IN THE SUPREME COURT OF TENNESSEE
AT KNOXVILLE FILED
October 7, 1996
Cecil Crowson, Jr.
MITCHELL BRIAN RAMSEY, ) FOR PUBLICATION Clerk
Appellate C ourt
)
Plaintiff/Appellant, ) Filed: October 7, 1996
)
v. ) Hamilton County
)
JAMES G. BEAVERS, ) Hon. Samuel H. Payne, Judge
)
Defendant/Appellee. ) No. 03S01-9509-CV-00104
For Appellant: For Appellee:
Mark T. Young Thomas A. Williams
Hixson, TN LEITNER, WARNER, MOFFITT,
WILLIAMS, DOOLEY &
NAPOLITAN
Chattanooga, TN
OPINION
COURT OF APPEALS AND
TRIAL COURT REVERSED WHITE, J.
In this case we are faced with the issue of the continued viability of
the zone of danger test as a limitation on liability when plaintiff is neither
physically injured nor in an area where physical injury is possible. We
conclude that in cases such as this, in which plaintiff sensorily observes the
injury and resulting death of his mother, recovery should be allowed under
circumstances in which the incident which produces the emotional injuries
and the emotional injuries are reasonably foreseeable.
Mitchell Ramsey and his mother were traveling on Highway 58 in
Hamilton County, Tennessee. Ramsey’s mother, who was driving the car,
pulled into Ramsey’s driveway and got out of the car to check the mailbox
while Ramsey remained seated in the rear driver’s side seat.
Defendant James Beavers was driving his vehicle north on Highway
58. His vehicle left the traveling portion of the roadway and struck
Ramsey’s mother. According to Ramsey, he heard the tires of Beaver’s car
in the gravel as it left the roadway. Just as he looked, he witnessed his
mother being struck by the car.
Ramsey’s complaint details the distances between the automobile in
which he was seated, the mailbox, and the point at which his mother was
struck. He alleged that “at the time of the accident [he] feared for [his] own
personal safety due to the close proximity [of the vehicle].” In an amended
complaint, Ramsey alleged that he suffered fright, shock, and emotional
suffering as a result of his fear. He also claimed to suffer “physical pain and
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suffering resulting from witnessing his mother’s death.”
Defendant answered and moved for summary judgment.1 In his
motion defendant contended that since “plaintiff was not in immediate
threat of physical harm [sic] he was not within the ‘zone of danger’ and
therefore may not recover for the injuries claimed.” The trial court agreed
and sustained the motion dismissing the case. A motion to reconsider was
denied and plaintiff appealed.
On appeal, the Court of Appeals, Eastern Division, affirmed the
judgment of the trial court noting the limited circumstances under which a
party may recover for negligent infliction of emotional distress. Specifically
the court relied on Shelton for its holding that a plaintiff may not recover for
injuries resulting from psychic injury caused by concern for the welfare of a
third person who is injured or threatened with injury by another’s
negligence. Thus, the court concluded that “in order to succeed the plaintiff
here must demonstrate that his claim relates to fear for his own personal
safety and not for that of his mother.”
As both parties have noted in briefs and at oral argument, our recent
decision in Camper v. Minor impacts the result we reach here. Nonetheless,
we begin our analysis seventy years ago.
In 1927 in the case of Nuckles v. Tenn. Elec. Power Co., 299 S.W.
1
An earlier filed motion to dismiss for failure to state a claim was denied when plaintiff
filed his amended complaint.
3
775 (Tenn. 1927), this Court declared that “there can be [no] recovery for
fright or shock because of danger to another or injuries upon another in the
presence of the plaintiff, even though the person imperiled or injured was
near and dear to the plaintiff . . . .” 299 S.W. at 775. Our justification for
that wording was stated succinctly: “to justify a recovery in court, there
must be a
wrong done to the person or property of the plaintiff.” Id.
Subsequently, in Shelton v. Russell Pipe and Foundry Co., 570
S.W.2d 861 (Tenn. 1978), a case in which a father attempted to recover for
emotional distress suffered when he was told at the emergency room of
disfiguring injuries to his daughter, we returned to the rule enunciated in
Nuckles. While recognizing that the Nuckles rule might need modification
“so as to permit a recovery by a close relative who visually or audibly
witnesses an accident [involving] one ‘near or dear . . . ,’ ” such a situation
was not present in Shelton. Rather, in Shelton, the father’s distress resulted
from his being told of his daughter’s injuries, not from seeing or hearing
them occur. Thus, we left the Nuckles rule intact because of the lack of
foreseeability that harm “would come to one outside the zone of danger and
because of the lack of fairness in a rule which would impose liability for
psychic injuries to one outside the zone of danger.” Id. at 866.
The Shelton analysis illustrates the concern of many courts which
have tampered with and modified the inflexible zone of danger rule. Once
the rule is modified, either by enlarging the so-called zone of danger or by
creating exceptions for injuries witnessed or injuries to those related to
4
plaintiff, potential liability seems limitless. Additionally, the difficulty in
assessing and verifying the type and extent of injuries involved is
staggering. Psychic injuries including fright, shock, and distress, when
detached from any physical counterpart, are highly subjective and difficult
to quantify.
While noting the difficulties that moving away from the inflexible
zone of danger of physical impact rule include, we are equally quick to note
the imperfections in that rule as well. The zone of danger is rarely concrete.
Its location is subject to interpretation. Furthermore, very real injuries may
be suffered by those outside the zone of danger, but close to a traumatic,
emotive event involving a close relative.
Very recently we revisited this interesting, but difficult, area of the
law in Camper v. Minor, 915 S.W.2d 437 (Tenn. 1996). In Camper, the
driver of a cement truck sued to recover for the emotional distress he
suffered when he viewed the body of a deceased motorist who had pulled
into the path of his truck. Camper had experienced only minor physical
injuries - a scraped knee. The trial court denied the motion for summary
judgment utilizing the meager, but existent, physical injury and the
plaintiff’s actual involvement in the accident, to distinguish the case from
Shelton. Because of the importance of the issue, the trial judge granted an
interlocutory appeal.
On appeal, the Court of Appeals reversed and sustained defendant’s
5
summary judgment motion. That court reasoned that the allegations of the
complaint failed to state a cause of action because plaintiff failed to prove
that he feared for his own safety or that he had a close relationship with the
deceased.
In an opinion containing an excellent, historical analysis, Justice
Drowota tracked the development of the law of negligent infliction of
emotional distress nationally and in the Tennessee courts. He aptly pointed
out that our law had become garbled and confused as the courts attempted to
apply rigid tests, then modified the tests to reach just results.
As part of his review, Justice Drowota addressed the zone of danger
test which serves to limit liability and on which defendant in this action
relies. That test, as defendant urges, and as applied in Tennessee, requires
that a plaintiff desiring to recover for emotional injuries establish either that
he or she sustained a physical injury along with the emotional one, or that
he or she was placed in immediate danger of physical harm and,
contemporaneously, feared for his or her own physical safety. Additionally,
the Tennessee zone of danger rule requires that plaintiff be closely related to
the actual injured party. See Burroughs v. Jordan, 456 S.W.2d 652 (Tenn.
1970).
Notwithstanding these two prerequisites to recovery under the zone of
danger approach, both of which were notably missing in Camper, we
reversed the grant of summary judgment in that case. Recognizing the
6
inconsistency of our previous patchwork approach, we adopted a general
negligence approach which required that plaintiff prove the five elements of
negligence and prove by expert testimony that the emotional injury suffered
is serious or severe. Specifically, we held that the physical manifestation or
injury rule
shall no longer be used to test the validity of a
prima facie case of negligent infliction of
emotional distress. . . . [T]he plaintiff must present
material evidence as to each of the five elements
of general negligence . . . in order to avoid
summary judgment. Furthermore, . . . in order to
guard against trivial or fraudulent actions, the law
ought to provide a recovery only for “serious” or
“severe” emotional injury.
Camper v. Minor, 915 S.W.2d at 446. In shifting to this general negligence
approach, we clearly vitiated the previous rigid rule that required the
presence or fear of physical injury before emotional injuries could be
compensated.
In declining to follow further the rigid, unworkable physical injury or
physical manifestation rule, however, we did not necessarily obviate the
entire zone of danger test. As Justice Drowota noted:
We do not . . . necessarily abandon the “zone of
danger” approach used in Shelton. Indeed, since
the “zone of danger” approach is, in reality, merely
a way of defining and limiting the elements of
duty and proximate or legal cause, the principles
of the approach can likely be integrated into the
general negligence framework. The specifics of
such an integration must, however, await an
appropriate case.
915 S.W.2d at 446 n. 2.
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This is that appropriate case. Under the strict zone of danger
approach outlined in Shelton, Ramsey’s case would likely fail. Although
the parties are not wholly consistent in their statement of the facts, at the
very least, the case would be remanded to the trier of fact to determine
whether plaintiff’s fear for his physical safety was reasonable.
We decline in light of Camper to return to the often semantical
approach of Shelton. Rather, as we did in Camper, we modify existing law
to more fairly and consistently set forth a test. Rather than focusing on
subjective statements of fear or surmised conclusions of whether one’s
physical location is within the zone of danger, we hold that in the future
liability shall be determined by application of general negligence law as set
forth in this opinion.
The general negligence approach adopted for determination of cases
involving emotional injuries requires that plaintiff establish each of the five
elements of negligence - duty, breach of duty, injury or loss, causation in
fact, and proximate causation. While we reject the rigid zone of danger
approach set forth in Shelton, that rejection serves only to dissolve rigid,
often nonsensical, physical injury and contemporaneous fear requirements.
It does not reduce or lessen plaintiff’s obligation to establish that the
emotional injuries suffered were factually and legally caused by the breach
of a duty owed to plaintiff by a defendant.
We, therefore, hold that to recover for emotional injuries sustained as
8
a result of death or injury of a third person, plaintiff must establish that
defendant’s negligence was the cause in fact of the third person’s death or
injury as well as plaintiff’s emotional injury. Secondly, plaintiff must
establish that the third person’s death or injury and plaintiff’s emotional
injury were proximate and foreseeable results of defendant’s negligence.
Establishing foreseeability, and therefore a duty of care to plaintiff,
requires consideration of a number of relevant factors. The plaintiff’s
physical location at the time of the event or accident and awareness of the
accident are essential factors. Obviously, it is more foreseeable that one
witnessing or having a sensory observation2 of the event will suffer effects
from it. As has been explained:
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.
Thing v. La Chusa, 771 P.2d 814, 828 (Ca. 1989). Thus, plaintiff must
establish sufficient proximity to the injury-producing event to allow sensory
observation by plaintiff.
A second factor is the degree of injury to the third person. We agree
with the New Jersey Supreme Court’s analysis of this factor:
While any harm to a spouse or a family member
causes sorrow, we are here concerned with a more
2
The term “sensory observation” is used to allow, under circumstances in which all
prerequisites are met, recovery by one who either does not or cannot visually observe
the event, but observes the event by some other sense, such as audibly.
9
narrowly confined interest in mental and
emotional stability. When confronted with
accidental death, “the reaction to be expected
of normal persons,” . . . is shock and fright. . . .
Since the sense of loss attendant to death or
serious injury is typically not present following
lesser accidental harm, perception of less serious
harm would not ordinarily result in severe
emotional distress.
Portee v. Jaffee, 417 A.2d 521, 528 (N.J. 1980). Thus, plaintiff seeking
recovery for emotional injuries suffered as a result of injury to a third party
must establish that the injury to the third party was, or reasonably was
perceived to be, serious or fatal.
A third factor which relates to the foreseeability of plaintiff’s
emotional injury is plaintiff’s relationship to the injured third party. Most
courts have required that the relationship be “close.” In justifying this
requirement, courts have deferred to medical judgment which is in
“general[] agreement that a mere bystander who has no significant
relationship with the victim will not suffer the profound, systematic mental
and emotional reaction likely to befall a close relative. . . .” James v. Lieb,
375 N.W.2d 109, 115 (Neb. 1985). Stated differently: “It is the very nature
of the relationship between the plaintiff and the victim which makes the
emotional reaction experienced by the plaintiff so poignant.” Heldreth v.
Marrs, 425 S.W.2d 157, 163 (W.Va. 1992).
We reiterate that plaintiff must establish that defendant’s negligence
factually and legally caused plaintiff to suffer serious or severe emotional
injuries. As we made clear in Camper, our ruling does not provide recovery
1 0
for “every minor disturbance to a person’s mental tranquility.” Barnhill v.
Davis, 300 N.W.2d 104, 107 (Iowa 1981), but only for serious or severe
emotional injuries. A “‘serious’ or ‘severe’ emotional injury occurs where a
reasonable person, normally constituted, would be unable to adequately
cope with the mental stress engendered by the circumstances of the case.”
Camper v. Minor, 915 S.W.2d at 446.
Our holding in Camper and here should not be construed to allow
recovery for fright or fear alone. Likewise, hurt feelings, trivial upsets, and
temporary discomfort would not be sufficient for recovery. Only those
serious or severe emotional injuries which disable a reasonable, normally
constituted3 person from coping adequately with the stress are sufficient to
form the basis for recovery. Additionally, the “claimed injury or
impairment must be supported by expert medical or scientific proof.” Id.
CONCLUSION
Our holding today abandons the hypertechnical approach of the zone
of danger rule and recognizes that in certain circumstances a plaintiff whose
physical safety is not endangered may nonetheless suffer compensable
mental injury as a result of injuries to a closely related third person which
plaintiff observes sensorily. As has been recognized:
To require that the plaintiff must be within the
zone of physical danger of the defendant’s
negligent conduct and fear for his or her own
safety in order to recover for the serious emotional
distress blatantly ignores the very cause of the
3
By reasonable, normally constituted person we mean a person of ordinary sensitivities.
See Heldreth v. Marrs, 425 S.E.2d 157, 166 (W.Va. 1992).
1 1
plaintiff’s emotional distress.
Heldreth v. Marrs, 425 S.E.2d at 169. Utilizing the general negligence
approach for causes of action based on negligent infliction of emotional
distress with its traditional focus on foreseeability, and requiring that the
injuries for which compensation is sought be serious or severe, will
reasonably limit liability while allowing recovery in meritorious cases.
We, therefore, reverse the judgments of the Court of Appeals and trial
court dismissing this case. We remand to the trial court for further
proceedings.
____________________________________
Penny J. White, Justice
CONCUR:
Birch, C.J.
Drowota, Anderson, Reid, J.J.
1 2
Ramsey v. Beavers
Combined Opinion