IN THE SUPREME COURT OF NORTH CAROLINA
No. 383A19
Filed 18 December 2020 DELIA NEWMAN et ux.
v.
HEATHER STEPP et ux.
Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of
the Court of Appeals, 267 N.C. App. 232, 833 S.E.2d 353 (2019), reversing an order
granting judgment on the pleadings in favor of defendants entered on 9 January 2019
by Judge Gregory Horne in Superior Court, Henderson County, and remanding to the
trial court for further proceedings. Heard in the Supreme Court on 1 September 2020.
F.B. Jackson & Associates Law Firm, PLLC, by Frank B. Jackson and James L. Palmer, for plaintiff-appellees.
Ball Barden & Cury P.A., by J. Boone Tarlton and Ervin L. Ball Jr., for defendant-appellants.
Hedrick Gardner Kincheloe & Garofalo LLP, by M. Duane Jones and Linda Stephens, for North Carolina Association of Defense Attorneys, amicus curiae.
MORGAN, Justice.
Our review in this matter requires the Court to apply well-established
precedent to a trial court’s order granting judgment on the pleadings regarding a
claim for negligent infliction of emotional distress. Viewing the specific facts alleged
here in the light most favorable to plaintiffs, we conclude that the trial court erred by
entering judgment on the pleadings in favor of defendants. NEWMAN V. STEPP
Opinion of the Court
Factual Background and Procedural History
In this tragic case, the facts are undisputed. On the morning of 26 October
2015, plaintiff Delia Newman took her two-year-old daughter Abagail, referred to as
“Abby,” to the residence of defendants Heather and James Stepp in Hendersonville.
Delia Newman had a scheduled training class for her ultrasound certification at A-B
Technical Community College on this date. Defendants were providing childcare in
an unlicensed day care at defendants’ home where the couple regularly cared for Abby
and other children. At about 8:00 a.m., Abby and defendants’ several minor children
entered defendants’ kitchen where a 12-gauge shotgun belonging to James Stepp,
which he had used for hunting on the previous day, had been left on the kitchen table
of defendants’ home. The firearm was loaded and was not secured by safety, trigger
lock, or other mechanism. One of defendants’ children under the age of five years
somehow discharged the shotgun and Abby was struck in the chest at close range.
Shortly thereafter, Heather Stepp contacted emergency services for help.
Plaintiff Jeromy Newman, Abby’s father, was a volunteer firefighter. He heard
a report over his citizens band (CB) radio about “a young female child [who] was
critically wounded by the discharge of a shotgun at close range at the babysitter’s
home and that her condition was extremely critical.” When Jeromy Newman heard
defendants’ address over the CB radio as the location of the incident, he drove
towards defendants’ home and also contacted his wife by telephone. While en route
to defendants’ residence, Jeromy Newman saw the ambulance which he learned
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“contain[ed] his daughter who was still alive at the time” and followed the emergency
vehicle to the hospital where he observed Abby being removed from the ambulance
and taken inside the building. Delia Newman’s training class was occurring near the
hospital where Abby was taken so, after receiving the telephone call from her
husband, Delia Newman reached the hospital shortly after Abby had arrived. At that
point, Delia Newman was informed of Abby’s death and was allowed to hold Abby’s
body for an extended period of time.
On 26 June 2018, plaintiffs filed a complaint which included claims for
negligent infliction of emotional distress, intentional infliction of emotional distress,
wrongful death, and loss of consortium. Plaintiffs voluntarily dismissed their
wrongful death claim without prejudice on 16 August 2018. On 2 October 2018, with
consent of defendants, plaintiffs filed an amended complaint. In their amended
complaint, plaintiffs alleged, inter alia, the following:
32. Defendants failed to unload the firearm prior to laying it on the kitchen table, where it was readily available to the minor children that had unfettered access to the entire home.
33. Defendants failed to “check” the firearm to [ensure] it was unloaded prior to allowing the [plaintiffs’] child inside their home.
34. Defendants failed to properly educate their young children regarding firearms and the dangers involved with “playing” with said firearm.
35. Defendants failed to [ensure] that they had the proper training prior to possessing such a firearm.
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36. Defendants failed to properly supervise the minor children that were in their home.
37. That the actions of the [d]efendants were a direct and proximate cause of the injuries and death of [Abby].
....
39. It was reasonably foreseeable that the conduct of the [d]efendants, and the wounding and death of [Abby] would cause the [p]laintiffs severe emotional distress, including but not limited to:
a. Both [p]laintiffs have incurred severe emotional distress. The mother has incurred such severe emotional distress that she has been under constant psychiatric care and has been placed on numerous strong anti- depressants as well as other medications.
b. The mother has had etched in her memory the sight of her lifeless daughter in her arms at Mission Hospital.
c. The mother has convinced herself that she also is going to die, because God would not allow her to suffer as she has suffered without taking her life also.
d. The mother is still unable to deal with the possessions of her dead daughter but has kept every possession in a safe place.
e. At times[,] the mother has wished death for herself.
f. The mother has not been able to tend to her usual household duties and has stopped her efforts to obtain the degree she had sought . . . .
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g. There are days the mother has trouble leaving her home.
h. Both [p]laintiffs have lost normal husband and wife companionship and consortium.
i. As a result of all the aforesaid, the mother has been rendered disabled for periods of time since her daughter’s death.
On 15 November 2018, defendants filed their answer, along with a motion for
judgment on the pleadings pursuant to Rule 12(c) of the North Carolina Rules of Civil
Procedure. N.C.G.S. § 1A-1, Rule 12(c) (2019). The trial court heard defendants’
motion on 3 December 2018. On 9 January 2019, the trial court filed a corrected order
granting judgment on the pleadings, dismissing all three of plaintiffs’ remaining
claims. On 27 December 2018, plaintiffs appealed from the trial court’s judgment in
favor of defendants. Plaintiffs filed an amended written notice of appeal from a
Corrected Judgment of Dismissal on 10 January 2019.
On appeal, plaintiffs argued that their complaint sufficiently alleged negligent
infliction of emotional distress so as to withstand defendants’ motion for judgment on
the pleadings. See N.C.G.S. § 1A-1, Rule 12(c). The parties and the entire panel of the
lower appellate court agreed that the dispositive issue in the case was whether
plaintiffs’ allegations regarding foreseeability were sufficient to support a claim for
negligent infliction of emotional distress as a result of Abby’s shooting and resulting
death. Newman v. Stepp, 267 N.C. App. 232, 833 S.E.2d 353 (2019). To sustain a claim
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for negligent infliction of emotional distress, “a plaintiff must allege that (1) the
defendant negligently engaged in conduct, (2) it was reasonably foreseeable that such
conduct would cause the plaintiff severe emotional distress . . . , and (3) the conduct
did in fact cause the plaintiff severe emotional distress.” Johnson v. Ruark Obstetrics
& Gynecology Assocs., P.A., 327 N.C. 283, 304, 395 S.E.2d 85, 97 (1990) (emphasis
added).
The Court of Appeals panel was divided on the question of foreseeability. The
majority held that “plaintiffs properly alleged severe emotional distress to support
foreseeability in their claim of negligent infliction of emotional distress” and therefore
reversed the trial court’s ruling in favor of defendants for judgment on the pleadings
and remanded the matter for further proceedings. Newman, 267 N.C. App. at 233,
833 S.E.2d at 355. The dissent in the lower appellate court cited and considered the
same case law as the majority, but in the view of the dissenting judge, “[p]laintiffs’
allegations rely solely upon the existence of a parent-child relationship and the
aftermath and effects they suffered from the wrongful death of their child,” and thus
they “cannot sustain a claim for negligent infliction of emotional distress.” Id. at 243–
44, 833 S.E.2d at 361 (Tyson, J., dissenting).1 On 1 October 2019, defendants filed in
1 The dissenting judge also took issue with the majority opinion’s direction to the trial
court on remand concerning the loss of consortium claim, first stating that the claim was not before the Court of Appeals and further opining that a claim for loss of consortium resulting from a death may be brought only as an ancillary claim to a wrongful death action, citing Keys v. Duke Univ., 112 N.C. App. 518, 520, 435 S.E.2d 820, 821 (1993). Newman v. Stepp, 267 N.C. App. 232, 251, 833 S.E.2d 353, 366 (2019) (Tyson, J., dissenting).
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this Court a notice of appeal on the basis of the dissent in the Court of Appeals. See
N.C.G.S. § 7A-30(2) (2019).
Analysis
The question before this Court is whether judgment on the pleadings was
appropriate in this case, where the underlying claim was negligent infliction of
emotional distress, a claim primarily focused upon the element of foreseeability in
light of the facts and circumstances presented in this case. After careful
consideration, we conclude that the averments contained in plaintiffs’ complaint were
sufficient as to the element of foreseeability for this case to proceed beyond the
pleading stage of this legal controversy. Therefore, we hold that the trial court erred
by allowing judgment on the pleadings for defendants.
We begin with an identification of the proper standard of review to be applied
in this matter. In considering a motion for judgment on the pleadings, a “trial court
is required to view the facts and permissible inferences in the light most favorable to
the nonmoving party. All well pleaded factual allegations in the nonmoving party’s
pleadings are taken as true and all contravening assertions in the movant’s pleadings
are taken as false.” Ragsdale v. Kennedy, 286 N.C. 130, 137, 209 S.E.2d 494, 499
(1974). This high standard is imposed because
[j]udgment on the pleadings is a summary procedure and the judgment is final. Therefore, each motion under Rule 12(c) must be carefully scrutinized lest the nonmoving party be precluded from a full and fair hearing on the merits. The movant is held to a strict standard and must
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show that no material issue of facts exists and that he is clearly entitled to judgment.
Id. (citations omitted).
As the non-moving party, plaintiffs are entitled to have the trial court to view
the facts and permissible inferences from plaintiffs’ complaint in the light most
favorable to them, with plaintiffs’ factual allegations taken as true and defendants’
opposing responses taken as false. With this established approach, it is apparent that
the first and third elements of a claim for negligent infliction of emotional distress as
articulated in Johnson exist in the present case. In assessing foreseeability, this
Court has stated that “the ‘factors to be considered’ include, but are not limited to: (1)
‘the plaintiff’s proximity to the negligent act’ causing injury to the other person, (2)
‘the relationship between the plaintiff and the other person,’ and (3) ‘whether the
plaintiff personally observed the negligent act.’ ” Sorrells v. M.Y.B. Hosp. Ventures of
Asheville, 334 N.C. 669, 672, 435 S.E.2d 320, 322 (1993) (quoting Johnson, 327 N.C.
at 305, 395 S.E.2d at 98).
Turning to the substance of the negligent infliction of emotional distress claim,
it is clear that “a plaintiff may recover for his or her severe emotional distress arising
due to concern for another person, if the plaintiff can prove that he or she has suffered
such severe emotional distress as a proximate and foreseeable result of the
defendant’s negligence.” Johnson, 327 N.C. at 304, 395 S.E.2d at 97. As noted above,
plaintiffs’ allegations were undisputed that defendants’ negligent act of leaving a
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loaded shotgun unsecured and accessible to a group of young children was the
proximate cause of both Abby’s death and plaintiffs’ resulting mental anguish and
suffering; therefore, only the sufficiency of the allegations regarding the element of
foreseeability remains for this Court’s determination in this appeal. See id.
(“Although an allegation of ordinary negligence will suffice, a plaintiff must also
allege that severe emotional distress was the foreseeable and proximate result of such
negligence in order to state a claim; mere temporary fright, disappointment or regret
will not suffice. In this context, the term ‘severe emotional distress’ means any
emotional or mental disorder . . . .” (citation omitted)). In Johnson, we observed that
“[f]actors to be considered on the question of foreseeability . . . include the plaintiff’s
proximity to the negligent act, the relationship between the plaintiff and the other
person for whose welfare the plaintiff is concerned, and whether the plaintiff
personally observed the negligent act.” Id. at 305, 395 S.E.2d at 98.
In recalling the three aforementioned Johnson factors undergirding a
negligent infliction of emotional distress claim as we applied then in Sorrells, we
further emphasized that
such factors are not mechanistic requirements the absence of which will inevitably defeat a claim for negligent infliction of emotional distress. The presence or absence of such factors simply is not determinative in all cases. Therefore, North Carolina law forbids the mechanical application of any arbitrary factors . . . for purposes of determining foreseeability. Rather, the question of reasonable foreseeability under North Carolina law must be determined under all the facts presented, and should be
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resolved on a case-by-case basis by the trial court and, where appropriate, by a jury.
Sorrells, 334 N.C. at 672–73, 435 S.E.2d at 322 (extraneity omitted) (emphasis
added). See also Johnson, 327 N.C. at 291, 395 S.E.2d at 89 (“[O]ur law includes no
arbitrary requirements to be applied mechanically to claims for negligent infliction of
emotional distress.” (emphasis added)).
Relying on their interpretation of this standard and in light of the facts alleged
in plaintiffs’ complaint, defendants contend that dismissal on the pleadings was
appropriate because plaintiffs did not observe and were not in close proximity to the
shooting or the death of Abby. Among other cases which defendants cite, they most
heavily regard Gardner v. Gardner, 334 N.C. 662, 435 S.E.2d 324 (1993), and
Andersen v. Baccus, 335 N.C. 526, 439 S.E.2d 136 (1994), as factually analogous to,
and legally controlling on, the facts of the case at bar.
In Gardner, the plaintiff, the mother of a thirteen-year-old son, sued the child’s
father for negligent infliction of emotional distress after the youngster, while riding
in a truck being operated by the father, was injured when the father negligently drove
the vehicle into a bridge abutment, seriously injuring the child. Gardner, 334 N.C. at
663, 435 S.E.2d at 326. The mother was alerted to the accident by a telephone call
and upon rushing to the hospital where her son had been transported, saw the child
being wheeled into the emergency room by medical personnel as resuscitation efforts
were instituted. Id. at 663–64, 435 S.E.2d at 326. The mother did not see her child
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again but shortly thereafter was informed that her son had died. Id. at 664, 435
S.E.2d at 326. In rendering the opinion in Gardner, this Court stated that
[t]he trial court treated defendant’s motion to dismiss as a motion for summary judgment. For purposes of that motion the parties stipulated that their son had died as a result of defendant’s negligence and that plaintiff had suffered severe emotional distress as a result of the accident and death. The trial court granted summary judgment as to plaintiff’s claim for [negligent infliction of emotional distress] and dismissed that claim with prejudice. It ruled that, as a matter of law, plaintiff could not establish a claim for [negligent infliction of emotional distress] because she did not witness the accident nor was she in sufficiently close proximity thereto to satisfy the “foreseeability factors” set forth in Johnson v. Ruark Obstetrics, 327 N.C. 283, 395 S.E.2d 85 (1990).
On appeal, the Court of Appeals held that plaintiff’s emotional distress as a result of defendant’s negligence was foreseeable. Emphasizing that the [Johnson] factors were not requirements for foreseeability but were “to be considered on the question of foreseeability,” the court stated:
In common experience, a parent who sees its mortally injured child soon after an accident, albeit at another place, perceives the danger to the child’s life, and experiences those agonizing hours preceding the awful message of death may be at no less risk of suffering a similar degree of emotional distress than . . . a parent who is actually exposed to the scene of the accident.
Gardner v. Gardner, 106 N.C. App. 635, 639, 418 S.E.2d 260, 263 (1992). The [Court of Appeals] held that defendant “could have reasonably foreseen that his negligence might be a direct and proximate cause of the plaintiff’s emotional distress,” id., and it accordingly reversed the trial court.
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Id. at 664–65, 435 S.E.2d at 326 (fifth alteration in original). The dissenting judge at
the Court of Appeals in Gardner opined that the claim for negligent infliction of
emotional distress must fail because the plaintiff “did not observe and was not in close
proximity to the negligent act,” the truck accident. Id. at 665, 435 S.E.2d at 326. Upon
review, this Court quoted the Johnson factors, but emphasized that in Johnson itself
[n]otably, these factors were not termed “elements” of the claim. They were neither requisites nor exclusive determinants in an assessment of foreseeability, but they focused on some facts that could be particularly relevant in any one case in determining the foreseeability of harm to the plaintiff. Whatever their weight in this determination, we stressed that “[q]uestions of foreseeability and proximate cause must be determined under all the facts presented” in each case.
Id. at 666, 435 S.E.2d at 327 (second alteration in original) (citing Johnson, 327 N.C.
at 305, 395 S.E.2d at 98). Thus, this Court in Gardner, just as in Johnson, continued
to focus on the importance of flexibility regarding the pertinent factors to be
considered in evaluating allegations of foreseeability when reviewing a claim for
negligent infliction of emotional distress. Ultimately, in Gardner, this Court reversed
the decision of the Court of Appeals, finding that the plaintiff’s allegations were not
sufficient to sustain her claim for negligent infliction of emotional distress.
[The p]laintiff was not . . . in close proximity to, nor did she observe, defendant’s negligent act. At the time defendant’s vehicle struck the bridge abutment, plaintiff was at her mother’s house several miles away. This fact, while not in itself determinative, unquestionably militates against defendant’s being able to foresee, at the time of the
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collision, that plaintiff would subsequently suffer severe emotional distress as a result of his accident. Because she was not physically present at the time of defendant’s negligent act, plaintiff was not able to see or hear or otherwise sense the collision or to perceive immediately the injuries suffered by her son. Her absence from the scene at the time of defendant’s negligent act, while not in itself decisive, militates against the foreseeability of her resulting emotional distress.
Id. at 666–67, 435 S.E.2d at 328 (emphases added).
In Andersen, the plaintiff husband filed a complaint against defendant which
included a claim for negligent infliction of emotional distress as a result of a traffic
accident in which the vehicle being driven by defendant collided with the vehicle
being operated by plaintiff’s wife upon defendant’s driving maneuver to avoid a
collision with a third vehicle. Plaintiff did not see the accident occur but was present
at the scene of the accident before his wife—who was with child at the time—was
removed from her wrecked vehicle and accident site. Andersen, 335 N.C. at 527, 439
S.E.2d at 137. After being freed, “[the plaintiff’s wife] was taken to a local hospital
and the next day gave birth to a stillborn son . . . . [The] plaintiff’s wife died from
injuries allegedly received in the accident.” Id. Defendants prevailed in the trial court
on summary judgment on plaintiff’s claim of negligent infliction of emotional distress.
Id. at 528, 439 S.E.2d at 137. The Court of Appeals reversed the trial court on this
issue, concluding that it was reasonably foreseeable that the plaintiff would suffer
such distress as a result of the alleged negligence. Id. at 530, 439 S.E.2d at 138–39.
This Court reversed, interspersing in our analysis the law of Johnson with the salient
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facts of Sorrells—a case in which this Court held that it was not reasonably
foreseeable that defendant business which served alcohol to the twenty-one-year-old
son of plaintiff parents would negligently inflict emotional distress upon the parents
as a result of the son’s death when his loss of control of his motor vehicle caused him
to strike a bridge abutment—as we explained the rationale for our determination of
the lack of foreseeability in Andersen:
Holding that [the] plaintiffs’ alleged distress arising from their concern for their son was a possibility too remote to be reasonably foreseeable, the Court [in Sorrells] said:
Here, it does not appear that the defendant had any actual knowledge that the plaintiffs existed. Further, while it may be natural to assume that any person is likely to have living parents or friends [who might] suffer some measure of emotional distress if that person is severely injured or killed, those factors are not determinative on the issue of foreseeability. The determinative question for us in the present case is whether, absent specific information putting one on notice, it is reasonably foreseeable that such parents or others will suffer “severe emotional distress” as that term is defined in law. We conclude as a matter of law that the possibility (1) the defendant’s negligence in serving alcohol to [the plaintiffs’ child] (2) would combine with [the plaintiffs’ child’s] driving while intoxicated (3) to result in a fatal accident (4) which would in turn cause [the plaintiffs’ child’s] parents (if he had any) not only to become distraught, but also to suffer “severe emotional distress” as defined in [Johnson], simply was a possibility too remote to permit a finding that it was reasonably foreseeable.
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This is so despite the parent-child relationship between the plaintiffs and [their child]. With regard to the other factors mentioned in [Johnson] as bearing on, but not necessarily determinative of, the issue of reasonable foreseeability, we note that these plaintiffs did not personally observe any negligent act attributable to the defendant. However, we reemphasize here that any such factors are merely matters to be considered among other matters bearing on the question of foreseeability.
Id. at 531–32, 439 S.E.2d at 139 (third alteration in original) (quoting Sorrells, 334
N.C. at 674, 435 S.E.2d at 323)). Utilizing the unique, though comparable facts
presented by the Gardner and Sorrells cases, in Andersen we held that the defendant
could not reasonably have foreseen that her negligent act, if any, would cause [the] plaintiff to suffer severe emotional distress. While in this case [the] plaintiff observed his wife before she was freed from the wreckage, as in Gardner, plaintiff was not in close proximity to and did not observe [the] defendant[’s] negligent act, if any. As in Sorrells, nothing suggests that [the defendant] knew of [the] plaintiff’s existence. The forecast of evidence is undisputed that at the moment of impact [defendant] did not know who was in the car which her vehicle struck and had never met [plaintiff’s wife]. Both Gardner and Sorrells teach that the family relationship between plaintiff and the injured party for whom [the] plaintiff is concerned is insufficient, standing alone, to establish the element of foreseeability. In this case as in Sorrells the possibility that the decedent might have a parent or spouse who might live close enough to be brought to the scene of the accident and might be susceptible to suffering a severe emotional or mental disorder as the result of [the defendant’s] alleged negligent act is entirely too speculative to be reasonably foreseeable.
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Andersen, 335 N.C. at 532–33, 439 S.E.2d at 140. Accordingly, this Court reversed
the decision of the Court of Appeals, reinstating the trial court’s entry of summary
judgment for the defendants on the claim for negligent infliction of emotional distress.
Id. at 533, 439 S.E.2d at 140.
The factual circumstances presented in this Court’s opinions of Gardner,
Andersen, and Sorrells upon which defendants, as well as our learned dissenting
colleague, primarily rely to advance the position that the trial court was correct to
grant a judgment on the pleadings to defendants regarding plaintiffs’ claim for
negligent infliction of emotional distress are readily distinguishable from those which
are existent in the instant case. Fundamentally, here the concept of the foreseeability
of the infliction of emotional distress resulting from defendants’ negligent act of
leaving a loaded and unsecured shotgun in an unattended state within reach of a
group of young children—as compared to the foreseeability of a defendant father
inflicting emotional distress upon the mother for the alleged negligent act of having
a traffic accident which killed their passenger son in Gardner, the foreseeability of
the infliction of emotional distress resulting from defendant motor vehicle operator’s
alleged negligent act in killing an expecting mother and causing the baby to be
stillborn because defendant swerved to avoid a collision with a third vehicle in
Andersen, and the foreseeability of the infliction of emotional distress upon the
parents of an adult son who was killed in the operation of his motor vehicle after
defendant business committed the allegedly negligent act of serving alcoholic
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beverages to the son of plaintiffs during his patronage of defendant business—is a
measure of foreseeability indisputably governed by the factors which this Court
articulated in Johnson which is necessary for a jury to determine in light of the “case-
by-case basis” premised upon “all the facts presented” which this Court expressly
discussed in Sorrells. 334 N.C. at 673, 435 S.E.2d at 322 (quoting Johnson, 327 N.C.
While the dissenting opinion is careful to quote the direction given in Sorrells
that the guiding “factors are not mechanistic requirements” and the mandate
established by Johnson that negligent infliction of emotional distress “cases must be
resolved on a case-by-case basis, considering all facts presented,” the dissent
nevertheless acquiesces in its acceptance of defendants’ automated application of the
Johnson factors without expending the requisite effort to navigate the nuances of the
configuration of fact patterns. For example, in the present case, plaintiffs and
defendants knew each other to such a degree that plaintiffs allowed their young child
to spend appreciable amounts of time in defendants’ home; however, in Sorrells, in
noting that foreseeability was not reasonable for a negligent infliction of emotional
distress claim, this Court expressly recognized that “it does not appear that the
defendant had any actual knowledge that the plaintiffs existed.” Sorrells, 334 N.C. at
674, 435 S.E.2d at 323. In Andersen, in noting that defendant “could not reasonably
have foreseen that her negligent act, if any, would cause plaintiff to suffer severe
emotional distress,” we deemed it to be germane that “nothing suggests that [the
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defendant] knew of plaintiff’s existence. The forecast of evidence is undisputed that
at the moment of impact [the defendant] did not know who was in the car which her
vehicle struck and had never met [the plaintiff’s wife].” Andersen, 335 N.C. at 532–
33, 439 S.E.2d at 140.
The same cases from this Court which the dissent and defendants invoke to
support their position in the case sub judice that the foreseeability factors set forth
in Johnson did not allow plaintiffs to sustain actions for negligent infliction of
emotional distress are the same cases which this Court now reaffirms afford plaintiffs
in the instant case the right to pursue their claim for negligent infliction of emotional
distress beyond the pleading stage. Although we held in the cited series of cases that
the foreseeability factor of Johnson did not exist due to such circumstances as the
defendant’s lack of knowledge of plaintiff’s existence, the prospect of parents suffering
“severe emotional distress,” and the inability of the defendant to know the identity of
the fatally injured party, conversely we hold that the foreseeability factor of Johnson
does exist in the case at bar because defendants have knowledge of plaintiffs’
existence, there is the prospect of plaintiffs suffering severe emotional distress, and
defendants were able to know the identity of the fatally injured party Abby.
Conclusion
We conclude that plaintiffs’ allegations regarding the factor of foreseeability as
addressed in Johnson were sufficient to support their claim for negligent infliction of
emotional distress against defendants. Consequently, the trial court erred in entering
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judgment on the pleadings in favor of defendants. In affirming the Court of Appeals,
we reiterate the established standard for a trial court’s consideration of a defending
party’s motion to for judgment on the pleadings and, when such a motion is made in
a negligent infliction of emotional distress action, the question of reasonable
foreseeability must be determined under all of the facts presented and should be
resolved on a case-by-case basis instead of mechanistic requirement associated with
the presence or absence of the Johnson factors.
AFFIRMED.
-19- Justice NEWBY dissenting.
The heartbreak a parent endures from the loss of a child simply cannot be
overstated. “The shock and anguish suffered by plaintiffs upon learning of the wholly
unexpected death of their young daughter is unfathomable to anyone not
experiencing a similar loss.” Newman v. Stepp, 267 N.C. App. 232, 242, 833 S.E.2d
353, 360 (2019) (Tyson, J., dissenting). I also agree with the dissent at the Court of
Appeals that, “[w]hile nothing can change these facts nor restore the child plaintiffs
have lost, the law affords these parents a claim and remedy of monetary
compensation for damages they suffered through a claim for wrongful death.” Id. In
an attempt to fashion a different legal remedy to address this tragedy, the majority
strays from our jurisprudence regarding claims for negligent infliction of emotional
distress (NIED). Were we writing on a blank slate, I could agree as my sympathies
lie with plaintiffs; however, we have several cases that determine foreseeability in
the context of a NIED claim by applying the factors this Court articulated in Johnson
v. Ruark Obstetrics and Gynecology Associates, P.A., 327 N.C. 283, 305, 395 S.E.2d
85, 98 (1990). These cases also have tragic facts where individuals lost dear loved
ones—children, spouses, and parents—under terrible circumstances. In each of these
cases we held that the alleged NIED was not foreseeable. Faithfully applying this
precedent, the trial court correctly dismissed this action. I respectfully dissent. NEWMAN V. STEPP
Newby, J., dissenting
To properly plead a claim for NIED, “a plaintiff must allege that (1) the
defendant negligently engaged in conduct, (2) it was reasonably foreseeable that such
conduct would cause the plaintiff severe emotional distress (often referred to as
‘mental anguish’), and (3) the conduct did in fact cause the plaintiff severe emotional
distress.” Johnson, 327 N.C. at 304, 395 S.E.2d at 97. In this case, we address whether
it was reasonably foreseeable that the negligent conduct would cause plaintiffs severe
emotional distress. We have previously set forth factors to be considered in
determining whether it was reasonably foreseeable that the conduct at issue would
cause severe emotional distress. These factors “include the plaintiff’s proximity to the
negligent act, the relationship between the plaintiff and the other person for whose
welfare the plaintiff is concerned, and whether the plaintiff personally observed the
negligent act.” Id. at 305, 395 S.E.2d at 98. Our cases emphasize that “such factors
are not mechanistic requirements,” Sorrells v. M.Y.B. Hosp. Ventures of Asheville,
334 N.C. 669, 672, 435 S.E.2d 320, 322 (1993) (emphasis omitted), and that courts
must evaluate NIED claims on a case-by-case basis, considering all facts presented,
Johnson, 327 N.C. at 305, 395 S.E.2d at 98. Nonetheless, our case law has emphasized
that the parent-child relationship standing alone is not enough. We have never
previously focused on the nature of the negligent act. Generally, foreseeability
requires plaintiffs to be present during the negligent act and perhaps observe the
resulting injury. The majority fails to apply these factors and places the foreseeability
determination with a jury.
The case before us is controlled by our decision in Gardner v. Gardner, 334
N.C. 662, 435 S.E.2d 324 (1993), which has all of the factors present in this case.
There, a thirteen-year-old child was injured in a vehicular wreck when his father
recklessly ran into a bridge abutment on a rural road. Id. at 663–64, 435 S.E.2d at
326. The plaintiff, the child’s mother, found out about the accident over the phone.
Id. at 663, 435 S.E.2d at 326. She then went directly to the local hospital’s emergency
room (ER) where she saw her son being wheeled into the ER and medical
professionals attempting to resuscitate him. Id. at 663–64, 435 S.E.2d at 326. The
plaintiff did not see her son thereafter and was later informed that he had died. Id.
at 664, 435 S.E.2d at 326.
The plaintiff sued, claiming NIED. Id. She alleged that her husband’s reckless
driving that caused the accident violated at least four criminal statutes. The trial
court granted summary judgment for the defendant-husband on the NIED claim. Id.
The wife appealed to the Court of Appeals. Gardner v. Gardner, 106 N.C. App. 635,
418 S.E.2d 260 (1992). After considering the above facts and stating its view of the
rules set forth in Johnson, the Court of Appeals reversed the trial court’s judgment
for many of the same reasons that the majority utilizes in its opinion in the present
case. Id. at 639, 418 S.E.2d at 263. In analyzing the impact of the parent-child
relationship and a plaintiff’s proximity to the scene of the accident, the Court of
Appeals stated that
[i]n common experience, a parent who sees its mortally injured child soon after an accident, albeit at another place, perceives the danger to the child’s life, and experiences those agonizing hours preceding the awful message of death may be at no less risk of suffering a similar degree of emotional distress than . . . a parent who is actually exposed to the scene of the accident.
Id. Thus, the Court of Appeals ultimately concluded that the parent-child
relationship combined with the fact that the plaintiff saw the child soon after the
accident was sufficient to establish the foreseeability element required for a NIED
claim. Id.
This Court, however, reversed the Court of Appeals’ decision, rejecting its
reasoning. Gardner, 334 N.C. at 668, 435 S.E.2d at 328. We held that the trial court
properly granted summary judgment on the plaintiff-wife’s NIED claim. Id. In doing
so, this Court again explained the Johnson foreseeability factors and utilized those
factors to reach its result. Id. at 666–68, 435 S.E.2d at 327–28. We found persuasive
that the wife was not in close proximity to her husband’s negligent act, nor did she
observe the resulting wreck; instead, the plaintiff was several miles away when the
accident happened, which “militates against the foreseeability of [the plaintiff’s]
resulting emotional distress.” Id. at 667, 435 S.E.2d at 328. Despite the fact that the
complaint alleged that the husband’s reckless driving violated at least four criminal
statutes, this Court did not even mention that the nature of the negligent act could
be a factor.
Moreover, recognizing that there must be a showing of foreseeability of severe
emotional distress, this Court reasoned that the plaintiff-wife had not alleged that
the husband knew that she would be especially susceptible to severe emotional
distress. Severe emotional distress as defined by law requires allegations or a forecast
of evidence of “any emotional or mental disorder, such as . . . neurosis, psychosis,
chronic depression, phobia, or any other type of severe and disabling emotional or
mental condition which may be generally recognized and diagnosed by professionals
trained to do so.” Id. (alteration in original) (quoting Johnson, 327 N.C. at 304, 395
S.E.2d at 97). As this Court explained, “[w]hile anyone should foresee that virtually
any parent will suffer some emotional distress—‘temporary disappointment . . . or
regret’—in the circumstances presented, to establish a claim for NIED the law
requires reasonable foresight of an emotional or mental disorder or other severe and
disabling emotional or mental condition.” Id. (second alteration in original). Thus,
despite the fact that the husband certainly knew of his wife’s relationship with their
son, without the husband having knowledge or foresight that the wife would suffer
severe emotional distress, we stated that the reasonable foreseeability element was
not satisfied. Id. at 667–68, 435 S.E.2d at 328. Therefore, this Court concluded that
the defendant-husband could not be held accountable for his actions though a NIED
claim. Id. at 668, 435 S.E.2d at 328.
The facts in the present are similar to those in Gardner. Though defendants
here knew of plaintiffs’ parent-child relationship, that fact alone is inadequate. We
rejected that same reasoning in Gardner. Moreover, like Gardner, defendants here
had no reason to know that plaintiffs would suffer severe emotional distress as
defined by law, meaning emotional distress exceeding that distress any parent would
suffer when losing a child. In Gardner, defendant-husband would have had even more
of an intimate understanding of the potential of severe emotional distress his wife
would have suffered from losing their child. Certainly a husband would have been in
a better position to know of any particular susceptibility of his wife to suffer severe
emotional distress than a daycare owner interacting with a child’s parents.
Plaintiffs here were not present when the negligent act or the accident
occurred, as they neither saw the shotgun negligently being placed and left on the
table nor did they see the discharge of the shotgun that ultimately led to their
daughter’s death. The same was true in Gardner, where the plaintiff did not observe
the accident, but only saw her child arriving at the hospital after learning of the
accident through a phone call, just as the father here learned of the accident through
a CB-radio communication. Further, in Gardner, the mother saw the child while
emergency personnel were attempting to resuscitate him at the hospital, whereas
neither parent did so here. Our cases repeatedly consider a plaintiff’s absence from
the scene of the negligent act or accident as militating against foreseeability, despite
how soon after the accident plaintiffs saw an injured or deceased individual. Simply
put, while certainly these facts are tragic and heartbreaking, under our existing case
law, it was not reasonably foreseeable that plaintiffs would endure severe emotional
distress as defined by law to support a NIED claim.
The majority seeks to distinguish this case from Gardner because of the nature
of the negligent act, noting that defendants’ actions of leaving a loaded shotgun
accessible to minors was egregious. The majority holds that severe emotional distress
arising from that negligent act is more foreseeable than severe emotional distress
caused by other types of negligent acts that also result in injury. The complaint in
Gardner indicates the defendant’s actions violated numerous criminal statutes as he
carelessly and recklessly ran his truck into the bridge abutment. Nonetheless, our
decision in Gardner did not attempt to evaluate the nature of the father’s negligent
act. It was simply not a factor in the foreseeability determination in Gardner or any
of our other relevant cases. The question is not whether it could be reasonably
foreseeable that a plaintiff would suffer severe emotional distress, but whether, under
the specific facts presented, it was reasonably foreseeable that the plaintiff would
suffer severe emotional distress as defined by law. Therefore, the majority’s analysis
primarily relies on a factor that this Court has not adopted in the past. Further, the
majority now places the foreseeability determination with the jury, not the trial court.
Our foreseeability analysis in Gardner is consistent with our analysis of other
cases where we have considered and rejected a plaintiff’s NIED claim. In Andersen v.
Baccus, the plaintiff-husband’s pregnant wife had a car accident when the defendant
swerved to avoid a vehicle driven by the a third person. 335 N.C. 526, 527, 439 S.E.2d
136, 137 (1994). The plaintiff did not witness the accident, but he went to the scene
and saw his wife before she was freed from the wreckage. Id. The plaintiff’s wife ended
up giving birth to their baby, who was stillborn, and she later passed away as well.
Id. The plaintiff brought a claim for punitive damages based on NIED, and the trial
court granted summary judgment in the defendant’s favor. Id. at 528, 439 S.E.2d at
137. Reviewing the case on appeal, this Court stated that the defendant’s actions,
while negligent, were not actions that were reasonably foreseeable to cause the
plaintiff’s severe emotional distress. Id. at 532, 439 S.E.2d at 140. Though the
plaintiff observed his pregnant wife in her car before she was freed from the
wreckage, even that was not enough to establish a NIED claim since the plaintiff was
not in close proximity to nor did he observe the negligent act that caused his wife’s
and child’s deaths. Id. at 532–33, 439 S.E.2d at 140. Moreover, we noted that the
defendant did not know who was in the vehicle that the defendant struck. Id. at 533,
439 S.E.2d at 140. Specifically, “the family relationship between plaintiff and the
injured party for whom plaintiff is concerned is insufficient, standing alone, to
establish the element of foreseeability.” Id. Therefore, this Court upheld the trial
court’s grant of summary judgment because it was not reasonably foreseeable that
plaintiff would suffer severe emotional distress. Id. Notably again, we did not address
whether the defendant’s negligent actions violated any criminal laws.
In another case, Sorrells v. M.Y.B. Hospitality Ventures of Asheville, a 21-year-
old college student was drinking alcohol at a bar. 334 N.C. at 671, 435 S.E.2d at 321.
The student’s friends asked the bartenders not to serve the student any more drinks
due to his intoxication and explained that the student had to drive himself home that
evening. Id. Nevertheless, the employees continued to serve him alcohol. Id. When he
was driving home, the student lost control of his car, struck a bridge abutment, and
was killed. Id.
The student’s parents brought a claim against the defendant-bar for NIED,
which the trial court dismissed. Id. The Court of Appeals, however, reversed the trial
court’s decision. Sorrells v. M.Y.B. Hosp. Ventures of Asheville, 108 N.C. App. 668,
672, 424 S.E.2d 676, 680 (1993). In doing so, the Court of Appeals focused on the fact
that the parents, despite not being at the scene, learned their son was killed in an
automobile accident and that his body had been mutilated, which the Court of
Appeals determined could be found to be reasonably foreseeable to cause severe
emotional distress. Id. at 672, 424 S.E.2d at 679.
This Court, however, rejected the Court of Appeals’ reasoning. Sorrells, 334
N.C. at 675, 435 S.E.2d at 323. In doing so, this Court applied the Johnson factors to
determine whether the plaintiffs had established foreseeability. Id. at 672–73, 435
S.E.2d at 322. We first reasoned that the determinative question in the case was
“whether, absent specific information putting one on notice, it is reasonably
foreseeable that such parents or others will suffer ‘severe emotional distress’ as that
term is defined in law.” Id. at 674, 435 S.E.2d at 323. We noted that the defendant
did not specifically know of the plaintiff-parents’ existence, and more so, the
defendant did not know that the plaintiffs would suffer emotional distress like that
described in Gardner, i.e., manifesting itself in mental and/or physical disorders. Id.
Because of the lengthy chain of events that led to the student’s death as well as the
fact that the plaintiffs did not observe the accident or any of the defendant’s negligent
actions attributable to the student’s death, this Court concluded that the trial court
properly dismissed the plaintiffs’ NIED claim. Id. at 675, 435 S.E.2d at 323.
The Court of Appeals has also utilized the Johnson foreseeability factors to
reach similar results despite the tragic circumstances involved in those cases. See
Fields v. Dery, 131 N.C. App. 525, 529, 509 S.E.2d 790, 792 (1998) (concluding that
the plaintiff had not established foreseeability to maintain a NIED claim, despite the
fact that she was driving behind her mother and saw the defendant violate a criminal
statute and crash into her mother’s car, since the defendant could not reasonably
have foreseen that the deceased’s daughter would be driving behind her and see the
accident that caused her mother’s death); see also Riddle v. Buncombe Cnty. Bd. of
Educ., 256 N.C. App. 72, 77, 805 S.E.2d 757, 762 (2017) (concluding that, despite the
fact that the plaintiff, a close friend of the deceased, was present at and observed the
accident, there was no allegation of a relationship making him particularly
susceptible to suffering severe emotional distress, meaning that the plaintiff could
not advance a NIED claim).
An analysis of the egregious nature of the negligent act is not mentioned as a
foreseeability factor in any of our prior cases. The majority adds this new factor,
whether leaving a loaded shotgun accessible to minors was involved, to our NIED
foreseeability jurisprudence and places the foreseeability determination with the
jury. The Johnson factors have worked well for thirty years. We now embark into
uncharted territory. The majority assures us that these new considerations will not
open a floodgate of new NIED claims—only time will tell. The proper remedy under
these circumstances is a wrongful death action, not a change to our NIED
jurisprudence. Because I believe the trial court faithfully applied our NIED
jurisprudence, I would affirm its decision. I respectfully dissent.
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