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Nied Claims After Flax and Eskin
The Tennessee Supreme Court has decided two negligent infliction of emotional distress (NIED) cases within the past few months. This article summarizes the law after the release of these important opinions.
True NIED claims arise in two different situations. In the first situation, the plaintiff suffers emotional injury because of the negligence of another. The second arises when the plaintiff suffers emotional injury because the negligence of another caused an injury or death to a third person and that in turn caused emotional injury to the plaintiff.
In tort parlance, these are called "stand alone" cases. This designation arose because under certain, limited circumstances our appellate courts decided to abandon the "physical impact" and "physical manifestation" rules and recognize that a person has a right to be free from a designated level of emotional distress caused by the conduct of another notwithstanding the absence of physical injury or physical manifestation of emotional injury. Therefore, since 1996, recovery may be made for certain negligence-induced emotional injuries and the cases can "stand alone" i.e. they can be maintained without proof of physical injury.
"Stand alone" cases are contrasted with so-called "parasitic" cases, which we can all agree is a truly regrettable term. "Parasitic" cases are those cases in which the courts will allow the fact-finder to award damages for emotional distress without the need of expert proof. Why? Because the emotional injuries are parasitic to physical harm to the plaintiff, and therefore the law is willing to permit a fact-finder to award damages for mental injury under the belief that there is "some indication that allegations of emotional and mental injuries resulting from that injury are not fraudulent."
Therefore, in your typical injury case, it is not necessary for a plaintiff to call an expert witness to support a claim of mental suffering arising from the incident and the injury. A car wreck victim can talk about months of being afraid of driving, of nightmares concerning the wreck, etc., and the jury can weigh that testimony and award damages as appropriate without hearing from any expert. A plaintiff may choose to call an expert on the issue, and a defendant may seek a Rule 35 examination of a plaintiff who makes such claims, but no expert proof is necessary to get the issue to the jury.
But complaints of emotional distress without physical injury in your traditional personal injury are another matter. As stated above, there are only two circumstances under which damages can be awarded. The first arises in circumstances like Camper v. Minor, where a truck driver suffered severe emotional injury after seeing the dead body of the defendant after a wreck caused by the negligence of the defendant. The Tennessee Supreme Court permitted his case to proceed so long as he could "demonstrate through expert medical or scientific proof that he or she has suffered a 'serious' or 'severe' emotional injury." The court also held that (a) "an emotional injury is 'severe' if 'a reasonable person, normally constituted, would be unable to adequately cope with the mental stress engendered by the circumstances of the case' and (b) the claimed injury 'must be supported by expert medical or scientific proof.'"
The second circumstance arises when one witnesses another experience serious injury or death as the result of the negligence of another. The first case to permit recovery under these circumstances was Ramsey v. Beavers, which held that a plaintiff who saw his mother hit by a car could bring a suit for NIED regardless of whether he was physically injured or placed in immediate danger of being physically injured. The sub-
elements of the cause of action require (a) that the plaintiff be sufficiently near the injury-causing event to allow sensory observation of the event; (b) that the injury to the third-person was, or was reasonably perceived to be, serious or fatal; (c) that the plaintiff have a "close" relationship with the injured or deceased party; and (d) that the plaintiff present expert medical or scientific evidence that he had suffered a severe emotional injury."
It is not necessary that the plaintiff observe serious injury or death to a family member. In Lourcey v. Estate of Scarlett the Court held that a plaintiff who saw the defendant commit suicide after he attempted to murder his own wife could recover damages for purely emotional injuries even though she did not have a family relationship with the defendant or the attempted murder victim.
In Eskin v. Bartee, the Tennessee Supreme Court recently permitted recovery of damages for purely emotional injury for a mother and her child who came upon a tragic car accident and saw their son and sibling severely injured. The Court said that "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 scene of the accident while the scene is in essentially the same condition it was in immediately after the accident."
The Court explained that there was a "lack of a principled basis to differentiate between a parent who sees or hears the accident that seriously injures or kills his or her child and a parent who sees his or her injured or dead child at the scene shortly after the accident. It defies reason that the mental distress of the latter parent is less than the former parent."
Under circumstances when a plaintiff does not witness the injury-producing event, the following elements of a NIED cause of action must be proved: "(1) the actual or apparent death or serious physical injury of another caused by the defendant's negligence, (2) the existence of a close and intimate personal relationship between the plaintiff and the deceased or injured person, (3) the plaintiff's observation of the actual or apparent death or serious physical injury at the scene of the accident before the scene has been materially altered, and (4) the resulting serious or severe emotional injury to the plaintiff caused by the observation of the death or injury."
Finally, the recent opinion in Flax v. Daimler Chrysler Corp. makes clear that a NIED claim cannot be "parasitic" to a wrongful death claim or a claim of minor personal injuries unrelated to the claim for which damages for emotional loss are sought. In Flax, the plaintiff mother was awarded $4 million in NIED damages from the defendant minivan manufacturer and another motorist after seeing her son die in a motor vehicle wreck in which she was a passenger. That award of damages was reversed because of the lack of expert proof linking the emotional distress to the incident.
To be sure, no one could seriously deny that a mother who saw her son die would experience severe emotional distress. Nevertheless, the law requires expert proof, and the failure to call an expert on the issue was fatal. The court rejected the argument that emotional distress was parasitic to the wrongful death claim filed by the mother for the death of her son, noting that the wrongful death claim belonged to the decedent, not the survivors, and thus an NIED could not be parasitic to a claim that the mother did not have.
Likewise, the minor personal injuries suffered by the mother were not deemed to be enough to boot-strap her over the requirement that she have expert medical proof. As the court explained, "the emotional injuries alleged by Ms. Sparkman are not parasitic to the minor injuries she sustained in the accident but rather are the result of witnessing the death of her child. Even if Ms. Sparkman had chosen to bring a claim for her minor physical injuries, her NIED claim would remain a 'stand-alone' claim because the emotional injuries sustained from witnessing the death of her child are completely unrelated to any physical injuries she may have sustained."
Twelve years after Camper the law of NIED is beginning to mature. Future litigation in this area can be expected to involve the definition of "serious or severe" injury and what type of professional (medical doctor, psychologist, social worker?) can provide the requisite "medical or scientific testimony" required to establish the claim.
1. See, e.g. Estate of Amos v. Vanderbilt University, 62 S.W.3d 133 (Tenn. 2001) (plaintiff alleged that she had suffered emotional injuries caused by her infection with HIV as a result of the defendant's negligence and by the subsequent infection of her daughter).
2. "-S.W.3d "-, 2008 WL 2831225 at *6 (Tenn. 2008).
3. 915 S.W.2d 437 (Tenn. 1996).
4. Id. at 446.
5. Id. In Eskin v. Bartee, 262 S.W.3d 727, 735 fn. 21 (Tenn. 2008) the Court appears to be willing to revisit this unfortunate definition of "serious" or "severe" emotional injury.
6. 931 S.W.2d 527 (Tenn. 1996).
7. Of course, the plaintiff must also prove that the defendant negligently caused injury to another. Id. at 531.
8. Id. at 531-32.
9. 146 S.W.3d 48 (Tenn. 2004).
10. 262 S.W.3d 727 (Tenn. 2008).
11. Id. at 738.
12. Id. at 739.
13. Id. (footnote omitted). The footnote (No. 30) explains that "each of the objective standards presents a factual issue to be determined by the finder of fact."
14. "-S.W.3d "-, 2008 WL 2831225 (Tenn. 2008).
15. Id. at *5.
16. Id at *6.
JOHN A. DAY is a trial lawyer in Brentwood, Tenn. He is the author of A Handbook for Tennessee Tort Lawyers 2009 and the editor of a new monthly newsletter on the law of torts, civil procedure, evidence and trial called the Tennessee Trial Law Report.