### IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE June 1, 2021 Session

ALISA BIBBS v. DURHAM SCHOOL SERVICES, L.P.
, ET AL



### .

Appeal from the Circuit Court for Hamilton County
No. 17C1266 John B

. Bennett, Judge

___________________________________

No. E2020

- 00688

- COA

- R10

- CV

___________________________________

This extraordinary appeal arises from a school bus crash in November 2016, which resulted in the tragic death of s ix children attending Woodmore Elementary School in Chattanooga

. 1

Woodmore’s school secretary sued the employer of the bus driver for

, inter alia

, reckless

infliction of emotional distress (“RIED”) . The school secretary alleg ed that the employer ’s

fail ure to address the bus driver ’s dangerous driving despite receiving numerous war nings disregarded the children’s safety, constituted reckless and outrageous conduct, and caused her serious mental injuries

. The trial court deni ed the employer’s motion to dismiss th e claim , finding that the school secretary had sufficiently alleged out rageous conduct on the part of the employer and that she had met all other pleading requirements to sustain her

RIED claim

. Employer appeals. Although we agree with the trial court that the school
secretary sufficiently alleged conduct so outrageous by t he employer that it can not be tolerated by civilized society , we hold that the secretary is not a person who fall s within the reasonably foreseeable scope of the particular substantial and unjustifiable risk consciously disregarded by the employer and, therefore, cannot recover under a reckless

infliction of emotional distress claim

. Consequently, w e reverse the trial court’s finding

on th is latter issue and remand the case for dismissal of the action against employer.

Tenn. R. App. P. 10 Extraor dinary Appeal ; Judgment of the Circuit Court Affirmed

in Part and Reversed in Part; Case Remanded

K RISTI M. D AVIS

, J., delivered the opinion of the C ourt, in which D. M IC HAEL S WINEY

, C.J., AND T HOMAS R. F RIERSON

, II, J. , joined.

Melissa A. Murphy

- Petros

, Chicago, Illinois, and Michael R. Campbell, Chattanooga, Tennessee, for the appellants, Durham School Services, L.P., and National Express, LLC.

1 By order dated September 11, 2020, this Court consolidated this and four other extraordinary appeals arising from the same school bus crash for purposes of oral argument. Separate opinions addressing the other appeals are being filed concurrently with this opinion.- 2

-

Ronald J. Berke

, Chattanooga , Tennessee, for the appellee, Alisa Bibbs.

OPINION

F ACTS AND P ROCEDURAL H ISTORY

The underlying facts of this case are widely known and are not in dispute. On November 21, 2016, school bus driver Johntony Walker lost control of a school bus with thirty

- seven Woodmore students on it, causing the bus to crash and flip over

. Six children
lost their lives

, and many others were injured. At the time of the crash, Walker was employe d by Durham School Services, L.P. , a subsidiary o f National Express, LLC (together, “Durham”) , which had a contract with Hamilton County Schools to pr ovide

school bus services

. The p laintiff here, Alissa Bibbs

, was the school secretary at

Woodmore.

On November 17, 2017, Bibbs filed a lawsuit against Durham in the Hamilton County Circuit Court (“the trial court”)

, asserting claims for negligent inflict ion of

emotional distress , intentional infliction of emotional distress, and breach of a promise to pay for necessary counseling and treatment related to the bus crash based on Walker’s reckless driving of the school bus

. 2 She also alleged that Durham was negligent in hiring, training, supervising, and retaining Walker as a school bus driver

.

Durham moved to dismiss the action under Rule 12.02(6) of the Tennessee Rule s of
Civil Procedure , arguing that Bibbs failed to state a cause of action for negligent infliction

of emotional distress because she ha d not witness ed the accident and d id not have the requisite close and intimate personal relationship with the deceased children

. As to the

claim for intentional infliction of emotional distress, Du rham contended that Bibbs could not prevail because its alleged conduct was not outrageous

. Lastly, Durham submitted that

it had no legal obligat ion to pay for counseling and treatment because there was no

consideration for its alleged promise to so do. Durham did not address Bibbs’s allegations

of negligent hir ing , train ing

, supervision, and retention.

On March 6, 2018, Bibbs filed an Amended Complaint , which added about a dozen new paragraphs primarily concerning the nature of Bibbs’s relationship with the students

involve d in the bus crash and Durham’s knowledge of and failure to address Walker’s history of reckless and dangerous driving . For example, Bibbs alleged that she “spent as much or more time with the students during waking hours than the parents did[,]” making her, “a surrogate mother to many of the students in the bus, including students who were badly injured and students who died due to the cras h.” As to Walker’s driving, the

2 Although Bibbs’s complaint also named Walker as a defendant, Walker is not a party to this appeal.- 3

-

Amended Complaint stated that Woodmore teachers, staff, and parents knew about
Walker’s reckless driving habits , which “were frequently reported to Durham who did no investigation and who did nothing.” Bibbs also alleged t hat Durham “knew or should have known that a crash involving serious injury and death to the students would have a serious and debilitating effect on the teachers and staff at the school

. ”

Two weeks later, Durham renewed its motion to dismiss, restating i ts original arguments and also contending that Bibbs did not allege in the Amended Complaint a type
of relationship with the students “that falls outside the normal realm of a general staff

student relationship” so as to support her claim for negligent inf liction of emotional
distress. Moreover , Durham argued, there is no legal or factual basis for concluding that a “good school staff member” automatically becomes a surrogate parent or has a close and intimate personal relationship of the nature contemplat ed by the courts when granting relief

for emotional distress

. With respect to the new allegations concerning Walker’s frequent

and widely known reckless driving, Durham insisted that such conduct is not sufficiently outrageous to support a claim for inten tional infliction of emotional distress.

Bibbs filed a brief opposi ng the motion to dismiss, emphasizing that Durham’s

“ inaction, which they knew could lead to the serio u s injury and death of a bus load of children, is so outrageous that it cannot be tole rated by civilized society” and that Durham “knew or should have known that a crash involving serious injury and death to the students would have a serious and debilitating effect on the teachers and staff at the school.” In reply, Durham contended that B ibbs’s negligent infliction of emotional distress claim fails not only because she did not allege the requisite close and intimate personal relationship with the students, but also because she neither witness ed the bus crash n or the scene before

it was mat erially altered, as required by our Supreme Court in Ramsey v. Beavers , 931 S.W.2d 527 (Tenn. 1996) and Eskin v. Bartee , 262 S.W.3d 727 (Tenn. 2008), respectively.

Over Durham’s objection, the trial court granted Bibbs’s motion to amend her complaint a second time. This Second Amended Complaint, filed on January 30, 2019,

ad ded

, inter alia , the following relevant allegations concerning Walker’s repeated driving

misconduct a nd Durham’s failure to take any action despite h aving knowledge of the sa me :

• That Durham had “received over one thousand notifications from Zonar 3 that . . . Walker was speeding while driving his school bus

. ”

• That Durham was aware that in August and September of 2016, “Walker was at fault

in two accide nts within a period of thirty

- four days.”

• That Durham knew “Walker would slam on his brakes to make the children [on the bus]
hit their heads” and “had even seen video where Walker was ta l king on a telephone

3 According to the Second Amended Complaint, Zonar “is a company that [Durham] hired to track, among other things, the path of the buses and the speed of the buses[,]” and it sends “email notifications not only to the supervisors and management of [Durham] in Chattanooga, but also to [its] corporate offices.”- 4

-

with a blue tooth headset while driving the scho ol bus.”

• That Durham knew “Walker had fallen asleep at the wheel on two occasions

. ”

• That Durham took no action when “Walker missed five out of five mandatory safety meetings during his short term of employment with Durham.”

• That five days before the bus cr ash, on November 16, 2016 , Durham received notice that on that same date, “six students reported that Walker was intentionally swerving

the bus to knock the children out of their seats

. ”

• That Durham had information from Zonar that on November 16, 2016, Wal ker “had twenty five separate speeding incidents . . . [and in] five of the incidents, he was speeding more than twenty miles over the speed limit.”

• That Durham was in possession of

, but failed to review promptly, a twenty

- six

- minute

video of the November 16, 2016 incident show ing “dramatic and intentional attempts by Walker to throw the children off their seats and injure them

, ” prior to the bus crash five days later on November 21, 2016.

• That Durham “had no central place to log complaints which were made by other drivers or complaints made by the public . . . [and] no central place to record violations of their own regulations and did not even have a policy on documenting complaints.”

• That Durham “did no investigation of Walker’s speeding events . . . [and ] not even an investigation of Walker’s speeding incident on the dates of his two at

- fault accidents. ”

• That Durham failed to test Walker for alcohol and controlled substance abuse after his

two at

- fault accidents, as required by federal regulations.

• That D urham did not document in its daily log “complaints by parents that were emailed to [Durham] . . . [nor] put in Walker’s file, and were not even forwarded to a training or safety supervisor. There was no investigation and no discipline of Walker.”

• That “a ll of the above cited facts amounted to a reckless indifference to the lives and safety of the children riding on the buses and to others in the community.”

Bibbs later filed a supplemental memorandum o f law to elaborate on the RIED claim and related allegations rais ed in her Second Amended Complaint

. She emphasized our Supreme Court’s holding in Doe 1 ex rel. Doe 1 v. Roman Cath olic Diocese of Nashville

, 154 S.W.3d 22 , 38 (Tenn. 2005) , that an actionable claim for “reckless in fliction of emotional distress need not be based upon conduct that was directed at a specific person or that occurred in the presence of the plaintiff.” The rest of her memorandum restated the bulk of the allegations made in her Second Amended Complaint.

Durham submitted to the trial court a consolidated supplemental brief in further support of its renewed motion to dismiss. 4 Durham asserted that, concerning RIED claims,

Doe retained a foreseeability requirement by stating that “[t]he reckless tortfeaso r will be liable only to persons who fall within the reasonably foreseeable scope of the particular substantial and unjustifiable risk consciously disregarded by the tortfeasor.” I d. at 39.

4 Durham also filed this same consolidated supplemental brief in four separate civil actions

institute d by other Woodmore teachers and staff arising from the same 2016 school bus crash

.- 5

-

Moreover, Durham contende d, it would seem anomalous t hat a non

- bystander , such as Bibbs, c ould meet the higher burden to recover for reckless infliction of emotional distress

but be denied relief f

or negligent infliction of emotional distress based on the same facts

. Durham added that the facts alleged by Bibbs t o show Durham’s negligent supervision and retention of Walker, even if true, d o not amount to extreme and outrageous conduct.

After a hearing on Durham’s renewed motion to dismiss, the trial court filed a

written order on July 15, 2019

. The trial court found that “ the allegations in the [Second] Amended Complaint show a closeness of relationship between the plaintiff and the children, and a very serious driving problem with Mr. Walker

. ” The trial court denied
Durham’s motion to dismiss Bibbs’s RIED clai m, concluding that she satisfied the claim’s pleading requirements because “(1) the conduct alleged is outrageous as a matter of law, (2) [Durham] had knowledge prior to the accident that any intentional or reckless injury

done to the children would have a n adverse impact on plaintiff’s emotional state; and (3) the plaintiff otherwise meets the requirements of Doe . . . , and falls within the reasonably foreseeable scope of persons who could be injured by the particular substantial and unjustifiable risk co nsciously disregarded by the tortfeasor.” Bibbs’s claim for negligent

infliction of emotional distress was dismissed because she “did not go to the scene of the accident, and therefore does not satisfy the factors required to proceed with this cause of
action.” Likewise, t he trial court dismissed the claim for breach of contract, finding that Bibbs made no allegations with respect to the consideration required to form a contract.

After the trial court denied the parties’ motions for interlocutory appeal unde r Rule 9 of the Tennessee Rules of Appellate Procedure, Durham applied to this Court for an extraordinary appeal, see Tenn. R. App. P. 10, which we granted.

I SSUES P RE SENTED

O ur July 9, 2020 Order granting Durham’s application for an extraordinary appeal

delineate s the following issues on appeal:

1) Whether Plaintiff’s complaint survives a motion to dismiss by sufficiently

all eging conduct so outrageous that it is not tolerated by civilized society; and

2) Whether Plaintiff’s complaint survives a motion to dismiss by sufficiently alleging that Plaintiff is a person who falls within the reasonably foreseeable scope of the particular substantial and unjustifiable risk consciously disregarded by the tortfeasors.

S TANDARD OF R EVIEW

I n an extraordinary appeal, appellate courts apply the same standard of review that would have been applied to the issues in an appeal as of rig ht. Chapman v. DaVita, Inc.

,- 6

-

380 S.W.3d 710, 712 (Tenn. 2012); Culbertson v. Culbertson , 455 S.W.3d 107, 124 (Tenn. Ct. App. 2014) . The trial court’s denial of Durham’s motion to dismiss “ is a question of law, which this Court reviews de novo with no presumption of correctness.” See Heaton
v. Mathes , No. E2019

- 00493

- COA

- R9

- CV, 2020 WL 1652571, at *3 (Tenn. Ct. App. Apr. 3, 2020) (citations omitted). Our Supreme Court has set forth the parameters of our review:

A Rule 12.02(6) motion challe nges only the legal sufficiency of the complaint, not the strength of the plaintiff’s proof or evidence. The resolution of a 12.02(6) motion to dismiss is determined by an examination of the pleadings alone. A defendant who files a motion to dismiss admi ts the truth of all of the relevant and material allegations contained in the complaint, but . . . asserts that the allegations fail to establish a cause of action.

In considering a motion to dismiss, courts must construe the complaint liberally, presumi ng all factual allegations to be true and giving the plaintiff
the benefit of all reasonable inferences. A trial court should grant a motion to dismiss only when it appears that the plaintiff can prove no set of facts in support of the claim that would en title the plaintiff to relief.

Webb v. Nashville Area Habitat for Human., Inc. , 346 S.W.3d 422, 426 (Tenn. 2011) (cleaned up). However, this Court is “ not required to accept as true assertions that are merely legal arguments or ‘legal conclusions’ couche d as facts.” Id. at 427.

A NALYSIS

Th e overarching issue before us is whether the trial cour t correctly denied Durham’s

motion to dismiss Bibbs’s RIED claim

. 5 We begin by s ummarizing the legal principles governing this cause of action. As stated by our Supreme Court, the required elements of

a RIED claim are : (1) the conduct complained of must have been reckless; (2) the conduct must have been so outrageous that it is not tolerated by civ ilized society; and (3) the conduct complained of must have caused serious mental injury to the plaintiff

. Doe , 154
S.W.3d at 41 (citing Bain v. Wells , 936 S.W.2d 618, 622 (Tenn. 1997)) ; see also Rogers

, 367 S.W.3d at 20 5

. In Doe , t he Court also held tha t the plaintiff need not allege that the

reckless conduct of the defendant “ was directed at a specific person or that [it] occurred in

the presence of the plaintiff. ” 154 S.W.3d at 38

– 39. T he Court explained that the requirements of the tort itself

— a reckless state of mind, outrageous conduct, and s erious

mental harm to the plaintiff

— “perform an important gate

- keeping function for the purposes

5 I ntentional infliction of emotional distress and RIED are not different causes of action. Rather, as our Supreme Court has explained, “ intentional infliction of emotional distress can be proven by a showing of either reckless or intentional behavior. ” Rogers v. Louisville Land Co. , 367 S.W.3d 196, 205

n.6 (Tenn. 2012) (citations omitted). We refer to Bibbs’s claim as RIED throughout this opinion because

it is un disputed that Durham’s allegedly tortious conduct was not intentional. Accord Doe , 154 S.W.3d at

41

.- 7

-

of ensuring the reliability of claims and of preventing liability from extending unreasonably. ” Id. at 39. F urther, the Court explain ed that “ [t] he reckless tortfeasor will be liable only to persons who fall within the reasonably foreseeable scope of the particular substantial and unjustifiable risk consciously disregarded by the tortfeasor.” Id. at 39

– 40 (citi ng Tommy’s Elbow Room v. Kavorkian , 727 P.2d 1038, 1044 (Alaska 1986); Public Fin. Corp. v. Davis , 360 N.E.2d 765, 767 (Ill. 1976); McClenahan v. Cooley , 806 S.W.2d 767, 775

– 76 (Tenn. 1991) ) . We now address in turn the two issues presented in this appeal.

I. Outrageou s Conduct

In its order deny ing Durham’s motion to dismiss Bibbs’s RIED claim , the trial court

stated that the conduct alleged was “ outrageous as a matter of law. ” O ur Supreme Court
has repeatedly and unwavering ly held that to satisfy th e outrageousness element

, the
defendant’s a lleged conduct must be “ so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency and to be regarded as atrocious, and utterly intolerable in a civilized community.” Medl in v. Allied Inv. Co. , 398 S.W.2d 270, 274 (Tenn. 1966) (quoting Restatement (Second) of Torts § 46 cmt. d (1965)) ; see also Doe

, 154 S.W.3d at 39; Lourcey v. Est. of Scarlett , 146 S.W.3d 48, 51 (Tenn. 2004); Miller v.
Willbanks , 8 S.W.3d 607, 614 (Tenn. 1 999) ; Bain v. Wells , 936 S.W.2d 618, 623 (Tenn. 1997) ; Moorhead v. J. C. Penney Co. , 555 S.W.2d 713, 717 (Tenn. 1977)

. Put another

way: “ Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous.’ ” Restatement (Second) of Torts § 46 cmt. d

. By contrast , conduct consisting of ‘“mere insults, indignities, threats, annoyances, petty oppression, or other trivialities”’

is not suffic ient to support liability under this tort

. Medlin , 398 S.W.2d at 274 ( citation omitted). Given this high threshold, c ourts have a duty to determine in the first instance “whether the defendant’s conduct may reasonably be regarded as so extreme and

outra geous as to permit recovery.” Id. at 275 (citation omitted)

.

We have no difficulty concluding that Durham’s alleged conduct, or rather complete lack of action, was outrageous. Walker had only been employed by Durham as a bus driver

for four mo n ths prio r to the accident, but his tenure was littered with examples of unbelievably dangerous conduct about which Durham allegedly did nothing. According to Bibbs, months prior to the November 2016 crash, Durham was aware that Walker was

at fault in two motor ve hicle accidents in August and September 2016, respectively; that Walker had fallen asleep at the wheel at least twice; that he would slam on the brakes to make the students on the bus hit their heads; and that he had missed every single mandatory safety me eting during his employment with Durham. In addition, Zonar, the company engaged by Durham to monitor its drivers’ speeding practices, had notified Durham that Walker had been speeding more than one thousand times while driving the school bus. In
fact , Z onar notified Durham that on November 16, 2016, five days prior to the deadly crash, it had registered twenty five separate speeding i ncidents

, with Walker going more than twenty miles per hour over the speed limit in five of them . Bibbs alleg es that Durh am did- 8

-

nothing with this information. Specifically, Durham did not test Walker for alcohol and
controlled substance abuse after his two at

- fault accidents, as required by federal regulations; it did not investigate Walker’s repeated speeding events, not e ven those that
occurred on the dates of his two at

- fault accidents; and it had no system to log and address complaints made about its drivers or violations of its own regulations.

Durham argues its conduct was not outrageous because “[t]he outrageous conduct requirement is a high standard which has consistently been regarded as a significant limitation on recovery,” Doe , 154 S.W.3d at 39, and because the allegations made by Bibbs

“ are not dissimilar from those commonly made against transportation service providers whose employees are alleged to have caused fatal accidents” and amount to no more than ‘“[p]oor management [and] deviations from business practices

, ”’ see Rhodes v. Bates

Rubb er, Inc. , No. 1:19

- cv

- 01030

- STA

- jay, 2019 WL 2723237, at *5 (W.D. Tenn. June 27, 2019). Such a llegations , Durham posits, are not “unusual” enough to state a claim for

reckless infliction of emotional distress.

Durham’s reliance on Rhodes is misplaced. In that case, the plaintiff asserted an intentional infliction of emotional distress claim based on age discrimination by his former employer. Id. at *1. The plaintiff alleged that his direct supervisor “demeaned him by using condescending language . . . and by calling him patronizing names during discussions with other plant employees” and that the supervisor “ used [ a ] supposed violation of company policy as a pretext to terminate [ the plaintiff’s ] employment .” Id. at *4. The

federal district court det ermined that in Tennessee, “malice and bad intent simply do not suffice to show that a person’s actions” satisfy the outrageous conduct requirement. Id. at
*6. As th at court noted, ‘“mere insults, indignities, threats, annoyances, petty oppression

or oth er trivialities’ cannot constitute outrageous conduct.” Id. at *4 (quoting Bain , 936 S.W.2d at 622) . Respectfully, the allegations made by the plaintiff in Rhodes are not remotely within the same universe as those made by Bibbs. While the conduct of the supervisor in Rhodes is certainly not appropriate workplace demeanor and may have unfairly

— even discriminatorily

— caused the plaintiff to lose his employment, id.

, that conduct never created or ignored a risk of serious physical harm to indiv iduals placed under the employer’s care. We find that the allegations in the present case are not analogous to those in “a run

- of

- the

- mill wrongful termination or disparate treatment case.” Id. at *5

. Rhodes is inapposite here

.

Durham also submits that “if even criminal intent or malicious intent is insufficient to sustain an intentional or reckless infliction of emotional distress claim, the common allegations of mismanagement and recklessness made here against Durham will not do.” Bibbs’s allegat ions are not common allegations of mismanagement. They are allegations of severe and extreme reckless disregard for unbelievably dangerous behavior. Durham seemingly conflates the first element of a RIED claim (i.e., the tortfeasor’s state of mind

while engaging in the conduct at issue) with the second (i.e., the conduct’s outrageous character and extreme degree )

. This argument is unavailing.- 9

-

Durham also calls our attention to two emotional distress cases based on intentional

acts of the defendant as ex amples of the type of “exceptional” conduct that may qualify as outrageous and to show why its own conduct does not rise to that level. See Lourcey , 1 46
S.W.3d at 52 (where defendant estate’s decedent instructed plaintiff to call 911 because

wife was havi ng a seizure and the n proceeded to shoot both wife and himself in the head in the presence of plaintiff); Levy v. Franks , 159 S.W.3d 66, 84 (Tenn. Ct. App. 2004) (where defendant made death threats and fired shots near plaintiff’s home )

. Again,
Durham’s argument is misplaced

. F irst , both cases involved intentional conduct directed at the plaintiffs; here, we are dealing with Durham’s reckless ness

. I n Lourcey , the
decedent’s intentional conduct posed a substantial risk of emotional harm to plaintiff; her e, Durham’s reckless conduct ignored a substantial risk of both emotional and physical harm

. Contrary to Durham’s argument, its alleged conduct is on par with that of the tortfeasors

in Lourcey and Levy

.

Durham points out that the element of outrageou s conduct “is an exacting standard”
meant to filter out “fraudulent and trivial claims.” Miller , 8 S.W.3d at 614. We agree.
There is no indication in this record that Bibbs’s claims are fraudulent

— and they are certainly not trivial. The allegations her e are not simply of poor management or deviation from business practices commonly alleged by plaintiffs against transportation service providers. W e hold that a jury could reasonably conclude that Durham’s conduct,

“ considered as a whole, was extreme, out rageous and intolerable in present day society .”

Moorhead , 555 S.W.2d at 717

.

T he factual allegations in Bibbs’s pleadings are sufficient to satisfy the outrageous

conduct element of a RIED claim. Bibb s alleges that Durham was aware of, but chose to ignore, a plethora of incidents indicating that the on

- the

- job conduct of one of its employee s , Walker, presented a n imminent risk of serious harm to the students

. Inexplicably, Durham allowed Walker to continue driving a school bus full of elementary

school children , despite having received multiple warnings of Walker’s dangerous

behavior

. S ix children were killed and score s of others were injured . The trial court correctly concluded that the plaintiff sufficiently all eged the element of outrageous
conduct.

II. Reasonably Foreseeable Scope of the Risk

With respect to the second issue for review , the trial court found that Bibbs’s “allegations in the [Second] Amended Complaint show a closeness of relationship between the plaintiff and the children.” The trial court ’s order also stated that Durham “had knowledge prior to the accident that any intentional or reckless injury done to the children

would have an ad verse impact on plaintiff’s emotional state,” that Bibbs “otherwise meets the requirements of Doe ,” and that she “falls within the reasonably foreseeable scope of persons who could be injured by the particular substantial and unjustifiable risk[] consciously disregarded by the tortfeasor.”- 10

-

A brief review of th e fact s in Doe is instructive

. The plaintiffs in that case had been sexually molested as minor boys by a priest formerly employed by the Roman Catholic

Diocese of Nashville

. Id. at 24

– 30. They sued the Diocese for reckless infliction of

emotional distress , alleging that

— despite being fully aware that the former priest had a long history of sexually molesting numerous boys

— the Diocese recklessly permitted the priest to have continued access to male minors , including plaintiffs, through Diocese

related activ ities and events for more than two decades. Id. This Court affirmed the trial court’s grant of summary judgment in favor of the Diocese, concluding that a reckless

infliction of emotional distress claim must be based on conduct that was directed at the

p laintiff

. Id. at 31. Our Supreme Court, however, reversed and held that “ to be actionable, reckless infliction of emotional distress need not be based upon conduct that was directed at a specific person or that occurred in the presence of the plaintiff. ” Id. at 24. The Court
reasoned that “ the directed

- at requirement is incompatible with the concept of recklessness insofar as reckless misconduct has a general or random quality. ” Id. at 39 (citations omitted). Having set aside the directed

- at requirement, the Court explained that “[t]he elements of intentional and reckless infliction of emotional distress themselves perform an important gatekeeping function for the purposes of ensuring the reliability of claims and of preventin g liability from extending unreasonably.” Id. In this context, the Court specifically stated that a “reckless tortfeasor will be liable only to persons who fall within the reasonably foreseeable scope of the particular substantial and unjustifiable risk consciously disregarded by the tortfeasor.” Id. at 39

– 40 (citations omitted) (emphasis added)

.

Here, Durham acknowledge s that under Doe

, “a claim of reckless infliction of emotional distress need not be based upon conduct that was directed at a specific person or that occurred in the presence of the plaintiff

. ” 154 S.W.3d at 38

– 39

. Durham argues, however, that the plaintiff does not fall within the reasonably foreseeable scope of the risk consciously disregarded by the tortfeasor. Durham argues that t he following factors are probative on this issue: whether the plaintiff witnessed the injury

- producing accident ; whether the plaintiff went to the scene of the accident before it was materially altered ; and whether the plaintiff had a close and intimate pe rsonal relationship with the accident’s

victim s

. Durham submits that n either the trial court nor Bibbs ha s explained how a school
secretary who never visited the scene of the bus crash falls within th e reasonably

foreseeable scope

. We agree with Durham.

Although Tennessee appellate courts had not specifically articulated th e “reasonably foreseeable scope” constraint on recovery until Doe , this limitation is con sistent with our Supreme Court’s recognition that the requirements of a RIED claim must “perfo rm an important gate

- keeping function for the purposes of ensuring the reliability of claims and of preventing liability from extending unreasonably.” Id. at 39. Our task here then

, as recognize d in the order granting this Rule 10 extraordinary appeal

, i s to determine whether Bibbs sufficiently alleged t hat she is a person who falls within the reasonably foreseeable scope of the particular substantial and unjustifiable risk consciously disregarded by- 11

-

Durham

. 6 In other words, did Bibbs sufficiently allege that she w as among the class of persons for whom there was a high degree of probability that severe emotional distress

would follow after the bus crash ? S ee id. at 39

– 40 (citing Tommy ’ s Elbow Room v.
Kavorkian , 727 P.2d 1038, 1044 (Alaska 1986); Public Fin. Corp. v. Davis , 360 N.E.2d 765, 767 ( Ill. 1976) )

.

W e acknowledge that neither our Supreme Court nor this Court has outlined the
parameters of the inquiry to determ ine whe ther a p erson falls within the reasonably foreseeable scope of plaintiffs in a RIED claim. A ppellate court opinion s subsequent to

Doe did not need to address whether the plaintiff s had met the “reasonably foreseeable scope” requirement because, generally, the plaintiff w as either a p erson immediately subject to the defendant’s outrageous conduct or a family member of that person

. See , e.g. , Rogers , 367 S.W.3d at 211 ( after cemetery became overgrown and ill

- maintained

, mother

sued cemetery where son had been buried ); Lour c ey , 146 S.W.3d at 49

– 50 (defendant purposely shot his wife and then himself in the plaintiff’s presence) ; Harris v. Horton , 341 S.W.3d 264, 266 (Tenn. Ct. App. 2009) (mother and sister of man who died in a motor

vehicle accident sued paramedic who circulated photos of the accident scene and decedent’s corpse at a driver’s education class)

. The circumstances in th o se cases leave

little doubt that the plaintiffs were persons who f ell within the reasonably foreseeable scope of the particular substantial and unjustifiable risk consciously disre garded by the

defendants

.

Our Supreme Court’s jurisprudence concerning the role of foreseeability in the related claim of negligent infliction of emotional distress (“NIED”) is instructive. In Ramsey

, a son sued for NIED after he witnessed a vehicle st rike and kill his mother when she got out of the car to check the mail at the son’s driveway while he remained seated
inside the car. 931 S.W.2d at 528. The son remained in the car as the accident occurred.

Id. The Court of Appeals affirmed the trial c ourt’s grant of summary judgment in favor of the defendant on the basis of plaintiff’s failure to demonstrate that “his claim relate[d] to fear for his own safety and not for that of his mother.” Id. at 529. The Supreme Court
reversed and allowed the cla im to proceed

, h olding that to recover for emotional injuries sustained as a result of death or injury of a third person, as Bibbs seeks to do here, a plaintiff must show that the emotional injuries were a foreseeable result of the defendant ’ s negligence. Id. at 531. This inquiry “requires consideration of a number of relevant factors,” includ ing the plaintiff’s awareness of the event or accident and plaintiff’s p hysical

location at the time of the even t or accident , the degree of injury to the third pers on, and the plaintiff’s relationship to the injured third party. Id. at 531

– 32 ; see also Lourcey

, 146
S.W.3d at 52

– 53 (applying these for e seeability factors). Importantly, the Lourcey Court
underscored : “A lthough we discussed several considerations in analyzing foreseeability in

6 Although the Court specifically identified the issue of whether plaintiff falls within the reasonably foreseeable scope in the order granting Durham’ s Rule 10 application for extraordinary appeal, Bibbs did not argue this issue in her brief.- 12

-

Ramsey , including the plaintiff’s relationship to the injured party, we did not hold that the plaintiff’s relationship to the injured party was itself an element for stating or esta blishing a claim for negligent infliction of emotional distress.” Lourcey , 146 S.W.3d at 53 (citing Ramsey , 931 S.W.2d at 531).

Subsequently, in Eskin v. Bartee , 262 S.W.3d 727 , 738 (Tenn. 2008)

, the Court allowed “a mother who observed her young child lying unconscious in a pool of blood in his school’s driveway minutes after he had been struck by an automobile” to pursue a N IE D claim. The Court held that recovery was permissible for “ plaintiffs who have a close personal relationship with an injured pa rty and

. . . arrive at the scene of the accident while the scene is in essentially the same condition it was in immediately after the accident. ” Id. (emphasis added). T he Court explained that its holding was partly grounded on the Court’s

historical rec ognition “ that it is easily foreseeable that persons who have a close personal relationship with an injured party will suffer serious or severe emotional distress when they

see someone ‘ near and dear ’ to them injured. ” Id. (citing Ramsey , 931 S.W.2d at 529; Shelton v. Russell Pipe & Foundry Co. , 570 S.W.2d 861, 8 66 (Tenn. 1978))

. The Court

also noted that “ [w] hile a parent

- child relationship, a spousal relationship, a sibling relationship, or the relationship among immediate family membe rs provides sufficient basis for a claim, other intimate relationships such as engaged parties or step

- parents and
step

- children will also suffice.” Id. at 740 (emphasis added). U nder the combined precedent of Ramsey

, Lourcey , and Eskin

, although a plain tiff’s relationship to the injured

third party is no t an element of a NIED claim

, it remains a relevant factor in determining

the foreseeability of emotional injuries to the plaintiff

. In addition, while Eskin made clear that close p ersonal relationships bearing on foreseeability are not limited to relationships shared by immediate family members, the “other intimate relationships” referenced in the opinion (i.e., “relationships such as engaged parties or step

- parents and step

- children ”) contemplate circumstances where plaintiffs had become or clearly intended to enter into a familial type of relationship with the injured third party by the time the injury occurred

. We discern no logical basis for applying a different approach to determine whether a plaintiff falls within the reasonably foreseeable scope in a RIED claim.

O ur careful consideration of the facts alleged in the pleadings, in light of the foreseeability principles discussed above and giving Bibbs the benefit of all reasonable

inferences

, leads us to conclude that she does not fall within the class of persons for whom there was a high degree of probability that severe emotional distress would follow after the

bus crash

. To begin with, Bibbs was not the immediate subject of Durham’s reckle ss and outrageous conduct. Durham’s decision to disregard the multiple and repeated warnings it received concerning Walker’s dangerous driving subjected the children o n Walker’s bus, not Bibbs, to a substantial and unjustifiable risk of serious physical a nd emotional harm. Next, Bibbs was neither aware of the fatal accident n or in physical proximity to the accident
at the time it occurred. Bibbs never observed the accident scene or the injured children. Importantly , Bibbs did not share a familial type o f relationship with any of the injured and

deceased children. See Ramsey

, 931 S.W.2d at 528 ; Eskin

, 262 S.W.3d at 738

. While it- 13

-

would be foreseeable that Woodmore cl assmates, teachers, and staff members

, like Bibbs

, as well as neighbors, acquaintances, and persons in multiple other categori e s would be impacted by the tragic loss es from the bus crash, Bibbs is not a person who falls within the reasonably foreseeable scope of the risk disregarded by Durham

. Her relationship with the children is simply too attenuated. Bibbs alleg es that she spent “ as much or more time with the students during waking hours than the parents did

, ” but the same allegation could be made by any one who attended or worked at Woodmore. Indeed, almost every elementary

school teache r and student could ma k e the same allegation concerning students in their

classrooms

. E mployees in an office with typical business hours could allege the same with respect to their co

- workers. Further, Bibbs’s conclusory allegation that she became “a

sur rogate mother to many of the students in the bus, including students who were badly injured and students who died due to the crash

, ” was not made as to any child in particular. Deeming Bibbs a foreseeable RIED plaintiff under these circumstances would expand the universe of potential plaintiffs in such cases far beyond the appropriate scope of the tort.

In limiting recovery for RIED to persons fall ing within the reasonably foreseeable scope of the risk disregarded by th e tortfeasor

, our Supreme Court implicitly held that there are

boundaries to the class of person s who might recover under that cause of action. Bibbs

falls outside those boundaries

. We hold that she is not

, as a matter of law

, a reasonably foreseeable pl aintiff under the facts of this case.

I n reaching this holding, we are aware of the Supreme Court’s pronouncement that

“ reckless infliction of emotional distress need not be based upon conduct that was directed at a specific person or that occurred in th e presence of the plaintiff. ” Doe , 154 S.W.3d at
38

– 39

. O ur holding is not predicated on the fact that Durham’s outrageous disregard for the safety of the children was not directed at Bibbs or that such disregard did not occur in

her presence. Rather, ou r holding is based up on our determ ina tion that Bibbs is not a reasonably foreseeable plaintiff in this case. We reverse the trial court’s judgment as to the second issue in this appeal.

C ONCLUSION

We affirm the judgment of the Hamilton County Circuit Court concluding that Bibbs sufficiently alleged outrageous conduct on the part of Durham but reverse its judgment that Bibbs sufficiently alleg ed she falls within the reasonably foreseeable scope of the particular substantial and unjustifi able risk consciously disregarded by Durham. Accordingly, w e remand for entry of a n order granting Durham’s motion to dismiss for failure to state a claim upon which relief can be granted. Costs of this appeal are taxed equally between appellants and app ellee , for which execution may issue if necessary.

_________________________________ KRISTI M. DAVIS, JUDGE