{ "id": 8521136, "name": "EARL R. BUTZ, LINDA M. BUTZ, and MARC BUTZ, Plaintiffs v. JIMMY DAVIS HOLDER, Defendant", "name_abbreviation": "Butz v. Holder", "decision_date": "1993-12-21", "docket_number": "No. 9211SC252", "first_page": "156", "last_page": "159", "citations": [ { "type": "official", "cite": "113 N.C. App. 156" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "395 S.E.2d 85", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "97" }, { "page": "98" } ], "opinion_index": 0 }, { "cite": "327 N.C. 283", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2497384 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "304" }, { "page": "305" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0283-01" ] }, { "cite": "435 S.E.2d 320", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "328" } ], "opinion_index": 0 }, { "cite": "334 N.C. 669", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2529064 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "673" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0669-01" ] }, { "cite": "424 S.E.2d 676", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "108 N.C. App. 668", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525318 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc-app/108/0668-01" ] }, { "cite": "435 S.E.2d 324", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "334 N.C. 662", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2532105 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "666" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0662-01" ] }, { "cite": "418 S.E.2d 260", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "106 N.C. App. 635", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 5313372 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc-app/106/0635-01" ] }, { "cite": "434 S.E.2d 862", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "864" } ], "opinion_index": 0 }, { "cite": "112 N.C. App. 116", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520364 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "120" } ], "opinion_index": 0, "case_paths": [ "/nc-app/112/0116-01" ] } ], "analysis": { "cardinality": 429, "char_count": 8131, "ocr_confidence": 0.747, "pagerank": { "raw": 7.796484210511942e-08, "percentile": 0.45710078077911104 }, "sha256": "da631c38cc9be62d964c6abc59622f10c51c6d4847a08488f458417581ac83c6", "simhash": "1:2fe0d9a3c337e25a", "word_count": 1293 }, "last_updated": "2023-07-14T17:21:41.323369+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GREENE and MARTIN concur." ], "parties": [ "EARL R. BUTZ, LINDA M. BUTZ, and MARC BUTZ, Plaintiffs v. JIMMY DAVIS HOLDER, Defendant" ], "opinions": [ { "text": "JOHNSON, Judge.\nOur reasoning in Butz v. Holder, 112 N.C. App. 116, 434 S.E.2d 862 (1993) was based substantially on Gardner v. Gardner, 106 N.C. App. 635, 418 S.E.2d 260 (1992), rev\u2019d, 334 N.C. 662, 435 S.E.2d 324 (1993) and Sorrells v. M. Y. B. Hospitality Ventures of Asheville, 108 N.C. App. 668, 424 S.E.2d 676, rev\u2019d, 334 N.C. 669, 435 S.E.2d 320 (1993). Our Supreme Court has since issued opinions reversing both Gardner and Sorrells. Defendant timely petitioned for rehearing and we granted this petition.\nWe briefly revisit the facts of Butz. 13-year-old Dwayne John Butz was hit and killed by an automobile driven by defendant. At the time of the accident, which occurred on a bridge, decedent was riding his bicycle on Rural Road 1415 which was approximately one-half mile from his parents\u2019 home.\nA neighbor went to decedent\u2019s home and informed plaintiff father, Earl R. Butz, of the accident; plaintiff father immediately went to the site of the accident where he learned his son had been killed. Decedent was covered with a sleeping bag in the road. Plaintiff mother, Linda M. Butz, and brother, Marc Butz, arrived shortly thereafter, separately.\nDuring the months following the accident, as a result of emotional distress, plaintiff mother sought psychiatric and psychological care and plaintiff father developed high blood pressure.\nWe held in Butz \u201cwhere plaintiffs father and mother of the decedent arrived at the scene of the accident shortly after its occurrence, defendant could have reasonably foreseen that negligence on defendant\u2019s part might be a direct or proximate cause of plaintiff parents\u2019 emotional distress. We hold that this issue of foreseeability as to the parents for negligent infliction of emotional distress is one for the jury.\u201d Butz, 112 N.C. App. at 120, 434 S.E.2d at 864.\nWe relied upon Sorrells in our previous Butz decision. Sorrells involved a 21-year-old son who was killed in an automobile accident, his body mutilated, after being negligently served alcohol by the defendant bartender. The action in Sorrells was brought by the parents of the decedent; our Court held that the issue of foreseeability in Sorrells was one for the jury. On appeal as of right, the Supreme Court reversed, holding that this accident was not reasonably foreseeable.\nThe Court noted that to state a claim for negligent infliction of emotional distress (NIED), \u201cthe plaintiff need only allege that: \u2018(1) the defendant negligently engaged in conduct, (2) it was reasonably foreseeable that such conduct would cause the plaintiff severe emotional distress . . . , and (3) the conduct did in fact cause the plaintiff severe emotional distress.\u2019 \u201d Sorrells, 334 N.C. at 672, 435 S.E.2d at 321-22, quoting Johnson v. Ruark Obstetrics, 327 N.C. 283, 304, 395 S.E.2d 85, 97 (1990). The factors to consider in making this foreseeability determination \u201cinclude, but are not limited to: (1) \u2018the plaintiff\u2019s proximity to the negligent act\u2019 causing injury to the other person, (2) \u2018the relationship between the plaintiff and the other person,\u2019 and (3) \u2018whether the plaintiff personally observed the negligent act.\u2019 \u201d Sorrells, 334 N.C. at 672, 435 S.E.2d at 322, quoting Ruark, 327 N.C. at 305, 395 S.E.2d at 98. (Emphasis retained.) The Court stated that in NIED cases, the Court was \u201ccompelled to carry out a principle only to its necessary and logical results, and not to its furthest theoretical limit, in disregard of other established principles.\u201d (Citations omitted.) (Emphasis retained.) Sorrells, 334 N.C. at 673, 435 S.E.2d at 322. The Sorrells Court concluded as a matter of law \u201cthat the possibility (1) the defendant\u2019s negligence in serving alcohol to [decedent] (2) would combine with [decedent\u2019s] driving while intoxicated (3) to result in a fatal accident (4) which would in turn cause [decedent\u2019s] parents (if he had any) not only to become distraught, but also to suffer \u2018severe emotional distress\u2019 as defined in Ruark, simply was a possibility too remote to permit a finding that it was reasonably foreseeable.\u201d (Emphasis retained.) Id. at 674, 435 S.E.2d at 323.\nIn Gardner, decedent was a minor son who lived with the plaintiff, his mother. Decedent was killed while riding in a car being driven by the defendant, his father. When the plaintiff heard about the accident, she went to the emergency room and saw her son on a stretcher, his body covered except for his hands and feet. He died later in the day. Our Court held that the defendant therein \u201ccould have reasonably foreseen that his negligence might be a direct and proximate cause of the plaintiff\u2019s emotional distressf.]\u201d Gardner, 334 N.C. at 664-65, 435 S.E.2d at 326.\nOn appeal, the Supreme Court noted that in Gardner the first and third of the Ruark requirements had been met, but that \u201cthe . . . requisite factor \u2014 that it was reasonably foreseeable defendant\u2019s conduct would cause plaintiff\u2019s severe emotional distress \u2014 is the crux of this appeal.\u201d Gardner, 334 N.C. at 666, 435 S.E.2d at 327. In looking at all of the factors suggested by Ruark for guidance, the Gardner Court held \u201cthat plaintiff\u2019s injury was not reasonably foreseeable and its occurrence was too remote from the negligent act itself to hold defendant liable for such consequences.\u201d Id. at 668, 435 S.E.2d at 328.\nIn light of Sorrells and Gardner, to find it foreseeable that defendant\u2019s negligence while driving an automobile would result in a fatal accident which would cause decedent\u2019s parents to suffer severe emotional distress is not proper on these facts.\nFurthermore, the Gardner Court, in dismissing the plaintiffs\u2019 NIED claim stated that \u201cthere is neither allegation nor forecast of evidence that defendant knew plaintiff was subject to an emotional or mental disorder or other severe and disabling emotional or mental condition as a result of his negligence and its consequences.\u201d Gardner, 334 N.C. at 667, 435 S.E.2d at 328. (Emphasis added.) It appears from this language in Gardner that the Supreme Court has held that in any claim for NIED, the plaintiff must allege and through a forecast of evidence show that defendant knew that the plaintiff was subject to an emotional or mental disorder or other severe and disabling emotional or mental condition to say that the consequences of the alleged tortfeasor\u2019s negligence were reasonably foreseeable. In the instant case, there is neither allegation or forecast of evidence that the defendant knew plaintiff parents were subject to emotional or mental disorders or other severe and disabling emotional or mental conditions as a result of defendant\u2019s negligence. Therefore, pursuant to Gardner, the emotional distress suffered by plaintiff parents was not a foreseeable consequence of the actions of the defendant.\nThe decision of the trial court is affirmed.\nJudges GREENE and MARTIN concur.", "type": "majority", "author": "JOHNSON, Judge." } ], "attorneys": [ "Smith, Debnam, Hibbert & Pahl, by John W. Narron and Elizabeth B. Godfrey, for plaintiffs-appellants.", "Savage & Godfrey, by David R. Godfrey, for plaintiffs-appellants.", "Bailey & Dixon, by Gary S. Parsons and Denise Stanford Haskell, for defendant-appellee." ], "corrections": "", "head_matter": "EARL R. BUTZ, LINDA M. BUTZ, and MARC BUTZ, Plaintiffs v. JIMMY DAVIS HOLDER, Defendant\nNo. 9211SC252\n(Filed 21 December 1993)\nNegligence \u00a7 19 (NCI4th) \u2014 son injured in accident \u2014 negligence by defendant \u2014emotional distress of parents not foreseeable\nPlaintiff parents who went to their teenage son\u2019s fatal accident scene could not recover against defendant tortfeasor for negligent infliction of emotional distress where there was neither allegation nor forecast of evidence that defendant knew that plaintiff parents were subject to emotional or mental disorders or other severe and disabling emotional or mental conditions as a result of defendant\u2019s negligence and its consequences, since it was not reasonably foreseeable that defendant\u2019s negligence while driving an automobile would cause decedent\u2019s parents to suffer severe emotional distress.\nAm Jur 2d, Negligence \u00a7 488 et seq.\nAppeal by plaintiffs from order entered 16 December 1991 by Judge Giles R. Clark in Harnett County Superior Court. Heard in the Court of Appeals 5 January 1993.\nSmith, Debnam, Hibbert & Pahl, by John W. Narron and Elizabeth B. Godfrey, for plaintiffs-appellants.\nSavage & Godfrey, by David R. Godfrey, for plaintiffs-appellants.\nBailey & Dixon, by Gary S. Parsons and Denise Stanford Haskell, for defendant-appellee." }, "file_name": "0156-01", "first_page_order": 186, "last_page_order": 189 }