In less than a month, the Tennessee Supreme Court issued two significant rulings regarding claims for the negligent infliction of emotional distress. Most recently, in Eskin v. Bartee, 262 SW3d 727, the Court held that a plaintiff can bring a claim for the negligent infliction of emotional distress even if she was not present to perceive the injury causing event. In Eskin, the plaintiff arrived at the scene after receiving word that her son had been hit by a car at school. When the plaintiff arrived at the school, her son was in a pool of blood and appeared lifeless. At the trial court level the claim was dismissed since the mother was not present when the accident occurred.
Writing for the Tennessee Supreme Court, Justice Koch traced the evolution of Tennessee law from the early 20th century, when negligent infliction of emotional distress claims, based on observing injury to another, were categorically rejected. Expanding on a "thirty-year period in which this Court has steadily and consistently expanded the ability of bystanders to recover damages for the negligent infliction of emotional distress," the Eskin court held that the observation of the immediate aftermath of an injury producing event can provide the basis for a claim for the negligent infliction of emotional distress if the plaintiff is a family member or has some other close relationship to the injured party.
The Eskin decision will result in the filing of more negligent infliction of emotional distress claims. The devil is in the details and now lower courts will grapple with whether particular relationships are "close and intimate" enough to qualify; whether too much time passed before the plaintiff's arrival; and, whether the accident scene was materially altered to such a degree that the elements defined by the court are not satisfied.
To read or print the Eskin opinion, click here
*On July 24, 2008, the Tennessee Supreme Court issued the opinion in Flax v. Daimler Chrysler, holding that when a negligent infliction of emotional distress claim arises from the plaintiff witnessing the death or injury of another, the plaintiff absolutely needs expert proof of the emotional injury. For more discussion of the Flax decision see my July 31 post.
Dan Berexa
Nashville, Tennessee
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