Eskin v. Bartee, W2006-01336-SC-R11-CV.

• Decision Date: 14 August 2008
• Docket Number: No. W2006-01336-SC-R11-CV.,W2006-01336-SC-R11-CV.
• Citation: 262 S.W.3d 727
• Parties: Marc ESKIN et al. v. Alice B. BARTEE et al.
• Court: Tennessee Supreme Court

262 S.W.3d 727

Marc ESKIN et al. v. Alice B. BARTEE et al.

No. W2006-01336-SC-R11-CV.

Supreme Court of Tennessee, at Jackson.

November 14, 2007 Session.

August 14, 2008.

Warren D. McWhirter, Memphis, Tennessee, for the appellant, USAA Casualty Insurance Company.

J. Houston Gordon, Covington, Tennessee, and Irma W. Merrill-Stratton, Memphis, Tennessee, for the appellees, Karen Eskin and Logan Eskin.

OPINION

WILLIAM C. KOCH, JR., J., delivered the opinion of the court, in which WILLIAM M. BARKER, C.J., JANICE M. HOLDER, CORNELIA A. CLARK, and GARY R. WADE, JJ., joined.

This appeal involves claims for negligent infliction of emotional distress made by two family members of a child who was seriously injured in an automobile accident. In their complaint filed in the Circuit Court for Shelby County, the injured child's mother and brother alleged that they had sustained severe emotional injuries after they observed him lying on the pavement in a pool of blood. The injured child's parents served a copy of the complaint on their automobile insurance company because the driver of the automobile that struck their son lacked adequate insurance. The insurance company moved for a partial summary judgment on the negligent infliction of emotional distress claim because neither the injured child's mother nor his brother had seen or heard the injury-producing accident. The trial court granted the insurance company's motion, and the injured child's mother and brother appealed to the Tennessee Court of Appeals. The appellate court reversed the summary judgment and remanded the case for further proceedings. We granted the insurance company's Tenn. R.App. P. 11 application for permission to appeal to determine whether the Court of Appeals correctly permitted these negligent infliction of emotional distress claims to proceed. We have determined that persons who observe an injured family member shortly after an injury-producing accident may pursue a claim for negligent infliction of emotional distress.

I.

Marc and Karen Eskin and their three children live in Cordova, a community that lies on the northeast side of Memphis, Tennessee. During the 2002-2003 school year, Brendan Eskin, the Eskins' older son, attended the Chimneyrock Elementary School¹ which was a short distance from their home. Brendan Eskin was at school on November 19, 2002. Because Ms. Eskin was going to be unable to pick up her son at the end of the school day, she made arrangements with a neighbor, Jan Durban, to pick him up and to bring him home.

Chimneyrock Elementary maintains an area for students using private transportation to travel to and from school.² This area includes a driveway with three lanes. The far left lane is used to park vehicles; the middle lane is the through lane; and the right lane adjacent to the curb is used to drop off and pick up the students. For the purpose of this appeal, we assume that drivers are permitted to stop in the right lane long enough to drop off or pick up students and are not permitted to leave their vehicles unattended.

The events that gave rise to this lawsuit occurred when school let out for the day on November 19, 2002. According to the Eskins' complaint, a driver had left his minivan unattended in the right lane. When Alice Bartee arrived at Chimneyrock Elementary, she pulled behind the unattended minivan. She moved her automobile after a school employee directed her to park in front of the minivan. Ms. Bartee lost control of her automobile as she was attempting to park in front of the minivan. She slammed into Ms. Durban's vehicle that had stopped at the curb, and then Ms. Bartee's automobile jumped the curb and struck Brendan Eskin.³ The boy was seriously injured.

Ms. Durban telephoned Ms. Eskin from the scene. She told Ms. Eskin that her automobile had been struck from the rear and that Brendan Eskin had been hurt. Based on the conversation and the tenor of Ms. Durban's voice, Ms. Eskin assumed that the accident must have been just a "fender bender" and that her son had not been seriously injured. Ms. Eskin told Ms. Durban that she was "on [her] way to the school to get Brendan." After she hung up, Ms. Eskin gathered up her younger son, Logan Eskin, her daughter, and a child who was visiting Logan Eskin and drove the very short distance to the school.

After Ms. Eskin parked her automobile at the school, she and the children walked to the pick up and drop off area. As Ms. Eskin and the children approached the area, she and Logan Eskin saw Brendan Eskin lying on the pavement in a pool of blood.⁴ According to Ms. Eskin, her son was not being attended to, and he appeared to be lifeless. Both Ms. Eskin and Logan Eskin screamed and tried to run to Brendan Eskin but were restrained. Brendan Eskin sustained permanent brain damage as a result of being struck by Ms. Bartee's automobile.

On November 17, 2003, the Eskins filed suit in the Circuit Court for Shelby County against Ms. Bartee, the driver and owner of the unattended minivan, Shelby County, and the Shelby County Board of Education.⁵ The complaint alleged that Ms. Eskin and Logan Eskin had been "emotionally traumatized by the event" and that they had been damaged by "[f]right, serious shock, and severe emotional injuries," "[l]oss of enjoyment of life," and "[e]xpenses for medical, psychological, and pharmaceutical services," both incurred and to be incurred. Based on these and other claims, the Eskins requested $9,000,000 in compensatory damages on behalf of Brendan Eskin, $500,000 in compensatory damages on behalf of Logan Eskin, and $1,000,000 for themselves.

Because Ms. Bartee lacked adequate insurance, the Eskins served a copy of their complaint on USAA, their own insurance carrier, in accordance with Tennessee's uninsured motorist statutes.⁶ In July 2005, USAA filed a motion for partial summary judgment. While the motion does not comply with Tenn. R. Civ. P. 7.02(1), the accompanying memorandum of law explains that USAA believed it was entitled to a judgment as a matter of law with regard to Ms. Eskin's and Logan Eskin's negligent infliction of emotional distress claims because they had not been present when the accident occurred and, therefore, did not "observe the accident occur through one of . . . [their] senses." The Eskins responded by asserting that Tennessee's precedents establishing the tort of negligent infliction of emotional distress did not "require that there be a `contemporaneous' viewing of the accident itself which results in traumatic injuries to a third party."

Following a hearing in December 2005, the trial court filed an order on February 17, 2006, granting USAA's motion for summary judgment.⁷ The trial court also designated the order as final and immediately appealable under Tenn. R. Civ. P. 54.02. Accordingly, the Eskins appealed the dismissal of the negligent infliction of emotional distress claims of Ms. Eskin and Logan Eskin to the Tennessee Court of Appeals.

On December 27, 2006, the Court of Appeals filed an opinion reversing the order of the trial court granting USAA a summary judgment. Eskin v. Bartee, No. W2006-01336-COA-R3-CV, 2006 WL 3787823 (Tenn.Ct.App. Dec.27, 2006). In the majority opinion, Judge Crawford, interpreting Ramsey v. Beavers, 931 S.W.2d 527, 531 (Tenn.1996), determined that "sensory observance of the injury-producing event is not an absolute[ly] essential" element of a claim for negligent infliction of emotional distress. Eskin v. Bartee, 2006 WL 3787823, at *6. In a separate opinion, Judge Kirby concurred with the majority opinion by noting that the result was not required by Ramsey v. Beavers but rather was a "reasonable extension" of the holding in the Ramsey v. Beavers opinion. Eskin v. Bartee, 2006 WL 3787823, at *8-9. We granted USAA's application for permission to appeal to determine whether persons seeking to recover damages for the negligent infliction of emotional distress must be in sufficient proximity to the injury-causing accident to perceive the event with one of their senses.

II.

The standards for reviewing summary judgments on appeal are well settled. Summary judgments are not disfavored as procedural devices. Fruge v. Doe, 952 S.W.2d 408, 410 (Tenn.1997); Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993). They are proper in virtually any civil case that can be resolved on the basis of legal issues alone. Lawrence County Educ. Ass'n v. Lawrence County Bd. of Educ., 244 S.W.3d 302, 309 (Tenn.2007); Webber v. State Farm Mut. Auto. Ins. Co., 49 S.W.3d 265, 269 (Tenn.2001). See also Fruge v. Doe, 952 S.W.2d at 410. Thus, a court should grant a summary judgment when the undisputed facts, as well as the inferences reasonably drawn from the undisputed facts, support only one conclusion-that the party seeking the summary judgment is entitled to a judgment as a matter of law. Griffis v. Davidson County Metro. Gov't, 164 S.W.3d 267, 284 (Tenn. 2005); Pero's Steak & Spaghetti House v. Lee, 90 S.W.3d 614, 620 (Tenn.2002).

A summary judgment enjoys no presumption of correctness on appeal. Cumulus Broad., Inc. v. Shim, 226 S.W.3d 366, 373 (Tenn.2007); BellSouth Adver. & Publ'g Co. v. Johnson, 100 S.W.3d 202, 205 (Tenn.2003). Therefore, in each case the appellate court must make a fresh determination that the requirements of Tenn. R. Civ. P. 56 have been satisfied. Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 88 (Tenn.2000); Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn.1997). We consider the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in the non-moving party's favor. Cumulus Broad., Inc. v. Shim, 226 S.W.3d at 373-74; Abbott v. Blount County, 207 S.W.3d 732, 735 (Tenn.2006).

When reviewing the evidence, we must first determine whether a factual dispute exists. If a factual dispute exists, we must then ascertain whether the fact is material to the claim or defense upon which the summary judgment is predicated and whether the disputed fact...