{ "id": 11202172, "name": "SALLY JANE FIELDS, Plaintiff-Appellant v. GILLES PAUL DERY, JR., Defendant-Appellee", "name_abbreviation": "Fields v. Dery", "decision_date": "1998-12-01", "docket_number": "No. COA98-71", "first_page": "525", "last_page": "530", "citations": [ { "type": "official", "cite": "131 N.C. App. 525" } ], "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": "439 S.E.2d 136", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "140" } ], "opinion_index": 0 }, { "cite": "335 N.C. 526", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2526672 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/335/0526-01" ] }, { "cite": "437 S.E.2d 672", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1993, "pin_cites": [ { "page": "674" }, { "page": "674", "parenthetical": "citation omitted" }, { "page": "674" } ], "opinion_index": 0 }, { "cite": "113 N.C. App. 156", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521136 ], "year": 1993, "pin_cites": [ { "page": "159" } ], "opinion_index": 0, "case_paths": [ "/nc-app/113/0156-01" ] }, { "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 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/334/0662-01" ] }, { "cite": "467 S.E.2d 738", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "762" } ], "opinion_index": 0 }, { "cite": "342 N.C. 666", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 795905, 796004, 796039, 796018, 795995 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/342/0666-05", "/nc/342/0666-03", "/nc/342/0666-01", "/nc/342/0666-04", "/nc/342/0666-02" ] }, { "cite": "464 S.E.2d 89", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1996, "pin_cites": [ { "page": "90" }, { "page": "93" }, { "page": "93", "parenthetical": "citations omitted" }, { "page": "93" } ], "opinion_index": 0 }, { "cite": "120 N.C. App. 761", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11918014 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc-app/120/0761-01" ] }, { "cite": "435 S.E.2d 320", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "322" } ], "opinion_index": 0 }, { "cite": "334 N.C. 669", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2529064 ], "year": 1993, "pin_cites": [ { "page": "673" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0669-01" ] }, { "cite": "399 S.E.2d 133", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "327 N.C. 644", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2497698, 2494955, 2493783 ], "year": 1990, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0644-02", "/nc/327/0644-01", "/nc/327/0644-03" ] }, { "cite": "395 S.E.2d 85", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1990, "pin_cites": [ { "page": "97", "parenthetical": "citations omitted" }, { "page": "98" }, { "page": "98" } ], "opinion_index": 0 }, { "cite": "327 N.C. 283", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2497384 ], "year": 1990, "pin_cites": [ { "page": "304", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0283-01" ] } ], "analysis": { "cardinality": 555, "char_count": 11798, "ocr_confidence": 0.766, "pagerank": { "raw": 2.3409916621968324e-07, "percentile": 0.7921768798103673 }, "sha256": "49fee7a94eac487f1ae7ced7fa2aa709930a517f463797a403f849297a14c5ec", "simhash": "1:2d8173e1875b2053", "word_count": 1867 }, "last_updated": "2023-07-14T20:31:28.584435+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN, John C. and MARTIN, Mark D., concur." ], "parties": [ "SALLY JANE FIELDS, Plaintiff-Appellant v. GILLES PAUL DERY, JR., Defendant-Appellee" ], "opinions": [ { "text": "McGEE, Judge.\nPlaintiff alleged in her complaint that on 21 May 1994 she was following her mother, Ann Fields, home from work while driving south on Davis Mill Road, in Guilford County, North Carolina. Plaintiff followed in her own vehicle, several car lengths back. Defendant was driving east on Steeple Chase road in a truck. He failed to stop at a stop sign at the intersection of Davis Mill and Steeple Chase Roads, and hit plaintiff\u2019s mother\u2019s vehicle. Plaintiff alleged defendant was traveling approximately forty-five miles per hour, and that her mother\u2019s car \u201crolled approximately three times before coming to a stop on the far shoulder of Davis Mill Road.\u201d Plaintiff\u2019s mother was thrown from her vehicle onto Davis Mill Road and was killed.\nDefendant was convicted of misdemeanor death by vehicle and a stop sign violation. Plaintiff witnessed the collision and was the first person to come to her mother\u2019s assistance.\nPlaintiff filed suit for negligent infliction of emotional distress against defendant on 20 May 1997. Plaintiff\u2019s underinsured motorist insurance carrier, Allstate Insurance Company, was served on 22 May 1997. In her complaint, plaintiff alleged severe emotional distress and mental anguish as a consequence of seeing her mother killed, and sought compensatory damages. Defendant filed a motion to dismiss plaintiff\u2019s complaint for failure to state a claim upon which relief may be granted pursuant to North Carolina Rules of Civil Procedure 12(b)(6) on 1 July 1997. Unnamed defendant Allstate Insurance Company filed a notice of appearance and answer in the name of the defendant on 23 June 1997. The trial court granted defendant\u2019s 12(b)(6) motion on 6 November 1997. Plaintiff appeals.\nI.\nPlaintiff argues the trial court erred in dismissing her claim for negligent infliction of emotional distress, contending that her complaint properly alleged all of the elements of the tort. We disagree and find that plaintiff\u2019s complaint failed to allege the necessary element of foreseeability.\nIn order to state a claim for negligent infliction of emotional distress, a plaintiff \u201cmust allege that (1) the defendant negligently engaged in conduct, (2) it was reasonably foreseeable that such conduct would cause plaintiff severe emotional distress . . ., and (3) the conduct did in fact cause plaintiff severe emotional distress.\u201d Johnson v. Ruark Obstetrics, 327 N.C. 283, 304, 395 S.E.2d 85, 97, reh\u2019g denied, 327 N.C. 644, 399 S.E.2d 133 (1990) (citations omitted).\nIn Ruark, our Supreme Court addressed the element of foreseeability in cases of negligent infliction of emotional distress. The Court set forth three factors to be considered in determining the issue of foreseeability: (1) the plaintiff\u2019s proximity to the negligent act, (2) the relationship between the plaintiff and the other person for whose welfare the plaintiff is concerned, and (3) whether the plaintiff personally observed the negligent act. Id. at 305, 395 S.E.2d at 98. Plaintiffs complaint in this case included allegations of all three factors, in that: plaintiff was driving behind her mother\u2019s car, she witnessed the collision, and she was first person to reach her mother\u2019s side.\nHowever, our Supreme Court has recognized that the Ruark factors are not dispositive of all foreseeability issues, and that cases of negligent infliction of emotional distress must be determined on a case-by-case basis, considering all of the relevant facts. Ruark at 305, 395 S.E.2d at 98; Sorrells v. M.Y.B. Hospitality Ventures of Asheville, 334 N.C. 669, 673, 435 S.E.2d 320, 322 (1993).\nIn Wrenn v. Byrd, 120 N.C. App. 761, 464 S.E.2d 89, disc. review denied, 342 N.C. 666, 467 S.E.2d 738 (1996), plaintiff took her husband to the hospital where he was diagnosed with gastroenteritis and released. He then developed black spots on his body and was diagnosed with septic shock. Plaintiff\u2019s husband had most of both feet and one finger amputated because of the infection. Id. at 762, 464 S.E.2d at 90. The trial court granted defendant\u2019s summary judgment motion as to plaintiff\u2019s negligent infliction of emotional distress claim and our Court reversed, holding that the emotional distress suffered by plaintiff was foreseeable. Plaintiff was with her husband in the hospital; she observed the negligent act of the defendant; and defendant knew that plaintiff and her husband were married. Id. at 766, 464 S.E.2d at 93. Plaintiff argues that Wrenn controls in the case before us. However, plaintiff did not allege that defendant had any knowledge of plaintiff\u2019s relationship to the decedent.\nAs we noted in Wrenn, \u201cour Supreme Court has used language which appears to suggest that absent evidence of the defendant\u2019s knowledge of the plaintiff\u2019s emotional or mental condition, the plaintiff cannot recover for negligent infliction of emotional distress\u201d. Wrenn at 766, 464 S.E.2d at 93 (citations omitted). For example, in Gardner v. Gardner, 334 N.C. 662, 435 S.E.2d 324 (1993), a mother filed a negligent infliction of emotional distress action against her husband who drove his truck into a bridge abutment causing the death of their son. 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 that day. The trial court granted the father\u2019s motion for summary judgment, holding that the mother was not a foreseeable plaintiff. Our Supreme Court, in upholding the trial court\u2019s ruling, stated that:\nHere, there 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. Absent such knowledge, such an outcome cannot be held to be reasonably foreseeable, and plaintiff has failed to establish a claim for NIED.\nId. at 667, 435 S.E.2d at 328.\nIn Wrenn, we held that Gardner is consistent with other opinions of our Supreme Court which addressed the tort of negligent infliction of emotional distress. We stated that \u201cproof of knowledge by the defendant of the plaintiff\u2019s peculiar susceptibility to emotional distress is required only if the conduct of the defendant would not have caused injury to an ordinary person.\u201d Wrenn at 767, 464 S.E.2d at 93.\nIn Butz v. Holder, 113 N.C. App. 156, 159, 437 S.E.2d 672, 674 (1993), this Court followed the language and reasoning of the Supreme Court in Gardner. In Butz, the parents and brother of a bicyclist killed through the negligence of a motorist sued the motorist for negligent infliction of emotional distress. On rehearing, we upheld the trial court\u2019s ruling in favor of the motorist, because we found \u201cneither allegation nor forecast of evidence that the defendant knew\u201d of plaintiff\u2019s susceptibility to severe emotional distress. Id. at 159, 437 S.E.2d at 674 (citation omitted).\nA further example of how our Supreme Court views the element of foreseeability in cases of negligent infliction of emotional distress is Andersen v. Baccus, 335 N.C. 526, 439 S.E.2d 136 (1994). In Andersen, the plaintiff arrived at the scene of an accident shortly after its occurrence and witnessed his pregnant wife\u2019s rescue from the wreckage of her automobile. The couple\u2019s baby was stillborn and plaintiff\u2019s wife later died from her injuries. Our Supreme Court granted defendant\u2019s motion for summary judgment and held that plaintiffs emotional distress was not foreseeable. The Court stated:\n[N]othing suggests that [defendant] knew of plaintiffs existence. The forecast of evidence is undisputed that at the moment of impact [defendant] did not know who was in the car which her vehicle struck and had never met [plaintiffs wife]. Both Gardner and Sorrells teach that the family relationship between plaintiff and the injured party for whom plaintiff is concerned is insufficient, standing alone, to establish the element of foreseeability. In this case as in Sorrells the possibility that the decedent might have a parent or spouse who might live close enough to be brought to the scene of the accident and might be susceptible to suffering a severe emotional or mental disorder as the result of [defendant\u2019s] alleged negligent act is entirely too speculative to be reasonably foreseeable.\nAndersen at 533, 439 S.E.2d at 140.\nSimilar to Andersen, the possibility in the case before us that decedent might have had a child following her in a separate vehicle, who might witness the collision and suffer severe emotional distress because of defendant\u2019s alleged negligence, could not have been reasonably foreseeable to defendant. Similar to Gardner and Butz, we find no \u201callegation nor forecast of evidence\u201d in this case \u201cthat 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 at 667, 435 S.E.2d at 328; Butz at 159, 437 S.E.2d at 674.\nII.\nPlaintiff next argues that she should have been given an opportunity to depose defendant about what he saw on the day of the collision, because he \u201cmay have known of the presence of [plaintiff] and/or her mother.\u201d We disagree. As previously stated, plaintiff\u2019s complaint contains no \u201callegation[s] nor forecast of evidence\u201d that defendant had knowledge of plaintiff\u2019s relationship to the decedent, nor that defendant knew plaintiff was subject to suffering severe emotional distress as \u00e1 result of defendant\u2019s conduct.\nBecause we agree with the trial court concerning the issue of foreseeability, we do not reach plaintiff\u2019s argument pertaining to \u201cextreme and outrageous\u201d conduct.\nThe order of the trial court granting defendant\u2019s motion to dismiss is affirmed.\nAffirmed.\nJudges MARTIN, John C. and MARTIN, Mark D., concur.", "type": "majority", "author": "McGEE, Judge." } ], "attorneys": [ "Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by John W. Ormand III, and Elizabeth V. LaFollette, for plaintiff - appellant.", "Frazier, Frazier & Mahler, L.L.P., by Torin L. Fury, for defendant-appellee.", "Walter K. Burton and James D. Secor, III, for unnamed defendant-appellee Allstate Insurance Company." ], "corrections": "", "head_matter": "SALLY JANE FIELDS, Plaintiff-Appellant v. GILLES PAUL DERY, JR., Defendant-Appellee\nNo. COA98-71\n(Filed 1 December 1998)\n1. Emotional Distress\u2014 foreseeability \u2014 witnessing mother\u2019s death in car crash \u2014 not foreseeable\nThe trial court did not err by granting defendant\u2019s motion to dismiss under N.C.G.S. \u00a7 1A-1, Rule 12(b)(6) in an action for negligent infliction of emotional distress arising from plaintiff witnessing the death of her mother in an automobile accident where the possibility that decedent might have had a child following her in a separate vehicle who might witness the collision and suffer severe emotional distress because of defendant\u2019s alleged negligence could not have been reasonably foreseeable to defendant.\n2. Emotional Distress\u2014 foreseeability \u2014 witnessing mother\u2019s death in car crash \u2014 chance to depose defendant \u2014 insufficient allegations\nThe trial court did not err by granting defendant\u2019s motion for a 12(b)(6) dismissal in an action for negligent infliction of emotional distress arising from plaintiff witnessing the death of her mother in an automobile collision. Although plaintiff argued that she should have been given an opportunity to depose defendant about what he saw on the day of the collision, the complaint contains no allegations or forecast of evidence that defendant had knowledge of plaintiff\u2019s relationship to decedent, nor that defendant knew that plaintiff was subject to suffering severe emotional distress as a result of defendant\u2019s conduct.\nAppeal by plaintiff from order entered 6 November 1997 by Judge William H. Freeman in Guilford County Superior Court. Heard in the Court of Appeals 24 September 1998.\nBrooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by John W. Ormand III, and Elizabeth V. LaFollette, for plaintiff - appellant.\nFrazier, Frazier & Mahler, L.L.P., by Torin L. Fury, for defendant-appellee.\nWalter K. Burton and James D. Secor, III, for unnamed defendant-appellee Allstate Insurance Company." }, "file_name": "0525-01", "first_page_order": 559, "last_page_order": 564 }