IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2023-CA-00393-COA
LEXI WILKERSON, A MINOR, BY AND APPELLANT THROUGH CHASITY REEL, MOTHER AND NEXT FRIEND
v.
LARRY ALLRED APPELLEE
DATE OF JUDGMENT: 03/08/2023 TRIAL JUDGE: HON. ELEANOR JOHNSON PETERSON COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT, SECOND JUDICIAL DISTRICT ATTORNEY FOR APPELLANT: WILLIAM P. FEATHERSTON JR. ATTORNEY FOR APPELLEE: MARK C. CARROLL NATURE OF THE CASE: CIVIL - PERSONAL INJURY DISPOSITION: REVERSED AND REMANDED - 09/03/2024 MOTION FOR REHEARING FILED:
EN BANC.
LAWRENCE, J., FOR THE COURT:
¶1. Larry Allred shot and killed an eight-month-old puppy belonging to Lexi Wilkerson
while the puppy was next to Lexi’s younger sister Kaylee.1 Lexi and Kaylee filed a
complaint against Allred in the Hinds County Circuit Court alleging both intentional
infliction of emotional distress and negligent infliction of emotional distress. Allred filed a
motion for summary judgment claiming that because Lexi “did not witness” the shooting, she
could not recover damages for the “wholly unforeseeable results of Allred’s conduct.” The
1 While the record contains an alternate spelling of the younger sister’s name as “Caylee,” we utilize the spelling as that of Lexi’s brief. circuit judge granted summary judgment in favor of Allred. Lexi appeals, arguing that the
emotional distress she suffered was a reasonably foreseeable consequence of Allred killing
her puppy and that her claims should have been presented to a jury. Upon review, we agree
and reverse the circuit court’s grant of summary judgment and remand.
FACTUAL AND PROCEDURAL HISTORY
¶2. Baebae, a mixed breed of Blue Heeler and Labrador Retriever, was a puppy that Lexi
and Kaylee’s mother purchased as a family dog with the intention to be trained as a service
dog to assist Lexi, who suffered from serious “anxiety issues.” Lexi’s anxiety problems were
serious enough that she had to be home-schooled and began attending counseling. The
family was waiting for the puppy to turn “a year” old before beginning his training. Larry
Allred was the family’s neighbor and had visited the home to “give [them] treats to give
Baebae” at least once.
¶3. On February 27, 2019, twelve-year-old Kaylee was playing outside the family home
with Baebae. At the time, Baebae was eight months old. Allred drove by the family’s
residence on a four-wheeler, and Baebae “ran alongside the vehicle.” According to Allred,
Baebae “chased and attacked [him] on his property.” Lexi, however, asserts that Baebae was
acting playfully and did not attack Allred. Kaylee began walking toward Allred’s property
to retrieve the puppy. When she was close, Baebae started walking toward her, at which
point Allred “cock[ed]” a shotgun, causing the puppy to turn around. Allred pulled the
trigger and shot Baebae in the head. Another neighbor, Mandi Smith, witnessed the
shooting, and “because Kaylee fell as the shot was fired, she thought that Kaylee had been
2 shot.”2
¶4. Lexi was in the family’s home when she “heard a loud bang[.]” “Three to five
minutes” later, Kaylee ran inside “yelling and crying that Mr. Larry had shot [Baebae,] and
she saw his brains.” Lexi ran outside and believed Baebae “was still alive because his legs
and his tail were still moving.” But she then “saw Baebae take his last breath[.]” Lexi asked
Allred why he would kill her puppy, to which he responded with silence and “a half[-]smile
and continued working in his yard.”
¶5. On June 18, 2019, Lexi and Kaylee (by and through their parents) filed a complaint
against Allred in the Hinds County Circuit Court alleging intentional and/or negligent
infliction of emotional distress. On August 2, 2019, Allred filed an answer to the complaint
admitting that he shot and killed Baebae but asserting that he acted in self-defense and, thus,
should not be held liable. Allred filed a motion to compel Lexi and Kaylee to answer his
discovery requests on October 8, 2019. On September 18, 2020, Lexi gave a detailed
deposition regarding the shooting and her current mental-health status.3
2 This information was relayed in Lexi’s under-oath responses to interrogatories. Whether that information would be competent evidence for this summary judgment ruling or inadmissible hearsay at trial was not raised in this appeal. See Henley, Lotterhos & Henley PLLC v. Bryant, 361 So. 3d 621, 630 (¶29) (Miss. 2023) (stating “[h]earsay statements that would not be admissible at trial are incompetent to support or oppose summary judgment” (quoting Mar-Jac Poultry MS LLC v. Love, 283 So. 3d 34, 43 (¶22) (Miss. 2019))). 3 Kaylee reportedly also gave a deposition, but it is not included in the record; this appeal only concerns Lexi. Kaylee’s claims are still pending in the lower court.
3 ¶6. On July 1, 2022, Allred filed a motion for summary judgment4 arguing that Lexi could
not recover on either theory of emotional distress because she “did not witness the shooting,”
and under the bystander recovery theory, she could not be compensated. On July 19, 2022,
Lexi filed a response to Allred’s motion for summary judgment and asserted she was not
seeking recovery under a bystander theory but rather for the “foreseeable results of [Allred]’s
conduct in shooting and killing her dog and witnessing her dog die” as well as “suffering the
loss of her dog[.]”
¶7. On March 8, 2023, the circuit judge granted summary judgment in Allred’s favor “as
to claims filed against him by Plaintiff Lexi Wilkerson[.]” The order stated that Lexi could
not recover under a bystander theory and, more importantly, could not recover because “there
[wa]s no evidence that Defendant Allred directed any acts towards Plaintiff Wilkerson” nor
was there a negligence argument because Allred “owed no duty to Plaintiff Wilkerson, and
the alleged harm [wa]s not reasonably foreseeable” to Allred. The order was certified as a
final judgment by the circuit judge on March 14, 2023. On April 5, 2023, Lexi appealed the
grant of summary judgment.
STANDARD OF REVIEW
¶8. “The standard of review for summary judgment motions is de novo.” Builders &
Contractors Ass’n of Miss. v. Laser Line Constr. Co., 220 So. 3d 964, 965-66 (¶7) (Miss.
2017) (quoting United States Fid. & Guar. Co. v. Martin, 998 So. 2d 956, 962 (¶12) (Miss.
2008)). Summary judgment should be granted “if the pleadings, depositions, answers to
4 Lexi’s deposition transcript and her answers to his previous interrogatories were attached as exhibits.
4 interrogatories and admissions on file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that the moving party is entitled to a judgment
as a matter of law.” M.R.C.P. 56 (emphasis added).
¶9. Concerning motions for summary judgment, “[i]t is reversible error for a trial court
to substitute its summary judgment for a jury’s consideration of disputed factual issues if
material to the case.” Downs v. Choo, 656 So. 2d 84, 85-86 (Miss. 1995) (citing Brown v.
Credit Ctr. Inc., 444 So. 2d 358, 366 (Miss. 1983)). The Mississippi Supreme Court has
declared with instructive effect that the trial court “cannot try issues of fact on a Rule 56
motion; it may only determine whether there are issues to be tried.” Mantachie Nat. Gas
Dist. v. Miss. Valley Gas Co., 594 So. 2d 1170, 1172 (Miss. 1992) (emphasis added) (quoting
Sw. Drug Co. v. Howard Bros. Pharm. of Jackson Inc., 320 So. 2d 776, 779 (Miss. 1975)).
ANALYSIS
¶10. Allred argues that Lexi’s claim is one of a bystander and, thus, is subject to the
bystander-claim criteria. As set out in Entex, the following elements are required for a
bystander claim:
(1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it. (2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence. (3) Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.
Entex Inc. v. McGuire, 414 So. 2d 437, 444 (Miss. 1982) (citing Dillon v. Legg, 441 P.2d
5 912, 920 (Cal. 1968)). However, Lexi asserts that she is not seeking relief under a bystander
recovery theory. Lexi claims that Baebae was her puppy, purchased to eventually act as a
therapy dog for her, and Allred’s actions were reasonably foreseeable to cause direct
emotional and mental distress to her.
¶11. The dissent argues that the Entex bystander elements cannot be met in this case and
that summary judgment should be affirmed. However, even if this opinion were decided
solely on Entex elements—which it is not—those elements could provide an argument for
Lexi to have a jury trial on her claims. The record shows no doubt that Lexi had a deep
emotional connection to her puppy. Further, a jury could find that Lexi was “near” the
incident. She heard the incident and arrived at the scene in time to watch the immediate
effects of Allred’s action to her puppy. Viewing the evidence in her favor, Lexi was a
fifteen-year-old child with serious emotional anxiety issues for which the puppy was to be
part of a solution. Lexi saw and received the silent half-smile (which fits the definition of
a smirk) from Allred when she asked why he killed her puppy. Allred did not claim self-
defense, did not apologize, and did not offer Lexi any help to care for her dying puppy. His
reaction contributes to the revulsion and shock of the incident inflicted upon two children
which a jury could reasonably find meets the elements of Entex.
¶12. At least three Mississippi Supreme Court cases shine a legal light on these factors.
In Hodges v. Causey, 77 Miss. 353, 26 So. 945 (1900), a dog’s owner sued the landowner
who had killed the dog trespassing on his land to prevent the dog from “damaging” his
cotton. Id. at 946. The landowner obtained a jury verdict and judgment in his favor, and the
6 dog’s owner appealed. Id. On appeal, the supreme court recognized that the jury was given
an instruction in error and, instead, should have been presented with “the reasonableness of
the alleged necessity of killing the dog to save property . . . as a question of fact[.]” Id. The
court explained:
One is never justified in going to excessive lengths in the defense of himself or his property from assault or injury. The method of defense adopted must bear a certain relation to the character or seriousness of the threatened injury. The fact that a dog is trespassing does not justify his wanton or malicious destruction. . . . In any case, the question whether the defendant was justified in killing or injuring the plaintiff’s dog should be submitted to the jury, to be decided from a consideration of the peculiar facts and circumstances of the case.
Id. (emphasis added) (citing Hamby v. Samson, 74 N.W. 918, 67 Am. St. Rep. 285, 294-95
(Iowa 1898)). The court went on to reason that “[w]hen it is borne in mind of what great
value some dogs are, the reasonableness of the general rule against the right to kill a mere
trespassing dog is apparent.” Id. (citing Mullaly v. People, 86 N.Y. 365 (N.Y. 1881)).
Accordingly, the judgment in favor of the landowner was reversed, and the case was
remanded for a new trial. Id. at 947.
¶13. Later, in the case of Hull v. Scruggs, 191 Miss. 66, 2 So. 2d 543 (1941), our supreme
court set out courses of action an owner of land must take before he can shoot a dog
trespassing on his land. Id. In that case, a landowner killed a neighbor’s dog after the dog
continued to “suck” and “destroy all the eggs of the fowl[] kept by the owner of the
premises.” Id. at 543. The trespassing “was of sufficient frequency or continuity, both day
and night” so that “none of the eggs were left until after the dog was killed.” Id. The
landowner who killed the dog was sued, and the trial court found in favor of the dog’s owner.
7 Id. at 543. On appeal, the supreme court reversed, setting the following standard for the
killing of a trespassing dog:
He must then, as the most that could be required of him, take one or the other, and when necessary all, of the three following courses: (1) He must use reasonable efforts to drive the dog away and in such appropriate manner as will probably cause him to stay away; or (2) he must endeavor to catch the dog and confine him to be dealt with in a manner which we do not enter upon because not here before us; or (3) he must make reasonable efforts to ascertain and notify the owner of the dog, so that the latter may have opportunity to take the necessary precautions by which to stop the depredations.
Id. at 544.
¶14. As for the factor of the special relationship between the plaintiff and victim, the
supreme court has recognized that “[d]ogs are a special breed, capable of arousing the
strongest of emotions in mankind.” Wiley v. Keen, 404 So. 2d 1025, 1026 (Miss. 1981).
Here, viewing the evidence in favor of the nonmovant at the summary judgment phase, there
is no doubt Lexi loved her puppy and had developed a special relationship with it, “arousing
the strongest of emotions” in her. Id. Allred’s actions at least created a circumstantial-
evidence case—by shooting the puppy so close to Kaylee, by shooting a puppy who was
walking away from him, by smiling at Lexi’s anguish, and by working as if nothing had just
happened, he created the impression that his acts were directed at the girls, not just at Baebae.
A “circumstantial evidence case should rarely be taken from the jury. The same observation,
albeit for a different reason, can be made in a case of shooting a dog.” Id.
¶15. The supreme court was faced with close legal calls to determine whether a claim is
one of bystander recovery in O’Cain v. Harvey Freeman & Sons Inc. of Miss., 603 So. 2d
824 (Miss. 1991). O’Cain filed suit against her landlord following the rape of her roommate.
8 Id. at 825. The trial court entered summary judgment against her. Id. On appeal, she alleged
she had suffered “extensive mental, psychological and emotional injuries of a permanent and
enduring nature” due to her landlord’s negligence in securing the premises. Id. Although
“O’Cain did not actually witness the rape itself[,] . . . she was aware that her roommate was
being assaulted in the adjacent room.” Id. She “recognize[d] that her claim fail[ed] as one
for a bystander but argue[d] she [wa]s not presenting a bystander claim.” Id. at 830.
¶16. O’Cain alleged instead that “as a result of the invasion of her apartment and [the]
rape,” she had incurred damages but made “no claim based on the actual witnessing of the
event.” Id. The court stated it was “[e]xtending to O’Cain the benefit of a reasonable doubt”
and thus proceeded “on the notion that her claim [wa]s for something other than bystander
recovery.” Id. In that case, O’Cain was never raped and never actually witnessed the rape
of her roommate, but O’Cain was close enough to the event to be traumatized by the event.
Id. The supreme court reversed the summary judgment and remanded the case to proceed
in the trial court. Id. at 831.
¶17. As such, we extend Lexi that same benefit of the doubt and proceed “on the notion
that her claim is for something other than bystander recovery.” Id. Lexi contends that the
tort of infliction of emotional distress, whether intentional or negligent, rests largely upon
whether a defendant’s conduct was reasonably foreseeable to cause emotional distress to a
plaintiff. Indeed, “a plaintiff asserting a claim for mental anguish, whether as a result of
simple negligence or an intentional tort, must always prove that the emotional distress was
a reasonably foreseeable result of the defendant’s conduct.” Adams v. U.S. Homecrafters
9 Inc., 744 So. 2d 736, 743 (¶21) (Miss. 1999) (emphasis added).
¶18. To prove a claim for intentional infliction of emotional distress, Lexi must show “the
existence of a genuine issue of material fact” as to each of the following elements:
(1) the defendant acted willfully or wantonly towards the plaintiff by committing certain described actions; (2) the defendant’s acts are ones which evoke outrage or revulsion in civilized society; (3) the acts were directed at, or intended to cause harm to, the plaintiff; (4) the plaintiff suffered severe emotional distress as a direct result of the acts of the defendant; and (5) such resulting emotional distress was foreseeable from the intentional acts of the defendant.
Goode v. Walmart Inc., 372 So. 3d 149, 163 (¶38) (Miss. Ct. App. 2023) (emphasis added)
(quoting Pointer v. Rite Aid Headquarters Corp., 327 So. 3d 159, 170-71 (¶41) (Miss. Ct.
App. 2021)). It is not for this Court to determine whether Allred’s conduct meets these
elements. Instead, it is our duty to determine whether Lexi put forth enough evidence to
show that such determination involves “material factual questions in issue over which
reasonable jurors could disagree.” Herrington v. Leaf River Forest Prod. Inc., 733 So. 2d
774, 776 (¶4) (Miss. 1999) (emphasis added) (citing Russell v. Orr, 700 So. 2d 619, 624
(Miss. 1997)).
¶19. “Mississippi’s standard for a claim of intentional infliction of emotional distress is
very high and focuses on the defendant’s conduct and not the plaintiff’s emotional
condition.” Herbert v. Herbert, 374 So. 3d 562, 571 (¶19) (Miss. Ct. App. 2023) (emphasis
added) (citing Pointer, 327 So. 3d at 170-71 (¶41)). Notably, “liability does not extend to
mere insults, indignities, threats, annoyances, [or] petty oppressions[.]” Goode, 372 So. 3d
at 163 (¶38) (quoting Raiola v. Chevron U.S.A. Inc., 872 So. 2d 79, 85 (¶23) (Miss. Ct. App.
10 2004)). Rather, the defendant’s acts 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.” Brent v. Mathis, 154 So. 3d 842, 851
(¶20) (Miss. 2014) (emphasis added) (quoting Speed v. Scott, 787 So. 2d 626, 630 (¶19)
(Miss. 2001)).
¶20. In this case, there is no dispute that Allred shot and killed the puppy. The parties
disagree, however, about the circumstances surrounding the shooting. Allred’s lawyer
argued at the summary judgment hearing that Baebae was “attacking” Allred. No sworn
affidavit or deposition of Allred supports this fact, but for purposes of argument we can
accept it as Allred’s alleged version of the facts. Lexi’s sworn testimony, on the other hand,
paints a different picture:
Kaylee said that Mr. Larry had asked her to come get the dog. And when she went to go retrieve Baebae, Baebae was - - Baebae turned to come towards her. And then he heard the sound of the gun cocking back, I guess. And he looked at Mr. Larry one more time and that’s when Mr. Larry shot him.
Again, the record contains no sworn testimony or affidavit that contradicts Lexi’s version of
events.
¶21. “Issues of fact sufficient to require denial of a motion for summary judgment
obviously are present where one party swears to one version of the matter in issue and
another says the opposite.” Heigle v. Heigle, 771 So. 2d 341, 345 (¶8) (Miss. 2000) (quoting
Miss. Dep’t of Wildlife, Fisheries & Parks v. Miss. Wildlife Enforcement Officers’ Ass’n Inc.,
740 So. 2d 925, 929-30 (¶11) (Miss. 1999)). The circumstances surrounding Allred shooting
the puppy are decidedly material in the case at bar. “The moving party has the burden of
11 demonstrating that there is no genuine issue of material fact, while the non-moving party
should be given the benefit of every reasonable doubt.” Oaks v. Sellers, 953 So. 2d 1077,
1080 (¶8) (Miss. 2007) (quoting Tucker v. Hinds County, 558 So. 2d 869, 872 (Miss. 1990)).
¶22. Giving Lexi the benefit of the doubt, if Allred had not acted in self-defense, then her
argument for intent certainly presents a genuine issue of a material fact. The puppy was
walking away when Allred shot him. Lexi’s sister, Kaylee, was so close to the puppy that
when Allred shot him, she dropped to the ground. A passerby saw Kaylee fall down and
thought she had been shot. Allred offered no explanation to Lexi when she arrived mere
minutes after to see her puppy’s exposed brains and watch him take his last breath. Allred
simply gave a half-smile and went back to work. There is evidence Allred knew of Baebae’s
gentle disposition beforehand because he came to Lexi’s house and gave treats to the puppy.
Lexi was fifteen years old. Kaylee was twelve years old. Allred shot the puppy in the head
for no reason other than it being a puppy, according to the record. It is certainly reasonable
that a jury would find Allred’s conduct so extreme as to evoke outrage or revulsion in a
civilized society and was directed at Lexi and Kaylee, which foreseeably caused emotional
distress.
¶23. A jury should have been given the opportunity to determine whether the shooting was
“willful or wanton.” Brent, 154 So. 3d at 851 (¶20) (quoting Speed, 787 So. 2d at 630 (¶19)).
A jury should have been given the opportunity to evaluate whether Allred’s conduct was “so
outrageous . . . so extreme in degree . . . go[ing] beyond all bounds of decency . . . atrocious
and utterly intolerable in a civilized community.” Id. A jury should have been given the
12 opportunity to determine whether the shooting was “intended to harm” Lexi. Id. A jury
should have been given the opportunity to determine whether the shooting caused Lexi
“emotional distress.” Id. And a jury should have been given the opportunity to determine
whether “such resulting emotional distress was foreseeable” by Allred. Id.
¶24. As for negligent infliction of emotional distress, a plaintiff is required “[(1)] to plead
and prove some sort of injury or demonstrable harm, whether it be physical or mental, and
[(2)] that harm must have been reasonably foreseeable to the defendant.” Goode, 372 So.at
3d 164 (¶44) (emphasis added) (quoting Orr v. Morgan, 230 So. 3d 368, 377 (¶23) (Miss.
Ct. App. 2017)). Lexi provided proof of the “demonstrable harm” the shooting had on her
through her deposition, testifying that she sees a doctor and therapist at Hinds Behavioral
Clinic “[a]t least once monthly.”5 She also provided contact information for her therapist and
the clinic as part of her answers to Allred’s interrogatories. Allred does not contest whether
Lexi suffered from the event in his brief before this Court. Allred contends, however, that
the damages Lexi suffered were not reasonably foreseeable.
¶25. “[W]hen doubt exists whether there is a fact issue, the non-moving party gets its
benefit.” Smith v. Minier, 380 So. 3d 889, 892 (¶11) (Miss. 2024) (emphasis added) (quoting
Glover ex rel. Glover v. Jackson State Univ., 968 So. 2d 1267, 1275 (¶22) (Miss. 2007)).
¶26. While attempting to prove a case for negligence, “a plaintiff is not required to prove
that the exact injury sustained was foreseeable; rather, it is enough to show that the injuries
and damages fall within a particular kind or class of injury or harm which reasonably could
5 Lexi began attending the clinic shortly before the shooting occurred. Those visits eventually took place over the phone due to the COVID-19 pandemic.
13 be expected to flow from the defendant's negligence.” Id. at 894. Further, “[t]he question
of the foreseeability of a particular injury is one best left to the deliberation of a jury.” Id.
at 895 (citing Rein v. Benchmark Const. Co., 865 So. 2d 1134, 1143-44 (¶30) (Miss. 2004)).
This state’s precedent is clear—the question of whether Lexi’s injuries incurred from the
shooting of her puppy were reasonably foreseeable to Allred was a question for the jury.
CONCLUSION
¶27. “The trial court is not the trier of fact at the summary judgment phase but only
determines whether the information provided by the nonmoving party creates a genuine issue
of material fact on an essential element.” Mantachie Nat. Gas Dist., 594 So. 2d at 1172. For
the foregoing reasons, this Court finds a genuine dispute of material fact. Therefore, we
reverse the circuit judge’s order granting summary judgment and remand for further
proceedings consistent with this opinion.
¶28. REVERSED AND REMANDED.
BARNES, C.J., McCARTY AND SMITH, JJ., CONCUR. WILSON, P.J., AND McDONALD, J., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. WESTBROOKS, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. CARLTON, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY EMFINGER, J.; McDONALD, J., JOINS IN PART.
CARLTON, P.J., DISSENTING:
¶29. After reviewing the record and relevant caselaw, I find that Lexi cannot prove her
claims for intentional infliction of emotional distress and negligent infliction of emotional
distress. As a result, I would affirm the circuit court’s grant of summary judgment. I
therefore respectfully dissent from the majority’s opinion.
14 ¶30. When reviewing a trial court’s decision to grant a motion for summary judgment, the
standard of review is de novo. Herbert v. Herbert, 374 So. 3d 562, 568 (¶8) (Miss. Ct. App.
2023). Summary judgment is properly granted “if the pleadings, depositions, answers to
interrogatories and admissions on file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and the moving party is entitled to a judgment as a
matter of law.” M.R.C.P. 56(c). We view the evidence in the light most favorable to the
nonmoving party. Maxwell v. Baptist Mem’l Hospital-DeSoto Inc., 15 So. 3d 427, 434 (¶16)
(Miss. Ct. App. 2008).
¶31. On appeal, Lexi argues that because she is not seeking recovery under a bystander
theory, the circuit court erred by applying the wrong standard when granting Allred’s motion
for summary judgment. Lexi clarifies that she is seeking damages for intentional infliction
of emotional distress and negligent infliction of emotional distress under the theory that
Allred’s actions were outrageous and revolting and reasonably foreseeable to cause direct
emotional and mental distress to her. Lexi submits that the question of foreseeability is a
factual question for the jury.
I. Intentional Infliction of Emotional Distress
¶32. As acknowledged by the majority, Lexi must prove five elements to prevail on a claim
for intentional infliction of emotional distress:
(1) the defendant acted willfully or wantonly towards the plaintiff by committing certain described actions; (2) the defendant’s acts are ones “which evoke outrage or revulsion in civilized society”; (3) the acts were directed at, or intended to cause harm to, the plaintiff; (4) the plaintiff “suffered severe emotional distress as a direct result of the acts of the defendant”; and (5) “such resulting emotional distress was foreseeable from the intentional acts of the
15 defendant.”
Herbert, 374 So. 3d at 570-71 (¶18) (quoting Pointer v. Rite Aid Headquarters Corp., 327
So. 3d 159, 170-71 (¶16) (Miss. Ct. App. 2013)). Intentional infliction of emotional distress
has a “very high” standard in Mississippi. Id.
¶33. After reviewing the record, I find that Lexi’s intentional infliction of emotional
distress claim fails because there is no evidence that Allred’s actions were directed at Lexi
or intended to cause her harm. The record reflects that Lexi testified she had no reason to
believe Allred had previously acted violently toward her dog, Baebae. Nothing in the record
points to any animosity between Allred and Lexi. In fact, Lexi testified that Allred once
came over to bring treats to Baebae.
¶34. The record is clear that Baebae was trespassing on Allred’s property at the time of the
shooting, and neither party disputes this fact. Allred maintains that Baebae chased and
attacked him, so he shot Baebae in self-defense. While this particular fact is disputed,
assuming, arguendo, that Allred shot Baebae unprovoked, there is still nothing to prove that
this action was directed toward Lexi. The record does not even suggest that Allred knew that
Baebae belonged to Lexi (and not to Lexi’s mom or Lexi’s family, generally).
¶35. Because Lexi cannot prove each of the elements of intentional infliction of emotional
distress, she cannot recover under this theory as a matter of law.
II. Negligent Infliction of Emotional Distress
¶36. Unlike intentional infliction of emotional distress, there is no explicit set of elements
a plaintiff must prove to recover under this cause of action. The Mississippi Supreme Court
16 has stated:
Where there is something about the defendant’s conduct which evokes outrage or revulsion, done intentionally—or even unintentionally yet the results being reasonably foreseeable—Courts can in certain circumstances comfortably assess damages for mental and emotional stress, even though there has been no physical injury.
Morrison v. Means, 680 So. 2d 803, 806 (Miss. 1996) (quoting Sears, Roebuck & Co. v.
Devers, 405 So. 2d 898, 902 (Miss. 1981)). “It is undisputed that under Mississippi law, a
plaintiff asserting a claim for mental anguish, whether as a result of simple negligence or an
intentional tort, must always prove that the emotional distress was a reasonably foreseeable
result of the defendant’s conduct.” Adams v. U.S. Homecrafters Inc., 744 So. 2d 736, 743
(¶21) (Miss. 1999).
¶37. When dealing with emotional-distress damages, the plaintiff is put into two categories
for foreseeability purposes: participants and bystanders. Est. of Miles v. Burcham, 127 So.
3d 213, 217 (¶6) (Miss. 2013). Participants are those who are directly involved in the causal
event, and we analyze their claim as any other damages claim. Id. at 217-18. Bystanders are
those who observe or are otherwise affected by the causal event, and the foreseeability of
their claims is determined by analyzing the Entex factors, id. at 218, which follow:
(1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it.
(2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence.
(3) Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant
17 relationship.
Entex Inc. v. McGuire, 414 So. 2d 437, 444 (Miss. 1982) (citing Dillon v. Legg, 441 P.2d
912, 920 (Cal. 1968)). Our supreme court in Entergy Mississippi Inc. v. Acey, 153 So. 3d
670, 673 (¶12) (Miss. 2014), held that these factors are “matter-of-law prerequisites that a
claimant must meet.”
¶38. In Acey, the plaintiff, Acey, received a 911 call that her daughter had been in an
electrical accident while over at a friend’s property. Id. at 671 (¶2). Acey, who had been
driving at the time, immediately turned around and drove to the property. Id. When Acey
arrived, she found her daughter was severely injured. Id. The minor child was missing
fingers, some of her bones were exposed, smoke was still rising from her skin, and the
plaintiff could smell her daughter’s burnt flesh. Id. Acey sued Entergy and others for claims
on behalf of her daughter and for Acey’s emotional distress damages, individually. Id. at
(¶3). While the defendants settled all claims with the minor child, Entergy moved for
summary judgment on Acey’s individual claim for emotional distress. Id. at (¶4). The trial
court denied Entergy’s motion, stating that based on the minor child’s injuries, this case
“cries out for the expansion of” the Entex factors. Id.
¶39. On appeal, the supreme court reversed the trial court’s denial of summary judgment
and, instead, granted summary judgment in Entergy’s favor. Id. at 679 (¶32). The supreme
court went through a substantial analysis of the Entex factors, looking specifically at
post-Dillon cases in California, and found that the factors are, as a matter of law,
prerequisites for emotional-distress bystander claims. Id. at (¶12). Ultimately, the supreme
18 court found that Acey failed to show the first two Entex factors, and, therefore, “Acey was
an after-the-fact witness, thus, an unforeseeable plaintiff.” Id. at 679 (¶32).
¶40. Here, as in Acey, it is clear that Lexi does not meet the first two Entex factors. Unlike
her sister, Lexi was not near the incident but, rather, in the back of her home across the street
from Allred’s property. While she was close enough to hear the gunshot, she testified that
she did not know what made the noise until three to five minutes later when her sister
informed her of the shooting. It is not enough that Lexi was there for the aftermath of the
accident. Id.; see also Summers ex rel. Dawson v. St. Andrew’s Episcopal Sch. Inc., 759 So.
2d 1203, 1210 (¶28) (Miss. 2000).
¶41. Lexi argues that foreseeability is a question for the jury. However, the issue here is
whether Lexi was a foreseeable plaintiff, and, therefore, whether Allred owed her a duty.
“The existence of a duty is a question of law.” Moss Point School Dist. v. Stennis, 132 So.
3d 1047, 1050 (¶11) (Miss. 2014). Because Lexi was an unforeseeable plaintiff at law, she
cannot recover under the cause of action of negligent infliction of emotional distress.
¶42. Because I find that Lexi cannot succeed on her claims for intentional infliction of
emotional distress and negligent infliction of emotional distress, I would affirm the trial
court’s grant of summary judgment in favor of Allred.
EMFINGER, J., JOINS THIS OPINION. McDONALD, J., JOINS THIS OPINION IN PART.