*1 471 v. SWANN LEN-CARE HOME REST Appellants ANNIE C. SWANN and CAROLYN D. v. LEN-CARE REST SMITH, HOME, Appellees ANDREW and SHELBIA INC., STEWART, NORRIS, No. COA96-1283 (Filed 1997) 7 October Hospitals 1. and Medical Facilities Institutions 62§ (NCI4th)— negli- rest home —failure to restrain resident —

gence evidence — sufficient

The evidence was negli- sufficient on issue of by gence employees defendant rest home and its in failing to, ninety-eight-year-old restrain resident at the time she fell and seriously injured where the evidence tended show to repeatedly requested resident’s had that she restrained when unattended because her of to stand up; to had prior resident fallen defendant’s on occasions; two and a letter from of physicians requested one the resident’s necessary.” she “restrained as Negligence 2. (NCI4th)— negligent § 6 infliction of

emotional distress — insufficient evidence of emotional distress failed establish claim for infliction

severe emotional distress based on defendant rest home’s failure promptly give her accurate information about the nature and by extent grandmother suffered a fall where plaintiff testified that she did not night her grandmother’s by fall after even she was asked a doctor grandmother, whether would authorize life for her psy- admitted that she had never been to see a chiatrist, psychologist, alleged doctor counselor for her emo- tional distress and had taken never medication ease her condition. Judge C., part John concurring dissenting Martin,

part. by Appeal May Coy from Judge order entered 29 Brewer, County E. Superior Jr. Cumberland Court. Heard in the Appeals September Court of 1997. Carolyn

Mrs. Annie C. Smith, Swann and Ms. D. Mrs. granddaughter, defendants, Len-Care, Stewart, sued the Andrew IN THE OF APPEALS COURT HOME v. LEN-CARE REST

SWANN *2 App. (1997)] [127 negligent infliction alleging negligence and Norris Shelbia plaintiff’s evidence, the of the At the close emotional distress. pursuant to motion for directed verdict granted Len-care’s trial court 50(a). Rule began liv- years age, Annie C. Swann when she was 94 home, a rest not living facility, Len-Care. Len-Care is

ing group in a type provides might of care that found nursing home, and the same provide one-on-one care Len-Care does not in an individual’s home. medical condition to Mrs. Swann’s for each resident. From 1991 Carolyn Smith, D. Swann’s and her confusion became worse. declined plaintiff, regularly grandmother her and a would visit granddaughter actively During the five grandmother’s in her care. and was involved facility, had the Ms. Smith years grandmother was at defendant’s her her put grandmother to restraints on asked the staff at the up when unat- to to stand grandmother’s of her because by Mrs. Swann in the Smith, she would find During tended. lobby visits Ms. always bring would and not restrained. Ms. Smith unattended at Len-care. In Dr. Rucker this the attention of the staff that Mrs. Swann was to be “restrained signed indicating an order as needed. PRN.”PRN means Stewart, supervisor from Len- 1994, Andrew

On 31 December grandmother that her had fallen Care called Ms. Smith and told her way hospital. Mr. Stewart her wheelchair and was on her out of presence that she would that her was not needed and told Ms. Smith hospi- grandmother returned from the receive another call after her indicating that night Ms. another call tal. Later that Smith received staying at for obser- grandmother overnight would impression call was that Mrs. Ms. from second vation. Smith’s Norris, “nothing an adminis- Swann’s were serious.” Shelbia Len-Care, night Swann but working Mrs. fell trator phone her that Mrs. Swann informing received a call from Mr. Stewart night, but did had fallen. Ms. Norris went to rest home later any any inquires Mrs. members or make not call hospital. about Mrs. Swann at the telephone hos- call came from Dr. Rucker at the

Ms. Smith’sthird forty put grand- in her pital. He Ms. Smith that he had stitches told put her he should mother’s head and wanted to know whether “very support. this made her on life Ms. Smith testified that news On upset felt the defendants. and hurt.” She been lied cross-examination, psycholo- seen a Ms. Smith admitted she had not OF APPEALS

IN THE COURT HOME v. LEN-CARE REST SWANN this emotional distress relating to the severe other doctor gist busy been that she had her. Ms. Smith stated had caused incident had time to and had not father since the incident her mother and herself. treatment for seek evidence, judge granted plaintiff’s the trial of the

At the close negligence and on both the motion for directed verdict Len-Care’s claims. infliction of emotional distress appeals. - Lee, II, Firm, P.A., by C. Leon Law The Lee appellant. *3 Pittman, P.A., by Wayne G. Wishart, Norris, Henninger & Jr., defendant-appellees. Abernathy Joyner, Jim H. and EAGLES,Judge.

[1] We first consider whether the trial court properly granted a negligence claim. “In on the verdict in favor of all defendants directed verdict, plaintiff’s evidence must be ruling on a motion for directed most light viewed in the and all the evidence must be taken as true every inference reasonable him, givinghim the benefit favorable to therefrom, conflicts, contra legitimately be drawn which plaintiff’s favor.” being resolved in dictions, and inconsistences 235, 762, S.E.2d 763 Bumgarner, App. 237 457 v. 119 McMahan a deny if there is more than the motion (1995). The trial court should of the non-movant’s each element scintilla of evidence ordinarily proposition, are general issues case. Id. As a against the summary adjudication either for or susceptible of not court to submit Generally, practice is for the trial the better claimant. notwithstanding the verdict jury judgment and enter the case Phelps Duke support the verdict. v. insufficient to if the evidence is (1985);McMahan v. App. 222, 229, S.E.2d 719 Power, 76 N.C. App. 237-38,457 S.E.2d at 763-64. Bumgarner, 119 N.C. entirely evi- record is devoid argue

Defendants that the have known of the need defendants knew or should dence that the Looking at disagree. 1994. We Mrs. Swann on 31 December restrain plaintiff, Mrs. Swann light favorable to the the evidence in the most prior to the 31 on two occasions had fallen at the defendant’s years was 98 old. The fall. In 1994Mrs. Swann December 1994 when she requested Mrs. Swann be restrained repeatedly up. stand In a 30 lobby in the because of her LEN-CARE REST HOME SWANN v. letter, requested plaintiff June 1994 Dr. Stewart had necessary.” together Taken this evidence is a sufficient “restrained as jury have found that the defendants were basis which the could negligent having in Mrs. Swann restrained at the time of her fall. supporting plaintiff’s negligence claim acknowledge We that evidence overwhelming, especially light of the fact that Len-Care is a is not home; however, nursing rest home and not a there is sufficient evi- jury to.permit Accordingly, dence to decide the issue. we reverse the trial court’s directed verdict and remand for a trial on the negligence issue.

[2] We next consider whether the trial court erred granting plaintiff’s negligent defendant’s directed verdict on the infliction of emotional distress claim. negligent

The three elements for infliction of emotional distress 1) negligently engaged conduct; 2) are: the defendant it was rea- sonably foreseeable that the conduct would cause the severe distress; did, 3) emotional the conduct cause severe emo- Obstetrics, 283, 304, tional distress. Johnson v. Ruark 327 N.C. 97, reh’g denied, S.E.2d A physical impact injury required is not to succeed on a claim for negligent However, infliction of emotional distress. where a defend- ant’s fright act has caused the to suffer mere temporary anxiety amounting distress, to severe emotional *4 plaintiff may prevail. 303-04, Id. at 395 S.E.2d at 97. very argues loving that because Mrs. Swann came from a

family and that the knew or should have this known the promptly give failure to accurate information about the nature and type extent of Mrs. Swann’s would cause this mem- addition, plaintiff ber to suffer from severe emotional distress. any argues though that even Ms. Smith did not receive medical treat- ment, disagree. she still has a claim. We “any

The term “severe emotional distress” means emotional or disorder, as, psychosis, example, neurosis, mental such chronic depression, phobia, any type disabling other of severe and emo- generally recognized tional or mental condition which and diagnosed by professionals Johnson, trained to do so.” 327 N.C. at Sparks, 395 S.E.2d at 97. In Waddle v. did not see a psychiatrist allegedly outrageous after the extreme and conduct was 73, 85, (1992). inflicted her. 331 N.C. 414 S.E.2d The Supreme any held Court that “there is no forecast of medical docu- THE COURT OF APPEALS

IN SWANN v. LEN-CARE REST HOME any plaintiffs nor alleged mentation of severe emotional distress disabling’ psychological other forecast of evidence of ‘severe problems meaning within of the test laid down in Johnson v. Summary judgment was entered for the defendant. Ruark." Id.

Ms. Smith’s emotional distress does meet definition of in and Waddle. Ms. severe emotional distress as defined Johnson night, Smith testified that she did not even after she was asked Mrs. Swann’s doctor if Ms. Smith would autho- grandmother. rize life for her She further admitted that she psychiatrist, doctor, psychologist, had never been to see a or coun- alleged selor for treatment for her severe emotional distress nor had Accordingly, she taken medication to ease her condition. this entry assignment of error is overruled and the trial court’s of directed verdict is affirmed. part part,

Affirmed in reversed in and remanded.

Judge concurs. TIMMONS-GOODSON C., part part.

Judge MARTIN,John concurs in and dissents C., part dissenting part. Judge concurring John Martin, majority opinion portion which affirms I concur with that of the entry respect of a directed verdict in defendant’s favor with Carolyn negligent infliction of emotional distress. Smith’s claim for major- respectfully portion of the However, I must dissent from that entry ity opinion of a directed verdict as to Annie which reverses the negligence. Swann’s claim for asserting negligence proving has the burden of

One a claim for duty care owed to and that such that defendant breached a plaintiff’s injury. proximate cause of Hubbard v. Oil breach was Co., negligence “Just as cannot injury, one’s care inferred from the mere fact of person taker cannot be inferred from the mere fact [his] Inc., injury.” Stacy Construction, care suffers an accidental v. Jedco *5 denied, App. 115, 122, 875, 880, disc. review 119 N.C. 457 S.E.2d The evidence must be sufficient to (1995). 461 S.E.2d 761 possibility and, if speculation, or mere it fails guess, raise more than Trogdon, 249 N.C. so, proper. See Wallv. to do directed verdict is a defendant could “Tohold that evidence that SWANN v. LEN-CARE REST HOME jury, negligent have been is sufficient to to a in the absence of evi- dence, circumstantial, actually direct or that such defendant jury negligent indulge speculation guess- to allow the is Corp., App. 437, 444, work.” Jenkins v. Starrett 186 S.E.2d major- (1972) (emphasis original) (citations omitted). The ity’s permits jury just “speculation holding engage the sort of guesswork” disapproved long-established which has been precedent. majority upon

The relies evidence that Mrs. Swann had fallen on previous year, during preceding two occasions restrained, physician asked that she be and that her had authorized her restraint “as needed” as “a sufficient basis which the have negligent having could found that the defendants were in not major- Mrs. Swann Following restrained the time of her fall.” ity’s they logic, defendants would have been if had not times, contrary restrained at all Mrs. Swann which would have been physician’s expressed during orders and to his wishes as his testimony. my view, evidence,

In even considered in light most fa- plaintiff, showing vorable to contained no whatsoever that on the injury, date of Mrs. Swann’s defendants had reason to know that required safety and, restraint for her own knowledge, such failed event, to restrain her. In the evidence tended to show approximately Mrs. Swann’s restraint was found two feet from her, giving a strong had, rise to inference that she been prior herself, restrained to her fall managed and had to free a fre- quent problem elderly according testimony with the of Mrs. physician. summary, plaintiffs presented essentially no evidence other injured than the fact that Mrs. Swann fell and was while in defend- ants’ care. Defendants’ not be inferred from that showing. Therefore, entry I vote to affirm the trial court’s of a directed verdict in favor of defendants as to all claims.