### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON November 21,

2000 Session DANA HOPE DAVIS THURMON (SCOTT), INDIVIDUALLY AND AS SURVIVING NATURAL PARENT OF DALTON THURMON, A MINOR , ET AL 

### . v. EDWARD SELLERS, ET AL 

### . Direct Appeal from the Circuit Court for Shelby County No. 83012 T.D. George H. Brown, Jr., Judge

No. W2000-00422-COA-R3-CV - Filed February 16, 2001

This is a personal injury and wrongful death case arising from a collision between a pickup truck and
a tractor trailer truck. T

he five-ye ar-old son of plai

ntiffs Dana Scott

and Shane Thurmon

died as a result of the accident. The driver of the car was an “on call” empl

oyee of his

father’s business at the time. The plaintiffs sued the driver of the car and his father, alleging vicarious liabili ty under the doctrine of respondeat superior and under the family purpose doctrine. Plaintiff Dana Scott also sued for consortium-ty

pe damages for

the loss of her son.

Although refer

ring to it as a dire

cted verdict, the trial court, pursuant to Rule 41.02 of the Tennessee Rules of Civil Procedure, entered an involuntary

dismissal in favor o

f the defendants

on the vicarious li

ability issue, unde

r both respondeat

superior and the family purpose doctrine, andon the loss of filial consortium claim. The trial court awarded damages, interalia , to Dana Scott for the wrongful death of her son and to Carl Fuhs for personal injuries based upon his negli gent infl iction of e motional d

istress c laim. We hold the following: (1) e

mployer is no

t vicariously

liable under the d

octrine of respo

ndeat superior f

or acts
or omissions of “on call” employee when employe e is not acting withi

n the course

and scope of his employment;

(2) the requirements of

the family

purpose doctrine

were met and def

endant Donald Sellers, Sr. is vicariously liable under this theory; (3) parents may rec over filial consortium damages in wrongful death actions for the death of their child; (4) thetrial court’s wro ngful death awa

rd to Dana Scott was supported by the evidence; (5) Carl Fuhs sufficiently established a claim for negligent infliction of emotio

nal distress; and (

6) the personal in

jury awar d to Carl Fuhs is affirmed. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court of Shelby County

Affirmed in part; Reversed in part; and Remanded

D AVID R. F ARMER , J., delivered the opinion of the court, in which H OLLY K. L ILLA RD , J. an d H EWITT P. T OMLIN , J R ., S P

. J., joined.

Tim Edwards and Jame

s F. Ho rner, Memphis, Te nnessee, for the

Appellant, Dana

Hope Davis Thurmon Scott.1 We refer to Donald Ed ward Sellers, Jr. by his given name for purpos es of clari ty only, and it is n

ot intended to be disres pectful.
-2- Charles Abbott, Memphis, Tennessee, for the Appellants, Shane Thurmon and Tiffany Thurmon.

Mark Ledbett

er, Memphis, Tenn

essee, for the A

ppellant, Carl J. Fu

hs.

Robert L. Moore

andJohn H. Dotson, Memphis, Tennessee, for the Appellees, Edward D. Sellers and Donald Seller

s.
OPINION

Shor tl y before noon on September 28, 1996, Donald Edward Sellers, Jr. (Eddie), 1 with passengers Shane Thurmon (Mr. Thurmon) and his fi ve-year-old son, Dalton Thurmon (Dalton), was traveling northbound on Crump ler Road in Shelby

County in a 1995 Ford F-150pickup truck when he approached the intersection of Crumpler Road and Holmes Road. At

that time, there were stop signs lo cated at the intersecti on of Crumpler Road

and Holmes Road fo

r traffic proce

eding both northbound and southbound on Crumpler Road. Eddie stopped at the stop sign, but then proceeded into the intersection d

irectly into

the path of an eig

hteen-wheeler

driven by Ca

rl J. Fuhs (Mr. Fuhs

) which was headed westbound on Holmes Road. Mr. Fuhs’ semi collided with the p ickup being driven by Eddie

on its passenger side, causing the pickup to flip numerous timesbefore it settled off of the road. The impact injured Mr. Thurmon and fatally inju

red Dalton. Eddie

admits fault

for the accident.

The 1995 pickup truck driven by Eddie was leasedby Eddie’s father, Donald E. Sellers, Sr. (Mr. Sellers) through Mr. Sellers’ b usine ss, Donnie’s Deli and Amoco. The insurance, gas, and lice nse f or the pickup truck was paid through Donnie’s Deli and Amoco. Eddie, however, had exclusive control over the pickup truck, using it fo r errands ass ociated with his business, Cheap Smokes, his father’s busin ess, and for per

sonal activities ou

tside of the scope

of either of thes

e businesses. Eddie was a salaried employee of Donnie’s Deli and Amoco. He was provided w ith a cell phone whereby he could be reached in order to run errands for Donnie’s Deli and Amoco during the hours of 6:00 a.m. to 11:00 p.m., seven days a week. On the day of the accident, Ed die and Mr

. Thurmon were ontheir way to a golf shop in Memphis so that Mr. Thurmon could look for a set of golf clubs. Eddie was n

ot running any

errands f or Donnie’s Deli and Amoco at the time of the accident; however, Eddie was “on call” and had with him the cell phone provid ed by Donnie ’s Deli and Amoco.

The driver of

the eighteen-wheeler, Mr. Fuhs, was not related to, nor did he know, any of the individuals

in the pickup truck at

the tim e of the accident. Mr. Fuhs witnessed, from a few feet away, Dalton’s body slumped over the back seat of the pickup truck and hanging halfway outof the truck’s back window. A short while after the accident, Mr. Fuhs went to the doctor complaining of2 Although referred to as a “directed ver

dict” i n the record, th e Sellers’ motion, in es sence, was f or an involuntary dismissal pursuant to Rule 41. 02 of

the Tennessee Rules of Civil Procedure because this matter was heard before the court sitti

ng without a jury. Two pro cedural devices ar e avail able duri

ng tri al to t

est th e suff iciency of evidence. One is a motion fo r involu ntary dismissal, whi ch is used in nonjury actions. The other is a motion for a directedverdict, used in jury trials pursuant to R ule 50.01 of the Ten nessee Ru les of Civil Pro cedure. See Pivnick , Tenn. Cir. Ct. Pro c. (2000 ed.) §§ 2 4-17, -18 ; Smith v. Inman Realt y Co. , 846 S.W.2d 819 , 821 (Tenn. Ct. App. 1992).
-3- headaches and neck, back, and left knee pain. Mr. Fuhs also sought treatment from a psycholog

ist for anxiety, sleeping problems, and flashbacks relating to the accident. Mr. Fuhs was treated for

his medical problems and was diagnosed as having a permanent impairment of 12% to the body as a whole from his physical injuries and of 55-75% to the body a s a whole from his mental distress.

Dalt on’s mother, Dana Hop e Davis Thurmon Sc

ott (Mrs. Scott), fi

led a complaint f

o r wrongfuldeath against Mr. Sellers, Eddie, M r . Fuhs and his employer at the time, Printco Enterpri ses , and Shelby County. She later amended her c omplaint to allege liability against Mr. Sellers based upo

n the family p

urpose doctrine.

Mrs. Scott amended

her complaint a se

cond time to inc lude a claim for

loss of consortium. Mr. Thurmon and his present wife filed a complaint against the same defendants for wrongful death, loss of consortium on behalf of Mrs. Thurmon, and damages he sustained in

the accident. Mr. Fuhs filed a complaint against Mr. Sellers, d/b/a Donnie’s Amoco, Eddie, d/b/a Cheap Smokes, and Shelby County for personal

injury and negligent infliction of emotional distress. Prior to trial, all defendants except Mr. Sellers andEddie were dismissed from the actions filed against them. The three cases were consolidated for trial and were tried before the court, sitting without a jury.

At the close of all proof, the Sellers moved for an involuntary dismissal 2 as to Mr. Sellers on the ground that the p

laintiffs had fai

led to make their c

aseon t he cl aim of v ica rio us l iab ili ty. The trial court granted the motion and dismissed Mr. Sellers, finding that Eddie was not using the pickup truck in furtherance

of the purpose an

d with the permissio

n of Mr. Sellers. Th

e Sellers also

moved for an involuntary dismissal on Mrs. Scott’s claim for loss of consortium of Dalton. The court granted this motion, holding

that Jordan v. Baptist Thre e Rivers Hospital , 984 S.W.2d 593 (Tenn. 1999), did not embrace a claim by a parent for the loss of consortium of a deceased child. Last ly, the Sellers moved for

an involunta

r y dismissal on Mr. Fuhs’ claim for negligent infliction of emotional distress, which the trial court denied. The trial court awarded damages to each of the plaintiffs in the f

ollowing amounts:

1. To Mrs. Scott on her wrongful death

claim $700,000 2. To Mr. Thurmon for his personal injuries $850,000 3. To Mrs. Thurmon for loss of consortium $25,000 4. To Mr. Fuhs for his physical and mental injuries $275,000

Eddie has appealed theverdict as to Mr. Fuhs, and Mrs. Scott and Mr. Thurmon have appealed their respective

verdicts. Upon the

Sellers’ motion, thi

s Court has ordered the app eals consolidated. The

issues on appeal,

as we perceive

them, are as follo

ws:-4-

1. Wh ether

t he trial court er

red in ruling tha

t Mr. Sellers was no

t vicariously liable for the acts of Ed

die Sellers under the doctrine of respondeat superior and under the family purpose doctrine.

2. Whether

the trial court er

red in dismissing Mr

s. Scott’s claim f

or loss o f consortium.

3. Whether

the amount of the trial court’s award for Mrs. Scott for the wrongful death of Dalton Thurmon was against the preponderance of the evidence.

4. Whethe r

the trial court er

red in deny

ing the Sellers’ motion to dismiss Mr

. Fuhs’ claims for

negligent infl

iction of emotional

distress.

5. Whether

the trial court’s award of damages to Mr. Fuh s wa s su ppo rte d by a preponderance of the evidence.

Since this matt er was tried before the co urt sitti ng w ithout a j ury, our review of the trial court’s findings of fac

t is de novo with a presumption of correctness, unless the preponderance of the evidence is otherwise. Tenn. R. App. P. 13(d). As the issues regard questions of law, our review is de no vo with no presumption of correctness. See Bain v. Wells , 936 S.W.2d 618, 622 (Tenn. 1997); Tenn. R. App. P. 13(d). Respondeat Superior

The appellants in this action, Mrs. Scott, Mr. and Mrs. Thurmon, and Mr. Fuh s, state two bases for alleging t

hat Mr. Sellers is

vicariously liable for

the acts of Eddie Sellers under the doctrine of respondeat superior. The two bases are the presumption of liability create d by sections 55-10-311 and55-10-312 of the Tennessee Code and the fact that Eddie Sellers was an “on call” employee of Donnie’s Deli and

Amoco at the time of

the accident.

I n order to impose liability under respondeat superior, it is necessary to show that th e operator of a vehicle causing injury was, at the time of the accident, acting as a servant or employ ee of the o wne r, was engag

ed in the employ

er’s business, an

d was acting with

in the scope of his employment. See Hamrick v. Spring City Motor Co. , 708 S.W.2d 383, 386 (Te nn. 1986); Tennesse e Farmers Mut. Ins. Co. v. American Mut. Liab. Co. , 840 S.W.2d 933, 937 (Ten n. Ct

. App. 1992). It is undisputed that Eddie was an employee of Donnie’s De li and Amoco. Thus, the pivotal issue is whe

ther Eddie was ac

ting within the cou

rse and scope of

his employme

nt.
Gen eral ly, the phrase “within the course and scope of employment” refe rs to acts of an employee committed while en

gaged in the service of the employer or while about the employ er’s business. See generally Tennessee Farmers Mut. I ns. Co. , 840 S.W.2d at 937-38. However, sections 5 5- 10-311 and 55-10-312 of the Tennessee Code provide that proof of ownership and registrationof a motor vehicle constitutes prima f

acie evidence that the vehicle was being operated3 Section 55-10-311(a) of the Tennessee Code stat es, in rel evant part t

hat
[i]n all actions for injury to persons . . . caused by the negligent op eration or use of any automobil e, auto truck, motorcycle, or other mot or propell

ed vehicl e withi n this state, proof of owners

hip of su ch vehicl e shall be prima f acie evidence that

the vehicl

e at the ti

me of the cause of

action sued on was

being operated and use d wit h authority, consent and knowledge of the owner in the very trans action out of which the injury or cause of

action arose, and such pr

oof of owner

ship li kewise s hall be prima facie evidence that the vehicl e was then and there being operated by the owner, or by the owner’s servant, for the owner’s use and bene fit and within the course and scop e of the servan t’s employm ent.
Tenn. Code Ann. § 55-10-31 1(a) (1999).

Section 55-10-312 of t

he Tennessee Code provides tha t
[p]roof of the regi stration of th e motor-p ropelled v ehicle in the nam e of any perso n shall be prim a facie evidence of ownership of the motor prope lled vehicle by the person in whose name the v ehicle is registered; and such proof of registration shall likewise be prima facie evidence that t he vehicle was then and therebeing operated by the owne r or by the ow ner’s servant for the owner’s use and benefit and with in the course and s cope of the servant’s e mployme nt.
Tenn. Code Ann. § 55-10-31 2 (1999).

4 Mr. Sellers l

eased the 1995 Ford F-150 pickup tr uck through Ford Mo tor Credit Comp any for Eddie Sellers’
use. -5- for the vehicle owne

r’s use and bene

fit and within the c

ourse and scope o

f employmen

t. 3 The prima facie case in

these two code se

ctions may be

overcome by

uncontradicted e

vidence to

the contrary coming from witnesses wh ose credibility

is not in issue. See Haggard v. Jim Clayton Motors, Inc. , 393 S.W.2d 292, 294 (Tenn. 1965). I f the prima facie

case is overcome by evidence so strong that reasonable

minds could not differ, then a directed verdict for the owner may be pr oper. See Hamrick , 708 S.W.2d at 387.

Gen eral ly, the issue of scope of employme

nt is a question of

fact, but it becomes a question of law when the fac

ts are undisputed a

nd no conflicti

ng infe rences are possible. See Tennessee Farmers Mut. Ins. Co. , 840 S.W.2d at 936-3 7. In cases involving a motion for involuntary dismissal, the trial cou r t “must impartially weigh and evaluate the evidence as it would after the presentation of all the evidence” and it must grant such a motion if the plaintiff has failed to make outa prima facie case. Smith v. Inman Realty Co. , 846 S.W.2d 819, 822 (Tenn. Ct. App. 1992). On review, we need only determine whether the evidenc e makes out a prima facie case. See id.
At trial, the certificate of title for the 1995 pickup truck was introduced, which showed the
owner of the vehicle as

FMCC % Donald E. Sellers. 4 Testimony deduced at trial established that the Donald E. Sellers named as owner of the truck was Mr. Sellers, Eddie’s father. Based upon this evidence alone, a prima facie case was established under sections 55-10-311 and 55-10-312 of the Tennessee Code. Additionally, the plaintiffs established tha t the pi ckup truck driven by Eddie on

the day of the accident was leased through Donnie’ s Deli andAmoco and that5 See Evans v. Dixie F asteners , 290 S.E.2d 172, 174 (Ga. Ct. App. 1982) (Being on cal l 24 hours a day does not necessarily me an emplo yee was in the service of his employer when collision occurred); Herndon v. Neal , 424 So. 2d 1180, 1182 (La. Ct. App. 198 2) (An informal “on call” situat ion does not mean the employee is within the course and scope of his employment every secon d of every d ay); Clickner v . City of Lo well , 663 N.E.2d 852, 855 (M ass. 1996) (The
mere fact of bein

g on call does not place employees

withi n the scope

of their emplo yment); Medina v. Fuller , 971 P.2d 851, 855 (N .M. Ct. Ap p. 1998 ) (The test fo r liability for an on c all employee asks exact ly what the employee was doing at the t ime of the injury-producingaccident); Ehlenfield v. State , 404 N .Y.S.2d 175 (19 78), appeal denied , 380 N.E.2d 336 (The fact that

an employee is constantly “on call” is not sufficient to cast his emplo yer in liability); Hantk e v. Harr is Mach. Works , 54 P.2d 293 , 296 (Or. 1936) (The mere fact t hat an employee i s on call does not render his employ

er liable); Melnick v. Neuman , 1 981 WL 139201, at ***3 (Wis. C t. App. Sep t. 22, 198 1) (The fact that an emp loyee is
on call i s merely

one fact or to be cons

idered by t

he trie r of fact in det

ermining whet

her an employee i s withi n or outsi

de the scope o f his employm ent).
-6- the insurance, gas, and license for the pickup was paid through Mr. Sellers’ business. However, uncontradicted

countervailing

evidence exists in th

e record. Mr. Th

urmon, as well as Edd ie, testified that the purpose of the

trip was to drop off

somegolf clubs at Mr. Thurmon’s father’s house and then to go to Memphis to look for golf clubs for Dalton. Furthermore, Mr. Thurmon testified that once Eddie came to get them, they never stopped by Do

nnie’s Deli and Am

oco before goi

ng about their personal business. Although the plaintiffs in the instant case were able to establish a prima facie case under sectio ns 5 5-10-311 and 55-1 0-312 of the Tenne ssee Code, the pri

ma facie case w

as sufficiently
overcome by the uncontradicted

testimony of Mr. Thurmon and Eddie which established that E

ddie Sellers was using the pickup truck solely for his own personal endeavors. Accordingly, we find that Mr. Sellers cannot be held liable under the theory of respondeat superior as it is based on sections 55-10-311 and 55-10-31 2 o f the Tennessee Code. Thus, we af

firm the trial cou

rt’s ruling on this issue.

The plaintiffs next argue liability under the doctrine of respondeat sup eriorbased upon Eddie’s being an “on call” employee of Mr. Sellers’ bu sines s, Donnie’s Deli a

nd Amoco. This scenario presents an issue of first impression in Tennessee. Thus, for guidance, we shall consider the reasoning and analysis of similar cases from courts in sister jurisdictions.

In the cases dealin

g with the issue of vicarious liab ility for an “

on call” employ

ee that this Courtreviewed, the un

derlying p rinciple is that the mere fac

t that an employ

ee is “on call”

does not automatically

give ris e to emp loye r li abi lit y. 5 Rat her, an employee ’s “on call” statu s gives rise to
a question of fact as to whether the employee was acting within the scope of his employment at the6 See also Pruden v. United States , 399 F. Supp. 22, 25, 26 (E.D.N.C.1973) , aff’d , 511 F.2d 1398 (4th Cir.

1975) (Two factors are key in situa tions invol

ving “on call

” employees, namel

y, the amount

of control t

he employer

has
over the empl

oyee at the t ime of the ac

t and wh ether the empl oyer’ s busi

ness w as bei

ng subs tant iall y fur there d at th e time of the acciden t); Conne ll v. Carl’s Air Condit ioning , 634 P.2d 673, 674-75 (Nev. 1981) (holding t hat the employer

was not liable for neglige nce of 24 -hour “on ca ll” employee wh o was not

called for duty and whose after hour activi ties were not restricted, despite fact that employer was respo nsi ble for payme nts and maintenance of employee’s personal car, because employee was not acting within the course and scope of his employment).
-7- time of the accident. See Gullett by Gullett v. Smith , 637 N.E.2d 172, 175 (Ind. Ct. App. 1994). 6 As the court reasoned in Le Elder v. Rice , 26 Cal. Rptr. 2d 749 (1994):

Public policy would be ill-served by a rul e e stablishing 24-hour employer liability for on-call emplo

yees, reg ardlessof the nature of theemployee’s activities at the time of an accident.

Respondeat super

ior is imposed for th

ree policy reasons: “(1) to prevent recurrence of the to rtious conduct; (2) to give greater assurance of compensation for the victim; and (3) to ensure tha t t he victim’s losses will be equitably borne by those who benefit from the enterprise that gave rise to the injury.” [citations omitted] None of these goals woul

d be legitimately

accomplished by

a rule establishing automatic 24-hour employer lia

bility for 24-

hour on-call empl

oyees. First, emplo ye r liability would not prevent a recurrence of the tortious conduct because an employ er has no right to control the purely personal conduct of an employee. Second, although the deep pocket of a n employ er might give greater
assuranceof compensation for the victim, that desired e conomic end would be achieved inequitably because the

victim’s losses would not be borne by the person who benefitted from

the injury-producing

activity. Modern technology ha s changed th e means by which we communicate. Beepers, pag ers, facsimile machines and cellular phones keep us literally at a fingertip’s distance from one another. But oncallaccessibility

or availability of

an employee

does not transfor

m his or her private activity into company business. The first question must always fo cus on scope of employment. Where

the injury-

producing acti

vity is beyond that

scope, no totality of o the r ci rcum sta nces wil l re sul t in res pon deat sup eri or l iab ili ty.
Id. at 753. See also Pruden v. United States , 399 F. Supp. 22, 27 (E.D.N.C. 1973) (“It would b e grossly unfair to hold an employ

er liable for all

actions of his

employees w

hile they we

re off duty andon personal missions, even if they were subject to call, unless of course they were ca lled or were performing a specific service for their employ er while on call.”).

In Johnson v. Dufrene , 433 So. 2d 1109 (La. Ct. App. 1983), the Louisiana

Court of Appeals instructedthat, in

situations where an injury is caused by an employ ee’s negligence while operating his employer’s vehicle, the cases must be decided upon their own facts with important consideration givento whether, at the time of the accident, the use of the vehicle was benefitting the employer, the empl oye e was subject to the employer’s control, and the use of the vehicle was authorized by the employer. See id. at 1112. Furthermore, in Thomas v. Travelers Insurance Company , 423 S.W.2d 359 (Tex. App. 1968), the Texas Civil Court of Appeals held that an “on call” employee must be-8-

engaged in or about the furth

erance of the b

usiness of his emplo

yer in orde

r to be within

the scope of his employment and thus be able to cast liability upon his employ er. See id. at 360.

The law in Tennessee is clear that “when a servant deviates from his line of duty and engages in a mission of his own or for some third person, the master cannot be held [liable] under the rule of respondeat superior.” Craig v. Gentry , 792 S.W.2d 77, 79 (Te nn. Ct. A pp. 1990). We now extend this line of reasoning to situations involving “on call” employees. In determining whe ther
an “on call” employ

ee is acting with

in the course

and scope of his e

mployment, th

us casting liabili

ty on his employe

r, we find the foll

owing factors h

elpful:

1. Whether, at the time of the a ccident, the empl

oyee’s use

of the vehicle benefitted the employer;

2. Whether

the employee was subject to the employer ’s con tro l at the time of the accident;

3. Whether the employ ee’s after-ho

ur activities wer

e restricted whi

le on call;

4. Whether

the use of the vehicle at the time of the accident was authorized by the employer; and

5. Whatthe employee’s primary reason for using the vehicle was at the time of the injury-

producing acc

ident.

This list is not meant

to be exclusive but is

rather provided

for guidance i

n future cases. I

t should be remembered, however, that the primary focus should be on whethe r the use of the vehicle at the time of the collision was within the c our se and scope of employment, and, as the Johnson court stated, each case should be determined upon its unique facts.

In the instant cas e, Eddi e Sellers was driv ing the Ford F- 150 pickup truck f or the sole purpose of going

to look at golf clu

bs with Mr. Thurmon and Dalton. At the time of the a ccident, he had not

been called to perform a service for Donnie’s Deli and Amoco, nor was he furthering the business of Donnie’s Deli a nd Amoco. Accord

ingly, Eddi

e Sellers’ use of the pickup truck at the time of the accide

nt did not, in any

way, bene

fit Mr. Sellers.

Mr. Se llers, as well as Eddie, testified that Eddie had complete control over the use of th e pickup truck. Eddie did not have to ask permission to use the vehicle, nor did Mr. Sellers restrict Eddie’s use of the truck in any manner. Donnie’s Deli and Amoco did not put restrictions on th e distances that could be drive n nor did it li

mit the sco pe of what the truck could be used for. Add iti ona lly, Eddie was not restricted in what he could do while “on call.” Rather, Mr. Sellers and Eddie testified that Eddie was free to engage in personal activities while he was on call at Donnie’s Deli and Amoco. Based

on this uncontrave

rted evidence,

this Court finds that E

ddieSellers and his-9-

use of the pickup truck wer e not subject to the

control of Mr. Sell

ers d/b/a Donnie’ s Deliand Amoco at the time of the accident.

For all practical purposes, the Ford F-150 pickup truck leased by Mr. Sellers was Eddie’s for
use by him in whatev er manner he saw fit. Mr. Seller s did not require th

at Eddie use the ve

hicle solely to carry out the needs of Donnie’s Deli and Amoco. Rather, Mr. Sellers intended that Eddie
use the truck as his own personal vehicle, whether that meant using the pickup for personal endeavors or in furtherance of the business of Donnie’sDeli and Amoco. Because Mr. Sellers was Eddie’s father as well

as his employer at the time of this accident, it is difficult for this Court to say withcertainty

that Eddie’s use of

the pickup truck w

as authorized by Mr. Sellers as Eddie’s employer. Mr. Sellers indeed testified that he d id not restr ict Eddie’s use of the pickup truck. Add iti ona lly, the evidence in the record demonstrates that Eddie was not restricted in his activities while he was “on call”

because he coul

d always be reached by

the cell phone provided by Donnie’s Deli and Amoco. However, does that re asoning suppo rt a determination that Eddie’s use of the pickup truck for personal endeavors during his “on call” hours was, in fact, authorized by Donnie’s Deli and Amoco? Basedupon these facts, wedetermine that wh ile Eddie’s use of the pickup truck for personal endeavors was authorized, this particular trip was not specifically a uthorized.

In Tennessee Farmers Mutual Insurance Company , 840 S.W.2d at 938-39, this Court analyzed when a trip co uld be considered within the scope of employment, and it determined that if the trip would have taken place, regardless of the business reasons, then the trip is personal in nature and is not within

the sc ope of emplo yment. In contrast, if the trip would require the employer to send another employee to perform the same function if the trip had not been made or if the trip is aut hor ize d by a n em ployer for business purposes

and the employ

ee has not deviate

d therefrom, then the trip is bus iness in nature an d is within the scope

of employme

nt. Here, Eddie’s trip was solely for personal reasons - going to look at golf clubs with Mr

. Thurmon and Dalto

n. As such, his trip was personal in nature and outside of the scope of

his employmen t. Based upo n the foregoi ng, it is the opinion of this c

ourt that, as a matter of law, Mr. Sellers is not vicariously liable for the act of Eddie Sellers because the injury-producing activity was be yond the scope of Eddie’s

employment. To hold otherwise wou

ld extend the doctri

ne of respondea

t superior to

unimaginable and

inequitable lengths. Family Purpose Doctrine

The appellants in this action allege that Mr. Sellers is vicariously liable for the ac

ts of Eddie Sellers based upon the family purpose doctrine because Mr. Se llers, as head of the Sellers’ household, maintained the pickup in question for the purpose of providing pleasure or comfort for his family and that Eddie Sellers was using the pickup at the time of the accident in furtherance of that purpose and with the permission of Mr. Sellers. The family purpose doctrine is a court-created legal fiction by which the owner of an autom

obile is held vicar

iously liable

when the car is negligently

driven by a member of the imm ediate household. The fiction is predicated on the assumption that the driver is implemen ting a “family

purpose,” even i

f the driver is only using the automobile

for his own pleasure or convenience. The car must be driven with the permission of the-10-

owner, but this may be

inferred from very general circumstances. The family purpose doctrine was adoptedby the Tenne

ssee Supreme

Court in King v. Smythe , 204 S.W. 296 (Tenn. 1918), and was recently addressed in Camper v. Minor , 915 S.W.2d 437 (Tenn. 1996).

In order for

the family pu

rpose doctrine to

apply in Ten

nessee, two requ

ir ement s must be met, namely, tha

t the head of the household maintains the vehicle for the purpose of providing pleasure or comfort

to his or her family and

that the driver was using the vehicle at the time of the injury-producing

accident in furtherance of that purpose and with either the express or implied permission of the owner. See Camper , 915 S.W.2d at 447. The true test is

whether the driver

was engaged in the owner’s busin

ess at the time of a

ccident, with busin

ess here meaning the furnishing of p leasure to the owner’s family. See Scates v. Sandefer , 44 S.W.2d 310, 311-12 (Tenn. 1931). The family purpose doctrine applies to adults as well as to minors and is imposed as a matter of public policy. See Scates , 44 S.W.2d at 311; Camper , 915 S.W.2d at 448. King v. Smythe , 204 S.W. 296 (Tenn. 1918), is analogous to and is controlling of the instant action. In King , a

twenty-four year

old son was involved in an accident while driving the family’s vehicle which was owned and maintained by the father. The son was a medic al studentat the time andwas residing in

his father’s residence

rent-free. The son had the liberty to use the car, without having to ask for specif

ic permission, as lo

ng as the vehicle was not needed by the father. At the time of the accident, the son was using the vehicle for his own personal pleasure. See id. at 296-97. Imposingliability on the father under the family purpose doc trine, the King court

reasone d that “[i]f
a father purchases an automobile for the pleasure and entertainment of his family, and

. . . gives his adult son, who is a mem ber o f hi s fa mil y, permission to use it for pleasure, except when needed by the father, it would seem perfectly clear that the son is in the furtherance of this purpose of the father while driving the car for his own pleasure.” Id. at 298.

The trial court ruled for Mr. Sellers on this issue, findingthat Eddie was not using the pickup in furtherance of the purpose and with the permission of Mr. Sellers. (TR, V5, p.207). On appeal, the Sellers assert this same argument, contending that Eddie Sellers

was carry

ing out the busine

ss of Mr. Thurmon rather

than that of his father. We disagree. In Scates v. Sandefer , the Tennessee Supreme Court had the resp

onsibility of d

etermining whethe r the driver was a bout the vehicle owner’s business for purposes of liabi l ity under the family purpose doctrine. We believe a discussion of that case is warranted here.

In Scates , a nineteen y

ear old son took a job with a feed company, and, as part of his written employment

contract, he wa

s required to

furnish his own vehicle to further his duties as a salesman. His father, the vehicle owner, gave his son his car to use in the ex ecution of his employment contract. The son lived with th e father, and wh

en the car was no

t being used in

the son’s business, it was used by family members for plea sure. On the day of the accident, the son’s employer required the son to use the car to drive the employer’s prospective customers to the country . It was during the course of

this trip that the accident occurred. Based upon these facts, the supreme court held that the father was not lia

ble unde r the family purpose doctrine because the vehicle “wa s not being operated in the business of

the father nor for t

he pleasure and

comfort of himself

or family, b

ut solely-11-

in behalf of the feed company, and in strict compliance with the contract made be tween the parties.” Scates , 44 S.W.2d at 311. The facts of the instant case a

re readily distinguishable f

rom the facts in Scates

. Here, Eddie Sellers was using the vehicle on the day of the a ccident, for

a purely personal purpose - driving himself

and his friends, Mr

. Thurmon and Dalto

n, to Memphis to look a

t golf clubs. Mr. Thurmon did not e mploy Eddie to

drive him to

Memp his , no r was Edd ie b oun d by a written contract to drive Mr. Thurmon anywhere he desired to g o as was the defendant

in the Scates
case. Even though Eddie was utilizing the pi

ckup for the desi

res of Mr. Thurmon, the distinction lies with the fact that

Eddie was not required

to use the pickup to take M

r. Thurmon and his s

on to Memphis. Instead, when Eddie and Mr. Thurmon discussed who would drive, Eddie

persuaded Mr. Thurmon that he would drive. Based upon this, it is clear that, by driving the pickup truck, Eddie was furthering his own desire - that of driving and accompanying his friends on their quest to find golf clubs.

Because the trial court ru

led on this issue in fa

vor of the Sellers , we need only determine whether the evidence makes out a prima facie case. See Smith , 846 S.W.2d at 822.

The evidence introduced at trial was uncontradicted. Mr. Sellers establishedhimself as the headof the Sellers’ household. Hefurther testifie d that he leased th

e pickup truck fo

r use by Eddie in the business of Donnie’s Deli and Amoco, as well as for Eddie’spersonal use. Mr. Sellers did not restrict Eddie’s use of

the vehicle, and

Eddie did

not have to ask for specific permission to use the vehicle when he desired.

In fact, Eddi

e had the liberty

to use the vehicle

whenever he desired. It is clear, basedupon the evidence in the record, that Eddie wasusing the pickup truck at the time of the accident with implied permission and in furtherance of his own pleasure, which in turn furthered the purpose for which Mr. Sellers’ leased the vehicle. Thus, the requiremen ts of the family pu

rpose doctrine are met and said doctrine applies to this case. According ly, w e reverse the trial court’s holding as it pertains to this issue and conclude that Mr. Sellers is v icariously liable for the acts of Eddie Sellers based upo

n the family

purpose doctrine . This cause is remanded to the trial court for entry of judgment against Mr. Sellers in accordanc e with this opinion. Loss of Consortium

Mrs. Scott filed her wr

ongful death ac

tion giving rise

to this appeal in November of 1996, less than two months afte r the death of her

so n, Dalt on. Mrs. Scott amend ed her complaint i

n February of 1999 to include a

n additional claim

for loss of consortium

under Tennessee’s wrongful dea th statu te pursuant to the Tennessee Supreme Court’s January 25, 1999 opinion in Jordan v. Baptist Three Rivers Hospital , 984 S.W.2d 593 (Tenn. 1999). The Sellers argue t

hat Mrs. Scott does not have a claim be

cause Jordan cann ot b e app lie d ret roac tiv ely, citing this Court’s decision in Hill v. City of Germant own , No. 02A01-9803-

CV-00078, 1999 WL

142386, at *1 (Ten

n. Ct. App. Sept. 20, 1999), as support for this position. In Hill , we r easoned that Jordan changed the judicial construction of Tennessee’s wrongful death statute which then bec am e part of the statu te itself and had the same effect as changing the law by legislation. See Hill , 1999 WL 142386, at *10 (citing Blank v. Olsen , 662 S.W.2d 324, 326 (Tenn. 1983)). We further reas oned that a chang

e in the judicial construction of a statute s hould not be applied retroactively. See id. at *11. The-12-

TennesseeSupreme Court granted permission to appeal our decision in Hill , and on October 20, 2000, it rendered its opinion.

One of the issues on appeal in Hill was whether Jordan could be applied retroactively. The supreme court noted the holding in Blank v. Olsen , 662 S.W.2d 324 (Tenn. 1983), which stated that “inthe absence of .

. . an expressed inte

nt [to make it retroa

ctive,] the rule is

. . . that the decision overruling a judicial constru ction of a statu

te will not be given retroactive effect.” See id. at 325. The supreme court then stated that the absence of language giving Jordan retroactive effect was “a product of ove rsight rather th

an the result of a

judicial decision t

o limit Jordan to prospective application only.” See Hill v. City of Ge rmantown , 3 1 S.W.3d 234, 240 (Tenn. 2000). The TennesseeSupreme Court then expressedits desire that Jordan be appliedretroactively by holding that “Jordan applies retroactively to: (1) all cases tried or retried afte r the date of our dec isio n in Jordan [January 25, 1999]; and (2) to all cases pe nding on appeal in which the issue decided

in Jordan was raised

at an appropriate time.” Id. Based upon the supreme court’s holding in Hill , we find that the Sellers’ arg

ument must fail

and find that, indeed, Jordan applies retroac tively to this
case. Now, we must turn to the issue of whether Mrs. Scott can successfully

assert a claim fo

r loss of consortium for the death of her minor child, Dalton.

Under Tennessee law, an action for w rongful death is statutory in nature, and re

coverable damages must be determined by reference to the statute involved. See Jordan , 984 S.W.2d at 597; Tenn. Code Ann. §§ 20-5-101 to -120 (1994). Section 20-5-113 of the Tennessee Code provides as follows for the damages recoverable in a wrongful death action:

Where a person’s death

is caused by the wrongful act, fault, or omission of another, andsui t is bro ught for dam ages , as pro vid ed fo r by §§ 20-5 -106 and 20-5-107, the party suing shall, if entitled to damages, have the right to recover for the mental and physical suffering, loss of time, and necessary expenses resulting to the de ceased from the personal injur

ies, and also the damages result ing to the partie

s for whose use andbenefit the right

of action survives from the death consequent upon the injuries received.

Tenn. Code Ann. § 20-5-1 13 (1994). Under this section, survivors of the deceased may recover for their losses suffered as a result of the death as well as the damages sustained

by the deceased from the time of injury to the time of death. Because of such langu age, the Jordan court classified Tennessee’s wrongful death statute as a hy

brid between tra

ditional survival a

nd wrongful dea

th statutes. See Jordan , 984 S.W.2d at 598. In Davidson Benedict Co. v. Severson , 72 S.W.2d 967, 982 (Tenn. 1903), the

Tennessee Supre

me Court held that ou

r wrongful dea

th statute does no t provide for recovery

of consortium dama

ges. This was the standard in Tennessee unti

l the supreme court’s decision in Jordan

. In Jordan , the Tennessee Su preme Court revis

ited the issue of wh

ether consortiu

m-t yp e damages were recoverable under our wrongful death statute. The Jordan court determined that section 20-5-113 of the Tennessee Code provided for a cause of

action to compensate survivors for7 Recovery is expressly pe rmitted by statute in the following sta tes: Indiana, Io wa, Kansa s, Kentuck y, Maryla nd, Massachusetts, Michigan, North Caroli

na, Ohio,Oklahom a, Virgin ia, Wash ington, and W isconsin. See Robinson v. Wroblewski , 704 N.E.2d 467 (Ind. 1998); Pagitt v. Keokuk , 206 N.W.2d 700 (Io wa 1973 ); Kurdzi el v. Van Es , 306 P.2d 159 (Kan. 19 57); Department of Ed. v . Belvin s , 707 S.W .2d 782 (Ky. 198 6); Carolina Fre ight Carriers Corp. v. Keane , 534 A.2d 13 37 (M d. 1988 ); Guy v. Johnson , 448 N .E.2d 11 42 (M ass. 1983 ), review denied by 452 N.E.2d 1158; Crystal v. Hubba rd , 324 N.W .2d 869 (Mich. 1 982); Bowen v. Constr uctors Equi

p. Rental Co. , 196 S.E.2 d 789 (N.C. 1973); Keaton v. Ribbeck , 391 N .E.2d 30 7 (Ohio 1 979); Clark v. Jones , 658 P.2d 1147 (Okla . 1983 ); Moda ber v. Kelley , 348 S.E.2d 233 (Va. 1986); Wilson v. Lund , 491 P.2 d 1287 (Wash . 1971); Shockley v. Prier , 225 N.W.2d 495 (Wis. 1975).
Recovery is permitted

pursuant to statutory l

anguage (i.e. “general loss” or “ pecuniary loss”) in the fol lowing states: Alaska, Arizona, Californi a, Idaho, Ill

inois, Loui siana, Minnesot a, Mississi

ppi, Montana, Nebraska, New Jer sey, New York, North D akota, So uth Carolina , South Da kota, Tex as, Utah, and Vermo nt. See Gilli spie v. Beta Constr

. Co. , 842 P.2d 1272 (Alaska 19 92); Frank v. Superior Cou rt , 722 P.2 d 955 (A riz. 1986 ); Perry v. Medin a , 237 Cal. Rptr. 532 (5th Dist. 1987 ); Checkettsv. Bowman , 220 P.2d 682 (Id aho 195 0); Bullard v. Barnes , 468 N.E.2d 1228 (Ill.1984); Vincent v. Morgan’s L. & T.R. & S.S. Co. , 74 So. 541 (La. 1917); Fussner v. And ert , 113 N.W.2d 3 55 (Minn. 1961); Louisville & N.R. Co. v. Whise nant , 58 So. 2 d 908 (M iss. 1952); Davis v. S mith , 448 P.2 d 133 (M ont. 1968 ); Selders (continued ...)
-13- incidental damages sustain ed as a result of the injured party’s death. See Jordan , 984 S.W.2d at 600. Included in those incidental damag es is the pecuniary value of the decedent’s life which the court defined as “the expectancy of life, the age, c ondition of

health and strength, capacity for labor andearning mone y through skill, any art, trade, profession and occupation or business, and personal habits as to sobriety and industry.” See id. (citations omitted). Further, the court determined that the pecuniary value of a human life is also comprised of the value of human companionship. See id. The Jordan court then refin ed the term “pec

uniary valu

e” to include con

sortium-type

damages, which it determined con sist ed of “ several elements, encompassing not only tangible services providedby a family member, but also intangible be nefits each family member re ceives from the contin ued ex istence of other family members. Such benefits include attention, guidance, c are, protection, training, companionship, cooperation, affection, love, andin the case of a spouse, sexual relations.” Id. at 602. With its holding, the Jord an cou rt r ever sed the sta nda rd s et b y Davidson Benedict Co. and held that Tennessee’s wro ngful d eath statutes allowed surviving spouses and children of the deceased to sue for loss of consortium. See id. at 601. The Jordan court, however, declinedto address

whether consortium damages may be recover ed by parents in the eve

nt of the loss of their child (filial consortium), stating “[t]hat issue will be addressed in an appropriate case.” Id. at 596. Because Jordan applies retroac tively to this c

ase, as it was tried after

January 25, 1999, and because the loss

of consortiumissue was timely raised at the tria

l level, this is an ap

propriate case to decide whet

h er a parent may recover damag es for filial consortium pursuant to Tennessee’s wrongfuldeath

statute. Becau

se this is a case

of first impression in Tennessee, we must look to the decisions of our sister jurisdictions for guidance. Although “consortium” histo rically de noted the loss of an

inju r ed spouse’s services and
soc iet y, it recently

has been broade

ned to encompass

genera l notions of comfort, support and companionship

in the parent-child relationship, as well as in the spousal relationship. Toda

y, most jurisdictions allow for

recovery of filial consortium damages in wrongf ul death actions for

the death of a child. 7 After a careful review of cases from c ourts allowing recovery of filial consortium7 (...continue d)
v. Armentrout , 207 N .W.2d 686 (N eb. 197 3); Green v. Bittner , 424 A.2 d 210 (N .J. 1980 ); Saguid v. Kin gston Hosp. , 623 N.Y.S.2 d 341 (N .Y. App . Div. 199 5), appeal dismissed , 662 N.E.2d 793, leave to appe

al dismiss

ed by 667 N.E.2d 337 (1996) ; Hopkins v. McBane , 427 N .W.2d 85 (N.D . 1988); Gomillion v. Forsythe , 62 S.E.2d 29 7 (S.C. 1950); Anderson v. Lale , 216 N .W.2d 152 (S.D . 1974); Sanchez v. Schindler , 651 S.W .2d 249 (Tex. 19 83); Jones v. Carvell , 641 P .2d 105 (Utah 19 82); Clymer v. Webster , 596 A.2d 905 (Vt. 1991 ).
Recovery is all

owed under a t

ype of common l

aw standar

d in New M exico. See Fernandez v. Walgreen Hastings Co. , 968 P.2 d 774 (N .M. 199 8).
-14- damages,this court is of the opi nion that Tennessee should join the vast number of jurisdictions allowing such recovery

in wrongful dea

th actions. It w

ould be anomalous f

or us todeny parents recovery for the loss of their child’s society in wrongful death actions when we ha ve prev iousl y allowedfor a similar

recovery when the loss of a parent and of a spouse wa

s involved pursuan

t to our wrongful death statute. See Jordan v. Baptist Three Rivers Hosp. , 984 S.W.2d 593 (Tenn. 1999) (interpreting wrongful death statute to include recovery for spousal and parental consortium
as part of i nci den tal dam ages ). A ddi tio nal ly, to allow for recovery of filial consortium is consistent with the analysis and holding in Jordan

. First, such damages are not precluded by statute. Second, t he mode rn trend in the law appea

rs to be to allow such damages. Third, several of the same bases that support recovery for spouses and children, such as the value of a family

member to the family as a f

unctioning socia

l unit, would

appear to equally support recovery for parents.
Alexanderv. Beale St. Blues Co., Inc. , 108 F. Supp.2d 934, 9 53 (W.D. Tenn. 1999) (internal citations omitted). Therefore, we hold that parents may recover consortium-type damages for the wrongfuldeath of their ch ild. Now we must dete

rmine what f

act ors should be consi

dered in computing those d

amages.
When recovery is based upon the pecuniary

value of the dec

edent's life, th

e trier of fact m

ust make this de termina tion upon a consideration of several factors, including the decedent's life exp ect ancy, age, condition o f health and stre

ngth, capacity

for labor and for earning

money through skill in any art, trade, profession, and occupation or business. See Hutton v. City of Savannah , 968 S.W.2d 808, 811-12 (Tenn. Ct. App. 1997) (cit ing Thrailkill v. Patterson , 879 S.W.2d 836, 841 (Tenn.1994)). That award should then be reduced by deducting the de cedent's probable living expenses had the d ecedent lived. See id. (citing Wallace v. Couch , 642 S.W.2d 141, 144 (Tenn.1982)). In the

case of a minor c

hild, those

living expenses are the costs associated with childrearing. In the case of a very y oung child, estimates of the child’s future earnings and contributions
are speculative at best. See generally Ahren holz v. Hennepin County , 295 N.W.2d 645, 648-49 (Minn. 1980). For this reason, it can be helpful to have expert testimony concerning the va luation of a child’s pecuniary losses. See Green v. Bittner , 424 A.2d 210, 218 (N.J. 1980).-15-

Pecuniary value also necessarily encompasses the value of human companionship. Therefore, in determining the

amount of consorti

um damages,

courts must also co

nsider the benef

its the child bestowedon the family, such as companionship, comfort, society, attention, coope ration, affection,
careand love. Because it is impossible to generalize on the extent to which family members enjoy eachother’s companio

nship and society, the measurement of a particular parent’s loss of a particular child’s consortium must be d ecided on a case

by case basis. It must be noted, however, that recovery of such losses are restricted to pecuniary losses, that is the actual monetary value of the life of the child. Thus, parents ca

nnot recover fo

r the sorrow and a

nguis h endu red as a result of the child’s death. See Wycko v. Gnodtke , 105 N.W.2d 118, 123 (Mich. 1960).

At the conclusion of the proof, the trial co urt g ranted the Seller s motion to dismiss Mrs. Scott’s claim for loss of c onsortium. In v

iew of the fact th

at this m atter was tri ed without the intervention of a jury, th is cause, as it re

lates to Mrs. Scott’ s claim fo r loss of consortiu m, is remanded to the trial cou rt for a determin ation of what addi

tional damages,

if any, Mrs.

Scott is entitled to for the loss of consortium of her minor son. T

he trial court is in

structed to includ

e insuch award an entry of judgment against Mr. Sellers in ac cordance with this opinion. Wrongful Death Award

Mrs. Scott contends that the trial court’s award o f $700,000 in damages pursuant to the wrongfuldeath statute was insufficient and against the preponderance of the evidence. In reviewing nonjury verdicts, unless the evidence preponderatesagainst the cou rt’s findings,

we must affirm the trial court’s judgment absent error of law. See Squibb v. Smith , 948 S.W.2d 752 (Tenn. Ct. App. 1997); Tenn. R. App. P. 13(d).

Section 20-5-113 of

the Tennessee Code governs what damages are recover able in wrongful death cases. That section

provides for recovery of “the mental and phy sical suffering, loss of

time, and necessary expenses resulting to the deceased fr om the personal injuries, and also the damages resulting to the parties for whose use and ben

efit the right of

action survives fr om the death consequent upon the injuries received.” Tenn. Code Ann. § 20-5-113 (1994).

At trial, Mrs. Scott

introduced the expert testimony of Dr. John Knepper and of Dr. Thomas Depperschmidt.

Dr. Knepper testifie

d to the cause

of Dalton’s death and to the reasonableness and necessity of the medical bills incurred for Dalton’s treatment. The amount of those medical bills was $8,807.55. Dr. Depperschmidt testified to the pecuniary value of Dalton’s life. In arriving at a figure of $1,160,000, Dr. Depperschmidt based his conclusion on Dalton’s parents’ education and on the money income figures

published by

the Department of

Commerce. Dr. De

pperschmi dt fu rther includedaverage frin

ge benefits

for a typical worker in the $1,160,000 figure, but excluded personal maintenance costs which he assumed Dalton woul d incur based upon the assumption that Dalton would have married and

have had two children. After hearing this evidence, the trial court awarded Mrs. Scott $700,000 for the wrongfuldeath of her son, Dalton. Expert testimony is not conclusive,
even if uncontradicted, but is rather purely advisory in character, and the trier of fact ma y place whatever weight it chooses on such testimony. See Gibson v. Ferguson , 562 S.W.2d 188, 189-90-16-

(Tenn. 1976); England v. Burns Stone Co., Inc. , 874 S.W.2d 32, 38 (Tenn. Ct. App. 1993). Further, the tri er of fact may d raw up on its common knowledge and may arrive at a conclusion contrary to the expert testimony. See England, 874 S.W.2d at 38.

After carefully reviewing the record, we find that the trial court’s award of $700,000 was supportedby the evidence introduced at trial and was within the purview of section 20-5-113 of the T ennessee Code . Therefore, w e find that the tria

l court’s award w

as proper under

these circumstances,

and we affirm the

trial court’s judg

ment. Negligent Inflictio

n of Emotional Distress

In raising the issue of whe ther the trial court erred in not dismissing Mr. Fuhs’ claims for negligent infliction of emotio

nal distress,

the Sellers contend that Mr. Fuhs has no basis for such a claim because heis unable to meet the requirements established in Ramsey v. Beavers , 931 S.W.2d 527 (Tenn . 1996). We

disagree with the

Sellers’ interpretation of Ramsey and their assertion that Mr. Fuhs does not ha

ve a basis for his n

egligent infli

ction of emotional d

istress claim.

After a long history of confusing and unpredictable law as it concerned negligent infliction of emotional distress, the Tennessee Supreme Court established the factors required to make out a prima facie case for negligent infliction of emotional distress in its opinion in Camper v. Minor , 915 S.W.2d 437 (Tenn. 1996). There, the court held that such cases should be analyzed

under the general negligence

approach whereby the plaintiff

must present evidence as to duty, breach of duty , injury
or loss, caus ation in fa ct, and prox imate, or l ega l, cause

. See id. at 446. In order to recover for emotional injuries , the plaintiff must prove two things: (1) that the defendant’s negligence in fact caused the third person’s injuries or death and the plaintiff’s emotional injury; and (2) that the third person’s injury or

death and the plaintiff’s e motional injury

were the proximate

and foreseeab

le results of defendant’s negligence. See id. Further, the Camper court held that recovery is allowed only where the plaintiff suffered serious or severe emotional injuries, which occurs when “a reasonable

person, normally constituted, would be unable to adequately

cope with the menta

l stress engendered

by the circumstances of the case,” and that the claimed injury must be supported by expert medical or scientific proof. Id. (citations omitted).

With its holdi ng, the Camper court did not necessarily abandon the “zone of danger” approach to neg

ligent infliction

of emotional distre

ss cases. Instead, the court determined that the principles of the “zone of danger” approach should be incorporated into a case’s analysis as a way of defining and limiting the elements of duty and proximate cause. See id. at n.2. The Camper court, however, reserved the specificsof such incorporation for discussion in a later case. That later
case was Ramsey v. Beavers , 931 S.W.2d 527 (Tenn. 1996).

In Ramsey , the Tennessee Supr eme Court de termined that the principles of the “zone of danger” app roac h we re he lpf ul i n de ter min ing f ores eeab ili ty. The court opined that establishing foreseeability

required consideration of three factors, namely, (1) the plaintiff’s physical location at-17-

the ti me o f th e acc ide nt a nd h is a ware nes s of the acci den t, ( 2) t he s eri ous nes s ofthe inj ury to th e third party, and (3) the plaintiff’s relationship to the injured third party

. See id. at 531.

On appeal, the Selle

rs argue that Ramsey stand s for the proposition that a plaintiff must pr ove all three factors in order to establish foreseeability. A car eful reading of Ramsey insists otherwise. The Ramsey court requires consideration of a number of relevant factors of which the plaintiff’s location at

the time of the event and his awareness of the accident are c

onsidered essen

tial. Because these two factors are considered essential for the determination of foreseeability, the court explained that the plaintiff mustesta blish that he was sufficiently close to the event to allow for
sens oryobserv ation and that the injury to the third party was, or was r easonably perceived to be, serious or fatal. Althoug

h the court recog

nized that most jurisd

ictions require th

e plaintiff to

have
a close relationsh

ip with the third par

ty, it did not expressly

state that a plaint

iff in Tennessee

must have hada close relationship with the third party in order to establish foreseeability . To hold that Ramsey requires proof o

f all three fact

ors before fore

seeability can be established would be contrary to Camper v. Minor as the plaintiff in thatcase was a complete stranger to the third party but y et was allowedto recover his da mages for neg

ligent infliction

of emotional distre

ss. Furthermore

, in applying Ramsey , we held in McCrackin v. City of Millington , 1999 WL 142391, at *1 (Tenn. Ct. App. Mar. 17, 1 999), tha

t “[i]n determining whether the plaintiff’s emotional injury was foreseeable, the trier of fact should

consider (1) the plaintiff’s physical location at the time of the inju ryproducing event as well as th e pla intif f’s awareness

of the injury

-producing eve

nt, (2) the seriou

sness of the third party ’s injury, a nd (3) the nature

of the plaintiff’ s relationship with the injured third party.” Id. at *10 (emphasis added). As concerns the third factor, we believe

that the nature of the plaintiff’s relationship with the third party should play a pivotal role in determining the amount of damages to award, rather than b e ing a prerequisite for establishing foreseeability a s the Sellers suggest.

In the instant action, Eddie Sellers had a duty to drive his vehicle within the bounds of the law. By not remaining stopped at the stop sign, Eddie breached this duty. As a result of this breach,
an accident occurred which inj ured Mr. Fu hs, Mr. Thurmon, and fatally injured Dalton. It was conceded at trial that Eddie

was the cause in fact and the proximate cause of the accident which killed Dalton. Mr. Fuhs further testified that he suffered emotionally as a result of witnessing the accident caused by Eddie and of subsequently w itnessing what he perceived to be Dalton’s lifeless bod y. Regarding foreseeability, although M r. Fu hs was no t related to nor did he have a close relationship

with any of

the occupants of

Eddie’s pickup tru

ck at the time

of the accident, Mr. Fuhs witnessed, from a

few feet away, Dalton’s body slumped over the back

seat of the pickup truck and hanging halfway

out of the truck’s back window. Mr. Fuhs testified that he thought Dalton was dead at the accident scene, but expert testimony established that Dalton, in

fact, died several hours after the accident while in the hospital.

Mr. Fuhs sought treatment from a psychologist for anxiety , sleep ing probl ems, and flashbacks. At trial, Mr. Fuhs introduced expert testimony es tabli shing that he has a permanent impairment

of 12% to the body

as a whole from his

physical injuries and of

55-75% to the body as
a whole from his ment

al distress relat

ed to this accident. Based

upon the foregoing, we conclude that-18-

Mr. Fuhs was successful in establishing a prima facie case for neglige nt infliction of emotional distress under Camper v. Minor and Ramsey v. Beavers

. Thus, the trial court did not err in denying the Sellers’ motion

to dismiss Mr. Fuhs’ claim for neglig ent infliction of e

motional distress. Damages Award

The Sell ers contend that t he trial court’s a

ward of $275,000 t

o Mr. Fuhs was bey

ond th e range of rea sonab lenes s and m ust be set as ide. In accordance wi th Rule 13(d) of the Tennessee Rules of Appellate Proc

edure, a trial c

ourt’s findings o

f fact and its judg

ment in a bench-tr

ied case must be affirmed, unless the evidenc e preponderate

s against the cou

rt’s findings,

absent an error of law. See Squibb v. Smith , 948 S.W.2d 752 (Tenn. Ct. App. 1997); Tenn. R. App. P. 13(d).

At trial, Mr. Fuhs of

fered lay and expert testimony

and an analy

sis of th e damag es he sustained as a re

sult of this accide

nt. A synopsis

of those damage

s follows. Medical Expenses $9,224.94 Property Losses $41,430.00 Income Losses $44,544.13 Future Income Losses $269,787.56 Total $364,986.63

Add iti ona lly, Mr. Fuhs was diagnosed as having a total permanent impairment of 12% to the body from his physical injuries and of 55 -75% to the body from his mental distress. Based upon the evidence introducedat

trial, the trial court awarded Mr. Fuhs $275,000 in damages, finding that Mr. Fuhs “did experience some nonphysical injury that should be consider

ed in making an a

ward in his situation.” After careful

ly reviewing the r

ecord, we find th

at the evidence s

upports the trial court’s award to Mr. Fuhs and that no error of l aw was committed by the trial court in making its award. Acco rdi ngly, we affirm

the amount of the verdict in favor of Mr. Fuhs, but we remand this issue to the trial court for entry of judgment against Mr. Selle

rs, as well as Eddie Se

llers, in accord

ance with
our holding that Mr. Sellers is vicariously liable for the acts of Eddie Sellers under the family purpose doctrine.
Conclusion

Based upon the forego

ing, we hold that,

as a matter of law, Mr. Sellers is not v ic ar iously liable for the acts of Eddie Sellers under the doctrine of respondeat superior. Mr. Sellers is, however, vicariously

liable for the damages incurred by the plaintiffs as a r esult of the collision causedby his son, Eddie Sellers, under the family purpose doctrine. Hence, we affirm the trial court’sruling as it concerns the issu

e of respondeat

superior, but w

e reverse the ruling as it c

oncerns the fami

ly purpose doctrine. Accordingly, we remand this issue to the trial court for entry of judgment agai

nst Mr. Sellers and in favor of all plaintiffs in accordance with our holding in this opinion.-19-

We hold that Tennesse

e is to join the majority of jurisdictions allowing for recovery of filial consortiumdamages in a wr ongful death ac

tion for the death

of a child pursuan

t to our w rongful death statute and to the Tennessee Supreme Court’s holding in J ordan v. Baptist Three

Rivers Hospital

. Recovery is limited to pecuniary losses which are to be reduced by the amount ofchildrearing expenses projected to have been incurred by the parents. Recovery ma y not be had

for the grief and anguish suffered by the parents as such loss is not monetary in nature. For the foregoing reasons, we remand

this cause to

the trial court fo

r a determination

of what additiona

l damages, if any, Mrs. Scott is entitle

d to for the loss of consortium of her minor son. The trial court is instructed to include in such award an entry of judgment aga inst Mr. Sellers in accor

dance with

this opinion.

We hold that the trial court’s award of $700,000 to Mrs.

Scott on her wrong

ful death claim was supported by the evidence and is thus affirmed.

We find that Mr. Fuhs sufficientl y establishe

d his claim for negligent infliction of emotional distress, and the trial court correctly denied the Sellers’ motion to dismiss this claim. The trial court’s jud gmen t on thi s is sue is a ffi rme d. A ddi tio nal ly, we uphold the amoun t awarded to

Mr. Fuhs
as proper, but we re

mand this issue for t

he entry of

judgment agai

nst Mr. Sellers in ac

cordance with this opinion.

Acco rdi ngly, we affirm in part, reverse in part , and remand this case to the trial court for entry of judgment consistent

w ith this opinion. The costs of this appeal are taxed equally to the appellants,

Dana HopeDavis Thurmon Scott, Shane andTiffany Th urmon, and Carl J. Fu

hs, and to the appellees, Eddie

Sellers and Donal

d E. Sellers, Sr., and their sureties, for which execution may iss ue i f nec ess ary.

___________________________________ DAVID R. FARMER, JUDGE