Gardner v. Gardner , 106 N.C. App. 635 ( 1992 )

WELLS, Judge.

We begin and close our review of this appeal, as we must, by revisiting Johnson v. Ruark Obstetrics, 89 N.C. App. 154, 365 S.E.2d 909 (1988), modified and affirmed, 327 N.C. 283, 395 S.E.2d 85 (1990).

In Ruark, plaintiff mother and father’s claim for severe emotional distress were grounded in the events surrounding the death of their full-term child immediately before delivery. The case came to this Court on appeal from the trial court’s order allowing defendant’s N.C. Rules of Civil Procedure 12(b)(6) motion for failure to state a claim. After a careful and lengthy analysis of the facts in that case and what we considered to be the applicable law, we reversed, holding that the Johnsons had stated valid claims for severe emotional distress arising out of the negligence of the defendants. Our opinion, of course, speaks for itself.

Our Supreme Court then heard this case on discretionary review and, in a lengthy opinion, reviewed the law of North Carolina on claims for negligent infliction of emotional distress. The Court rejected much of the reasoning of this Court, but for its own reasons as set out in the majority opinion, held that the Johnsons had stated valid claims. There were two dissents from the majority opinion, one of which is of particular significance because it tells us in careful detail what the Ruark majority did not do. The elements of the wrong set out in the majority opinion in Ruark may be summarized as follows. Any doubt as to whether North Carolina law allows recovery for negligent infliction of purely emotional or mental injury has been put to rest. Neither a physical impact, a physical injury, nor a subsequent physical manifestation of emotional distress is an element of the tort of negligent infliction of emotional distress.

A defendant’s negligent act toward one person may proximately and foreseeably cause emotional distress to another person and justify his recovering damages, depending upon their relationship and other factors present in the case.

A plaintiff may recover for severe emotional distress arising from concern for another person if the plaintiff can prove that he or she has suffered such severe emotional distress as a proximate and foreseeable result of the defendant’s negligence.

In such cases, the term “severe emotional distress” means any severe and disabling emotional or mental disorder or condition which may be generally recognized and diagnosed by professionals trained to do so.

After clearly setting out the elements of the wrong, the Court provided guidance on the question of foreseeability in such cases. Recognizing that foreseeability is at the threshold of proximate cause, we look to established precedent to further guide us in our resolution of this question. In Ruark, the Court restated the foreseeability rule stated in Azzolino v. Dingfelder, 315 N.C. 103, 111, 337 S.E.2d 528, 534 (1985). “Under traditional theories of tort law, defendants are liable for all of the reasonably forseeable results of their negligent acts or omissions.” 327 N.C. 306.

We find further guidance in the statements of the Court in Hairston v. Alexander Tank & Equipment Co., 310 N.C. 227, 311 S.E.2d 559 (1984), where the Court, in summary, stated that proximate cause is a cause which produced the plaintiff’s injuries, and “one from which a person of ordinary prudence could have reasonably foreseen that such a result, or consequences of a generally injurious nature, was probable under all the facts as they existed.” 310 N.C. 233. “[The] test of foreseeability does not require that [a] defendant should have been able to foresee the injury in the precise form in which it actually occurred.” 310 N.C. 233, 234.

With these generally well-established principles in mind, we look to the further guidance the Ruark court provided as to the element of foreseeability in cases of this kind. Factors to be considered on the question of foreseeability in such cases include the plaintiff’s proximity to the negligent act, whether the plaintiff personally observed the negligent act, and the relationship between the plaintiff and the other person for whose welfare the plaintiff was concerned. (Emphasis supplied.) 327 N.C. 305.

Questions of foreseeability and proximate cause must be determined under all the facts presented and should be resolved on a case-by-case basis. 327 N.C. 305.

The negligence of the defendant and the injury to the plaintiff have been stipulated. The dispositive question before the trial court, and to be resolved by us, is that of foreseeability.

The trial court, in this case, having reviewed the Ruark guidelines, adopted a “close proximity” requirement for foreseeability, and that is what defendant contends we should affirm. Perhaps the best answer to that argument is to be found in Justice Meyer’s lengthy dissent in Ruark, where he makes it clear that he was unable to persuade a majority in Ruark to adopt a close proximity requirement.

As we perceive the close proximity requirement as it has been adopted and followed in other jurisdictions, see Meyer’s dissent in Ruark, a plaintiff in cases such as the one now before us must have been in such close proximity to the injury-producing event as to experience a sensory perception of the event and its “on the scene” manifestation; i.e., be at the scene, or arrive promptly thereafter.

We are of the opinion, and so hold, that the proximity factor established in Ruark is not that narrow. In common experience, a parent who sees its mortally injured child soon after an accident, albeit at another place, perceives the danger to the child’s life, and experiences those agonizing hours preceding the awful message of death may be at no less risk of suffering a similar degree of emotional distress than that of a parent who is actually exposed to the scene of the accident.

Thus, we hold that the defendant, in this case, could have reasonably foreseen that his negligence might be a direct and proximate cause of the plaintiff’s emotional distress.

The relationship factor — parent and child — is, of course, answered in Ruark in plaintiff’s favor.

For the reasons stated, the judgment of the trial court must be and is

Reversed.

Judge Arnold concurs. Judge EAGLES dissents.