Marc Eskin v. Alice B. Bartee - Concurring

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
October 25, 2006 Session
MARC ESKIN, ET AL. v. ALICE B. BARTEE, ET AL.
A Direct Appeal from the Circuit Court for Shelby County
No. CT-006445-03 The Honorable Karen R. Williams, Judge
No. W2006-01336-COA-R3-CV - Filed December 27, 2006
HOLLY KIRBY, JUDGE, CONCURRING:
I agree with the result reached by the majority and the substance of the majority’s reasoning.
I write separately only to note that I disagree with a portion of the majority’s reading of Ramsey v.
Beavers, 931 S.W.2d 527 (Tenn. 1996), and in particular its reliance on Thing v. La Chusa, 771
P.2d 814 (Cal. 1989).
Thing v. La Chusa involved facts somewhat similar to the facts in the instant case. In
Thing, a child was struck by an automobile and seriously injured. Thing, 771 P.2d at 815. The
mother was nearby but was not present at the accident. Id. When she was told that her child was
injured, the mother rushed to the scene and saw her “bloody and unconscious” child lying on the
roadway. Id. The mother sued the driver of the automobile for negligent infliction of emotional
distress. Id.
The Thing court discussed at length the appropriate limits for the tort of negligence infliction
of emotional distress. Id. at 816-30. It ultimately decided to adopt a “bright-line” rule that a plaintiff
could not recover for negligent infliction of emotional distress unless the plaintiff was present at the
injury-producing event at the time it occurred and was aware at that time that it was causing injury
to the victim. Id. at 829-30. In explaining its reasoning, the Thing court noted that while any limits
on the tort of negligent infliction of emotional distress would be arbitrary and might leave out
deserving plaintiffs, the rule that it adopted would establish reasonable parameters to allow recovery
by the plaintiffs most likely to suffer genuine traumatic emotional injury. See id. at 827-28. It
stated:
The impact of personally observing the injury-producing event in most, 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.
Id. at 828. Thus, the Thing court felt that, while the standard it was adopting was not perfect, it was
nevertheless a reasonable standard. See id. It then denied recovery to the plaintiff because she was
not present at the accident. Id. at 830. Since then, the Thing decision has been recognized as
representing the line of cases favoring a “bright-line” rule in negligent infliction of emotional distress
cases. See, e.g., Clohessy v. Bachelor, 675 A.2d 852, 858-59 (Conn. 1996); Contreras v. Carbon
County Sch. Dist. No. 1, 843 P.2d 589, 593 (Wyo. 1992).
As noted by the majority, the Tennessee Supreme Court in Ramsey v. Beavers, 931 S.W.2d
527, 531 (Tenn. 1996), cites Thing and quotes the above language. The majority, after stating that
there is little difference in the emotional injury suffered by a family member who witnesses the
injury and one who arrives on the scene immediately thereafter, states:
[T]he Ramsey Court’s quotation from Thing v. La Chusa . . . indicates that the Court
was not establishing a bright line rule that there must be actual observance of the
injury producing accident. It appears the Court recognized that there may be
circumstances where sensory observance of the injury-producing event is not an
absolute essential element.
I must disagree with the majority’s characterization of what is indicated by the Ramsey
Court’s reliance on Thing. Prior to inserting the above quotation from Thing, the Ramsey Court
notes that the “plaintiff’s physical location at the time of the event or accident and awareness of the
accident are essential factors” and that it is “more foreseeable that one witnessing or having sensory
observation of the event will suffer effects from it.” Ramsey, 931 S.W.2d at 531 (footnote omitted).
Immediately thereafter, the Court inserts the quotation from Thing and then concludes that a
“plaintiff must establish sufficient proximity to the injury-producing event to allow sensory
observation by plaintiff.” Id. Certainly the Ramsey Court was aware of the holding in Thing and
that the case was perceived as standing for the adoption of a bright-line rule. I simply read Ramsey
as not going beyond the issue presented in that case, that is, whether to allow recovery for a plaintiff
who was present at the scene but not in the zone of danger, and not indicating one way or another
whether recovery might, under some circumstances, be allowed for one not present at the scene of
the injury-producing event. But see McCracken v. City of Millington, No. 02A01-9707-CV-00165,
1999 WL 142391, at *11 (Tenn. Ct. App. Mar.17, 1999).
I agree, therefore, with the majority’s holding, and in particular its reliance on the reasoning
in Hegel v. McMahon, 960 P.2d 424 (Wash. 1998). I write separately only to emphasize my belief
that our holding today is a reasonable extension of the Ramsey holding.
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HOLLY M. KIRBY, JUDGE
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