A bystander negligent infliction of emotional distress (NIED) claim is one where “the plaintiff suffers an 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.”¹ One type of bystander claim arises when the NIED plaintiff “witnesses the aftermath of the scene within a very short period of time after the injury-producing event had already occurred.”²

The all-too-common horror story arises when parents come across a wreck on the way back from the grocery store only to find their child, seriously injured or dead, lying amid the carnage. To be sure, the parents did not witness the catastrophic event, but they saw, smelled, heard and may have even felt the consequences of it.

Although our courts took a long time to recognize the emotional injury arising from such trauma is compensable, Eskin v. Bartee told us that such claims can succeed if the following elements are present:

(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.³

The beauty (or the ugliness, depending on one’s point of view) of common law is that it is alive. In the words of the late, great Thomas Lambert, torts professor extraordinaire, “the law isn’t settled until it’s settled right.” Lawyers on both sides of the “v” will take “settled” common law and attempt to “unsettle” it — to persuade the courts to expand its scope or to contract it.⁴ So is it a surprise to anyone that the same would occur in NIED law? Of course not.

Mr. and Mrs. Doe, the parents of a child we will refer to as “the Child,” alleged the Child was sexually abused by James Hook, a former paid volunteer coordinator at Bellevue Baptist Church.⁵ They sued Hook and the church, alleging that the church negligently supervised Hook’s activities. The claim involving Child was settled by the church, but the parents’ NIED claim was dismissed by the trial judge. Why? Because the parents did not allege, and had no proof of, element three of the cause of action — “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 …” (the “proximity” requirement).

Now, there can be no disagreement among reasonable humans that the Doe parents likely suffered a “serious or severe emotional injury” upon learning that their child had been abused by Hook, an employee of their church. One does not have to be a parent or have a particularly elevated level of emotional intelligence to understand that fundamental truth. But there is also no doubt that the facts as alleged or as could have been proved did not fit into the legal pigeonhole articulated by existing Tennessee NIED law because the third element — the proximity requirement — simply was not met. The Court of Appeals considered itself bound by Tennessee Supreme Court precedent and felt it had no choice but to affirm the trial court’s dismissal of the claim.⁶ So it did.

The Court of Appeals opinion is not the end of the story because there is little doubt the parents will ask the Tennessee Supreme Court to change the proximity element of the Bartee test in cases involving sexual abuse of a child. In other words, the court will be asked to create a new test for cases involving a parent’s claim of emotional injury arising from learning of the sexual abuse of their minor child.

As stated above, no one can seriously contest that an injury to the parents occurs in virtually all cases of child sexual abuse, particularly where the abuser accessed the child through the family’s relationship with a church. No, the question will be whether child sex abusers and their enablers should be accountable for all the foreseeable harm they cause, or just the harm to the child victim. And whether our common law will recognize and right the wrong. |||

JOHN A. DAY is a plaintiff’s personal injury and wrongful death lawyer with offices in Nashville, Brentwood and Murfreesboro. Pres. Joe Biden once said “[d]on’t tell me what you value; show me your budget and I’ll tell you what you value.” The common law of torts is the same: don’t tell me what your society values; show me whether your common law insists on accountability for harm, and I’ll tell you what your society values.

NOTES

1. Henderson v. Vanderbilt Univ., 534 S.W.3d 426, 438 (Tenn. Ct. App. 2017) (quoting John A. Day, NIED Claims After)
2. Flax and Eskin, 45 Tenn. B.J. 33 (Jan. 2009).
3. Id.
4. Eskin v. Bartee, 262 S.W.3d 727, 739 (Tenn. 2008).
5. There is a phrase that describes this effort: it is called “good lawyering.”
6. Doe v. Bellevue Baptist Church, No. W2022-01350-COA-R3-CV (Tenn. Ct. App. Nov. 7, 2023).
7. Id. at * 5-6.