Alisa Bibbs v. Durham School Services, L.P. ( 2022 )

04/07/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
June 1, 2021 Session
ALISA BIBBS v. DURHAM SCHOOL SERVICES, L.P., ET AL.
Appeal from the Circuit Court for Hamilton County
No. 17C1266 John B. Bennett, Judge
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No. E2020-00688-COA-R10-CV
___________________________________
This extraordinary appeal arises from a school bus crash in November 2016, which resulted
in the tragic death of six children attending Woodmore Elementary School in Chattanooga.1
Woodmore’s school secretary sued the employer of the bus driver for, inter alia, reckless
infliction of emotional distress (“RIED”). The school secretary alleged that the employer’s
failure to address the bus driver’s dangerous driving despite receiving numerous warnings
disregarded the children’s safety, constituted reckless and outrageous conduct, and caused
her serious mental injuries. The trial court denied the employer’s motion to dismiss the
claim, finding that the school secretary had sufficiently alleged outrageous conduct on the
part of the employer and that she had met all other pleading requirements to sustain her
RIED claim. Employer appeals. Although we agree with the trial court that the school
secretary sufficiently alleged conduct so outrageous by the employer that it cannot be
tolerated by civilized society, we hold that the secretary is not a person who falls within
the reasonably foreseeable scope of the particular substantial and unjustifiable risk
consciously disregarded by the employer and, therefore, cannot recover under a reckless
infliction of emotional distress claim. Consequently, we reverse the trial court’s finding
on this latter issue and remand the case for dismissal of the action against employer.
Tenn. R. App. P. 10 Extraordinary Appeal; Judgment of the Circuit Court Affirmed
in Part and Reversed in Part; Case Remanded
KRISTI M. DAVIS, J., delivered the opinion of the Court, in which D. MICHAEL SWINEY,
C.J., AND THOMAS R. FRIERSON, II, J., joined.
Melissa A. Murphy-Petros, Chicago, Illinois, and Michael R. Campbell, Chattanooga,
Tennessee, for the appellants, Durham School Services, L.P., and National Express, LLC.
1
By order dated September 11, 2020, this Court consolidated this and four other extraordinary
appeals arising from the same school bus crash for purposes of oral argument. Separate opinions addressing
the other appeals are being filed concurrently with this opinion.
Ronald J. Berke, Chattanooga, Tennessee, for the appellee, Alisa Bibbs.
OPINION
FACTS AND PROCEDURAL HISTORY
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, Alissa Bibbs, was the school secretary at
Woodmore.
On November 17, 2017, Bibbs filed a lawsuit against Durham in the Hamilton
County Circuit Court (“the trial court”), asserting claims for negligent infliction of
emotional distress, intentional 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 She also alleged that Durham was negligent in hiring,
training, supervising, and retaining Walker as a school bus driver.
Durham moved to dismiss the action under Rule 12.02(6) of the Tennessee Rules of
Civil Procedure, arguing that Bibbs 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. As to the
claim for intentional infliction of emotional distress, Durham contended that Bibbs could
not prevail because its alleged conduct was 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 Bibbs’s allegations
of negligent hiring, training, supervision, and retention.
On March 6, 2018, Bibbs filed an Amended Complaint, which added about a dozen
new paragraphs primarily concerning the nature of Bibbs’s relationship with the students
involved in the bus crash and Durham’s knowledge of and failure to address Walker’s
history of reckless and dangerous driving. For example, Bibbs alleged that she “spent as
much or more time with the students during waking hours than the parents did[,]” making
her, “a surrogate mother to many of the students in the bus, including students who were
badly injured and students who died due to the crash.” As to Walker’s driving, the
2
Although Bibbs’s complaint also named Walker as a defendant, Walker is not a party to this
appeal.
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Amended Complaint stated that Woodmore teachers, staff, and parents knew about
Walker’s reckless driving habits, which “were frequently reported to Durham who did no
investigation and who did nothing.” Bibbs also alleged 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 staff at the school.”
Two weeks later, Durham renewed its motion to dismiss, restating its original
arguments and also contending that Bibbs did not allege in the Amended Complaint a type
of relationship with the students “that falls outside the normal realm of a general staff-
student 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 becomes a surrogate parent 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 intentional infliction of emotional distress.
Bibbs filed a brief opposing the motion to dismiss, emphasizing 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 staff at the school.” In
reply, Durham contended that Bibbs’s negligent infliction of emotional distress claim fails
not only because she did not allege the requisite close and intimate personal relationship
with the students, but also because she neither witnessed the bus crash nor the scene before
it was materially altered, as required by our Supreme Court in Ramsey v. Beavers, 931
S.W.2d 527 (Tenn. 1996) and Eskin v. Bartee, 262 S.W.3d 727 (Tenn. 2008), respectively.
Over Durham’s objection, the trial court granted Bibbs’s motion to amend her
complaint a second time. This Second Amended Complaint, filed on January 30, 2019,
added, inter alia, the following relevant allegations concerning Walker’s repeated driving
misconduct and Durham’s failure to take any action despite having knowledge of the same:
• That Durham had “received over one thousand notifications from Zonar3 that . . .
Walker was speeding while driving his school bus.”
• That Durham was aware that in August and September of 2016, “Walker was at fault
in two accidents within a period of thirty-four days.”
• That Durham knew “Walker would slam on his brakes to make the children [on the bus]
hit their heads” and “had even seen video where Walker was talking on a telephone
3
According to the Second Amended Complaint, Zonar “is a company that [Durham] hired to track,
among other things, the path of the buses and the speed of the buses[,]” and it sends “email notifications
not only to the supervisors and management of [Durham] in Chattanooga, but also to [its] corporate offices.”
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with a blue tooth headset while driving the school bus.”
• That Durham knew “Walker had fallen asleep at the wheel on two occasions.”
• That Durham took no action when “Walker missed five out of five mandatory safety
meetings during his short term of employment with Durham.”
• That five days before the bus crash, on November 16, 2016, Durham received notice
that on that same date, “six students reported that Walker was intentionally swerving
the bus to knock the children out of their seats.”
• That Durham had information from Zonar that on November 16, 2016, Walker “had
twenty five separate speeding incidents . . . [and in] five of the incidents, he was
speeding more than twenty miles over the speed limit.”
• That Durham was in possession of, but failed to review promptly, a twenty-six-minute
video of the November 16, 2016 incident showing “dramatic and intentional attempts
by Walker to throw the children off their seats and injure them,” prior to the bus crash
five days later on November 21, 2016.
• That Durham “had no central place to log complaints which were made by other drivers
or complaints made by the public . . . [and] no central place to record violations of their
own regulations and did not even have a policy on documenting complaints.”
• That Durham “did no investigation of Walker’s speeding events . . . [and] not even an
investigation of Walker’s speeding incident on the dates of his two at-fault accidents.”
• That Durham failed to test Walker for alcohol and controlled substance abuse after his
two at-fault accidents, as required by federal regulations.
• That Durham did not document in its daily log “complaints by parents that were emailed
to [Durham] . . . [nor] put in Walker’s file, and were not even forwarded to a training
or safety supervisor. There was no investigation and no discipline of Walker.”
• That “all of the above cited facts amounted to a reckless indifference to the lives and
safety of the children riding on the buses and to others in the community.”
Bibbs later filed a supplemental memorandum of law to elaborate on the RIED claim
and related allegations raised in her Second Amended Complaint. She emphasized our
Supreme Court’s holding in Doe 1 ex rel. Doe 1 v. Roman Catholic Diocese of Nashville,
154 S.W.3d 22, 38 (Tenn. 2005), that an actionable claim for “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.” The rest of her memorandum restated the
bulk of the allegations made in her Second Amended Complaint.
Durham submitted to the trial court a consolidated supplemental brief in further
support of its renewed motion to dismiss.4 Durham asserted that, concerning RIED claims,
Doe retained a foreseeability requirement by stating that “[t]he 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.
4
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.
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Moreover, Durham contended, it would seem anomalous that a non-bystander, such as
Bibbs, could meet the higher burden to recover for reckless infliction of emotional distress
but be denied relief for negligent infliction of emotional distress based on the same facts.
Durham added that the facts alleged by Bibbs 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 July 15, 2019. The trial court found that “the allegations in the [Second]
Amended Complaint show a closeness of relationship between the plaintiff and the
children, and a very serious driving problem with Mr. Walker.” The trial court denied
Durham’s motion to dismiss Bibbs’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.” Bibbs’s claim for negligent
infliction of emotional distress was dismissed because she “did not go to the scene of the
accident, and therefore does not satisfy the factors required to proceed with this cause of
action.” Likewise, the trial court dismissed the claim for breach of contract, finding that
Bibbs made no allegations with respect to the consideration required to form a contract.
After the trial court denied the parties’ motions for interlocutory appeal under Rule
9 of the Tennessee Rules of Appellate Procedure, Durham applied to this Court for an
extraordinary appeal, see Tenn. R. App. P. 10, which we granted.
ISSUES PRESENTED
Our July 9, 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 conduct so outrageous that it is not tolerated by civilized society; and
2) Whether Plaintiff’s complaint survives a motion to dismiss 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.,
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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)
(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
The overarching issue before us is whether the trial court correctly denied Durham’s
motion to dismiss Bibbs’s RIED claim.5 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
5
Intentional infliction of emotional distress and RIED are not different causes of action. Rather,
as our Supreme Court has explained, “intentional infliction of emotional distress can be proven by a
showing of either reckless or intentional behavior.” Rogers v. Louisville Land Co., 367 S.W.3d 196, 205
n.6 (Tenn. 2012) (citations omitted). We refer to Bibbs’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.
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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
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 in turn the two issues presented in this appeal.
I. Outrageous Conduct
In its order denying Durham’s motion to dismiss Bibbs’s RIED claim, the trial court
stated that the conduct alleged 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 v. Est. of Scarlett, 146 S.W.3d 48, 51 (Tenn. 2004); 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).
We have no difficulty concluding that Durham’s alleged conduct, or rather complete
lack of action, was outrageous. Walker had only been employed by Durham as a bus driver
for four months prior to the accident, but his tenure was littered with examples of
unbelievably dangerous conduct about which Durham allegedly did nothing. According
to Bibbs, months prior to the November 2016 crash, Durham was aware that Walker was
at fault in two motor vehicle accidents in August and September 2016, respectively; that
Walker had fallen asleep at the wheel at least twice; that he would slam on the brakes to
make the students on the bus hit their heads; and that he had missed every single mandatory
safety meeting during his employment with Durham. In addition, Zonar, the company
engaged by Durham to monitor its drivers’ speeding practices, had notified Durham that
Walker had been speeding more than one thousand times while driving the school bus. In
fact, Zonar notified Durham that on November 16, 2016, five days prior to the deadly crash,
it had registered twenty five separate speeding incidents, with Walker going more than
twenty miles per hour over the speed limit in five of them. Bibbs alleges that Durham did
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nothing with this information. Specifically, Durham did not test Walker for alcohol and
controlled substance abuse after his two at-fault accidents, as required by federal
regulations; it did not investigate Walker’s repeated speeding events, not even those that
occurred on the dates of his two at-fault accidents; and it had no system to log and address
complaints made about its drivers or violations of its own regulations.
Durham argues its conduct was not outrageous because “[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 because the allegations made by Bibbs
“are not dissimilar from those commonly made against transportation service providers
whose 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’s reliance on Rhodes is misplaced. In that case, the plaintiff asserted an
intentional infliction of emotional distress claim based on age discrimination by his former
employer. Id. at *1. The plaintiff alleged that his direct supervisor “demeaned him by
using condescending language . . . and by calling him patronizing names during discussions
with other plant employees” and that the supervisor “used [a] supposed violation of
company policy as a pretext to terminate [the plaintiff’s] employment.” Id. at *4. The
federal district court determined that in Tennessee, “malice and bad intent simply do not
suffice to show that a person’s actions” satisfy the outrageous conduct requirement. Id. at
*6. As that court noted, ‘“mere insults, indignities, threats, annoyances, petty oppression
or other trivialities’ cannot constitute outrageous conduct.” Id. at *4 (quoting Bain, 936
S.W.2d at 622). Respectfully, the allegations made by the plaintiff in Rhodes are not
remotely within the same universe as those made by Bibbs. While the conduct of the
supervisor in Rhodes is certainly not appropriate workplace demeanor and may have
unfairly—even discriminatorily—caused the plaintiff to lose his employment, id., that
conduct never created or ignored a risk of serious physical harm to individuals placed under
the employer’s care. We find that the allegations in the present case are not analogous to
those in “a run-of-the-mill wrongful termination or disparate treatment case.” Id. at *5.
Rhodes is inapposite here.
Durham also submits that “if even criminal intent or malicious intent is insufficient
to sustain an intentional or reckless infliction of emotional distress claim, the common
allegations of mismanagement and recklessness made here against Durham will not do.”
Bibbs’s allegations are not common allegations of mismanagement. They are allegations
of severe and extreme reckless disregard for unbelievably dangerous behavior. Durham
seemingly conflates the first element of a RIED claim (i.e., the tortfeasor’s state of mind
while engaging in the conduct at issue) with the second (i.e., the conduct’s outrageous
character and extreme degree). This argument is unavailing.
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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). Again,
Durham’s argument is misplaced. First, both cases involved intentional conduct directed
at the plaintiffs; here, we are dealing with Durham’s recklessness. 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 both emotional and physical harm.
Contrary to Durham’s argument, its alleged conduct is on par with that of the tortfeasors
in Lourcey and Levy.
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 this record that Bibbs’s claims are fraudulent—and they are
certainly not trivial. The allegations here are not simply of poor management or deviation
from business practices commonly alleged by plaintiffs against transportation service
providers. We hold that a jury could reasonably conclude that Durham’s conduct,
“considered as a whole, was extreme, outrageous and intolerable in present day society.”
Moorhead, 555 S.W.2d at 717.
The factual allegations in Bibbs’s pleadings are sufficient to satisfy the outrageous
conduct element of a RIED claim. Bibbs alleges that Durham was aware of, but chose to
ignore, a plethora of incidents indicating that the on-the-job conduct of one of its
employees, Walker, presented an imminent risk of serious harm to the students.
Inexplicably, Durham allowed Walker to continue driving a school bus full of elementary
school children, despite having received multiple warnings of Walker’s dangerous
behavior. Six children were killed and scores of others were injured. The trial court
correctly concluded that the plaintiff sufficiently alleged the element of outrageous
conduct.
II. Reasonably Foreseeable Scope of the Risk
With respect to the second issue for review, the trial court found that Bibbs’s
“allegations in the [Second] Amended Complaint show a closeness of relationship between
the plaintiff and the children.” The trial court’s order also stated 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,” that Bibbs “otherwise meets
the requirements of Doe,” 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.”
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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 Diocese-
related 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
whether the plaintiff had a close and intimate personal relationship with the accident’s
victims. Durham submits that neither the trial court nor Bibbs has explained how a school
secretary who never visited the scene of the bus crash 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
Bibbs sufficiently alleged that she is a person who falls within the reasonably foreseeable
scope of the particular substantial and unjustifiable risk consciously disregarded by
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Durham.6 In other words, did Bibbs 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 (“NIED”) 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. 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 Bibbs 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
6
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, Bibbs did
not argue this issue in her brief.
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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, in Eskin v. Bartee, 262 S.W.3d 727, 738 (Tenn. 2008), 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.(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 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). Under the combined
precedent of Ramsey, Lourcey, and Eskin, although a plaintiff’s relationship to the injured
third party is not an element of a NIED claim, it remains a relevant factor in determining
the foreseeability of emotional injuries to the plaintiff. In addition, while Eskin made clear
that close personal relationships bearing on foreseeability are not limited to relationships
shared by immediate family members, the “other intimate relationships” referenced in the
opinion (i.e., “relationships such as engaged parties or step-parents 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.
We discern no logical basis for applying a different approach to determine whether a
plaintiff falls within the reasonably foreseeable scope in a RIED claim.
Our careful consideration of the facts alleged in the pleadings, in light of the
foreseeability principles discussed above and giving Bibbs the benefit of all reasonable
inferences, leads us to conclude 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, Bibbs was not the immediate subject of Durham’s reckless and
outrageous conduct. Durham’s decision to disregard the multiple and repeated warnings it
received concerning Walker’s dangerous driving subjected the children on Walker’s bus,
not Bibbs, to a substantial and unjustifiable risk of serious physical and emotional harm.
Next, Bibbs was neither aware of the fatal accident nor in physical proximity to the accident
at the time it occurred. Bibbs never observed the accident scene or the injured children.
Importantly, Bibbs did not share a familial type of relationship with any of the injured and
deceased children. See Ramsey, 931 S.W.2d at 528; Eskin, 262 S.W.3d at 738. While it
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would be foreseeable that Woodmore classmates, teachers, and staff members, like Bibbs,
as well as neighbors, acquaintances, and persons in multiple other categories would be
impacted by the tragic losses from the bus crash, Bibbs is not a person who falls within the
reasonably foreseeable scope of the risk disregarded by Durham. Her relationship with the
children is simply too attenuated. Bibbs alleges that she spent “as much or more time with
the students during waking hours than the parents did,” 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, Bibbs’s conclusory allegation that she became “a
surrogate mother to many of the students in the bus, including students who were badly
injured and students who died due to the crash,” was not made as to any child in particular.
Deeming Bibbs a foreseeable RIED plaintiff under these circumstances would expand the
universe of potential plaintiffs in such cases far beyond the appropriate scope of the tort.
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. Bibbs
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 at38–39. Our holding is not predicated on the fact that Durham’s outrageous disregard for
the safety of the children was not directed at Bibbs or that such disregard did not occur in
her presence. Rather, our holding is based upon our determination that Bibbs is not a
reasonably foreseeable plaintiff in this case. We reverse the trial court’s judgment as to
the second issue in this appeal.
CONCLUSION
We affirm the judgment of the Hamilton County Circuit Court concluding that
Bibbs sufficiently alleged outrageous conduct on the part of Durham but reverse its
judgment that Bibbs sufficiently alleged she falls within the reasonably foreseeable scope
of the particular substantial and unjustifiable risk consciously disregarded by Durham.
Accordingly, we remand 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.
_________________________________
KRISTI M. DAVIS, JUDGE
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