In 2008 the Tennessee Supreme Court released two significant opinions relating to "stand alone" claims for negligent infliction of emotional distress. One of the decisions is likely to lead to an increase in the number of negligent infliction of emotional distress claims, and a greater reluctance of judges to dismiss such claims prior to trial. Both decisions address instances where the emotional distress resulted from someone being seriously injured, or killed, and the claimant witnessing the injury-producing incident, or coming upon the scene shortly after the incident occurred. These are known as "stand alone" claims since the alleged emotional injury is not a product of direct bodily injury to the claimant.
In Eskin v. Bartee, 262 SW3d 727 (Tenn. 2008), the Court held that a plaintiff can bring a claim for the negligent infliction of emotional distress even if he or she was not present to perceive the injury-causing event. In Eskin, the plaintiff arrived at the accident scene after receiving word that her son had been hit by a car. When she arrived, her son was lying in a pool of blood and appeared lifeless. The mother sued for the emotional distress caused by seeing her son’s severe injuries at the scene. At the trial court level, the claim was dismissed because the mother was not present when the incident 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 were categorically rejected when based on the claimant seeing someone else sustain a serious or fatal injury. 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 negligent infliction of emotional distress claim. However, the Court held that the plaintiff must be a family member or have some other close relationship to the injured party, and the emotional injury must be severe.
Eskin has opened the courthouse doors to a type of negligent infliction of emotional distress claim not previously allowed. 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 arrived on the scene and whether the scene was materially altered beyond what is permissible under Eskin. As a result of the Eskin decision, it does appear likely that trial courts will be more reluctant to dismiss negligent infliction of emotional distress claims prior to trial.
In a related decision, in July the Tennessee Supreme Court issued its opinion in Flax v. Daimler Chrysler. In Flax, the plaintiffs brought suit for the wrongful death of their infant son and the mother’s emotional distress resulting from the death of the child when the family was involved in an automobile accident. The mother did not sustain serious bodily injury in the collision. The child died when the seat back in a minivan broke, in a rear-end impact, and the head of an adult occupant collided with the head of the child sitting behind the adult. After a jury verdict in excess of $100 million, the case made its way to the Tennessee Supreme Court. By that time the verdict had been whittled down, leaving only the $5 million wrongful death award, one-half of which was apportioned to Chrysler and the other half to the driver that caused the collision. The entire punitive damages award and the negligent infliction of emotional distress claim were dismissed by the Court of Appeals.
The Tennessee Supreme Court held that filing a wrongful death suit did not prevent the mother from filing a separate "stand alone" negligent infliction of emotional distress claim. However, the Court held that the negligent infliction of emotional distress claim brought under those circumstances must be supported by expert medical or scientific proof of a severe emotional injury. The Court held that the mother’s claim was properly dismissed on appeal since she did not offer expert testimony of an emotional injury at trial.
The bottom line is that when a negligent infliction of emotional distress claim arises from the plaintiff witnessing the death or injury of another, as opposed to the emotional distress arising from the plaintiff’s own physical injuries, the plaintiff absolutely needs expert proof of the injury. This requirement of expert proof will also apply to cases like Eskin, where the claimant did not witness the injury-causing event.
Dan Berexa
Cornelius & Collins, LLP
Nashville, Tennessee
Copyright 2008 by Daniel P. Berexa. All rights reserved.
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