Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.
Help support the publication of case reports on MoreLaw
Date: 04-21-2022
Case Style:
Brenda Cothran Et Al. v. Durham School Services, L.P., Et Al.
Case Number: E2020-00796-COA-R10-CV
Judge: Kristi M. Davis
Court:
IN THE COURT OF APPEALS OF TENNESSEE
On appeal from The Circuit Court for Hamilton County
Plaintiff's Attorney:
Defendant's Attorney: Melissa A. Murphy-Petros, Chicago, Illinois, and Michael R. Campbell
Description:
Nashville, TN - Personal Injury lawyer represented Plaintiff with suing the employer of the bus driver for negligent infliction of emotional distress and reckless infliction of emotional distress
The underlying facts of this case are widely known and are not in dispute. On
November 21, 2016, school bus driver Johntony Walker lost control of a school bus with
thirty-seven Woodmore students on it, causing the bus to crash and flip over. Six children
lost their lives, and many others were injured. At the time of the crash, Walker was
employed by Durham School Services, L.P., a subsidiary of National Express, LLC
(together, “Durham”), which had a contract with Hamilton County Schools to provide
school bus services. The plaintiff here, Brenda Cothran, was the school principal at
Woodmore.
On November 21, 2017, Cothran filed a lawsuit against Durham in the Hamilton
County Circuit Court (“the trial court”), asserting claims for negligent infliction of
emotional distress, reckless infliction of emotional distress, and breach of a promise to pay
for necessary counseling and treatment related to the bus crash based on Walker’s reckless
driving of the school bus.2
Specifically, she alleged that—within minutes of the bus
crash—she was notified of the accident and rushed to the scene, where she saw the bus
flipped over and children lying on the grass or wandering around the bus, some of whom
were injured. She then went to the hospital to help identify injured and deceased children
and to comfort the children’s families and Woodmore staff. Additionally, Cothran asserts
that Durham was negligent in hiring, training, supervising, and retaining Walker as a school
bus driver. The complaint also includes a loss of consortium claim asserted by Cothran’s
husband, Harold D. Cothran, Jr.3
Durham moved to dismiss the action under Rule 12.02(6) of the Tennessee Rules of
Civil Procedure, arguing that Cothran failed to state a cause of action for negligent
infliction of emotional distress because she had not witnessed the accident and did not have
the requisite close and intimate personal relationship with the deceased children. Although
she went to the scene shortly after the bus crash had occurred, Durham urged the trial court
to distinguish between a bystander who observed an accident occur and non-bystander
who, like Cothran, “after learning of the accident through an indirect means, voluntarily
involves herself in the situation.” As to the claim for reckless infliction of emotional
distress, Durham contended that Cothran could not prevail because its alleged conduct was
2 Although Cothran’s complaint also named Walker as a defendant, Walker is not a party to this
appeal.
3 The parties raise no issues on appeal as to this claim.
- 3 -
not outrageous. Lastly, Durham submitted that it had no legal obligation to pay for
counseling and treatment because there was no consideration for its alleged promise to so
do. Durham did not address Cothran’s allegations of its negligent hiring, training,
supervision, and retention of Walker.
4
On May 22, 2018, Cothran filed an Amended Complaint, which added several new
paragraphs primarily concerning the nature of her relationship with the students involved
in the bus crash and Durham’s knowledge of and failure to address Walker’s dangerous
driving. For example, Cothran alleged that she “would often spend more time with and in
the presence of the children than did their own parents” and that she “was, in many ways,
in loco parentis with the injured and deceased children on a daily basis.” As to Walker’s
driving, the Amended Complaint stated that after being notified of Walker’s reckless
behavior by the Hamilton County School system, Durham “failed to take action to correct
Walker’s reckless and dangerous behavior or to discharge him from his duties as a school
bus driver.” Cothran also alleged that Durham “kn[ew] or should have known that if there
was a school bus accident, there was a high probability that not only children and their
parents would be adversely affected, but also teachers and staff of their schools would be
adversely affected as well.”
On June 28, 2018, Durham renewed its motion to dismiss, restating its original
arguments and also contending that Cothran did not allege in the Amended Complaint a
type of relationship with the students “that falls outside the normal realm of a general staffstudent relationship” so as to support her claim for negligent infliction of emotional
distress. Moreover, Durham argued, there is no legal or factual basis for concluding that a
“good school staff member” automatically holds in loco parentis status or has a close and
intimate personal relationship of the nature contemplated by the courts when granting relief
for emotional distress. With respect to the new allegations concerning Walker’s frequent
and widely known reckless driving, Durham insisted that such conduct is not sufficiently
outrageous to support a claim for reckless infliction of emotional distress.
Cothran filed a brief opposing the motion to dismiss, asserting that her case presents
all the elements required to proceed on a NIED claim in Tennessee because she had a
relationship with the students that were injured and killed and saw their serious and fatal
injuries at the crash scene within minutes after it occurred. As to the RIED claim, Cothran
emphasized that Durham’s “inaction, which they knew could lead to the serious injury and
death of a bus load of children, is so outrageous that it cannot be tolerated by civilized
society” and that Durham “knew or should have known that a crash involving serious injury
and death to the students would have a serious and debilitating effect on the teachers and
4
It appears from the record that the parties and the trial court did not treat these allegations as an
independent cause of action. See Heflin v. Iberiabank Corp., 571 S.W.3d 727, 737 (Tenn. Ct. App. 2018)
(“A plaintiff in Tennessee may recover for negligent hiring, supervision, or retention of an employee if he
establishes, in addition to the elements of a negligence claim, that the employer had knowledge of the
employee's unfitness for the job.”). In any event, this is not an issue on appeal.
- 4 -
staff at the school.” In reply, Durham contended that Cothran’s negligent infliction of
emotional distress claim fails not only because she voluntarily went to the scene of the bus
crash with full knowledge that the event had occurred, but also because she failed to allege
the requisite close and intimate personal relationship with the students, as required by Eskin
v. Bartee, 262 S.W.3d 727 (Tenn. 2008), for non-bystander NIED claims.
Durham later submitted to the trial court a consolidated supplemental brief in further
support of its renewed motion to dismiss.5
Durham asserted that, in the context of a NIED
claim, the Eskin Court limited the realm of potential non-bystander NIED claimants to
family members or those with pseudo-familial relationships, such as step-parents and stepchildren. Durham also contended that because Cothran voluntarily decided to rush to the
scene after becoming aware of the seriousness of the bus crash, she is different from a
plaintiff who is impacted by personally observing the injury producing event, see Ramsey
v. Beavers, 931 S.W.2d 527, 531 (Tenn. 1996), and cannot recover. With respect to the
RIED claim, Durham argued that under our Supreme Court’s jurisprudence, the claim has
a foreseeability requirement that Cothran does not satisfy. See Doe 1 ex rel. Doe 1 v.
Roman Cath. Diocese of Nashville, 154 S.W.3d 22, 39 (Tenn. 2005) (emphasis added)
(“The reckless tortfeasor will be liable only to persons who fall within the reasonably
foreseeable scope of the particular substantial and unjustifiable risk consciously
disregarded by the tortfeasor.”). Durham added that the facts alleged by Cothran to show
Durham’s negligent supervision and retention of Walker, even if true, do not amount to
extreme and outrageous conduct.
After a hearing on Durham’s renewed motion to dismiss, the trial court filed a
written order on September 17, 2019. The trial court denied the motion as to the NIED
claim, finding that “the allegations in the Amended Complaint show that plaintiff satisfies
the ‘closeness of relationship’ and ‘proximity’ requirements of a negligent infliction of
emotional distress claim.” The trial court also denied Durham’s motion to dismiss
Cothran’s RIED claim, concluding that she satisfied the claim’s pleading requirements
because “(1) the conduct alleged is outrageous as a matter of law, (2) [Durham] had
knowledge prior to the accident that any intentional or reckless injury done to the children
would have an adverse impact on plaintiff’s emotional state; and (3) the plaintiff otherwise
meets the requirements of Doe . . . , and falls within the reasonably foreseeable scope of
persons who could be injured by the particular substantial and unjustifiable risk
consciously disregarded by the tortfeasor.” The trial court dismissed the claim for breach
of contract, finding that Cothran made no allegations with respect to the consideration
required to form a contract.
After the trial court denied Durham’s motion for interlocutory appeal under Rule 9
of the Tennessee Rules of Appellate Procedure, Durham applied to this Court for an
5 Durham also filed this same consolidated supplemental brief in four separate civil actions
instituted by other Woodmore teachers and staff arising from the same 2016 school bus crash.
- 5 -
extraordinary appeal, see Tenn. R. App. P. 10, which we granted.
ISSUES PRESENTED
Our November 17, 2020 Order granting Durham’s application for an extraordinary
appeal delineates the following issues on appeal:
1) Whether Plaintiff’s complaint survives a motion to dismiss by sufficiently
alleging a prima facie claim for negligent infliction of emotional distress;
2) Whether Plaintiff’s complaint survives a motion to dismiss on the reckless
infliction of emotional distress claims by sufficiently alleging conduct so
outrageous that it is not tolerated by civilized society; and
3) Whether Plaintiff’s complaint survives a motion to dismiss on the reckless
infliction of emotional distress claim by sufficiently alleging that Plaintiff is a
person who falls within the reasonably foreseeable scope of the particular
substantial and unjustifiable risk consciously disregarded by the tortfeasors.
STANDARD OF REVIEW
In an extraordinary appeal, appellate courts apply the same standard of review that
would have been applied to the issues in an appeal as of right. Chapman v. DaVita, Inc.,
380 S.W.3d 710, 712 (Tenn. 2012); Culbertson v. Culbertson, 455 S.W.3d 107, 124 (Tenn.
Ct. App. 2014). The trial court’s denial of Durham’s motion to dismiss “is a question of
law, which this Court reviews de novo with no presumption of correctness.” See Heaton
v. Mathes, No. E2019-00493-COA-R9-CV, 2020 WL 1652571, at *3 (Tenn. Ct. App. Apr.
3, 2020) (citations omitted). Our Supreme Court has set forth the parameters of our review:
A Rule 12.02(6) motion challenges only the legal sufficiency of the
complaint, not the strength of the plaintiff’s proof or evidence. The
resolution of a 12.02(6) motion to dismiss is determined by an examination
of the pleadings alone. A defendant who files a motion to dismiss admits the
truth of all of the relevant and material allegations contained in the complaint,
but . . . asserts that the allegations fail to establish a cause of action.
In considering a motion to dismiss, courts must construe the complaint
liberally, presuming all factual allegations to be true and giving the plaintiff
the benefit of all reasonable inferences. A trial court should grant a motion
to dismiss only when it appears that the plaintiff can prove no set of facts in
support of the claim that would entitle the plaintiff to relief.
Webb v. Nashville Area Habitat for Human., Inc., 346 S.W.3d 422, 426 (Tenn. 2011)
- 6 -
(cleaned up). However, this Court is “not required to accept as true assertions that are
merely legal arguments or ‘legal conclusions’ couched as facts.” Id. at 427.
ANALYSIS
I. Negligent Infliction of Emotional Distress
We first consider whether the trial court correctly denied Durham’s motion to
dismiss Cothran’s NIED claim. Generally, to state a prima facie claim for NIED, a plaintiff
must allege ‘“the elements of a general negligence claim, which are duty, breach of duty,
injury or loss, causation in fact, and proximate causation[;] . . . [and] that the defendant’s
negligence caused the plaintiff ‘serious or severe emotional injury.’’” Pagliara v. Moses,
605 S.W.3d 619, 629 (Tenn. Ct. App. 2020), appeal denied (June 4, 2020) (quoting Rogers
v. Louisville Land Co., 367 S.W.3d 196, 206 (Tenn. 2012)). Our Supreme Court, however,
has more specifically defined the elements of this tort when plaintiffs did not witness the
actual event giving rise to their NIED claims:
When a plaintiff did not witness the injury-producing event, the cause of
action for negligent infliction of emotional distress requires proof of the
following elements: (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. In
reaching this conclusion, we do not intend to overrule our holdings in
Camper v. Minor or Lourcey v. Estate of Scarlett that plaintiffs who witness
the injury-producing event may recover without demonstrating the existence
of a close and intimate personal relationship with the deceased or injured
person.
Eskin, 262 S.W.3d at 739-40; see also Garrison v. Bickford, No. E2010-02008-COA-R9-
CV, 2011 WL 3241869, at *6 (Tenn. Ct. App. July 29, 2011). In Eskin, the Court allowed
“a mother who observed her young child lying unconscious in a pool of blood in his
school’s driveway minutes after he had been struck by an automobile” to pursue a NIED
claim. The Court held that recovery was permissible for “plaintiffs who have a close
personal relationship with an injured party and . . . arrive at the scene of the accident while
the scene is in essentially the same condition it was in immediately after the accident.” Id.
at 738 (emphasis added). The Court explained that its holding was partly grounded on the
Court’s historical recognition “that it is easily foreseeable that persons who have a close
personal relationship with an injured party will suffer serious or severe emotional distress
when they see someone ‘near and dear’ to them injured.” Id. (citing Ramsey, 931 S.W.2d
- 7 -
at 529; Shelton v. Russell Pipe & Foundry Co., 570 S.W.2d 861, 866 (Tenn. 1978)). The
Court also noted that “[w]hile a parent-child relationship, a spousal relationship, a sibling
relationship, or the relationship among immediate family members provides sufficient
basis for a claim, other intimate relationships such as engaged parties or step-parents and
step-children will also suffice.” Id. at 740 (emphasis added). The close and intimate
personal relationships required for a NIED claim to be viable are not limited to
relationships shared by immediate family members; however, the “other intimate
relationships” referenced in the opinion (i.e., “relationships such as engaged parties or stepparents and step-children”) contemplate circumstances where plaintiffs had become or
clearly intended to enter into a familial type of relationship with the injured third party by
the time the injury occurred. Importantly, the Court expressly differentiated cases where
plaintiffs “witness the injury producing event” from those who do not but arrive “before
the scene has been materially altered.” Id. at 739-40. The former need not demonstrate
the existence of a close and intimate personal relationship with the injured or deceased
individuals; the latter, however, must establish the existence of such a relationship.
At issue here are the second and third requirements set forth in Eskin. The trial court
concluded that Cothran satisfied the claim’s “closeness of relationship” and “proximity”
requirements because she alleged that she was “in loco parentis with the injured and
deceased children” and that she “went to the scene of the accident.” Durham asserts that
the trial court erred for two reasons. Durham first argues that Cothran did not allege the
type of close and intimate personal relationship with the children that would allow
recovery. Durham then insists that this Court should hold that a plaintiff who voluntarily
goes to an accident scene after having notice of the accident may not recover for emotional
distress. To be sure, Cothran alleges the type of NIED claim governed by Eskin. Unlike
the plaintiffs in many of the cases cited in her appellate brief, Cothran did not witness the
bus crash, was not involved in it, and was not anywhere nearby at the time it occurred. See,
e.g., Lourcey v. Est. of Scarlett, 146 S.W.3d 48, 51 (Tenn. 2004) (estate’s decedent
instructed plaintiff to call 911 because wife was having a seizure and then shot himself and
his wife in the plaintiff’s presence); Ramsey, 931 S.W.2d at 528 (plaintiff, while seated in
a car, witnessed his mother being struck by defendant’s vehicle when the mother got out
of the car to check the mail); Camper v. Minor, 915 S.W.2d 437, 439 (Tenn. 1996) (plaintiff
was driving the truck that collided with the victim’s vehicle after the victim suddenly pulled
out in front of the truck, and plaintiff viewed the victim’s dead body “moments after the
crash . . . in the wreckage from close range”). To the contrary, as the mother in Eskin,
Cothran arrived at the scene after the injury-producing event had occurred.
Our careful consideration of the applicable legal principles leads us to conclude that
Cothran did not allege, as a matter of law, a close and intimate personal relationship with
the injured and deceased students that would allow recovery under a NIED claim. Eskin
allows recovery by plaintiffs who do not witness the injury-producing event giving rise to
a NIED claim, in part, because “it is easily foreseeable that persons who have a close
personal relationship with an injured party will suffer serious or severe emotional distress
- 8 -
when they see someone ‘near and dear’ to them injured.” 262 S.W.3d at 738. While it was
foreseeable that Woodmore classmates, teachers, and staff members, like Cothran, as well
as neighbors, acquaintances, and persons in multiple other categories would be impacted
by the tragic losses from the bus crash, Cothran does not allege facts that would make her
relationship with the students the type of close and intimate personal relationship required
for recovery. Her relationship with the children is simply too attenuated. Cothran alleges
that she “would often spend more time with and in the presence of the children than did
their own parents,” but the same allegation could be made by anyone who attended or
worked at Woodmore. Indeed, almost every elementary school teacher and student could
make the same allegation concerning students in their classrooms. Employees in an office
with typical business hours could allege the same with respect to their co-workers. Further,
Cothran’s conclusory allegation that she “was, in many ways, in loco parentis with the
injured and deceased children,” was not made as to any child in particular. Cothran’s
proposed application of a NIED claim governed by Eskin, under the instant circumstances,
would expand the universe of potential plaintiffs in such cases far beyond the appropriate
scope of the tort.
Because Cothran failed to state a prima facie NIED claim, we need not reach
Durham’s second contention concerning plaintiffs who voluntarily go to an accident scene
after having notice of the accident. The trial court erred in denying Durham’s motion to
dismiss Cothran’s NIED claim.
II. Reckless Infliction of Emotional Distress
The second and third issue before us concern whether the trial court correctly denied
Durham’s motion to dismiss Cothran’s RIED claim.6
We begin by summarizing the legal
principles governing this cause of action. As stated by our Supreme Court, the required
elements of a RIED claim are: (1) the conduct complained of must have been reckless; (2)
the conduct must have been so outrageous that it is not tolerated by civilized society; and
(3) the conduct complained of must have caused serious mental injury to the plaintiff. Doe,
154 S.W.3d at 41 (citing Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997)); see also
Rogers, 367 S.W.3d at 205. In Doe, the Court also held that the plaintiff need not allege
that the reckless conduct of the defendant “was directed at a specific person or that [it]
occurred in the presence of the plaintiff.” 154 S.W.3d at 38–39. The Court explained that
the requirements of the tort itself—a reckless state of mind, outrageous conduct, and
serious mental harm to the plaintiff—“perform an important gate-keeping function for the
purposes of ensuring the reliability of claims and of preventing liability from extending
unreasonably.” Id. at 39. Further, the Court explained that “[t]he reckless tortfeasor will
6 Our Supreme Court has explained, “intentional infliction of emotional distress can be proven by
a showing of either reckless or intentional behavior.” Rogers, 367 S.W.3d at 205 n.6 (citations omitted).
We refer to Cothran’s claim as RIED throughout this opinion because it is undisputed that Durham’s
allegedly tortious conduct was not intentional. Accord Doe, 154 S.W.3d at 41.
- 9 -
be liable only to persons who fall within the reasonably foreseeable scope of the particular
substantial and unjustifiable risk consciously disregarded by the tortfeasor.” Id. at 39–40
(citing Tommy’s Elbow Room v. Kavorkian, 727 P.2d 1038, 1044 (Alaska 1986); Public
Fin. Corp. v. Davis, 360 N.E.2d 765, 767 (Ill. 1976); McClenahan v. Cooley, 806 S.W.2d
767, 775–76 (Tenn. 1991)). We now address each issue in turn.
A. Outrageous Conduct
In its order denying Durham’s motion to dismiss Cothran’s RIED claim, the trial
court stated that Durham’s alleged conduct was “outrageous as a matter of law.” Our
Supreme Court has repeatedly and unwaveringly held that to satisfy the outrageousness
element, the defendant’s alleged conduct must be “so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of decency and to be regarded as
atrocious, and utterly intolerable in a civilized community.” Medlin v. Allied Inv. Co., 398
S.W.2d 270, 274 (Tenn. 1966) (quoting Restatement (Second) of Torts § 46 cmt. d (1965));
see also Doe, 154 S.W.3d at 39; Lourcey, 146 S.W.3d at 51; Miller v. Willbanks, 8 S.W.3d
607, 614 (Tenn. 1999); Bain v. Wells, 936 S.W.2d 618, 623 (Tenn. 1997); Moorhead v. J.
C. Penney Co., 555 S.W.2d 713, 717 (Tenn. 1977). Put another way: “Generally, the case
is one in which the recitation of the facts to an average member of the community would
arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous.’”
Restatement (Second) of Torts § 46 cmt. d. By contrast, conduct consisting of ‘“mere
insults, indignities, threats, annoyances, petty oppression, or other trivialities”’ is not
sufficient to support liability under this tort. Medlin, 398 S.W.2d at 274 (citation omitted).
Given this high threshold, courts have a duty to determine in the first instance “whether the
defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit
recovery.” Id. at 275 (citation omitted).
In her Amended Complaint, Cothran alleged that Durham’s failure to discharge its
“duties and obligations in a careful manner,” so as to keep the students safe, constitutes
outrageous conduct. Cothran further alleged that Hamilton County Schools reported her
complaints about Walker’s driving to Durham and that Durham’s failure “to take corrective
action when notified of Walker’s egregious behavior is not only negligent, but so
outrageous that it cannot be tolerated in a civilized society.” Finally, Cothran averred that
Walker was using his cell phone at the time of the bus crash and that Durham “failed to
train or take such action as would have prohibited Walker from use of a cell phone while
driving a school bus.”
Durham concedes on appeal that Cothran alleged reckless conduct on its part, but it
asserts that the alleged conduct is neither extreme nor outrageous, as required by governing
law. Durham notes that “[t]he outrageous conduct requirement is a high standard which
has consistently been regarded as a significant limitation on recovery,” Doe, 154 S.W.3d
at 39, and argues that Cothran failed to meet that standard because her allegations “are not
dissimilar from those commonly made against transportation service providers whose
- 10 -
employees are alleged to have caused fatal accidents” and amount to no more than ‘“[p]oor
management [and] deviations from business practices,”’ see Rhodes v. Bates Rubber, Inc.,
No. 1:19-cv-01030-STA-jay, 2019 WL 2723237, at *5 (W.D. Tenn. June 27, 2019). Such
allegations, Durham posits, are not “unusual” enough to state a claim for reckless infliction
of emotional distress.
Durham points out that the element of outrageous conduct “is an exacting standard”
meant to filter out “fraudulent and trivial claims.” Miller, 8 S.W.3d at 614. We agree.
There is no indication in the record before the Court that Cothran’s claims are fraudulent—
and they are certainly not trivial.
Durham also calls our attention to two emotional distress cases based on intentional
acts of the defendant as examples of the type of “exceptional” conduct that may qualify as
outrageous and to show why its own conduct does not rise to that level. See Lourcey, 146
S.W.3d at 52 (where defendant estate’s decedent instructed plaintiff to call 911 because
wife was having a seizure and then proceeded to shoot both wife and himself in the head
in the presence of plaintiff); Levy v. Franks, 159 S.W.3d 66, 84 (Tenn. Ct. App. 2004)
(where defendant made death threats and fired shots near plaintiff’s home). While we agree
with Durham that the conduct of the defendants in Lourcey and Levy, respectively,
exemplifies actions that are extreme and outrageous, we find those cases inapposite here.
Both cases involved intentional conduct directed at the plaintiffs; here, we are dealing with
reckless conduct. Moreover, in Lourcey, the decedent’s intentional conduct posed a
substantial risk of emotional harm to plaintiff; here, Durham’s reckless conduct ignored a
substantial risk of emotional and physical harm.
In the other related cases addressing whether Durham’s conduct was outrageous,
the plaintiffs amended their complaints to provide detailed allegations regarding the bus
driver’s egregious behavior including prior accidents, prior records of speeding, and prior
behavior aimed at injuring the children. Cothran, however, never made such detailed
allegations. Rather, she made general allegations about Durham’s failure to fulfill its
obligation to keep the students safe and to address Walker’s behavior. These allegations,
without more, do not meet the high standard for alleging outrageous conduct required by
our Supreme Court. Nor does Cothran’s allegation that Walker was using his cell phone
at the time of the accident render Durham’s conduct outrageous. She does not state how
Durham failed keep the students safe or what it knew about Walker’s driving conduct and
when it knew it with any degree of specificity. Cothran only allegesthe statutory violations
commonly alleged in personal injury cases and lacks the detail provided by other plaintiffs
to support the outrageous conduct element.
7
We cannot write the plaintiff’s complaint for
her, nor can we import allegations made by other plaintiffs into Cothran’s claims. Under
these circumstances, we are unable to conclude that Cothran’s allegations show that
7 Cothran alleges that Durham should be imputed with Walker’s negligence per se in violating
Tennessee Code Annotated sections 55-8-115, -120, -123, -136, -152, -153 and 55-10-205.
- 11 -
Durham’s actions went beyond poor management and amount to conduct “so extreme in
degree, as to go beyond all possible bounds of decency and to be regarded as atrocious,
and utterly intolerable in a civilized community.” Medlin, 398 S.W.2d at 274. The trial
court erred in finding that Cothran sufficiently alleged the element of outrageous conduct.
B. Reasonably Foreseeable Scope of the Risk
With respect to this issue, the trial court found that Durham “had knowledge prior
to the accident that any intentional or reckless injury done to the children would have an
adverse impact on plaintiff’s emotional state” and that she “falls within the reasonably
foreseeable scope of persons who could be injured by the particular substantial and
unjustifiable risk[] consciously disregarded by the tortfeasor.”
A brief review of the facts in Doe is instructive. The plaintiffs in that case had been
sexually molested as minor boys by a priest formerly employed by the Roman Catholic
Diocese of Nashville. Id. at 24–30. They sued the Diocese for reckless infliction of
emotional distress, alleging that—despite being fully aware that the former priest had a
long history of sexually molesting numerous boys—the Diocese recklessly permitted the
priest to have continued access to male minors, including plaintiffs, through Dioceserelated activities and events for more than two decades. Id. This Court affirmed the trial
court’s grant of summary judgment in favor of the Diocese, concluding that a reckless
infliction of emotional distress claim must be based on conduct that was directed at the
plaintiff. Id. at 31. Our Supreme Court, however, reversed and held that “to be actionable,
reckless infliction of emotional distress need not be based upon conduct that was directed
at a specific person or that occurred in the presence of the plaintiff.” Id. at 24. The Court
reasoned that “the directed-at requirement is incompatible with the concept of recklessness
insofar as reckless misconduct has a general or random quality.” Id. at 39 (citations
omitted). Having set aside the directed-at requirement, the Court explained that “[t]he
elements of intentional and reckless infliction of emotional distress themselves perform an
important gatekeeping function for the purposes of ensuring the reliability of claims and of
preventing liability from extending unreasonably.” Id. In this context, the Court
specifically stated that a “reckless tortfeasor will be liable only to persons who fall within
the reasonably foreseeable scope of the particular substantial and unjustifiable risk
consciously disregarded by the tortfeasor.” Id. at 39–40 (citations omitted) (emphasis
added).
Here, Durham acknowledges that under Doe, “a claim of reckless infliction of
emotional distress need not be based upon conduct that was directed at a specific person or
that occurred in the presence of the plaintiff.” 154 S.W.3d at 38–39. Durham argues,
however, that the plaintiff does not fall within the reasonably foreseeable scope of the risk
consciously disregarded by the tortfeasor. Durham argues that the following factors are
probative on this issue: whether the plaintiff witnessed the injury-producing accident;
whether the plaintiff went to the scene of the accident before it was materially altered; and
- 12 -
whether the plaintiff had a close and intimate personal relationship with the accident’s
victims. Durham submits that neither the trial court nor Cothran has explained how a
school principal who voluntarily visited the scene of the bus crash after receiving notice
that it had occurred falls within the reasonably foreseeable scope. We agree with Durham.
Although Tennessee appellate courts had not specifically articulated the “reasonably
foreseeable scope” constraint on recovery until Doe, this limitation is consistent with our
Supreme Court’s recognition that the requirements of a RIED claim must “perform an
important gate-keeping function for the purposes of ensuring the reliability of claims and
of preventing liability from extending unreasonably.” Id. at 39. Our task here then, as
recognized in the order granting this Rule 10 extraordinary appeal, is to determine whether
Cothran sufficiently alleged that she is a person who falls within the reasonably foreseeable
scope of the particular substantial and unjustifiable risk consciously disregarded by
Durham.
8
In other words, did Cothran sufficiently allege that she was among the class of
persons for whom there was a high degree of probability that severe emotional distress
would follow after the bus crash? See id. at 39–40 (citing Tommy’s Elbow Room v.
Kavorkian, 727 P.2d 1038, 1044 (Alaska 1986); Public Fin. Corp. v. Davis, 360 N.E.2d
765, 767 (Ill. 1976)).
We acknowledge that neither our Supreme Court nor this Court has outlined the
parameters of the inquiry to determine whether a person falls within the reasonably
foreseeable scope of plaintiffs in a RIED claim. Appellate court opinions subsequent to
Doe did not need to address whether the plaintiffs had met the “reasonably foreseeable
scope” requirement because, generally, the plaintiff was either a person immediately
subject to the defendant’s outrageous conduct or a family member of that person. See, e.g.,
Rogers, 367 S.W.3d at 211 (after cemetery became overgrown and ill-maintained, mother
sued cemetery where son had been buried); Lourcey, 146 S.W.3d at 49–50 (defendant
purposely shot his wife and then himself in the plaintiff’s presence); Harris v. Horton, 341
S.W.3d 264, 266 (Tenn. Ct. App. 2009) (mother and sister of man who died in a motor
vehicle accident sued paramedic who circulated photos of the accident scene and
decedent’s corpse at a driver’s education class). The circumstances in those cases leave
little doubt that the plaintiffs were persons who fell within the reasonably foreseeable scope
of the particular substantial and unjustifiable risk consciously disregarded by the
defendants.
Our Supreme Court’s jurisprudence concerning the role of foreseeability in the
related claim of negligent infliction of emotional distress is instructive. In Ramsey, a son
sued for NIED after he witnessed a vehicle strike and kill his mother when she got out of
the car to check the mail at the son’s driveway while he remained seated inside the car.
8 Although the Court specifically identified the issue of whether plaintiff falls within the reasonably
foreseeable scope in the order granting Durham’s Rule 10 application for extraordinary appeal, Cothran did
not argue this issue in her brief.
- 13 -
931 S.W.2d at 528. The son remained in the car as the accident occurred. Id. The Court
of Appeals affirmed the trial court’s grant of summary judgment in favor of the defendant
on the basis of plaintiff’s failure to demonstrate that “his claim relate[d] to fear for his own
safety and not for that of his mother.” Id. at 529. The Supreme Court reversed and allowed
the claim to proceed, holding that to recover for emotional injuries sustained as a result of
death or injury of a third person, as Cothran seeks to do here, a plaintiff must show that the
emotional injuries were a foreseeable result of the defendant’s negligence. Id. at 531. This
inquiry “requires consideration of a number of relevant factors,” including the plaintiff’s
awareness of the event or accident and plaintiff’s physical location at the time of the event
or accident, the degree of injury to the third person, and the plaintiff’s relationship to the
injured third party. Id. at 531–32; see also Lourcey, 146 S.W.3d at 52–53 (applying these
foreseeability factors). Importantly, the Lourcey Court underscored: “Although we
discussed several considerations in analyzing foreseeability in Ramsey, including the
plaintiff’s relationship to the injured party, we did not hold that the plaintiff’s relationship
to the injured party was itself an element for stating or establishing a claim for negligent
infliction of emotional distress.” Lourcey, 146 S.W.3d at 53 (citing Ramsey, 931 S.W.2d
at 531). Subsequently, as we stated above in addressing Cothran’s NIED claim, the Court’s
decision to allow recovery by a mother who did not witness the injury-causing accident in
Eskin was partly based on a historical recognition “that it is easily foreseeable that persons
who have a close personal relationship with an injured party will suffer serious or severe
emotional distress when they see someone ‘near and dear’ to them injured.” 262 S.W.3d
at 738 (citing Ramsey, 931 S.W.2d at 529; Shelton, 570 S.W.2d at 866). We discern no
logical basis for applying a different approach than that used in a NIED claim to determine
whether a plaintiff falls within the reasonably foreseeable scope in a RIED claim.
Having thoroughly reviewed the facts alleged in the pleadings, in light of the
foregoing foreseeability principles and giving Cothran the benefit of all reasonable
inferences, we have determined that she does not fall within the class of persons for whom
there was a high degree of probability that severe emotional distress would follow after the
bus crash. To begin with, Cothran was not the immediate subject of Durham’s reckless
and outrageous conduct. Durham’s decision to disregard warnings it received concerning
Walker’s driving subjected the children on Walker’s bus, not Cothran, to a substantial and
unjustifiable risk of serious physical and emotional harm. Next, Cothran was neither aware
of the fatal accident nor in physical proximity to the accident at the time it occurred. She
learned about the crash before going to the scene of the crash and later visiting the hospital.
But going to the scene of the crash and the hospital after having notice of what had occurred
and identifying injured or deceased children there do not bring Cothran within the
reasonably foreseeable class of persons who were placed at a substantial and unjustifiable
risk of emotional distress. With respect to the foreseeability analysis, our Supreme Court
has noted that “[o]bviously, it is more foreseeable that one witnessing or having a sensory
observation of the event will suffer effects from it,” explaining:
The impact of personally observing the injury-producing event in most,
- 14 -
although concededly not all, cases distinguishes the plaintiff’s resultant
emotional distress from the emotion felt when one learns of the injury or
death of a loved one from another, or observes pain and suffering but not the
traumatic cause of the injury.
Ramsey, 931 S.W.2d at 531 (quoting Thing v. La Chusa, 771 P.2d 814, 828 (Cal. 1989));
see also Eskin, 262 S.W.3d at 738 (holding that “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” may
recover for emotional distress); Lourcey, 146 S.W.3d at 55 (holding that the plaintiff could
survive a Rule 12.02(6) motion to dismiss because she witnessed the defendant shooting
his wife and himself, even though the plaintiff was not related to the defendant or his wife).
Here, Cothran observed disoriented and injured children when she arrived at the
scene of the crash, but she did not personally observe the injury-producing event. See
Ramsey, 931 S.W.2d at 531. Moreover, as we already discussed in addressing Cothran’s
NIED claim, she did not share with any of the injured and deceased children the requisite
familial type of relationship necessary to sustain her claim. Id. at 528; Eskin, 262 S.W.3d
at 738. In limiting recovery for RIED to persons falling within the reasonably foreseeable
scope of the risk disregarded by the tortfeasor, our Supreme Court implicitly held that there
are boundaries to the class of persons who might recover under that cause of action.
Cothran falls outside those boundaries. We hold that she is not, as a matter of law, a
reasonably foreseeable plaintiff under the facts of this case.
In reaching this holding, we are aware of the Supreme Court’s pronouncement that
“reckless infliction of emotional distress need not be based upon conduct that was directed
at a specific person or that occurred in the presence of the plaintiff.” Doe, 154 S.W.3d at
38–39. Our holding is not predicated on the fact that Durham’s disregard for the safety of
the children was not directed at Cothran or that such disregard did not occur in her presence.
Rather, our holding is based upon our determination that Cothran is not a reasonably
foreseeable plaintiff in this case. We reverse the trial court’s judgment as to the second
issue in this appeal.
Outcome: We reverse the judgment of the Hamilton County Circuit Court and remand the case
for entry of an order granting Durham’s motion to dismiss for failure to state a claim upon which relief can be granted. Costs of this appeal are taxed equally between appellants and appellee, for which execution may issue if necessary.
Plaintiff's Experts:
Defendant's Experts:
Comments: