Brenda Cothran Et Al. v. Durham School Services, L.P., Et Al.

Nashville, TN - Personal Injury lawyer represented Plaintiff with suing the employer of the bus driver for negligent infliction of emotional distress and reckless infliction of emotional distress

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, Brenda Cothran, was the school principal at

Woodmore.

On November 21, 2017, Cothran filed a lawsuit against Durham in the Hamilton

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

emotional distress, reckless 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

Specifically, she alleged that—within minutes of the bus

crash—she was notified of the accident and rushed to the scene, where she saw the bus

flipped over and children lying on the grass or wandering around the bus, some of whom

were injured. She then went to the hospital to help identify injured and deceased children

and to comfort the children's families and Woodmore staff. Additionally, Cothran asserts

that Durham was negligent in hiring, training, supervising, and retaining Walker as a school

bus driver. The complaint also includes a loss of consortium claim asserted by Cothran's

husband, Harold D. Cothran, Jr.3

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

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

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

the requisite close and intimate personal relationship with the deceased children. Although

she went to the scene shortly after the bus crash had occurred, Durham urged the trial court

to distinguish between a bystander who observed an accident occur and non-bystander

who, like Cothran, "after learning of the accident through an indirect means, voluntarily

involves herself in the situation.” As to the claim for reckless infliction of emotional

distress, Durham contended that Cothran could not prevail because its alleged conduct was



2 Although Cothran's complaint also named Walker as a defendant, Walker is not a party to this

appeal.

3 The parties raise no issues on appeal as to this claim.

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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 Cothran's allegations of its negligent hiring, training,

supervision, and retention of Walker.

4

On May 22, 2018, Cothran filed an Amended Complaint, which added several new

paragraphs primarily concerning the nature of her relationship with the students involved

in the bus crash and Durham's knowledge of and failure to address Walker's dangerous

driving. For example, Cothran alleged that she "would often spend more time with and in

the presence of the children than did their own parents” and that she "was, in many ways,

in loco parentis with the injured and deceased children on a daily basis.” As to Walker's

driving, the Amended Complaint stated that after being notified of Walker's reckless

behavior by the Hamilton County School system, Durham "failed to take action to correct

Walker's reckless and dangerous behavior or to discharge him from his duties as a school

bus driver.” Cothran also alleged that Durham "kn[ew] or should have known that if there

was a school bus accident, there was a high probability that not only children and their

parents would be adversely affected, but also teachers and staff of their schools would be

adversely affected as well.”

On June 28, 2018, Durham renewed its motion to dismiss, restating its original

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

type of relationship with the students "that falls outside the normal realm of a general staffstudent relationship” so as to support her 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 holds in loco parentis status 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 reckless infliction of emotional distress.

Cothran filed a brief opposing the motion to dismiss, asserting that her case presents

all the elements required to proceed on a NIED claim in Tennessee because she had a

relationship with the students that were injured and killed and saw their serious and fatal

injuries at the crash scene within minutes after it occurred. As to the RIED claim, Cothran

emphasized 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



4

It appears from the record that the parties and the trial court did not treat these allegations as an

independent cause of action. See Heflin v. Iberiabank Corp., 571 S.W.3d 727, 737 (Tenn. Ct. App. 2018)

("A plaintiff in Tennessee may recover for negligent hiring, supervision, or retention of an employee if he

establishes, in addition to the elements of a negligence claim, that the employer had knowledge of the

employee's unfitness for the job.”). In any event, this is not an issue on appeal.

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staff at the school.” In reply, Durham contended that Cothran's negligent infliction of

emotional distress claim fails not only because she voluntarily went to the scene of the bus

crash with full knowledge that the event had occurred, but also because she failed to allege

the requisite close and intimate personal relationship with the students, as required by Eskin

v. Bartee, 262 S.W.3d 727 (Tenn. 2008), for non-bystander NIED claims.

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

support of its renewed motion to dismiss.5

Durham asserted that, in the context of a NIED

claim, the Eskin Court limited the realm of potential non-bystander NIED claimants to

family members or those with pseudo-familial relationships, such as step-parents and stepchildren. Durham also contended that because Cothran voluntarily decided to rush to the

scene after becoming aware of the seriousness of the bus crash, she is different from a

plaintiff who is impacted by personally observing the injury producing event, see Ramsey

v. Beavers, 931 S.W.2d 527, 531 (Tenn. 1996), and cannot recover. With respect to the

RIED claim, Durham argued that under our Supreme Court's jurisprudence, the claim has

a foreseeability requirement that Cothran does not satisfy. See Doe 1 ex rel. Doe 1 v.

Roman Cath. Diocese of Nashville, 154 S.W.3d 22, 39 (Tenn. 2005) (emphasis added)

("The 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.”). Durham added that the facts alleged by Cothran 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 September 17, 2019. The trial court denied the motion as to the NIED

claim, finding that "the allegations in the Amended Complaint show that plaintiff satisfies

the 'closeness of relationship' and 'proximity' requirements of a negligent infliction of

emotional distress claim.” The trial court also denied Durham's motion to dismiss

Cothran's RIED claim, concluding that she 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.” The trial court dismissed the claim for breach

of contract, finding that Cothran made no allegations with respect to the consideration

required to form a contract.

After the trial court denied Durham's motion for interlocutory appeal under Rule 9

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



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

ISSUES PRESENTED

Our November 17, 2020 Order granting Durham's application for an extraordinary

appeal delineates the following issues on appeal:

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

alleging a prima facie claim for negligent infliction of emotional distress;

2) Whether Plaintiff's complaint survives a motion to dismiss on the reckless

infliction of emotional distress claims by sufficiently alleging conduct so

outrageous that it is not tolerated by civilized society; and

3) Whether Plaintiff's complaint survives a motion to dismiss on the reckless

infliction of emotional distress claim 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)

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(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

I. Negligent Infliction of Emotional Distress

We first consider whether the trial court correctly denied Durham's motion to

dismiss Cothran's NIED claim. Generally, to state a prima facie claim for NIED, a plaintiff

must allege '"the elements of a general negligence claim, which are duty, breach of duty,

injury or loss, causation in fact, and proximate causation[;] . . . [and] that the defendant's

negligence caused the plaintiff 'serious or severe emotional injury.''” Pagliara v. Moses,

605 S.W.3d 619, 629 (Tenn. Ct. App. 2020), appeal denied (June 4, 2020) (quoting Rogers

v. Louisville Land Co., 367 S.W.3d 196, 206 (Tenn. 2012)). Our Supreme Court, however,

has more specifically defined the elements of this tort when plaintiffs did not witness the

actual event giving rise to their NIED claims:

When a plaintiff did not witness the injury-producing event, the cause of

action for negligent infliction of emotional distress requires proof of the

following elements: (1) the actual or apparent death or serious physical injury

of another caused by the defendant's negligence, (2) the existence of a close

and intimate personal relationship between the plaintiff and the deceased or

injured person, (3) the plaintiff's observation of the actual or apparent death

or serious physical injury at the scene of the accident before the scene has

been materially altered, and (4) the resulting serious or severe emotional

injury to the plaintiff caused by the observation of the death or injury. In

reaching this conclusion, we do not intend to overrule our holdings in

Camper v. Minor or Lourcey v. Estate of Scarlett that plaintiffs who witness

the injury-producing event may recover without demonstrating the existence

of a close and intimate personal relationship with the deceased or injured

person.

Eskin, 262 S.W.3d at 739-40; see also Garrison v. Bickford, No. E2010-02008-COA-R9-

CV, 2011 WL 3241869, at *6 (Tenn. Ct. App. July 29, 2011). In Eskin, 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.

at 738 (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

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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). The close and intimate

personal relationships required for a NIED claim to be viable are not limited to

relationships shared by immediate family members; however, the "other intimate

relationships” referenced in the opinion (i.e., "relationships such as engaged parties or stepparents and step-children”) contemplate circumstances where plaintiffs had become or

clearly intended to enter into a familial type of relationship with the injured third party by

the time the injury occurred. Importantly, the Court expressly differentiated cases where

plaintiffs "witness the injury producing event” from those who do not but arrive "before

the scene has been materially altered.” Id. at 739-40. The former need not demonstrate

the existence of a close and intimate personal relationship with the injured or deceased

individuals; the latter, however, must establish the existence of such a relationship.

At issue here are the second and third requirements set forth in Eskin. The trial court

concluded that Cothran satisfied the claim's "closeness of relationship” and "proximity”

requirements because she alleged that she was "in loco parentis with the injured and

deceased children” and that she "went to the scene of the accident.” Durham asserts that

the trial court erred for two reasons. Durham first argues that Cothran did not allege the

type of close and intimate personal relationship with the children that would allow

recovery. Durham then insists that this Court should hold that a plaintiff who voluntarily

goes to an accident scene after having notice of the accident may not recover for emotional

distress. To be sure, Cothran alleges the type of NIED claim governed by Eskin. Unlike

the plaintiffs in many of the cases cited in her appellate brief, Cothran did not witness the

bus crash, was not involved in it, and was not anywhere nearby at the time it occurred. See,

e.g., Lourcey v. Est. of Scarlett, 146 S.W.3d 48, 51 (Tenn. 2004) (estate's decedent

instructed plaintiff to call 911 because wife was having a seizure and then shot himself and

his wife in the plaintiff's presence); Ramsey, 931 S.W.2d at 528 (plaintiff, while seated in

a car, witnessed his mother being struck by defendant's vehicle when the mother got out

of the car to check the mail); Camper v. Minor, 915 S.W.2d 437, 439 (Tenn. 1996) (plaintiff

was driving the truck that collided with the victim's vehicle after the victim suddenly pulled

out in front of the truck, and plaintiff viewed the victim's dead body "moments after the

crash . . . in the wreckage from close range”). To the contrary, as the mother in Eskin,

Cothran arrived at the scene after the injury-producing event had occurred.

Our careful consideration of the applicable legal principles leads us to conclude that

Cothran did not allege, as a matter of law, a close and intimate personal relationship with

the injured and deceased students that would allow recovery under a NIED claim. Eskin

allows recovery by plaintiffs who do not witness the injury-producing event giving rise to

a NIED claim, in part, because "it is easily foreseeable that persons who have a close

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

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when they see someone 'near and dear' to them injured.” 262 S.W.3d at 738. While it was

foreseeable that Woodmore classmates, teachers, and staff members, like Cothran, as well

as neighbors, acquaintances, and persons in multiple other categories would be impacted

by the tragic losses from the bus crash, Cothran does not allege facts that would make her

relationship with the students the type of close and intimate personal relationship required

for recovery. Her relationship with the children is simply too attenuated. Cothran alleges

that she "would often spend more time with and in the presence of the children than did

their own parents,” 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,

Cothran's conclusory allegation that she "was, in many ways, in loco parentis with the

injured and deceased children,” was not made as to any child in particular. Cothran's

proposed application of a NIED claim governed by Eskin, under the instant circumstances,

would expand the universe of potential plaintiffs in such cases far beyond the appropriate

scope of the tort.

Because Cothran failed to state a prima facie NIED claim, we need not reach

Durham's second contention concerning plaintiffs who voluntarily go to an accident scene

after having notice of the accident. The trial court erred in denying Durham's motion to

dismiss Cothran's NIED claim.

II. Reckless Infliction of Emotional Distress

The second and third issue before us concern whether the trial court correctly denied

Durham's motion to dismiss Cothran's RIED claim.6

We begin by summarizing the legal

principles 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



6 Our Supreme Court has explained, "intentional infliction of emotional distress can be proven by

a showing of either reckless or intentional behavior.” Rogers, 367 S.W.3d at 205 n.6 (citations omitted).

We refer to Cothran'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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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 each issue in turn.

A. Outrageous Conduct

In its order denying Durham's motion to dismiss Cothran's RIED claim, the trial

court stated that Durham's alleged conduct 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, 146 S.W.3d at 51; 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).

In her Amended Complaint, Cothran alleged that Durham's failure to discharge its

"duties and obligations in a careful manner,” so as to keep the students safe, constitutes

outrageous conduct. Cothran further alleged that Hamilton County Schools reported her

complaints about Walker's driving to Durham and that Durham's failure "to take corrective

action when notified of Walker's egregious behavior is not only negligent, but so

outrageous that it cannot be tolerated in a civilized society.” Finally, Cothran averred that

Walker was using his cell phone at the time of the bus crash and that Durham "failed to

train or take such action as would have prohibited Walker from use of a cell phone while

driving a school bus.”

Durham concedes on appeal that Cothran alleged reckless conduct on its part, but it

asserts that the alleged conduct is neither extreme nor outrageous, as required by governing

law. Durham notes that "[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 argues that Cothran failed to meet that standard because her allegations "are not

dissimilar from those commonly made against transportation service providers whose

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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 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 the record before the Court that Cothran's claims are fraudulent—

and they are certainly not trivial.

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). While we agree

with Durham that the conduct of the defendants in Lourcey and Levy, respectively,

exemplifies actions that are extreme and outrageous, we find those cases inapposite here.

Both cases involved intentional conduct directed at the plaintiffs; here, we are dealing with

reckless conduct. Moreover, 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 emotional and physical harm.

In the other related cases addressing whether Durham's conduct was outrageous,

the plaintiffs amended their complaints to provide detailed allegations regarding the bus

driver's egregious behavior including prior accidents, prior records of speeding, and prior

behavior aimed at injuring the children. Cothran, however, never made such detailed

allegations. Rather, she made general allegations about Durham's failure to fulfill its

obligation to keep the students safe and to address Walker's behavior. These allegations,

without more, do not meet the high standard for alleging outrageous conduct required by

our Supreme Court. Nor does Cothran's allegation that Walker was using his cell phone

at the time of the accident render Durham's conduct outrageous. She does not state how

Durham failed keep the students safe or what it knew about Walker's driving conduct and

when it knew it with any degree of specificity. Cothran only allegesthe statutory violations

commonly alleged in personal injury cases and lacks the detail provided by other plaintiffs

to support the outrageous conduct element.

7

We cannot write the plaintiff's complaint for

her, nor can we import allegations made by other plaintiffs into Cothran's claims. Under

these circumstances, we are unable to conclude that Cothran's allegations show that



7 Cothran alleges that Durham should be imputed with Walker's negligence per se in violating

Tennessee Code Annotated sections 55-8-115, -120, -123, -136, -152, -153 and 55-10-205.

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Durham's actions went beyond poor management and amount to conduct "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, 398 S.W.2d at 274. The trial

court erred in finding that Cothran sufficiently alleged the element of outrageous conduct.

B. Reasonably Foreseeable Scope of the Risk

With respect to this issue, the trial court found 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” and that she "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 Dioceserelated 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

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

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

victims. Durham submits that neither the trial court nor Cothran has explained how a

school principal who voluntarily visited the scene of the bus crash after receiving notice

that it had occurred 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

Cothran sufficiently alleged that she is a person who falls within the reasonably foreseeable

scope of the particular substantial and unjustifiable risk consciously disregarded by

Durham.

8

In other words, did Cothran sufficiently allege that she 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

related claim of negligent infliction of emotional distress 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.



8 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, Cothran did

not argue this issue in her brief.

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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 Cothran 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, as we stated above in addressing Cothran's NIED claim, the Court's

decision to allow recovery by a mother who did not witness the injury-causing accident in

Eskin was partly based on a 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.” 262 S.W.3d

at 738 (citing Ramsey, 931 S.W.2d at 529; Shelton, 570 S.W.2d at 866). We discern no

logical basis for applying a different approach than that used in a NIED claim to determine

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

Having thoroughly reviewed the facts alleged in the pleadings, in light of the

foregoing foreseeability principles and giving Cothran the benefit of all reasonable

inferences, we have determined that she 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, Cothran was not the immediate subject of Durham's reckless

and outrageous conduct. Durham's decision to disregard warnings it received concerning

Walker's driving subjected the children on Walker's bus, not Cothran, to a substantial and

unjustifiable risk of serious physical and emotional harm. Next, Cothran was neither aware

of the fatal accident nor in physical proximity to the accident at the time it occurred. She

learned about the crash before going to the scene of the crash and later visiting the hospital.

But going to the scene of the crash and the hospital after having notice of what had occurred

and identifying injured or deceased children there do not bring Cothran 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,

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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).

Here, Cothran observed disoriented and injured children when she arrived at the

scene of the crash, but she did not personally observe the injury-producing event. See

Ramsey, 931 S.W.2d at 531. Moreover, as we already discussed in addressing Cothran's

NIED claim, she did not share with any of the injured and deceased children the requisite

familial type of relationship necessary to sustain her claim. Id. at 528; Eskin, 262 S.W.3d

at 738. 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.

Cothran falls outside those boundaries. We hold that she 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 disregard for the safety of

the children was not directed at Cothran or that such disregard did not occur in her presence.

Rather, our holding is based upon our determination that Cothran is not a reasonably

foreseeable plaintiff in this case. We reverse the trial court's judgment as to the second

issue in this appeal.

We reverse the judgment of the Hamilton County Circuit Court and remand the case

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.