Miller v. Niblack

IN THE COURT OF APPEALS OF TENNESSEE, WESTERN SECTION
AT JACKSON
_______________________________________________________

)
MELANIE MILLER, individually and ) Shelby County Circuit Court
as Next Friend for ASHLEY MILLER ) No. 54181 T.D.
LUNA, a minor, and Next Friend of )
GREGORY LUNA, deceased, )
)
Plaintiffs/Appellants. )
)
VS. ) C. A. NO. 02A01-9505-CV-00101
)
GARY D. NIBLACK, M.D., )
LABORATORY INVESTMENTS, INC., )
and REN LABORATORIES, INC.
d/b/a REN HISTOCOMPATIBILITY
)
)
FILED
LABORATORY, A Joint Venture, and ) October 9, 1996
JOHN DOE, )
) Cecil Crowson, Jr.
Defendants/Appellees. ) Appellate C ourt Clerk
)
______________________________________________________________________________

From the Circuit Court of Shelby County at Memphis.
Honorable William O’Hearn, Judge by Designation

Lynda F. Teems, Memphis, Tennessee
Attorney for Plaintiffs/Appellants.

J. Cecil McWhirter, Memphis, Tennessee
Sally F. Barron, Memphis, Tennessee
Attorneys for Defendant/Appellee, Laboratory Investments, Inc.

James E. Moffitt,
Reid D. Leitner,
LEITNER, WARNER, MOFFITT, WILLIAMS, DOOLEY, CARPENTER
& NAPOLITAN, Nashville, Tennessee
Attorneys for Defendnat/Appellee, Ren Laboratories, Inc.

OPINION FILED:

REVERSED IN PART, AFFIRMED IN PART AND REMANDED

FARMER, J.

CRAWFORD, P.J., W.S. : (Concurs)
LILLARD, J. : (Concurs)
 This is an action for negligence in the conducting of a paternity test. The trial court

entered summary judgment in favor of the appellees, Gary D. Niblack, M.D., Laboratory

Investments, Inc. and Ren Laboratories, Inc. d/b/a Ren Histocompatibility Laboratory, a joint

venture, and John Doe. The appellants, Melanie Miller, individually and as next friend for Ashley

Miller Luna, a minor, and next friend of Gregory Luna, deceased, have appealed presenting the

single issue of whether the trial court erred in doing so. For reasons hereinafter set forth, we affirm

in part and reverse in part the judgment of the trial court.

On October 30, 1990, Melanie Miller gave birth to a baby girl, Ashley. On May 22,

1991, Ms. Miller filed a petition to establish paternity against Gregory Luna in juvenile court. The

court, “upon motion of the state,” ordered the parties to submit to blood tests. A paternity blood test

was performed by Ren Histocompatibility Laboratory (RHL), where Dr. Niblack is employed as its

director. RHL provided these services pursuant to its contract with the juvenile court of Memphis

and Shelby County. The results of the test, which excluded Luna as the natural father of Ashley,

were submitted to the court who dismissed the petition on June 4, 1991, “due to [Luna] having been

excluded by blood tests.” Luna died on February 18, 1992. On June 16, 1992, Miller filed a petition

to establish the paternity of Ashley against Randall Carter in the juvenile court. The court ordered

the parties to submit to blood tests which were once again performed by RHL. The tests excluded

Carter as the father. The results of the tests were released to the juvenile court by letter dated

September 9, 1992. The court dismissed Miller’s petition on September 15, 1992.

On February 1, 1993, Miller filed a “Motion for Relief from Judgment,” asserting that

on September 27, 1992, she discovered the results of a blood test repeated on herself and the child

indicating that there was a “mix-up” on the earlier test results and that Luna was in fact Ashley’s

father.1 Blood tests were then performed by RHL2 on Ms. Miller and Ashley and on Luna’s parents,

to confirm the accuracy of Luna’s prior blood data. After a hearing which revealed the new test

results, the trial court found Luna the natural father of Ashley and ordered its prior judgment of June

1
The test results, signed by Dr. Niblack, state that “[Luna] can not be excluded as the
father of Ashley Miller. The combined paternity index (genetic odds in favor of paternity) is
21.38. The relative chance of paternity is 95.53%.”
2
At this time, the business actually operated under the name Gene Proof Technologies.
Dr. Niblack remained its director.
4, 1991 “set aside as having been based upon an incorrect testing result.” The court ordered that the

surname of the child be changed to Luna and that she be considered legitimate for purposes of

inheritance and support.

On June 2, 1993, Appellants filed the present action alleging that Appellees deviated

from the recognized standard of care in failing to properly test the blood products and report the

actual paternity of the child. Appellants alleged that Miller learned the test results excluding Luna

as the father of Ashley were erroneous on September 9, 1992.3 Appellees denied all material

allegations and moved for summary judgment or, in the alternative, for partial summary judgment,

asserting that the complaint was barred by the doctrine of judicial immunity, the public duty doctrine

and the applicable one year statute of limitations. It was further asserted that Luna’s cause of action

abated upon his death; that Ashley Luna lacked standing to sue as “next friend” of Luna; that Miller

and Ashley Luna had suffered no actionable damages; and, finally, that Appellants could not recover

“hedonic” damages. In support thereof, Appellees relied upon various depositions,4 the affidavit of

Wendy Durand and Appellants’ responses to interrogatories and requests for production of

documents. Appellants responded to the motion by filing a memorandum wherein it was argued that

“there are numerous issues of material fact involved in this record . . . .” However, no discovery

materials were specifically introduced or expressly relied upon by Appellants in opposing the

motion.

It is well established that the party seeking summary judgment bears the burden of

persuading the court that no genuine and material factual issues exist and it is, therefore, entitled to

judgment as a matter of law. See, e.g., Byrd v. Hall, 847 S.W.2d 208, 211 (Tenn. 1993). In

reviewing motions for summary judgment, we are to view the evidence in a light most favorable to

the nonmoving party, allow all reasonable inferences in that party’s favor and discard all

countervailing evidence. It is only when there is no disputed issue of material fact that summary

judgment should be granted by the trial court and sustained by the court of appeals. Byrd, 847

S.W.2d at 210-11; Fly v. Cannon, 813 S.W.2d 458, 460 (Tenn. App. 1991).

3
The complaint inadvertently reads “1993.”
4
Specifically, these are the depositions of Miller, Luna’s parents, Donna Stoker, Laurie
Austin and Pamela Medkiff.
 The trial court’s order granting summary judgment in favor of the appellees fails to

set forth its specific reason(s) for doing so. Therefore, we will consider each assertion raised by the

appellees in their motion. We first consider whether Luna’s cause of action abated upon his death.

T.C.A. § 20-5-102 provides:

Actions surviving death of party. -- No civil action commenced,
whether founded on wrongs or contracts, except actions for wrongs
affecting the character of the plaintiff, shall abate by the death of
either party, but may be revived; nor shall any right of action arising
hereafter based on the wrongful act or omission of another, except
actions for wrongs affecting the character, be abated by the death of
the party wronged; but the right of action shall pass in like manner as
the right of action described in § 20-5-106.

T.C.A. § 20-5-106 states, in part pertinent:

Injury resulting in death -- Succession to cause of action --
Beneficiary who is minor or legally incompetent. -- (a) The right
of action which a person, who dies from injuries received from
another, or whose death is caused by the wrongful act, omission, or
killing by another, would have had against the wrongdoer, in case
death had not ensued, shall not abate or be extinguished by the
person’s death but shall pass to the person’s surviving spouse and,
in case there is no surviving spouse, to the person’s children or next
of kin; (emphasis added).

The record establishes that Luna is survived by his spouse, Audrey Cook Luna. In

accordance with the foregoing statutes, we find that if any action exists on behalf of the deceased,

it is properly maintained only by his surviving spouse. As such is not the case here, we find that the

suit pursued on behalf of Luna by his daughter Ashley as “next friend”should be dismissed. We hold

that summary judgment was properly granted to the appellees as to this cause of action.5

We next consider the assertion that the present claims are barred by the doctrine of

judicial immunity. It is contended that Appellees are the duly authorized agents of the juvenile court

and are entitled to judicial immunity from liability for their acts as judicial officers under the

direction of the juvenile court.

5
For clarity, any future reference to “Appellants” throughout this opinion will be in regard
to Miller and Ashley Luna.
 The doctrine of absolute judicial immunity, which first arose under common law, has

been extended to persons, other than judges, performing judicial or quasi judicial functions.

LaLonde v. Eissner, 539 N.E.2d 538, 540 (Mass. 1989); Howard v. Drapkin, 271 Cal. Rptr. 893,

901 (Cal. Ct. App. 1990); Harris v. Brustowicz, 671 So.2d 440, 443 (La. Ct. App. 1995). In

LaLonde, a mother and child brought suit against a court appointed psychiatrist to recover for the

allegedly negligent evaluation rendered by the doctor to the court, causing a continuation of the

father’s visitation privileges. LaLonde, 539 N.E.2d 538. The psychiatrist argued that he was

entitled to quasi judicial immunity because he had been court appointed. Id. at 539. The

Massachusetts Supreme Court agreed and affirmed the trial judge’s ruling, affording the psychiatrist

absolute judicial immunity. Id. The court reasoned:

Courts have expanded the doctrine of absolute judicial immunity to
include these “quasi judicial” officers because they are involved in an
integral part of the judicial process and thus must be able to act freely
without the threat of a law suit. Robichaud v. Ronan, 351 F.2d 533,
535-538 (9th Cir. 1965). When acting at a judge’s direction, these
“quasi judicial” officers enjoy the same absolute immunity for their
conduct. Temple v. Marlborough Div. of the Dist. Court Dep’t,
supra, 395 Mass. at 133, 479 N.E.2d 137 (court clerk).

. . . . Most jurisdictions have held that common law immunity
protects persons appointed by a court to conduct a medical or
psychiatric evaluation and render an opinion or to provide other
expert assistance because of their integral relation to the judicial
process. See, e.g., Moses v. Parwatikar, 813 F.2d 891, 892 (8th
Cir.), cert. denied. ____ U.S. ____, 108 S.Ct. 108, 98 L.Ed.2d 67
(1987) psychiatrist); Myers v. Morris, 810 F.2d 1437, 1467 (8th Cir.),
cert. denied, ___ U.S. ___, 108 S.Ct. 97, 98 L.Ed.2d 58 (1987)
(therapists in child sexual abuse case); Burkes v. Callion, supra at
319 (psychiatrists); Bartlett v. Weimer, 268 F.2d 860, 862 (7th Cir.
1959), cert. denied, 361 U.S. 938, 80 S.Ct. 380, 4 L.Ed.2d 358 (1960)
(physicians); Williams v. Rappeport, 699 F.Supp. 501, 507-508
(D.Md.1988) (psychiatrist and psychologist appointed during custody
determination); Miner v. Baker, 638 F.Supp. 239, 241 (E.D.Mo.
1986) (psychiatrist); Doe v. Hennepin County, 623 F.Supp. 982, 986
(D.Minn.1985) (therapists in child sexual abuse case); Phillips v.
Singletary, 350 F.Supp. 297, 300 (D.S.C.1972) (physician); Bartlett
v. Duty, 174 F.Supp. 94, 97-98 (N.D.Ohio 1959) (physician). These
courts recognized that “[p]sychologists and other experts would be
reluctant to accept court appointment if they thereby opened
themselves to liability for their actions in this official capacity.” Doe
v. Hennepin County, supra at 986. Moses v. Parwatikar, supra at
892. Also, human nature indicates that court-appointed experts, faced
with the threat of personal liability, will be less likely to offer the
disinterested objective opinion that the court seeks. Id.

Id. at 540-41.
 In Howard v. Drapkin, a child custody case, the court held that a psychologist ordered

by the court to evaluate the family and render her findings and recommendations was entitled to

absolute quasi judicial immunity in a suit by the parents alleging, inter alia, professional negligence.

Howard, 271 Cal. Rptr. at 895, 905. Howard held that in order to determine whether an individual

has quasi judicial immunity, the connection between that person’s activity and the judicial process

is to be evaluated, rather than the status of the individual. Id. at 898. The court further held that as

is the reason for granting judicial immunity, quasi judicial immunity is extended “to promote

uninhibited and independent decision making.” Id.

A different result was reached by the Louisiana Court of Appeals in Harris v.

Brustowicz. There, parents filed suit against the coroner and coroner’s office for the alleged

wrongful death of their son in failing to issue an order of protective custody after agreeing to do so.

Harris, 671 So.2d at 440-42. The issue before the court was whether the defendants were entitled

to judicial immunity. Id. at 441. In holding the defendants subject to liability for their alleged

actions, the court stated:

Under the doctrine of judicial immunity, a judge is entitled to
absolute immunity from liability for acts he performs in his judicial
role which are integral to the judicial process. . . .

....

The Supreme Court [in Forrester v. White, 484 U.S. 219, 225
(1988)], held that immunity was “justified and defined by the
functions it protects and serves, not by the person to whom it
attaches.” . . . In this context, the Court drew a distinction between
judicial acts and administrative or executive acts, noting that the latter
have not been recognized as judicial acts warranting immunity, even
though essential to the functioning of the courts. . . . Further, the
Court indicated recognition of such immunity should be sparing, in
view of the fact that absolute immunity is “strong medicine.” . . .

Nevertheless, quasi-judicial immunity has been extended in
some instances to nonjudicial persons fulfilling quasi-judicial
functions intimately related to the judicial process. . . . The
determinative factor is whether the person performs a judicial
function with an integral relationship to the judicial process. . . .

In the present case, plaintiffs do not complain of the exercise
of the coroner’s judgment resulting in a decision to deny the request
for a protective order. Rather, the basis of plaintiffs’ claims is the
allegation that the coroner failed to personally review the request for
protective order and make any decision thereon, failed to provide
adequate procedures for the handling of such requests by a well-
trained staff, failed to supervise his staff, and delegated responsibility
 for the handling of such requests to unqualified, nonmedical
personnel. In the alternative, plaintiffs contend the corner’s office
was negligent and acted in bad faith in failing to expeditiously take
Rogowski into custody after agreeing to do so. We find that the
alleged acts and omissions are not judicial functions integral to the
judicial process, but are primarily administrative, executive and/or
operational in nature.

Id. at 442-43 (citations omitted).

In the instant matter, the affidavit of Wendy Durand states, as here pertinent:

On January 16, 1991, the Memphis Juvenile Court and Shelby
County entered into a contract for services with REN Laboratories,
also known as REN Histocompatibility . . . . Under this contract,
REN Histocompatibility was to provide all paternity blood testing for
the Memphis Juvenile Court. In May-June, 1991, REN
Histocompatibility performed for the Memphis Juvenile Court
approximately 50 sets of blood tests per week. The blood samples
from the testee was [sic] drawn at the Memphis Juvenile Courthouse,
and transported to Nashville, Tennessee for testing at the REN
Histocompatibility Laboratory. REN furnished its test results to the
Juvenile Court in the form of a written report.

On April 16, 1991, [Miller] brought against [Luna] a Petition
with the [Court] to establish the paternity of her daughter, . . . At a
preliminary hearing . . . Juvenile court Referee . . . ordered . . . that
upon motion of the State all parties submit to blood tests administered
by the Memphis Juvenile Court.

The contract, attached to Durand’s affidavit, indicates:

The Lab will perform testing on Red Blood Cell Antigens
(RBC) on all individuals referred for testing. If upon completion of
testing of RBC, there is a direct exclusion or multiple indirect
exclusions, unless otherwise instructed, the Lab will discontinue
testing. However, in case where the specimens from the parties do
not arrive in the Lab on the same day, the Lab will perform RBC and
Human Leukocyte Antigen (HLA) procedures on all partial cases
submitted.

If upon completion of RBC, there is no direct exclusion or
multiple indirect exclusions, the Lab will perform HLA testing.

If upon completion of RBC and/or HLA, the probability of
paternity is less than 99%, the Lab will extend testing using serum
proteins, red cell enzymes and/or DNA Probe. If, after performing all
testing, the probability of paternity is less than 99%, there will be no
charge for any services provided.
 We find the contract between RHL and the Juvenile Court exact in its requirements

of RHL in performing the blood tests. There is no room for discretion as to the type of tests to be

performed or the order in which they are conducted. Moreover, the test results are not subject to

different interpretation. They either exclude the alleged father or do not. This is directly opposite

to the aforementioned cases concerning psychologists or psychiatrists who were appointed by the

court to conduct an “evaluation.” Here, the tasks of RHL did not lend themselves to “uninhibited

and independent decision making.”

We believe the facts of our case are more closely aligned to those in Harris. As in

Harris, the appellants here do not question Appellees’ decision regarding whether or how the tests

were to be conducted. The appellants allege negligence in the appellees’ actual performance of the

tests. “Immunity can only exist where the defendant official is required to exercise some modicum

of official discretion . . . . since the rationale for official [quasi judicial] immunity is the promotion

of fearless, vigorous, or effective administration of policies of government, the qualification of

immunity which limits it to discretionary acts is eminently practical.” 63 Am. Jur. 2d Public

Officers and Employees § 362 (1984). We conclude that the record before us does not establish that

Appellees are entitled to judicial immunity as a matter of law.

Appellees also assert that the present action is barred under the public duty doctrine.

They contend that they performed the subject blood tests as a public officer for the purposes of the

public duty doctrine. They point to the fact, as found in Durand’s affidavit, that the tests were

authorized and paid for by the juvenile court and that all test results were reported directly to the

court. They argue that as a public officer, their duty was to the public at large, not the appellants in

particular.

The public duty doctrine shields a public employee from suits for injuries that are

caused by the public employee’s breach of a duty owed to the public at large. Ezell v. Cockrell, 902

S.W.2d 394, 397 (Tenn. 1995). Ezell recognized that the doctrine survived enactment of

Tennessee’s Governmental Tort Liability Act and that sound public policy warrants its continued

application. Ezell, 902 S.W.2d at 404. In Bennett v. Stutts, 521 S.W.2d 575 (Tenn. 1975), our

supreme court held:
 Public wrongs or neglect or breach of public duty generally cannot be
redressed at a suit in the name of an individual or individuals whose
interest in the right asserted does not differ from that of the public
generally, or who suffers injury only in common with them generally,
and not peculiar to himself, even, it seems, though his loss is greater
in degree, unless such right of action is given by statute.

Bennett, 521 S.W.2d at 577 (quoting 59 Am. Jur. 2d Parties § 30).

As its definition would imply, the doctrine is subject to a “special-duty” exception.

The Ezell court held that a special duty of care exists, rendering the doctrine inapplicable, where:

1) officials, by their actions, affirmatively undertake to protect the
plaintiff, and the plaintiff relies upon the undertaking; 2) a statute
specifically provides for a cause of action against an official or
municipality for injuries resulting to a particular class of individuals,
of which the plaintiff is a member, from failure to enforce certain
laws; or 3) the plaintiff alleges a cause of action involving intent,
malice, or reckless misconduct.

Ezell, 902 S.W.2d at 402.

In his deposition, Dr. Niblack attempts to explain the different test results by stating

that the samples were “switched from one report to the other, so that the mother’s report is listed as

the child’s report and vice versa.” We believe there was an affirmative undertaking by Appellees

to accurately record the blood tests of Appellants and that Appellants were justified in relying upon

Appellees to do so. Appellants do not question the manner in which the lab generally performs its

tests or the specific procedures utilized or followed, but their alleged negligence in “switching” the

specific test results of Appellants. The injury involved here is peculiar to Appellants. We conclude

that the record fails to establish the appellees’ entitlement to immunity from suit under the public

duty doctrine.

Appellees next assert that the present action is barred by the one-year statute of

limitations. T.C.A. § 28-3-104 provides that actions for “injuries to the person” are to be

commenced within one year after the cause of action accrues. Under the discovery rule, the cause

of action accrues and the statute of limitations begins to run when the injury occurs or is discovered,
or when in the exercise of reasonable care and diligence, it should have been discovered. E.g.,

Woods v. Sherwin-Williams Co., 666 S.W.2d 77, 78 (Tenn. App. 1983). The rule applies only when

the plaintiff does not discover and could not be reasonably expected to discover that he has a right

of action. It does not allow the plaintiff to wait until he knows all of the injurious effects or

consequences of the tortious act. Moreover, the statute is tolled only during the period when the

plaintiff has no knowledge at all that a wrong has occurred and, as a reasonable person, is not put

on inquiry. Woods, 666 S.W.2d at 80.

Appellees argue that Miller had either actual knowledge or was put on inquiry notice

of her alleged injuries on June 4, 1991 - the day her petition against Luna was dismissed by the

juvenile court. The record establishes that during the critical time period, Miller had sexual relations

with only Luna and Carter. She had sexual intercourse with Carter only one time on February 26,

1990. The child was not born prematurely. In her deposition, Miller states that she believed herself

pregnant prior to having sex with Carter. She said that her pregnancy was confirmed in March 1990

and that she informed Luna of this the following month because she believed him the father.

Appellees assert that because Miller had sexual relations with Carter approximately 8 months before

the child’s birth, a reasonable person should have known or concluded that Carter could not be the

natural father.

Miller’s deposition also states that although she suspected pregnancy prior to relations

with Carter, she thought her symptoms “could be due to nerves.” Miller stated that she first saw the

test results excluding Luna as the child’s father in court on or about June 4, 1991. When asked if

she felt the results were wrong, she replied “I didn’t know” and “I thought it probably was.” She

further told the referee that she believed the results were in error. When asked, “after you knew the

blood test had excluded [Luna], then you knew [Carter] was the father, didn’t you?”, she replied

“[y]es . . . I thought [Carter] would be.” She further declared:

A. When the blood test came back and said [Luna] was not, I
thought, well, it has to be Randall Carter.

Q. . . . was there a logical certainty to that or was there any doubt
left in your mind?
 A. I was real unsure about it to begin with. I talked to my mother
about it at length. She brought up several medical cases, pregnancy
upon pregnancy, that made me think that it was probably Randall
Carter’s.

....

A. . . . . Obviously, if it wasn’t [Luna], it was Randall Carter. .
..

Q. . . . . How many days after the court hearing was it that you
became sure that it was Randall Carter?

A. I called Randall Carter that day.

....

Q. . . . . Was there any doubt left in your mind that Greg Luna .
. . might have been the father?

A. I don’t know.

Q. You don’t know if he might have been the father or you don’t
know if there is any doubt in your mind?

A. I thought that Randall Carter was the father.

Miller said that she did not consider “informal retesting” after getting the results on

June 4 because she “was told the test was ninety-nine percent accurate” and she “expected the test

to be done correctly.” Miller stated that as soon as she received the second test results (involving

Carter) she knew that a mistake had been made, but that “[y]ou have to have the second test to be

able to compare.” As heretofore noted, the second set of blood tests were concluded on September

9, 1992 and Miller’s petition as to Carter was dismissed on September 15, 1992. Based upon our

review of the record, we find that Appellees have failed to carry the burden of persuading this Court

that the one-year statute of limitations has run in this case as a matter of law.

Appellees also argue that Miller and the child have suffered no actionable damages.

The complaint alleges as damages “mental anguish, loss of support, loss of social security benefits,

and loss of enjoyment of life.” According to her deposition, Miller incurred approximately $8,000

in medical expenses related to the birth of her child, for which she was never reimbursed. We reject

Appellees’ contention that the record establishes that Luna would have been unwilling or unable to

pay, thereby rendering these damages too speculative. Based upon the record, we cannot find as a

matter of law that these type damages are too speculative to permit recovery.
 We further cannot find the alleged damages sustained by Ashley Luna, in the form

of child support, too speculative to permit recovery as a matter of law. The record reveals that Luna

was employed by CSX Services from August 12, 1991 to January 3, 1992, when he was laid off due

to lack of work. He earned $9 an hour as a full time employee. Had the first paternity test revealed

Luna as Ashley’s natural father, he would have been obligated to and ordered to provide support for

his child in accordance with the child support guidelines. It appears that he would have been capable

of doing so at least during the period of his employ.

Miller states that although her daughter currently receives social security benefits as

a result of her father’s death, in the amount of $573 per month, Ashley has not received benefits for

the six month period immediately preceding his death. She asserts that the Social Security

Administration will only pay up to six months back pay from the time of filing the petition for

benefits. She first applied for benefits on behalf of her daughter in April 1993. Appellees contend

that the proximate cause of Ashley’s being deprived of approximately six months of benefits is her

mother’s failure to timely establish paternity, which according to Appellees, she could have done had

she obtained retesting. This is an argument properly addressed to the trier of fact.

As to the alleged damages of “mental anguish,” it appears that Appellants are

asserting a claim for negligent infliction of emotional distress. In Camper v. Minor, 915 S.W.2d 437

(Tenn. 1996), our supreme court abandoned the “physical manifestation” or “injury” rule, holding

that such would “no longer be used to test the validity of a prima facie case of negligent infliction

of emotional distress.” Camper, 915 S.W.2d at 446. The court continued:

[W]e conclude that these cases should be analyzed under the general
negligence approach . . . . In other words, the plaintiff must present
material evidence as to each of the five elements of general
negligence -- duty, breach of duty, injury or loss, causation in fact,
and proximate, or legal, cause, . . . in order to avoid summary
judgment. Furthermore, we agree that in order to guard against trivial
or fraudulent actions, the law ought to provide a recovery only for
“serious” or “severe” emotional injury. 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.” Finally, we
conclude that the claimed injury or impairment must be supported by
expert medical or scientific proof.
Camper, 915 S.W.2d at 446 (citations omitted).

In this case, Appellants have not presented, by affidavit or otherwise, expert medical

or scientific proof regarding their alleged emotional injuries. Moreover, we find the record before

us inadequate to establish the seriousness or severity of injury which we believe is required under

Camper. We, therefore, hold the appellees were properly granted summary judgment as to the claim

for “mental anguish.”

Finally, it is asserted that Appellants are not entitled to recover hedonic damages.

Appellants have alleged a “loss of enjoyment of life,”6 which we treat as a request for hedonic

damages. With respect thereto, we find that summary judgment was properly entered in favor of the

appellees. In Spencer v. A-1 Crane Service, Inc., 880 S.W.2d 938 (Tenn. 1994), our supreme court

specifically held these damages unrecoverable in actions pursued under the wrongful death statutes.

Spencer, 880 S.W.2d at 943. The Spencer court acknowledged two “general rationales” in

disallowing damages of this type: first, they do not fulfill the compensatory function of tort law; and

second, valuing the pleasures of life is too speculative to form a basis for computing damages. Id.

We believe these same rationales apply to the present action and warrant a denial of recovery of

these damages.

It results that the judgment of the trial court is reversed in part and affirmed in part,

with this cause remanded to the trial court for further proceedings herewith consistent. Costs are

assessed equally against the parties.

_______________________________
FARMER, J.

______________________________
CRAWFORD, P.J., W.S. (Concurs)

6
Appellants argue that these damages relate to Ashley Luna’s loss of the parent-child
relationship.
______________________________
LILLARD, J. (Concurs)