*1 635 IN THE COURT GARDNER v. GARDNER (1992)] App. 635
[106 12(b)(6) early too for simply It was should be denied. under Rule to a motion for sum- that motion try court to to convert the trial summary for Watson reverse vote to mary judgment. the counterclaim and to remand Price’s counterclaim on defendant . further proceedings. the trial court for GARDNER, of the Estate JACQUELINE HARRINGTON Administratrix GARDNER, Campbell Gardner, JACQUELINE HARRINGTON In- Seth GARDNER, dividually, BENJAMIN A. Defendant Plaintiffs
No. 913SC675 1992)
(Filed July (NCI3d)— (NCI4th); emotional § 1.1 Negligence § 21 Damages required not —close —negligent infliction the negligent in close need not be Plaintiff of emotional infliction in order to recover for act distress, for such an action foreseeability requirement and the mortally child injured where saw her was satisfied after the accident. hospital at the soon 2d, § 488. Negligence Am Jur injury affecting right as
Immediacy of observation witnessing from anguish or mental damages recover shock 5 ALR4th 833. another. dissenting. Judge EAGLES entered summary judgment partial from by plaintiff APPEAL Russell by Judge W. County Superior 1991 in PITT May May
Duke, Appeals in the Court of Jr. Heard (1) relief: two claims for set out In her complaint, administratrix, of her wrongful in her capacity (2) Gardner; son, capac- in her individual Campbell Seth minor distress. of emotional ity, for infliction and, alia, plain- to dismiss inter moved answered Defendant relief which upon a claim for failure to state tiff’s second claim ensued, motion when defendant’s Discovery granted. can be 12(b)(6) Rules of Civil the N.C. Rule according to to dismiss IN THE COURT OF APPEALS GARDNER v. GARDNER *2 court, Procedure came on for hearing, having trial considered matters outside the pleadings, treated defendant’s motion as one summary for judgment and dismissed second plaintiff’s claim. Pur- 54(b) Procedure, suant to Rule of the N.C. Rules of Civil the trial court certified defendant’s partial summary judgment for immediate appeal.
The undisputed facts pertinent plaintiff’s second claim are 1990, as follows. 18 August On thirteen-year-old- and her son, Seth, Greenville, resided in Early North Carolina. that morn- Seth ing, as a riding passenger a motor vehicle being driven defendant, father, by his when the truck ran into a bridge abutment on a rural road near Greenville. Upon about the hearing accident and that Seth was taken being to a local hospital, plaintiff went immediately to the hospital room. emergency About five minutes later, a local rescue squad arrived at the hospital and brought stretcher, Seth into the emergency room. Seth was prone on a all but his hands and feet covered. being The rescue personnel were applying resuscitative efforts. Plaintiff waited at the hospital but did not see Seth again until after he day. died later that For purposes of the summary motion for judgment, it was stipulated by the parties that Seth died as a result of the negligence of defendant and that suffered severe emotional distress as a result of the accident and death of her son. Gaskins, P.A., Gaskins, Jr., Gaskins & by Herman E. for
plaintiff-appellant. Baker, Jones, P.A., Jenkins & by Ronald G. Baker and Roswald Jr., B. Daly, defendant-appellee. for
Nichols, Hill, Murrelle, Caffrey, Pinto, Evans by & Richard L. North Carolina Association Attorneys, amicus curiae. of Defense WELLS, Judge. must,
We begin and close our review of this appeal, as we Obstetrics, 154, revisiting Johnson v. Ruark 89 N.C. 365 App. (1988), 283, S.E.2d 909 affirmed, S.E.2d modified (1990). In plaintiff mother and father’s claim for severe emo- tional distress were grounded the events surrounding of their full-term immediately child delivery. before The case came to this appeal Court on from the trial court’s order allowing defend- APPEALS OF GARDNER
GARDNER 12(b)(6) motion for failure to Procedure ant’s N.C. Rules Civil analysis of the facts lengthy After a careful and state a claim. law, applicable considered to be the case and what we reversed, claims the Johnsons had stated valid holding negligence out of the arising for severe emotional course, itself. speaks opinion, defendants. Our discretionary this review Court then heard case Supreme Our and, the law of North Carolina in a reviewed lengthy The infliction of emotional distress. on claims for Court, but for its own reasons reasoning much of the of this rejected held that the Johnsons had majority opinion, as set out *3 from the majority claims. There were two dissents stated valid it because tells particular significance one of which is of The elements majority in what the Ruark did not do. us careful detail may in in Ruark be majority opinion the set out the wrong of Any doubt as to whether North Carolina summarized as follows. of emotional recovery purely infliction negligent law allows physical impact, to rest. Neither a put or mental has been manifestation of emo- injury, subsequent physical nor a physical infliction of negligent element of the tort of tional distress an emotional distress. may person proximate-
A act toward one defendant’s foreseeably person cause emotional distress to another and ly and relationship their justify recovering damages, depending upon his factors in the case. present and other arising may
A recover for severe emotional plaintiff that plaintiff prove if the can person from concern for another a prox- such severe emotional distress as he or she has suffered negligence. result of the defendant’s imate and foreseeable cases, emotional distress” means In such the term “severe condition emotional or mental disorder or any disabling severe and diagnosed professionals and may generally recognized which be trained to do so. the the Court clearly wrong,
After
out the elements of
setting
foreseeability in such cases.
the
of
guidance
question
provided
of
foreseeability
proximate
is at the threshold
Recognizing
cause,
us in
guide
to further
precedent
we look to established
the
In
the
restated
of this
Court
question.
our resolution
103,
v.
315 N.C.
Dingfelder,
in Azzolino
foreseeability rule stated
COURT OF APPEALS
GARDNER GARDNER
(1985).
111,
528,
337 S.E.2d
theories
“Under traditional
of tort
law,
reasonably
defendants are
for all
liable
of
forseeable results
of their
or
acts
omissions.”
Hairston v. Alexander Tank Equipment & 310 N.C. (1984), Court, summary, S.E.2d 559 where the stated that prox- imate cause is a cause which produced injuries, the plaintiff’s person ordinary “one from which a prudence reasonably could have result, foreseen that such a or consequences generally injurious of a nature, probable was under they all facts as existed.” 310 233. foreseeability test of does not require “[The] [a] defendant should have been able to foresee the injury in precise 233, actually form in it which occurred.” 310 N.C. mind,
With
generally
these
well-established
principles
guidance look to the further
provided
court
to the
foreseeability
element of
Factors
be con-
of this kind.
cases
sidered
question
foreseeability
on the
in such cases include the
act,
plaintiff’s proximity to the negligent
whether
the plaintiff per-
act,
sonally observed the negligent
and the relationship between
and the
person
other
whose welfare the
(Emphasis
supplied.)
concerned.
The of the negligence defendant and the to the plaintiff court, have been The stipulated. dispositive question before the trial us, to and be resolved foreseeability. is that of court, case, The trial in this Ruark the having reviewed requirement guidelines, adopted proximity” a “close for foreseeabili- ty, and that is what defendant contends we should affirm. Perhaps best argument the answer to that is to in Meyer’s be found Justice Ruark, in he lengthy dissent where it clear makes that he was Ruark persuade majority unable to a in adopt a proximity close requirement.
As we the close perceive proximity it has requirement been see and followed in other adopted jurisdictions, Meyer’s dissent a cases such as the now one before us must been such have close proximity the injury-producing event sensory as to a experience perception event and its “on THE IN
GARDNER v. GARDNER App. 635 scene, manifestation; i.e., or promptly at the arrive the scene” be thereafter. hold, the and so factor
We are of the In common experience, in Ruark is not that narrow. established accident, mortally who child soon after an injured a sees its parent life, child’s danger the the place, perceives at another albeit awful preceding message those hours the experiences agonizing and may degree risk of a similar of suffering of at no less be actually exposed than who parent emotional distress that of the the scene of accident. case, Thus, defendant, in this could the have hold be reasonably might prox- that his a direct negligence foreseen plaintiff’s cause the emotional distress. imate is, course, relationship parent The and child — factor — in plaintiff’s in Ruark favor. answered stated, court must trial For reasons be and is
Reversed. concurs.
Judge Arnold
Judge EAGLES dissents.
Judge dissenting. EAGLES is based on majority opinion dissent. The here respectfully in Ruark chose not to set majority that because the premise foreseeability, we should infer that out limits on specific I think this is flawed. position intended no further limitation. the limits whose raised a about question not a case facts rela- parent/child Ruark involved requirement.
of the proximity who to and observed were close tionship parents fetus and the the death of the many surrounding of the events *5 stillbirth.
Here, of defendant did act not observe to act. She was not in close and was away Although the accident occurred. several miles when fact Supreme in the proximity, nothing set limits on specifically does not WORRELL v. N.C. DEPT. OF STATE TREASURER opinion prevents announcing Court’s this from a limit when presented facts are which raise the Gardner v. Gardner question. such a case. Plaintiff is has failed establish sufficient satisfy foreseeability requirements and would affirm the trial court. Petitioner-Appellee WORRELL,
MAURICE J. DEPARTMENT v. OF Respondent- TREASURER, DIVISION, STATE RETIREMENT SYSTEMS Appellant
No. 9128SC479 (Filed 1992) July — (NCI3d)— § Pensions employee purchase State of credit for — military System service —time in Local statute of limitations purchase reduced rate by The trial court a reversing erred final decision agency by. Board Trustees of the Retirement System where petitioner was a contributing member North Carolina Local System Government from 1 Employees’ Retirement Oc- 1977; tober 1973to 31 October then petitioner changed employ- ment and became a member of the Teachers’ State 1977; Employees’ System Retirement on 1 November his ac- membership cumulated contribution and service credits in the Local System were System transferred to the State at his 1990; request March petitioner asked told his supervisor that he had to System be member of the State service; years for ten to purchase credits his military re- spondent received petitioner’s request purchase credits for 1988; military on 14 petitioner service November was informed that he would have full pay purchase actuarial cost for the years because than more three had since first passed he became eligible to make the purchase; and the trial court held that the term “membership service” not does include credits for service in the System Local been have transferred to the State System. The controlling statute N.C.G.S. 135-18.1 § which, 135-1(14), conjunction when read in with N.C.G.S. § clearly includes as membership service credits transferred from System System, petitioner’s Local to the State so that this System credits from the Local should be considered when