IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

October 25, 2006 Session

MARC ESKIN, ET AL. v. ALICE B. BARTEE, ET AL.

A Direct Appeal from the Circuit Court for Shelby County

No. CT-006445-03 The Honorable Karen R. Williams, Judge

No. W2006-01336-COA-R3-CV - Filed December 27, 2006

HOLLY KIRBY, JUDGE, CONCURRING:

I agree with the result reached by the majority and the substance of the majority’s reasoning.

I write separately only to note that I disagree with a portion of the majority’s reading of Ramsey v.

Beavers, 931 S.W.2d 527 (Tenn. 1996), and in particular its reliance on Thing v. La Chusa, 771

P.2d 814 (Cal. 1989).

Thing v. La Chusa involved facts somewhat similar to the facts in the instant case. In

Thing, a child was struck by an automobile and seriously injured. Thing, 771 P.2d at 815. The

mother was nearby but was not present at the accident. Id. When she was told that her child was

injured, the mother rushed to the scene and saw her “bloody and unconscious” child lying on the

roadway. Id. The mother sued the driver of the automobile for negligent infliction of emotional

distress. Id.

The Thing court discussed at length the appropriate limits for the tort of negligence infliction

of emotional distress. Id. at 816-30. It ultimately decided to adopt a “bright-line” rule that a plaintiff

could not recover for negligent infliction of emotional distress unless the plaintiff was present at the

injury-producing event at the time it occurred and was aware at that time that it was causing injury

to the victim. Id. at 829-30. In explaining its reasoning, the Thing court noted that while any limits

on the tort of negligent infliction of emotional distress would be arbitrary and might leave out

deserving plaintiffs, the rule that it adopted would establish reasonable parameters to allow recovery

by the plaintiffs most likely to suffer genuine traumatic emotional injury. See id. at 827-28. It

stated:

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.
-2-

Id. at 828. Thus, the Thing court felt that, while the standard it was adopting was not perfect, it was

nevertheless a reasonable standard. See id. It then denied recovery to the plaintiff because she was

not present at the accident. Id. at 830. Since then, the Thing decision has been recognized as

representing the line of cases favoring a “bright-line” rule in negligent infliction of emotional distress

cases. See, e.g., Clohessy v. Bachelor, 675 A.2d 852, 858-59 (Conn. 1996); Contreras v. Carbon

County Sch. Dist. No. 1, 843 P.2d 589, 593 (Wyo. 1992).

As noted by the majority, the Tennessee Supreme Court in Ramsey v. Beavers, 931 S.W.2d

527, 531 (Tenn. 1996), cites Thing and quotes the above language. The majority, after stating that

there is little difference in the emotional injury suffered by a family member who witnesses the

injury and one who arrives on the scene immediately thereafter, states:

[T]he Ramsey Court’s quotation from Thing v. La Chusa . . . indicates that the Court

was not establishing a bright line rule that there must be actual observance of the

injury producing accident. It appears the Court recognized that there may be

circumstances where sensory observance of the injury-producing event is not an

absolute essential element.

I must disagree with the majority’s characterization of what is indicated by the Ramsey

Court’s reliance on Thing. Prior to inserting the above quotation from Thing, the Ramsey Court

notes that the “plaintiff’s physical location at the time of the event or accident and awareness of the

accident are essential factors” and that it is “more foreseeable that one witnessing or having sensory

observation of the event will suffer effects from it.” Ramsey, 931 S.W.2d at 531 (footnote omitted).

Immediately thereafter, the Court inserts the quotation from Thing and then concludes that a

“plaintiff must establish sufficient proximity to the injury-producing event to allow sensory

observation by plaintiff.” Id. Certainly the Ramsey Court was aware of the holding in Thing and

that the case was perceived as standing for the adoption of a bright-line rule. I simply read Ramsey

as not going beyond the issue presented in that case, that is, whether to allow recovery for a plaintiff

who was present at the scene but not in the zone of danger, and not indicating one way or another

whether recovery might, under some circumstances, be allowed for one not present at the scene of

the injury-producing event. Butsee McCracken v. City of Millington, No. 02A01-9707-CV-00165,

1999 WL 142391, at *11 (Tenn. Ct. App. Mar.17, 1999).

I agree, therefore, with the majority’s holding, and in particular its reliance on the reasoning

in Hegel v. McMahon, 960 P.2d 424 (Wash. 1998). I write separately only to emphasize my belief

that our holding today is a reasonable extension of the Ramsey holding.

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HOLLY M. KIRBY, JUDGE