IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

June 1, 2021 Session

CHERRI SCHRICK v. DURHAM SCHOOL SERVICES, L.P., ET AL.

Appeal from the Circuit Court for Hamilton County

No. 17C1281 John B. Bennett, Judge

___________________________________

No. E2020-00744-COA-R10-CV

___________________________________

This extraordinary appeal arises from a school bus crash in November 2016, which resulted 

in the tragic death of six children attending Woodmore Elementary School in Chattanooga.1 

Plaintiff, a fourth grade math and science teacher at Woodmore, sued the employer of the 

bus driver for, inter alia, reckless infliction of emotional distress (“RIED”). The teacher

alleged that the employer’s failure to address the bus driver’s dangerous driving despite 

receiving numerous warnings disregarded the children’s safety, constituted reckless and 

outrageous conduct, and caused her serious mental injuries. The trial court denied the 

employer’s motion to dismiss the claim, finding that the teacher had sufficiently alleged 

outrageous 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 teacher sufficiently alleged conduct so outrageous by the employer that 

it cannot be tolerated by civilized society, we hold that the teacher is not a person who falls

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, we reverse the trial court’s finding 

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

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

in Part and Reversed in Part; Case Remanded

KRISTI M. DAVIS, J., delivered the opinion of the court, in which D. MICHAEL SWINEY,

C.J., AND THOMAS R. FRIERSON, 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.

04/07/2022
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Ronald J. Berke, Chattanooga, Tennessee, for the appellee, Cherri Schrick.

OPINION

FACTS AND PROCEDURAL HISTORY

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 

employed by Durham School Services, L.P., a subsidiary of National Express, LLC 

(together, “Durham”), which had a contract with Hamilton County Schools to provide 

school bus services. The plaintiff here, Cherri Schrick, was a fourth grade math and science 

teacher at Woodmore.

On November 20, 2017, Schrick filed a lawsuit against Durham in the Hamilton 

County Circuit Court (“the trial court”), asserting claims for negligent infliction 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 Specifically, she averred that she went to the hospital 

after the crash because she knew some of her students were on the bus; that she was asked 

at the hospital to identify children arriving in an unconscious state; that she observed one 

of her students die while medical personnel were trying to revive her; and that three of the 

six children who died in the crash were in her classroom. Schrick 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 Rules of 

Civil Procedure, arguing that Schrick failed to state a cause of action for negligent infliction 

of emotional distress because she had not witnessed the accident and did not have the 

requisite close and intimate personal relationship with the deceased children. As to the 

claim for intentional infliction of emotional distress, Durham contended that Schrick could 

not prevail because its alleged conduct was not outrageous. Lastly, Durham submitted that 

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

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

allegations of negligent hiring, training, supervision, and retention.

On March 6, 2018, Schrick filed an Amended Complaint, which added several new 

paragraphs primarily concerning the nature of Schrick’s relationship with the students 

involved in the bus crash and Durham’s knowledge of and failure to address Walker’s 

 

2 Although Schrick’s complaint also named Walker as a defendant, Walker is not a party to this 

appeal.
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history of reckless and dangerous driving. For example, Schrick alleged that she “spent as 

much or more time with the students during waking hours than the parents did” and that 

she “was a surrogate mother to many of the students in the bus, including students who 

were badly injured and students who died due to the crash.” As to Walker’s driving, the 

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.” Schrick also alleged 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.”

Two weeks later, Durham renewed its motion to dismiss, restating its original 

arguments and also contending that Schrick did not allege in the Amended Complaint a 

type of relationship with the students “that falls outside the normal realm of a general staffstudent relationship” so as to support her claim for negligent infliction 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 contemplated 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 intentional infliction of emotional distress.

Schrick filed a brief opposing the motion to dismiss, emphasizing that Durham’s 

“inaction, which they knew could lead to the serious injury and death of a bus load of 

children, is so outrageous that it cannot be tolerated 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 Schrick’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 witnessed the bus crash nor the 

scene before it was materially 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 Schrick’s motion to amend her

complaint a second time. This Second Amended Complaint, filed on January 30, 2019, 

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

misconduct and Durham’s failure to take any action despite having knowledge of the same:

• That Durham had “received over one thousand notifications from Zonar3that . . . 

 

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.”
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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 accidents 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 talking on a telephone 

with a blue tooth headset while driving the school 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 crash, 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, Walker “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 showing “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 Durham 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 “all 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.”

Schrick later filed a supplemental memorandum of law to elaborate on the RIED 

claim and related allegations raised in her Second Amended Complaint. She emphasized 

our Supreme Court’s holding in Doe 1 ex rel. Doe 1 v. Roman Catholic Diocese of 

Nashville, 154 S.W.3d 22, 38 (Tenn. 2005), that an actionable claim for “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.” 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 
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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 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. 

Moreover, Durham contended, it would seem anomalous that a non-bystander, such as 

Schrick, could meet the higher burden to recover for reckless infliction of emotional 

distress but be denied relief for negligent infliction of emotional distress based on the same 

facts. Durham added that the facts alleged by Schrick to show Durham’s negligent 

supervision and retention of Walker, even if true, do 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 Schrick’s RIED claim, 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 an 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 consciously disregarded by the tortfeasor.” Schrick’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, the trial court dismissed the claim for breach of contract, 

finding that Schrick made no allegations with respect to the consideration required to form 

a contract.

After the trial court denied the parties’ motions for interlocutory appeal under 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.

ISSUES PRESENTED

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

delineates the following issues on appeal:

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

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

 

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

instituted by other Woodmore teachers and staff arising from the same 2016 school bus crash.
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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.

STANDARD OF REVIEW

In an extraordinary appeal, appellate courts apply the same standard of review that 

would have been applied to the issues in an appeal as of right. Chapman v. DaVita, Inc., 

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 challenges 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 admits 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, presuming 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 entitle 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’ couched as facts.” Id. at 427.

ANALYSIS

The overarching issue before us is whether the trial court correctly denied Durham’s 

motion to dismiss Schrick’s RIED claim.5 We begin by summarizing the legal principles 

governing this cause of action. As stated by our Supreme Court, the required elements of 

 

5 To be clear, intentional 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 Schrick’s claim as RIED throughout this opinion because 

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

41.
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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 civilized 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 205. In Doe, the Court also held that 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. The Court explained that the 

requirements of the tort itself—a reckless state of mind, outrageous conduct, and serious 

mental harm to the plaintiff—“perform an important gate-keeping function for the purposes 

of ensuring the reliability of claims and of preventing liability from extending

unreasonably.” Id. at 39. Further, the Court explained 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 

(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); 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. Outrageous Conduct

In its order denying Durham’s motion to dismiss Schrick’s RIED claim, the trial 

court stated that the conduct alleged was “outrageous as a matter of law.” Our Supreme 

Court has repeatedly and unwaveringly held that to satisfy the outrageousness element, the 

defendant’s alleged 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.” Medlin 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. 1999); 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 sufficient to support liability under this tort. Medlin, 398 S.W.2d at 274 (citation 

omitted). Given this high threshold, courts have a duty to determine in the first instance 

“whether the defendant’s conduct may reasonably be regarded as so extreme and 

outrageous 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 months prior to the accident, but his tenure was littered with examples of 

unbelievably dangerous conduct about which Durham allegedly did nothing. According 

to Schrick, months prior to the November 2016 crash, Durham was aware that Walker was 
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at fault in two motor vehicle 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 meeting 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, Zonar notified Durham that on November 16, 2016, five days prior to the deadly crash, 

it had registered twenty five separate speeding incidents, with Walker going more than 

twenty miles per hour over the speed limit in five of them. Schrick alleges that Durham 

did 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 even 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 

Schrick “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 Rubber, Inc., No. 1:19-cv-01030-STA-jay, 2019 WL 2723237, at *5 (W.D. Tenn. 

June 27, 2019). Such allegations, 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 determined 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 that court noted, ‘“mere insults, indignities, threats, annoyances, petty oppression 

or other 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 Schrick. 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 individuals 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. 
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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.” 

Schrick’s allegations 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.

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

acts of the defendant as examples 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, 146 

S.W.3d at 52 (where defendant estate’s decedent instructed plaintiff to call 911 because 

wife was having a seizure and then 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. First, both cases involved intentional conduct directed 

at the plaintiffs; here, we are dealing with Durham’s recklessness. In Lourcey, the 

decedent’s intentional conduct posed a substantial risk of emotional harm to plaintiff; here, 

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 outrageous 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 Schrick’s claims are fraudulent—and they are 

certainly not trivial. The allegations here are not simply of poor management or deviation 

from business practices commonly alleged by plaintiffs against transportation service 

providers. We hold that a jury could reasonably conclude that Durham’s conduct, 

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

Moorhead, 555 S.W.2d at 717.

The factual allegations in Schrick’s pleadings are sufficient to satisfy the outrageous 

conduct element of a RIED claim. Schrick 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 

employees, Walker, presented an 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. Six children were killed and scores of others were injured. The trial court 

correctly concluded that the plaintiff sufficiently alleged the element of outrageous 

conduct.
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II. Reasonably Foreseeable Scope of the Risk

With respect to the second issue for review, the trial court found that Schrick’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 adverse impact on plaintiff’s emotional state,” that Schrick “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.”

A brief review of the facts 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 Dioceserelated activities 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 

plaintiff. 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 

preventing 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 acknowledges 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 the 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 personal relationship with the accident’s 

victims. Durham submits that neither the trial court nor Schrick has explained how a fourth 
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grade science and math teacher who never visited the scene of the bus crash falls within 

the reasonably foreseeable scope. We agree with Durham.

Although Tennessee appellate courts had not specifically articulated the “reasonably 

foreseeable scope” constraint on recovery until Doe, this limitation is consistent with our 

Supreme Court’s recognition that the requirements of a RIED claim must “perform 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 

recognized in the order granting this Rule 10 extraordinary appeal, is to determine whether 

Schrick sufficiently alleged that she is a person who falls within the reasonably foreseeable 

scope of the particular substantial and unjustifiable risk consciously disregarded by 

Durham.

6

 In other words, did Schrick sufficiently allege that she was among the class of 

persons for whom there was a high degree of probability that severe emotional distress 

would follow after the bus crash? See 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)).

We acknowledge that neither our Supreme Court nor this Court has outlined the 

parameters of the inquiry to determine whether a person falls within the reasonably 

foreseeable scope of plaintiffs in a RIED claim. Appellate court opinions subsequent to 

Doe did not need to address whether the plaintiffs had met the “reasonably foreseeable 

scope” requirement because, generally, the plaintiff was either a person 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); Lourcey, 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 those cases leave 

little doubt that the plaintiffs were persons who fell within the reasonably foreseeable scope 

of the particular substantial and unjustifiable risk consciously disregarded 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 strike 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 court’s grant of summary judgment in favor of 

 

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, Schrick did 

not argue this issue in her brief.
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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 claim to proceed, holding that to recover for emotional injuries 

sustained as a result of death or injury of a third person, as Schrick 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,” including the plaintiff’s awareness of the event or accident and plaintiff’s physical 

location at the time of the event or accident, the degree of injury to the third person, 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 foreseeability factors). Importantly, the Lourcey Court 

underscored: “Although we discussed several considerations in analyzing foreseeability in 

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 establishing 

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 NIED 

claim. The Court held that recovery was permissible for “plaintiffs who have a close 

personal relationship with an injured party 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). The Court explained that its holding was partly grounded on the Court’s 

historical recognition “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, 866 (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 members 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). Under the combined 

precedent of Ramsey, Lourcey, and Eskin, although a plaintiff’s relationship to the injured 

third party is not 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 personal 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.

Our careful consideration of the facts alleged in the pleadings, in light of the 
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foreseeability principles discussed above and giving Schrick 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, Schrick was not the immediate subject of Durham’s reckless and 

outrageous conduct. Durham’s decision to disregard the multiple and repeated warnings it

received concerning Walker’s dangerous driving subjected the children on Walker’s bus, 

not Schrick, to a substantial and unjustifiable risk of serious physical and emotional harm. 

Next, Schrick was neither aware of the fatal accident nor in physical proximity to the 

accident at the time it occurred. Indeed, she never was at the scene of the accident. Schrick

learned about the crash before visiting the hospital where she saw one of her students die. 

But going to the hospital after having notice of what had occurred and identifying injured 

or deceased children there do not bring Schrick within the reasonably foreseeable class of 

persons who were placed at a substantial and unjustifiable risk of emotional distress. With 

respect to the foreseeability analysis, our Supreme Court has noted that “[o]bviously, it is 

more foreseeable that one witnessing or having a sensory observation of the event will 

suffer effects from it,” explaining:

The impact of personally observing the injury-producing event in most, 

although concededly not all, cases distinguishes the plaintiff’s resultant 

emotional distress from the emotion felt when one learns of the injury or 

death of a loved one from another, or observes pain and suffering but not the 

traumatic cause of the injury.

Ramsey, 931 S.W.2d at 531 (quoting Thing v. La Chusa, 771 P.2d 814, 828 (Cal. 1989)); 

see also Eskin, 262 S.W.3d at 738 (holding that “plaintiffs who have a close personal 

relationship with an injured party and who arrive at the scene of the accident while the 

scene is in essentially the same condition it was in immediately after the accident” may 

recover for emotional distress); Lourcey, 146 S.W.3d at 55 (holding that the plaintiff could 

survive a Rule 12.02(6) motion to dismiss because she witnessed the defendant shooting 

his wife and himself, even though the plaintiff was not related to the defendant or his wife).

Importantly, Schrick did not share a familial type of 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 would be foreseeable that Woodmore classmates, staff members, and teachers,

like Schrick, as well as neighbors, acquaintances, and persons in multiple other categories 

would be impacted by the tragic losses from the bus crash, Schrick 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. Schrick alleges 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 anyone who attended or worked at Woodmore. Indeed, 

almost every elementary school teacher and student could make the same allegation 

concerning students in their classrooms. Employees in an office with typical business 

hours could allege the same with respect to their co-workers. Further, Schrick’s conclusory 
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allegation that she became “a surrogate 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 Schrick 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 falling within 

the reasonably foreseeable scope of the risk disregarded by the tortfeasor, our Supreme 

Court implicitly held that there are boundaries to the class of persons who might recover 

under that cause of action. Schrick falls outside those boundaries. We hold that she is not, 

as a matter of law, a reasonably foreseeable plaintiff under the facts of this case.

In 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 the presence of the plaintiff.” Doe, 154 S.W.3d at 

38–39. Our holding is not predicated on the fact that Durham’s outrageous disregard for 

the safety of the children was not directed at Schrick or that such disregard did not occur 

in her presence. Rather, our holding is based upon our determination that Schrick is not a

reasonably foreseeable plaintiff in this case. We reverse the trial court’s judgment as to 

the second issue in this appeal.

CONCLUSION

We affirm the judgment of the Hamilton County Circuit Court concluding that 

Schrick sufficiently alleged outrageous conduct on the part of Durham but reverse its 

judgment that Schrick sufficiently alleged she falls within the reasonably foreseeable scope 

of the particular substantial and unjustifiable risk consciously disregarded by Durham. 

Accordingly, we remand for entry of an 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 appellee, for which execution may issue if necessary.

_________________________________

KRISTI M. DAVIS, JUDGE