Day on Torts

Reckless infliction of emotional distress plaintiffs was not within the reasonably foreseeable scope of the alleged tort.

Where the school secretary sued the employer of a school bus driver for reckless infliction of emotional distress after the driver caused a school bus accident killing six children, and the secretary alleged that the employer ignored multiple warnings regarding the driver’s unsafe practices, the Court of Appeals ruled that the claim against defendant employer should have been dismissed because “the secretary [was] not a person who falls within the reasonably foreseeable scope of the particular substantial and unjustifiable risk consciously disregarded by the employer and, therefore, [could not] recover under a reckless infliction of emotional distress claim.”

In Bibbs v. Durham School Services, L.P., No. E2020-00688-COA-R10-CV, 2022 WL 1042733 (Tenn. Ct App. April 7, 2022), plaintiff was the school secretary at an elementary school, and defendant was the employer of school bus drivers for that school. In November 2016, school bus driver Johntony Walker lost control of the bus he was driving and had an accident, killing six children and injuring many others. Plaintiff alleged that defendant had ignored numerous warnings about Walker’s dangerous driving practices, including over one thousand notifications from the monitoring software that Walker was speeding while driving the bus; Walker being at fault for two accidents in a 34-day period just a few months before this accident; knowledge that Walker would “slam on his brakes to make the children hit their heads;” video of Walker talking on the phone with a headset while driving; evidence that Walker had fallen asleep while driving twice; evidence that Walker would intentionally swerve the school bus; and evidence from just five days before the crash showing that Walker had twenty-five speeding incidents, including five times when he was exceeding the speed limit by at least twenty miles per hour.

Plaintiff asserted multiple claims in her complaint, but the only claim at issue on appeal was her claim for reckless infliction of emotional distress. Defendant had filed a motion to dismiss, which the trial court denied, ruling that plaintiff had satisfied the elements of that claim. On appeal, the Court of Appeals ruled that dismissal should have been granted.

To prove a case of reckless infliction of emotional distress (RIED), a plaintiff must show three elements: “(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.” (internal citation omitted). The Court noted that “intentional infliction of emotional distress and RIED are not different causes of action,” but that because there was no allegation that defendant’s actions here were intentional, the claim was considered one for RIED. While an RIED 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,” liability will only be found where plaintiff “fall[s] within the reasonably foreseeable scope of the particular substantial and unjustifiable risk consciously disregarded by the tortfeasor.” (internal citations and quotations omitted).

To determine whether plaintiff’s claim should have survived the motion to dismiss, the Court of Appeals first considered the element of outrageous conduct. “[T]o 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.” (internal citation omitted). Considering the facts alleged by plaintiff, the Court stated that it had “no difficulty concluding that [defendant’s] conduct, or rather complete lack of action, was outrageous.” The Court noted that in the four months Walker had been employed by defendant, “his tenure was littered with examples of unbelievably dangerous conduct about which [defendant] allegedly did nothing.” While defendant tried to paint the facts as “common allegations of mismanagement,” the Court rejected this assessment, stating that the allegations here were “of severe and extreme reckless disregard for unbelievably dangerous behavior,” and that plaintiff’s pleadings were “sufficient to satisfy the outrageous conduct element of a RIED claim.”

The Court next analyzed whether plaintiff fell “within the reasonably foreseeable scope of the risk consciously disregarded by the tortfeasor.” Defendant asserted that several factors were probative on this issue, including whether the plaintiff witnessed the accident, whether the plaintiff went to the scene of the accident, and “whether the plaintiff had a close and intimate personal relationship with the accident’s victims,” and the Court agreed that these were relevant considerations. In this particular case, there was no allegation that plaintiff saw the accident or went to the accident scene, so much of the analysis focused on plaintiff’s relationship with the children who were killed and/or injured. Plaintiff alleged in her complaint 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,” but the Court of Appeals ultimately concluded that plaintiff’s relationship did not put her within the reasonably foreseeable scope of the risk.

In making its decision, the Court noted that “neither our Supreme Court nor this Court has outlined the parameters of the injury to determine whether a person falls within the reasonably foreseeable scope of plaintiffs in a RIED claim.” Because no RIED precedent existed, the Court considered the role of foreseeability as it relates to negligent infliction of emotional distress claims, noting that while a plaintiff’s relationship to an injured third party is not an element, it is a “relevant factor.” The Court noted that when discussing what types of relationship might support an emotional distress claim based on an injury to a third party, the Tennessee Supreme Court has stated that “close personal relationships bearing on foreseeability are not limited to relationships shared by immediate family members,” but can include “other intimate relationships” such as “engaged parties or step-parents and step-children.” (internal citation omitted). The Court noted that all those relationships “contemplate circumstances were plaintiffs had become or clearly intended to enter into a familial type of relationship with the injured third party…,” and that the Court saw “no logical basis for applying a different approach to determine whether a plaintiff falls within the reasonably foreseeable scope in an RIED claim.”

Applying this reasoning, the Court explained:

Our careful consideration of the facts alleged in the pleadings, in light of the foreseeability principles discussed above and giving [plaintiff] 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, [plaintiff] was not the immediate subject of [defendant’s] reckless and outrageous conduct. …Next, [plaintiff] was neither aware of the fatal accident nor in physical proximity to the accident at the time it occurred. [Plaintiff] never observed the accident scene or the injured children. Importantly, [plaintiff] did not share a familial type of relationship with any of the injured and deceased children. While it would be foreseeable that Woodmore classmates, teachers, and staff members, like [plaintiff] as well as neighbors, acquaintances, and persons in multiple other categories would be impacted by the tragic losses from the bus crash, [plaintiff] is not a person who falls within the reasonably foreseeable scope of the risk disregarded by [defendant]. Her relationship with the children is simply too attenuated. …[Plaintiff’s] conclusory 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 [plaintiff] 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.

(internal citations omitted). The Court accordingly ruled that dismissal should have been granted.

Several other staff members from this school asserted RIED claims against defendant in extremely similar cases, and the Court rejected them all in almost identical opinions, including the claim of two teachers who went to the hospital after learning about the accident and saw one of their students die (Muhammed v. Durham School Services, L.P., No. E2020-00755-COA-R10-CV (April 7, 2022) and Schrick v. Durham School Services, L.P., No. E2020-00744-COA-R10-CV (April 7, 2022)); an educational assistant who went to the hospital after learning about the crash and watched a student die, and watched footage from inside the bus to assist authorities (Franklin v. Durham School Services, L.P., No. E2020-00715-COA-R10-CV (April 7, 2022)); and the school principal who went to the scene soon after the crash, witnessing injured children there, and went to the hospital afterwards (Cothran v. Durham School Services, L.P., No. E2020-00796-COA-R10-CV (April 7, 2022)).

This case is an important read for anyone litigating an emotional distress claim based on an injury to a third person. This opinion contains an important discussion of how the relationship between the plaintiff and the injured third party will weigh into the viability of such a claim.

This opinion was released ten months after oral arguments in this case.

Recent Articles: