TBA Law Blog

Posted by: John Day on May 1, 2013

Journal Issue Date: May 2013

Journal Name: May 2013 - Vol. 49, No. 5

The roots of the Tennessee state tree, the tulip poplar, grow into the earth in search of water and minerals. When confronting poor soil conditions or physical impediments, the roots typically change direction to accomplish their mission of absorbing and storing nutrients and providing a solid anchor for the tree. The above-ground result: trees of 10 stories or more that bloom with glorious flowers each spring and provide a ready source of fine lumber for home and other construction.

So too it is with the common law. The roots of any common law principle seek out logic, reason and fairness. When confronting power, special interests and privilege, the common law root structure responds in a way that allows it to accomplish its mission of providing a solid base for laws that govern the interactions between people in modern times. The above-ground result: legal principles that rationally and responsibly serve and advance the cause of justice.

Perhaps the best, most recent example of the beauty of the common law in Tennessee is the tort of negligent infliction of emotional distress (NIED). The classic NIED claim arises when a person suffers purely emotional injury as a result of the negligence of another. NIED forcefully broke ground in Tennessee in Camper v. Minor,[1] which abolished the need for proof of “physical manifestation” or “physical impact” before one could assert a claim for emotional harm. The pre-Camper tort landscape was littered with the common law “physical manifestation”[2] rule, a notion that was so patently unjust that it was riddled with exceptions or thinly veiled efforts to ameliorate its harshness.[3]

Now that the sunlight was shining on NEID claims, the need for a logical, reason-based, fair rule demanded growth. Nine months after the Camper decision Ramsey v. Beavers[4] abolished the zone of danger test that enforced “rigid, often nonsensical, physical injury and contemporaneous fear requirements.”[5] Eight years later the Tennessee Supreme Court made clear that the plaintiff in the NIED case who witnessed the horrific death of another need not be related to the decedent to assert a NIED claim.[6]

The growth continued in Eskin v. Bartee,[7] which held that a mother could assert a NIED claim despite the fact that she did not actually witness the accident that severely injured one of her sons but had “a direct sensory perception of the accident scene and the results of the accident soon after the accident occurred.” Thus, the court recognized that a jury could find a valid NIED despite the fact that the NIED plaintiff did not contemporaneously witness the injury-causing event.

The most recent case providing support for the NIED tree is Rogers v. Louisville Land Co. Inc.[8] In Rogers, the Court explored what constitutes the “serious or severe mental injury” element of the tort. In Camper, this phrase was defined as “where a reasonable person, normally constituted, would be unable to adequately cope with the mental stress engendered by the circumstances of the case.”[9] The Rogers Court concluded that this language was “somewhat hyperbolic,” and instead announced a new standard that requires that the plaintiff “suffer[] significant impairment in his or her daily life resulting from the defendant’s conduct.”[10] The jury makes this determination from an evaluation of six factors identified by the court[11] or “other pertinent evidence.” The “unable to endure” language was relegated to the ash heap of history.[12]

What path will the NIED root structure take next? I believe the Tennessee Supreme Court will face the issue of whether the causation element in NIED claims requires testimony from a medical doctor or whether a psychologist will be permitted to give such an opinion.[13] I predict that this court will hold, at an absolute minimum, that a psychologist is permitted to testify that a given traumatic event more likely than not caused a plaintiff severe or serious emotional distress as defined in Rogers and that no testimony from a medical doctor is required to establish the causation element. The education, training and experience of doctorate-level psychologists make them qualified to offer such opinions which, from a practical point of view, they do routinely in their care and treatment of patients.

The vast majority of people would agree that the common law tort of NIED should be part of our tort landscape. Our courts wisely recognized that common sense, everyday experience, and modern medicine mandated rejection of the notion that compensable injuries should be limited to those with broken bones and damaged organs or tissue.

Although the roots of the NIED tree continue to seek out logic, reason and fairness, the present-day tree is a shining example of how the growth of the common law advances the cause of justice.


  1. 915 S.W.2d 437 (Tenn. 1996). “The physical manifestation rule requires that the plaintiff sustain a ‘physical injury,’ but the requisite injury may either be shown by proof of a contemporaneous physical injury or by proof of physical symptoms or manifestations of the emotional injury.” Camper v. Minor, 915 S.W.2d 437, 442 (Tenn. 1996) (italics supplied). Thus, absent contemporaneous physical impact and physical harm, damages for fear or fright or other emotional injury could be recovered only if the plaintiff’s physical being was impacted in some demonstrable way as a result of that fear, fright or other emotional injury. The “physical impact” rule is more restrictive; it denies recovery for emotional injuries unless there is an actual physical impact or contemporaneous physical injury.  
  2. Memphis State Ry. Co.v. Bernstein, 137 Tenn.637, 194 S.W. 902 (1917).
  3. Hill v. Traveler’s Ins. Co., 154 Tenn. 295, 294 S.W. 1097 (1927) (exception created wife’s emotional injuries after seeing husband’s mutilated dead body following an autopsy); Wadsworth v. Western Union Tel. Co., 86 Tenn. 695, 8 S.W. 574 (1888) (establishing a similar exception where message carrier failed to deliver telegraphs to plaintiff regarding the imminent death of her brother, thus preventing her from sitting by his bedside when he died); Burroughs v. Jordan, 224 Tenn. 418, 456 S.W.2d 652 (1970) (allowing damages for emotional injury if the plaintiff was in the “zone of danger”).
  4. 931 S.W.2d 527 (Tenn. 1996).
  5. Id. at 531.
  6. Lourcey v. Estate of Scarlett, 146 S.W. 3d 48, 54 (Tenn. 2004) (“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”).
  7. 262 S.W.3d 727, 740 (Tenn. 2008). The Court also allowed the brother of the physically injured youngster to assert a NIED claim. The mother and brother of the boy struck by a car came upon the scene of the accident and saw him unattended and lying in a pool of blood.
  8. 367 S.W.3d 196 (Tenn. 2012). Rogers involved an intentional infliction of emotional distress claim, but the Court made clear that its ruling applied to NIED claims as well. Id. at 206. The author recognizes that there are several other Tennessee Supreme Court decisions addressing NIED and thus contributing to its root structure, but space limitations prohibit a review of all relevant cases.
  9. Camper v. Minor, 915 S.W.2d 437, 446 (Tenn.1996).
  10. 367 S.W.3d at 210.
  11. The factors are listed at 367 S.W.3d 209-210 and are stated to be “nonexclusive.”
  12. 367 S.W.3d at 210. The “ash heap of history” reference is by the author, not the Court.
  13. The Camper opinion requires that causation be demonstrated by “expert medical or scientific proof.” 915 S.W.2d at 446.

John Day JOHN A. DAY is a trial lawyer in Brentwood, Tenn. He fears chain saws and disapproves of legislators who kill trees while publicly declaring they are only pruning them.