Emotional Distress Due to Witnessing Injury to Another Where Bystander Plaintiff Is Not Member of Victim's Immediate Family , 98 A.L.R. 5th 609 (2002)] (discussing cases involving spouses, children, parents, grandparents, grandchildren, siblings, nieces and nephews, aunts and uncles, relations by marriage, step-children, unmarried co-habitants, friends, coworkers, and acquaintances, among others)."
    Id . at 54.
  • "Whatever the articulated relational standard, and however it may govern, courts willing to recognize the concept of a bystander's claim in a context narrower than a generally available right to sue for negligent infliction of emotional distress have no difficulty applying it where certain relationships inform the claim, such as parent, child, sibling, and spouse. The courts, however, seem to shrink from applying the concept to more remote relationships, even to those that are, potentially, as genuine and deep as those of parent, child, sibling, or spouse, but which have no special legal sanction or consanguineal affinity.

    [Howard H. Kestin, The Bystander's Cause of Action for Emotional Injury: Reflections on the Relational Eligibility Standard, 26 Seton Hall L. Rev. 512, 526-27 (1996) (emphasis added). Because of these interpretive problems, we believe that the better-reasoned approach, which is consistent with our previous decisions in Camper and Ramsey, is to hold that the presence or absence of a relationship between the plaintiff and an injured third party is relevant to the duty and causation elements of a negligent infliction of emotional distress claim, as well as to the question of damages, but is not dispositive of such a claim. See id. at 521 n.43 (discussing cases that have not adopted 'relationship' as an element of negligent infliction of emotional distress claims)." Id.
  • "In applying the foregoing principles, we conclude that the allegations in the plaintiffs' complaint, when taken as true, state a claim for negligent infliction of emotional distress. With regard to duty, which must be determined by the trial court as a matter of law, the complaint alleges sufficient facts for the court to conclude that the foreseeability and gravity of the potential harm to Cindy Lourcey outweighed the burden on Charles Scarlett to prevent the harm from occurring. See McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995). Indeed, the complaint alleges that Scarlett spoke to Cindy Lourcey and implicitly requested help, that Scarlett knew that Lourcey was in close physical proximity, that Lourcey saw Scarlett shoot his wife, that Scarlett turned to face Lourcey, and that Scarlett shot himself in the head. See Ramsey, 931 S.W.2d at 531. In addition, with regard to causation, which must be determined by the trier of fact, these and other facts alleged in the complaint are sufficient to establish a claim that Cindy Lourcey suffered serious or severe mental injuries and that Charles Scarlett's conduct was the actual cause and the proximate cause of the injuries. See Camper, 915 S.W.2d at 446." Id.

Recent Cases: Filson v. Seton Corporation , No. M2006-02301-COA-R9-CV, 2009 WL 196048 (Tenn. Ct. App. Jan. 27, 2009) (affirming summary judgment on negligent infliction of emotional distress claim finding plaintiffs did not submit the necessary proof to maintain a stand-alone claim).

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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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