Sherman Franklin, Jr. v. Durham School Services, L.P.

04/07/2022

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

June 1, 2021 Session

SHERMAN FRANKLIN, JR. v. DURHAM SCHOOL SERVICES, L.P., ET

AL.

Appeal from the Circuit Court for Hamilton County

No. 17C1279 John B. Bennett, Judge

___________________________________

No. E2020-00715-COA-R10-CV

___________________________________

This extraordinary appeal arises from a school bus crash in November 2016, which resulted

in the tragic death of six children attending Woodmore Elementary School in Chattanooga.1

Plaintiff, an educational assistant at Woodmore, sued the employer of the bus driver for,

inter alia, reckless infliction of emotional distress (“RIED”). The educational assistant

alleged that the employer’s failure to address the bus driver’s dangerous driving despite

receiving numerous warnings disregarded the children’s safety, constituted reckless and

outrageous conduct, and caused him serious mental injuries. The trial court denied the

employer’s motion to dismiss the claim, finding that the educational assistant had

sufficiently alleged outrageous conduct on the part of the employer and that he had met all

other pleading requirements to sustain his RIED claim. Employer appeals. Although we

agree with the trial court that the educational assistant sufficiently alleged conduct so

outrageous by the employer that it cannot be tolerated by civilized society, we hold that the

educational assistant is not a person who falls within the reasonably foreseeable scope of

the particular substantial and unjustifiable risk consciously disregarded by the employer

and, therefore, cannot recover under a reckless infliction of emotional distress claim.

Consequently, we reverse the trial court’s finding on this latter issue and remand the case

for dismissal of the action against employer.

Tenn. R. App. P. 10 Extraordinary Appeal; Judgment of the Circuit Court Affirmed

in Part and Reversed in Part; Case Remanded

KRISTI M. DAVIS, J., delivered the opinion of the court, in which D. MICHAEL SWINEY,

C.J., AND THOMAS R. FRIERSON, II, J., joined.

1

By order dated September 11, 2020, this Court consolidated this and four other extraordinary

appeals arising from the same school bus crash for purposes of oral argument. Separate opinions addressing

the other appeals are being filed concurrently with this opinion.

Melissa A. Murphy-Petros, Chicago, Illinois, and Michael R. Campbell, Chattanooga,

Tennessee, for the appellants, Durham School Services, L.P., and National Express, LLC.

Ronald J. Berke, Chattanooga, Tennessee, for the appellee, Sherman Franklin, Jr.

OPINION

FACTS AND PROCEDURAL HISTORY

The underlying facts of this case are widely known and are not in dispute. On

November 21, 2016, school bus driver Johntony Walker lost control of a school bus with

thirty-seven Woodmore students on it, causing the bus to crash and flip over. Six children

lost their lives, and many others were injured. At the time of the crash, Walker was

employed by Durham School Services, L.P., a subsidiary of National Express, LLC

(together, “Durham”), which had a contract with Hamilton County Schools to provide

school bus services. The plaintiff here, Sherman Franklin, Jr., was an educational assistant

at Woodmore. His duties included lining children up to get on the bus, as well as greeting

and checking off children as they got off the bus.

On November 20, 2017, Franklin filed a lawsuit against Durham in the Hamilton

County Circuit Court (“the trial court”), asserting claims for negligent infliction of

emotional distress, intentional infliction of emotional distress, and breach of a promise to

pay for necessary counseling and treatment related to the bus crash based on Walker’s

reckless driving of the school bus.2 Franklin also alleged that Durham was negligent in

hiring, training, supervising, and retaining Walker as a school bus driver.

Durham moved to dismiss the action under Rule 12.02(6) of the Tennessee Rules of

Civil Procedure, arguing that Franklin failed to state a cause of action for negligent

infliction of emotional distress because he had not witnessed the accident and did not have

the requisite close and intimate personal relationship with the deceased children. As to the

claim for intentional infliction of emotional distress, Durham contended that Franklin could

not prevail because its alleged conduct was not outrageous. Lastly, Durham submitted that

it had no legal obligation to pay for counseling and treatment because there was no

consideration for its alleged promise to so do. Durham did not address Franklin’s

allegations of negligent hiring, training, supervision, and retention.

On March 6, 2018, Franklin filed an Amended Complaint, which added several new

paragraphs primarily concerning the nature of Franklin’s relationship with the students

involved in the bus crash and Durham’s knowledge of and failure to address Walker’s

2

Although Franklin’s complaint also named Walker as a defendant, Walker is not a party to this

appeal.

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history of reckless and dangerous driving. For example, Franklin alleged that he “spent as

much or more time with the students during waking hours than the parents did”; that he

“was a surrogate father to many of the students in the bus, including students who were

badly injured and students who died due to the crash”; that he “was at the hospital shortly

after the crash and . . . saw the children severely injured and watched as [sic] at least one

child as he fought for his life, but died”; and that, at the urging of the National

Transportation Safety Board (“NTSB”), he “watched the video of the crash in order to

identify where each kid was seated, [and] saw the children actually being injured and

pinned and trapped on the bus.” As to Walker’s driving, the Amended Complaint stated

that Woodmore teachers, staff, and parents knew about Walker’s reckless driving habits,

which “were frequently reported to Durham who did no investigation and who did

nothing.” Franklin also alleged that Durham “knew or should have known that a crash

involving serious injury and death to the students would have a serious and debilitating

effect on the teachers and staff at the school.”

Two weeks later, Durham renewed its motion to dismiss, restating its original

arguments and also contending that Franklin did not allege in the Amended Complaint a

type of relationship with the students “that falls outside the normal realm of a general staff-

student relationship” so as to support his claim for negligent infliction of emotional

distress. Moreover, Durham argued, there is no legal or factual basis for concluding that a

“good school staff member” automatically becomes a surrogate parent or has a close and

intimate personal relationship of the nature contemplated by the courts when granting relief

for emotional distress. With respect to the new allegations concerning Walker’s frequent

and widely known reckless driving, Durham insisted that such conduct is not sufficiently

outrageous to support a claim for intentional infliction of emotional distress.

Franklin filed a brief opposing the motion to dismiss, emphasizing that Durham’s

“inaction, which they knew could lead to the serious injury and death of a bus load of

children, is so outrageous that it cannot be tolerated by civilized society” and that Durham

“knew or should have known that a crash involving serious injury and death to the students

would have a serious and debilitating effect on the teachers and staff at the school.” In

reply, Durham contended that Franklin’s negligent infliction of emotional distress claim

fails not only because he did not allege the requisite close and intimate personal

relationship with the students, but also because he neither witnessed the bus crash nor the

scene before it was materially altered, as required by our Supreme Court in Ramsey v.

Beavers, 931 S.W.2d 527 (Tenn. 1996) and Eskin v. Bartee, 262 S.W.3d 727 (Tenn. 2008),

respectively.

Over Durham’s objection, the trial court granted Franklin’s motion to amend his

complaint a second time. This Second Amended Complaint, filed on January 30, 2019,

added, inter alia, the following relevant allegations concerning Walker’s repeated driving

misconduct and Durham’s failure to take any action despite having knowledge of the same:

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• That Durham had “received over one thousand notifications from Zonar3 that . . .

Walker was speeding while driving his school bus.”

• That Durham was aware that in August and September of 2016, “Walker was at fault

in two accidents within a period of thirty-four days.”

• That Durham knew “Walker would slam on his brakes to make the children [on the bus]

hit their heads” and “had even seen video where Walker was talking on a telephone

with a blue tooth headset while driving the school bus.”

• That Durham knew “Walker had fallen asleep at the wheel on two occasions.”

• That Durham took no action when “Walker missed five out of five mandatory safety

meetings during his short term of employment with Durham.”

• That five days before the bus crash, on November 16, 2016, Durham received notice

that on that same date, “six students reported that Walker was intentionally swerving

the bus to knock the children out of their seats.”

• That Durham had information from Zonar that on November 16, 2016, Walker “had

twenty five separate speeding incidents . . . [and in] five of the incidents, he was

speeding more than twenty miles over the speed limit.”

• That Durham was in possession of, but failed to review promptly, a twenty-six-minute

video of the November 16, 2016 incident showing “dramatic and intentional attempts

by Walker to throw the children off their seats and injure them,” prior to the bus crash

five days later on November 21, 2016.

• That Durham “had no central place to log complaints which were made by other drivers

or complaints made by the public . . . [and] no central place to record violations of their

own regulations and did not even have a policy on documenting complaints.”

• That Durham “did no investigation of Walker’s speeding events . . . [and] not even an

investigation of Walker’s speeding incident on the dates of his two at-fault accidents.”

• That Durham failed to test Walker for alcohol and controlled substance abuse after his

two at-fault accidents, as required by federal regulations.

• That Durham did not document in its daily log “complaints by parents that were emailed

to [Durham] . . . [nor] put in Walker’s file, and were not even forwarded to a training

or safety supervisor. There was no investigation and no discipline of Walker.”

• That “all of the above cited facts amounted to a reckless indifference to the lives and

safety of the children riding on the buses and to others in the community.”

Franklin later filed a supplemental memorandum of law to elaborate on the RIED

claim and related allegations raised in his Second Amended Complaint. He emphasized

our Supreme Court’s holding in Doe 1 ex rel. Doe 1 v. Roman Catholic Diocese of

Nashville, 154 S.W.3d 22, 38 (Tenn. 2005), that an actionable claim for “reckless infliction

of emotional distress need not be based upon conduct that was directed at a specific person

3

According to the Second Amended Complaint, Zonar “is a company that [Durham] hired to track,

among other things, the path of the buses and the speed of the buses[,]” and it sends “email notifications

not only to the supervisors and management of [Durham] in Chattanooga, but also to [its] corporate offices.”

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or that occurred in the presence of the plaintiff.” The rest of his memorandum restated the

bulk of the allegations made in his Second Amended Complaint.

Durham submitted to the trial court a consolidated supplemental brief in further

support of its renewed motion to dismiss.4 Durham asserted that, concerning RIED claims,

Doe retained a foreseeability requirement by stating that “[t]he reckless tortfeasor will be

liable only to persons who fall within the reasonably foreseeable scope of the particular

substantial and unjustifiable risk consciously disregarded by the tortfeasor.” Id. at 39.

Moreover, Durham contended, it would seem anomalous that a non-bystander, such as

Franklin, could meet the higher burden to recover for reckless infliction of emotional

distress but be denied relief for negligent infliction of emotional distress based on the same

facts. Durham added that the facts alleged by Franklin to show Durham’s negligent

supervision and retention of Walker, even if true, do not amount to extreme and outrageous

conduct.

After a hearing on Durham’s renewed motion to dismiss, the trial court filed a

written order on July 15, 2019. The trial court found that “the allegations in the [Second]

Amended Complaint show a closeness of relationship between the plaintiff and the

children, and a very serious driving problem with Mr. Walker.” The trial court denied

Durham’s motion to dismiss Franklin’s RIED claim, concluding that he satisfied the

claim’s pleading requirements because “(1) the conduct alleged is outrageous as a matter

of law, (2) [Durham] had knowledge prior to the accident that any intentional or reckless

injury done to the children would have an adverse impact on plaintiff’s emotional state;

and (3) the plaintiff otherwise meets the requirements of Doe . . . , and falls within the

reasonably foreseeable scope of persons who could be injured by the particular substantial

and unjustifiable risk consciously disregarded by the tortfeasor.” Franklin’s claim for

negligent infliction of emotional distress was dismissed because he “did not go to the scene

of the accident, and therefore does not satisfy the factors required to proceed with this cause

of action.” Likewise, the trial court dismissed the claim for breach of contract, finding that

Franklin made no allegations with respect to the consideration required to form a contract.

After the trial court denied the parties’ motions for interlocutory appeal under Rule

9 of the Tennessee Rules of Appellate Procedure, Durham applied to this Court for an

extraordinary appeal, see Tenn. R. App. P. 10, which we granted.

ISSUES PRESENTED

Our July 9, 2020 Order granting Durham’s application for an extraordinary appeal

delineates the following issues on appeal:

4

Durham also filed this same consolidated supplemental brief in four separate civil actions

instituted by other Woodmore teachers and staff arising from the same 2016 school bus crash.

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1) Whether Plaintiff’s complaint survives a motion to dismiss by sufficiently

alleging conduct so outrageous that it is not tolerated by civilized society; and

2) Whether Plaintiff’s complaint survives a motion to dismiss by sufficiently

alleging that Plaintiff is a person who falls within the reasonably foreseeable

scope of the particular substantial and unjustifiable risk consciously disregarded

by the tortfeasors.

STANDARD OF REVIEW

In an extraordinary appeal, appellate courts apply the same standard of review that

would have been applied to the issues in an appeal as of right. Chapman v. DaVita, Inc.,

380 S.W.3d 710, 712 (Tenn. 2012); Culbertson v. Culbertson, 455 S.W.3d 107, 124 (Tenn.

Ct. App. 2014). The trial court’s denial of Durham’s motion to dismiss “is a question of

law, which this Court reviews de novo with no presumption of correctness.” See Heaton

v. Mathes, No. E2019-00493-COA-R9-CV, 2020 WL 1652571, at *3 (Tenn. Ct. App. Apr.

3, 2020) (citations omitted). Our Supreme Court has set forth the parameters of our review:

A Rule 12.02(6) motion challenges only the legal sufficiency of the

complaint, not the strength of the plaintiff’s proof or evidence. The

resolution of a 12.02(6) motion to dismiss is determined by an examination

of the pleadings alone. A defendant who files a motion to dismiss admits the

truth of all of the relevant and material allegations contained in the complaint,

but . . . asserts that the allegations fail to establish a cause of action.

In considering a motion to dismiss, courts must construe the complaint

liberally, presuming all factual allegations to be true and giving the plaintiff

the benefit of all reasonable inferences. A trial court should grant a motion

to dismiss only when it appears that the plaintiff can prove no set of facts in

support of the claim that would entitle the plaintiff to relief.

Webb v. Nashville Area Habitat for Human., Inc., 346 S.W.3d 422, 426 (Tenn. 2011)

(cleaned up). However, this Court is “not required to accept as true assertions that are

merely legal arguments or ‘legal conclusions’ couched as facts.” Id. at 427.

ANALYSIS

The overarching issue before us is whether the trial court correctly denied Durham’s

motion to dismiss Franklin’s RIED claim.5 We begin by summarizing the legal principles

5

Intentional infliction of emotional distress and RIED are not different causes of action. Rather,

as our Supreme Court has explained, “intentional infliction of emotional distress can be proven by a

showing of either reckless or intentional behavior.” Rogers v. Louisville Land Co., 367 S.W.3d 196, 205

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governing this cause of action. As stated by our Supreme Court, the required elements of

a RIED claim are: (1) the conduct complained of must have been reckless; (2) the conduct

must have been so outrageous that it is not tolerated by civilized society; and (3) the

conduct complained of must have caused serious mental injury to the plaintiff. Doe, 154

S.W.3d at 41 (citing Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997)); see also Rogers,

367 S.W.3d at 205. In Doe, the Court also held that the plaintiff need not allege that the

reckless conduct of the defendant “was directed at a specific person or that [it] occurred in

the presence of the plaintiff.” 154 S.W.3d at 38–39. The Court explained that the

requirements of the tort itself—a reckless state of mind, outrageous conduct, and serious

mental harm to the plaintiff—“perform an important gate-keeping function for the purposes

of ensuring the reliability of claims and of preventing liability from extending

unreasonably.” Id. at 39. Further, the Court explained that “[t]he reckless tortfeasor will

be liable only to persons who fall within the reasonably foreseeable scope of the particular

substantial and unjustifiable risk consciously disregarded by the tortfeasor.” Id. at 39–40

(citing Tommy’s Elbow Room v. Kavorkian, 727 P.2d 1038, 1044 (Alaska 1986); Public

Fin. Corp. v. Davis, 360 N.E.2d 765, 767 (Ill. 1976); McClenahan v. Cooley, 806 S.W.2d

767, 775–76 (Tenn. 1991)). We now address in turn the two issues presented in this appeal.

I. Outrageous Conduct

In its order denying Durham’s motion to dismiss Franklin’s RIED claim, the trial

court stated that the conduct alleged was “outrageous as a matter of law.” Our Supreme

Court has repeatedly and unwaveringly held that to satisfy the outrageousness element, the

defendant’s alleged conduct must be “so outrageous in character, and so extreme in degree,

as to go beyond all possible bounds of decency and to be regarded as atrocious, and utterly

intolerable in a civilized community.” Medlin v. Allied Inv. Co., 398 S.W.2d 270, 274

(Tenn. 1966) (quoting Restatement (Second) of Torts § 46 cmt. d (1965)); see also Doe,

154 S.W.3d at 39; Lourcey v. Est. of Scarlett, 146 S.W.3d 48, 51 (Tenn. 2004); Miller v.

Willbanks, 8 S.W.3d 607, 614 (Tenn. 1999); Bain v. Wells, 936 S.W.2d 618, 623 (Tenn.

1997); Moorhead v. J. C. Penney Co., 555 S.W.2d 713, 717 (Tenn. 1977). Put another

way: “Generally, the case is one in which the recitation of the facts to an average member

of the community would arouse his resentment against the actor, and lead him to exclaim,

‘Outrageous.’” Restatement (Second) of Torts § 46 cmt. d. By contrast, conduct consisting

of ‘“mere insults, indignities, threats, annoyances, petty oppression, or other trivialities”’

is not sufficient to support liability under this tort. Medlin, 398 S.W.2d at 274 (citation

omitted). Given this high threshold, courts have a duty to determine in the first instance

“whether the defendant’s conduct may reasonably be regarded as so extreme and

outrageous as to permit recovery.” Id. at 275 (citation omitted).

n.6 (Tenn. 2012) (citations omitted). We refer to Franklin’s claim as RIED throughout this opinion because

it is undisputed that Durham’s allegedly tortious conduct was not intentional. Accord Doe, 154 S.W.3d at

41.

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We have no difficulty concluding that Durham’s alleged conduct, or rather complete

lack of action, was outrageous. Walker had only been employed by Durham as a bus driver

for four months prior to the accident, but his tenure was littered with examples of

unbelievably dangerous conduct about which Durham allegedly did nothing. According

to Franklin, months prior to the November 2016 crash, Durham was aware that Walker was

at fault in two motor vehicle accidents in August and September 2016, respectively; that

Walker had fallen asleep at the wheel at least twice; that he would slam on the brakes to

make the students on the bus hit their heads; and that he had missed every single mandatory

safety meeting during his employment with Durham. In addition, Zonar, the company

engaged by Durham to monitor its drivers’ speeding practices, had notified Durham that

Walker had been speeding more than one thousand times while driving the school bus. In

fact, Zonar notified Durham that on November 16, 2016, five days prior to the deadly crash,

it had registered twenty five separate speeding incidents, with Walker going more than

twenty miles per hour over the speed limit in five of them. Franklin alleges that Durham

did nothing with this information. Specifically, Durham did not test Walker for alcohol

and controlled substance abuse after his two at-fault accidents, as required by federal

regulations; it did not investigate Walker’s repeated speeding events, not even those that

occurred on the dates of his two at-fault accidents; and it had no system to log and address

complaints made about its drivers or violations of its own regulations.

Durham argues its conduct was not outrageous because “[t]he outrageous conduct

requirement is a high standard which has consistently been regarded as a significant

limitation on recovery,” Doe, 154 S.W.3d at 39, and because the allegations made by

Franklin “are not dissimilar from those commonly made against transportation service

providers whose employees are alleged to have caused fatal accidents” and amount to no

more than ‘“[p]oor management [and] deviations from business practices,”’ see Rhodes v.

Bates Rubber, Inc., No. 1:19-cv-01030-STA-jay, 2019 WL 2723237, at *5 (W.D. Tenn.

June 27, 2019). Such allegations, Durham posits, are not “unusual” enough to state a claim

for reckless infliction of emotional distress.

Durham’s reliance on Rhodes is misplaced. In that case, the plaintiff asserted an

intentional infliction of emotional distress claim based on age discrimination by his former

employer. Id. at *1. The plaintiff alleged that his direct supervisor “demeaned him by

using condescending language . . . and by calling him patronizing names during discussions

with other plant employees” and that the supervisor “used [a] supposed violation of

company policy as a pretext to terminate [the plaintiff’s] employment.” Id. at *4. The

federal district court determined that in Tennessee, “malice and bad intent simply do not

suffice to show that a person’s actions” satisfy the outrageous conduct requirement. Id. at

*6. As that court noted, ‘“mere insults, indignities, threats, annoyances, petty oppression

or other trivialities’ cannot constitute outrageous conduct.” Id. at *4 (quoting Bain, 936

S.W.2d at 622). Respectfully, the allegations made by the plaintiff in Rhodes are not

remotely within the same universe as those made by Franklin. While the conduct of the

supervisor in Rhodes is certainly not appropriate workplace demeanor and may have

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unfairly—even discriminatorily—caused the plaintiff to lose his employment, id., that

conduct never created or ignored a risk of serious physical harm to individuals placed under

the employer’s care. We find that the allegations in the present case are not analogous to

those in “a run-of-the-mill wrongful termination or disparate treatment case.” Id. at *5.

Rhodes is inapposite here.

Durham also submits that “if even criminal intent or malicious intent is insufficient

to sustain an intentional or reckless infliction of emotional distress claim, the common

allegations of mismanagement and recklessness made here against Durham will not do.”

Franklin’s allegations are not common allegations of mismanagement. They are

allegations of severe and extreme reckless disregard for unbelievably dangerous behavior.

Durham seemingly conflates the first element of a RIED claim (i.e., the tortfeasor’s state

of mind while engaging in the conduct at issue) with the second (i.e., the conduct’s

outrageous character and extreme degree). This argument is unavailing.

Durham also calls our attention to two emotional distress cases based on intentional

acts of the defendant as examples of the type of “exceptional” conduct that may qualify as

outrageous and to show why its own conduct does not rise to that level. See Lourcey, 146

S.W.3d at 52 (where defendant estate’s decedent instructed plaintiff to call 911 because

wife was having a seizure and then proceeded to shoot both wife and himself in the head

in the presence of plaintiff); Levy v. Franks, 159 S.W.3d 66, 84 (Tenn. Ct. App. 2004)

(where defendant made death threats and fired shots near plaintiff’s home). Again,

Durham’s argument is misplaced. First, both cases involved intentional conduct directed

at the plaintiffs; here, we are dealing with Durham’s recklessness. In Lourcey, the

decedent’s intentional conduct posed a substantial risk of emotional harm to plaintiff; here,

Durham’s reckless conduct ignored a substantial risk of both emotional and physical harm.

Contrary to Durham’s argument, its alleged conduct is on par with that of the tortfeasors

in Lourcey and Levy.

Durham points out that the element of outrageous conduct “is an exacting standard”

meant to filter out “fraudulent and trivial claims.” Miller, 8 S.W.3d at 614. We agree.

There is no indication in this record that Franklin’s claims are fraudulent—and they are

certainly not trivial. The allegations here are not simply of poor management or deviation

from business practices commonly alleged by plaintiffs against transportation service

providers. We hold that a jury could reasonably conclude that Durham’s conduct,

“considered as a whole, was extreme, outrageous and intolerable in present day society.”

Moorhead, 555 S.W.2d at 717.

The factual allegations in Franklin’s pleadings are sufficient to satisfy the

outrageous conduct element of a RIED claim. Franklin alleges that Durham was aware of,

but chose to ignore, a plethora of incidents indicating that the on-the-job conduct of one of

its employees, Walker, presented an imminent risk of serious harm to the students.

Inexplicably, Durham allowed Walker to continue driving a school bus full of elementary

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school children, despite having received multiple warnings of Walker’s dangerous

behavior. Six children were killed and scores of others were injured. The trial court

correctly concluded that the plaintiff sufficiently alleged the element of outrageous

conduct.

II. Reasonably Foreseeable Scope of the Risk

With respect to the second issue for review, the trial court found that Franklin’s

“allegations in the [Second] Amended Complaint show a closeness of relationship between

the plaintiff and the children.” The trial court’s order also stated that Durham “had

knowledge prior to the accident that any intentional or reckless injury done to the children

would have an adverse impact on plaintiff’s emotional state,” that Franklin “otherwise

meets the requirements of Doe,” and that he “falls within the reasonably foreseeable scope

of persons who could be injured by the particular substantial and unjustifiable risk[]

consciously disregarded by the tortfeasor.”

A brief review of the facts in Doe is instructive. The plaintiffs in that case had been

sexually molested as minor boys by a priest formerly employed by the Roman Catholic

Diocese of Nashville. Id. at 24–30. They sued the Diocese for reckless infliction of

emotional distress, alleging that—despite being fully aware that the former priest had a

long history of sexually molesting numerous boys—the Diocese recklessly permitted the

priest to have continued access to male minors, including plaintiffs, through Diocese-

related activities and events for more than two decades. Id. This Court affirmed the trial

court’s grant of summary judgment in favor of the Diocese, concluding that a reckless

infliction of emotional distress claim must be based on conduct that was directed at the

plaintiff. Id. at 31. Our Supreme Court, however, reversed and held that “to be actionable,

reckless infliction of emotional distress need not be based upon conduct that was directed

at a specific person or that occurred in the presence of the plaintiff.” Id. at 24. The Court

reasoned that “the directed-at requirement is incompatible with the concept of recklessness

insofar as reckless misconduct has a general or random quality.” Id. at 39 (citations

omitted). Having set aside the directed-at requirement, the Court explained that “[t]he

elements of intentional and reckless infliction of emotional distress themselves perform an

important gatekeeping function for the purposes of ensuring the reliability of claims and of

preventing liability from extending unreasonably.” Id. In this context, the Court

specifically stated that a “reckless tortfeasor will be liable only to persons who fall within

the reasonably foreseeable scope of the particular substantial and unjustifiable risk

consciously disregarded by the tortfeasor.” Id. at 39–40 (citations omitted) (emphasis

added).

Here, Durham acknowledges that under Doe, “a claim of reckless infliction of

emotional distress need not be based upon conduct that was directed at a specific person or

that occurred in the presence of the plaintiff.” 154 S.W.3d at 38–39. Durham argues,

however, that the plaintiff does not fall within the reasonably foreseeable scope of the risk

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consciously disregarded by the tortfeasor. Durham argues that the following factors are

probative on this issue: whether the plaintiff witnessed the injury-producing accident;

whether the plaintiff went to the scene of the accident before it was materially altered; and

whether the plaintiff had a close and intimate personal relationship with the accident’s

victims. Durham submits that neither the trial court nor Franklin has explained how an

educational assistant who never visited the scene of the bus crash falls within the

reasonably foreseeable scope. We agree with Durham.

Although Tennessee appellate courts had not specifically articulated the “reasonably

foreseeable scope” constraint on recovery until Doe, this limitation is consistent with our

Supreme Court’s recognition that the requirements of a RIED claim must “perform an

important gate-keeping function for the purposes of ensuring the reliability of claims and

of preventing liability from extending unreasonably.” Id. at 39. Our task here then, as

recognized in the order granting this Rule 10 extraordinary appeal, is to determine whether

Franklin sufficiently alleged that he is a person who falls within the reasonably foreseeable

scope of the particular substantial and unjustifiable risk consciously disregarded by

Durham.6 In other words, did Franklin sufficiently allege that he was among the class of

persons for whom there was a high degree of probability that severe emotional distress

would follow after the bus crash? See id. at 39–40 (citing Tommy’s Elbow Room v.

Kavorkian, 727 P.2d 1038, 1044 (Alaska 1986); Public Fin. Corp. v. Davis, 360 N.E.2d

765, 767 (Ill. 1976)).

We acknowledge that neither our Supreme Court nor this Court has outlined the

parameters of the inquiry to determine whether a person falls within the reasonably

foreseeable scope of plaintiffs in a RIED claim. Appellate court opinions subsequent to

Doe did not need to address whether the plaintiffs had met the “reasonably foreseeable

scope” requirement because, generally, the plaintiff was either a person immediately

subject to the defendant’s outrageous conduct or a family member of that person. See, e.g.,

Rogers, 367 S.W.3d at 211 (after cemetery became overgrown and ill-maintained, mother

sued cemetery where son had been buried); Lourcey, 146 S.W.3d at 49–50 (defendant

purposely shot his wife and then himself in the plaintiff’s presence); Harris v. Horton, 341

S.W.3d 264, 266 (Tenn. Ct. App. 2009) (mother and sister of man who died in a motor

vehicle accident sued paramedic who circulated photos of the accident scene and

decedent’s corpse at a driver’s education class). The circumstances in those cases leave

little doubt that the plaintiffs were persons who fell within the reasonably foreseeable scope

of the particular substantial and unjustifiable risk consciously disregarded by the

defendants.

Our Supreme Court’s jurisprudence concerning the role of foreseeability in the

6

Although the Court specifically identified the issue of whether plaintiff falls within the reasonably

foreseeable scope in the order granting Durham’s Rule 10 application for extraordinary appeal, Franklin

did not argue this issue in his brief.

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related claim of negligent infliction of emotional distress (“NIED”) is instructive. In

Ramsey, a son sued for NIED after he witnessed a vehicle strike and kill his mother when

she got out of the car to check the mail at the son’s driveway while he remained seated

inside the car. 931 S.W.2d at 528. The son remained in the car as the accident occurred.

Id. The Court of Appeals affirmed the trial court’s grant of summary judgment in favor of

the defendant on the basis of plaintiff’s failure to demonstrate that “his claim relate[d] to

fear for his own safety and not for that of his mother.” Id. at 529. The Supreme Court

reversed and allowed the claim to proceed, holding that to recover for emotional injuries

sustained as a result of death or injury of a third person, as Franklin seeks to do here, a

plaintiff must show that the emotional injuries were a foreseeable result of the defendant’s

negligence. Id. at 531. This inquiry “requires consideration of a number of relevant

factors,” including the plaintiff’s awareness of the event or accident and plaintiff’s physical

location at the time of the event or accident, the degree of injury to the third person, and

the plaintiff’s relationship to the injured third party. Id. at 531–32; see also Lourcey, 146

S.W.3d at 52–53 (applying these foreseeability factors). Importantly, the Lourcey Court

underscored: “Although we discussed several considerations in analyzing foreseeability in

Ramsey, including the plaintiff’s relationship to the injured party, we did not hold that the

plaintiff’s relationship to the injured party was itself an element for stating or establishing

a claim for negligent infliction of emotional distress.” Lourcey, 146 S.W.3d at 53 (citing

Ramsey, 931 S.W.2d at 531).

Subsequently, in Eskin v. Bartee, 262 S.W.3d 727, 738 (Tenn. 2008), the Court

allowed “a mother who observed her young child lying unconscious in a pool of blood in

his school’s driveway minutes after he had been struck by an automobile” to pursue a NIED

claim. The Court held that recovery was permissible for “plaintiffs who have a close

personal relationship with an injured party and . . . arrive at the scene of the accident while

the scene is in essentially the same condition it was in immediately after the accident.” Id.

(emphasis added). The Court explained that its holding was partly grounded on the Court’s

historical recognition “that it is easily foreseeable that persons who have a close personal

relationship with an injured party will suffer serious or severe emotional distress when they

see someone ‘near and dear’ to them injured.” Id. (citing Ramsey, 931 S.W.2d at 529;

Shelton v. Russell Pipe & Foundry Co., 570 S.W.2d 861, 866 (Tenn. 1978)). The Court

also noted that “[w]hile a parent-child relationship, a spousal relationship, a sibling

relationship, or the relationship among immediate family members provides sufficient

basis for a claim, other intimate relationships such as engaged parties or step-parents and

step-children will also suffice.” Id. at 740 (emphasis added). Under the combined

precedent of Ramsey, Lourcey, and Eskin, although a plaintiff’s relationship to the injured

third party is not an element of a NIED claim, it remains a relevant factor in determining

the foreseeability of emotional injuries to the plaintiff. In addition, while Eskin made clear

that close personal relationships bearing on foreseeability are not limited to relationships

shared by immediate family members, the “other intimate relationships” referenced in the

opinion (i.e., “relationships such as engaged parties or step-parents and step-children”)

contemplate circumstances where plaintiffs had become or clearly intended to enter into a

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familial type of relationship with the injured third party by the time the injury occurred.

We discern no logical basis for applying a different approach to determine whether a

plaintiff falls within the reasonably foreseeable scope in a RIED claim.

Our careful consideration of the facts alleged in the pleadings, in light of the

foreseeability principles discussed above and giving Franklin the benefit of all reasonable

inferences, leads us to conclude that he does not fall within the class of persons for whom

there was a high degree of probability that severe emotional distress would follow after the

bus crash. To begin with, Franklin was not the immediate subject of Durham’s reckless

and outrageous conduct. Durham’s decision to disregard the multiple and repeated

warnings it received concerning Walker’s dangerous driving subjected the children on

Walker’s bus, not Franklin, to a substantial and unjustifiable risk of serious physical and

emotional harm. Next, Franklin was neither aware of the fatal accident nor in physical

proximity to the accident at the time it occurred. Indeed, he never was at the scene of the

accident. Franklin “went home after school the day of the crash and then learned about the

crash” before visiting the hospital where he saw an injured child die. He also watched

footage of the crash from cameras inside the bus at the request of the NTSB. But visiting

the hospital or watching the footage after having notice of what had occurred, precisely for

the purpose of identifying injured or deceased children, does not bring Franklin within the

reasonably foreseeable class of persons who were placed at a substantial and unjustifiable

risk of emotional distress. With respect to the foreseeability analysis, our Supreme Court

has noted that “[o]bviously, it is more foreseeable that one witnessing or having a sensory

observation of the event will suffer effects from it,” explaining:

The impact of personally observing the injury-producing event in most,

although concededly not all, cases distinguishes the plaintiff’s resultant

emotional distress from the emotion felt when one learns of the injury or

death of a loved one from another, or observes pain and suffering but not the

traumatic cause of the injury.

Ramsey, 931 S.W.2d at 531 (quoting Thing v. La Chusa, 771 P.2d 814, 828 (Cal. 1989));

see also Eskin, 262 S.W.3d at 738 (holding that “plaintiffs who have a close personal

relationship with an injured party and who arrive at the scene of the accident while the

scene is in essentially the same condition it was in immediately after the accident” may

recover for emotional distress); Lourcey, 146 S.W.3d at 55 (holding that the plaintiff could

survive a Rule 12.02(6) motion to dismiss because she witnessed the defendant shooting

his wife and himself, even though the plaintiff was not related to the defendant or his wife).

Importantly, Franklin did not share a familial type of relationship with any of the

injured and deceased children. See Ramsey, 931 S.W.2d at 528; Eskin, 262 S.W.3d at 738.

While it would be foreseeable that Woodmore classmates, teachers, and staff members,

like Franklin, as well as neighbors, acquaintances, and persons in multiple other categories

would be impacted by the tragic losses from the bus crash, Franklin is not a person who

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falls within the reasonably foreseeable scope of the risk disregarded by Durham. His

relationship with the children is simply too attenuated. Franklin alleges that he spent “as

much or more time with the students during waking hours than the parents did,” but the

same allegation could be made by anyone who attended or worked at Woodmore. Indeed,

almost every elementary school teacher and student could make the same allegation

concerning students in their classrooms. Employees in an office with typical business

hours could allege the same with respect to their co-workers. Further, Franklin’s

conclusory allegation that he became “a surrogate father to many of the students in the bus,

including students who were badly injured and students who died due to the crash,” was

not made as to any child in particular. Deeming Franklin a foreseeable RIED plaintiff

under these circumstances would expand the universe of potential plaintiffs in such cases

far beyond the appropriate scope of the tort. In limiting recovery for RIED to persons

falling within the reasonably foreseeable scope of the risk disregarded by the tortfeasor,

our Supreme Court implicitly held that there are boundaries to the class of persons who

might recover under that cause of action. Franklin falls outside those boundaries. We hold

that he is not, as a matter of law, a reasonably foreseeable plaintiff under the facts of this

case.

In reaching this holding, we are aware of the Supreme Court’s pronouncement that

“reckless infliction of emotional distress need not be based upon conduct that was directed

at a specific person or that occurred in the presence of the plaintiff.” Doe, 154 S.W.3d at

38–39. Our holding is not predicated on the fact that Durham’s outrageous disregard for

the safety of the children was not directed at Franklin or that such disregard did not occur

in his presence. Rather, our holding is based upon our determination that Franklin is not a

reasonably foreseeable plaintiff in this case. We reverse the trial court’s judgment as to

the second issue in this appeal.

CONCLUSION

We affirm the judgment of the Hamilton County Circuit Court concluding that

Franklin sufficiently alleged outrageous conduct on the part of Durham but reverse its

judgment that Franklin sufficiently alleged he falls within the reasonably foreseeable scope

of the particular substantial and unjustifiable risk consciously disregarded by Durham.

Accordingly, we remand for entry of an order granting Durham’s motion to dismiss for

failure to state a claim upon which relief can be granted. Costs of this appeal are taxed

equally between appellants and appellee, for which execution may issue if necessary.

_________________________________

KRISTI M. DAVIS, JUDGE

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