{ "id": 11094522, "name": "STEPHANIE S. JOHNSON and DEBORAH S. GILBERT, Plaintiffs v. SANDRA V. SCOTT, Defendant", "name_abbreviation": "Johnson v. Scott", "decision_date": "2000-04-18", "docket_number": "No. COA99-71", "first_page": "534", "last_page": "540", "citations": [ { "type": "official", "cite": "137 N.C. App. 534" } ], "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": "376 S.E.2d 425", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "427" } ], "opinion_index": 0 }, { "cite": "324 N.C. 63", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2488503 ], "year": 1989, "pin_cites": [ { "page": "66" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0063-01" ] }, { "cite": "476 S.E.2d 134", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "162" } ], "opinion_index": 0 }, { "cite": "344 N.C. 444", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867601, 867571, 867703 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/344/0444-02", "/nc/344/0444-01", "/nc/344/0444-03" ] }, { "cite": "468 S.E.2d 260", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "262" } ], "opinion_index": 0 }, { "cite": "122 N.C. App. 157", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916081 ], "pin_cites": [ { "page": "159" } ], "opinion_index": 0, "case_paths": [ "/nc-app/122/0157-01" ] }, { "cite": "395 S.E.2d 85", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1990, "pin_cites": [ { "page": "97" }, { "page": "97" }, { "page": "97" } ], "opinion_index": 0 }, { "cite": "327 N.C. 283", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2497384 ], "weight": 3, "year": 1990, "pin_cites": [ { "page": "304" }, { "page": "304" }, { "page": "304" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0283-01" ] }, { "cite": "344 N.C. 730", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867574 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/344/0730-01" ] }, { "cite": "468 S.E.2d 463", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "465" } ], "opinion_index": 0 }, { "cite": "121 N.C. App. 767", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11920273 ], "pin_cites": [ { "page": "768" } ], "opinion_index": 0, "case_paths": [ "/nc-app/121/0767-01" ] }, { "cite": "414 S.E.2d 22", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1992, "pin_cites": [ { "page": "27" }, { "page": "28", "parenthetical": "quoting Restatement (Second" }, { "page": "27" }, { "page": "27-28", "parenthetical": "\" '[t]he law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it. The intensity and the duration of the distress are factors to be considered in determining its severity.' \"" } ], "opinion_index": 0 }, { "cite": "331 N.C. 73", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2499459 ], "weight": 4, "year": 1992, "pin_cites": [ { "page": "82" }, { "page": "84" }, { "page": "82" }, { "page": "84" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0073-01" ] }, { "cite": "448 S.E.2d 280", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1994, "pin_cites": [ { "page": "281" }, { "page": "281" } ], "opinion_index": 0 }, { "cite": "115 N.C. App. 581", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12136994 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "583" }, { "page": "583" } ], "opinion_index": 0, "case_paths": [ "/nc-app/115/0581-01" ] }, { "cite": "477 S.E.2d 150", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "opinion_index": 0 }, { "cite": "344 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867561 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/344/0676-01" ] }, { "cite": "461 S.E.2d 347", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "350" }, { "page": "350" } ], "opinion_index": 0 }, { "cite": "120 N.C. App. 96", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11914135 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "99" }, { "page": "99" } ], "opinion_index": 0, "case_paths": [ "/nc-app/120/0096-01" ] }, { "cite": "454 S.E.2d 648", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "339 N.C. 737", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2556426, 2559318, 2557847, 2557592, 2559291 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/339/0737-03", "/nc/339/0737-05", "/nc/339/0737-04", "/nc/339/0737-01", "/nc/339/0737-02" ] }, { "cite": "449 S.E.2d 240", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "242" } ], "opinion_index": 0 }, { "cite": "116 N.C. App. 663", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525419 ], "year": 1994, "pin_cites": [ { "page": "665" } ], "opinion_index": 0, "case_paths": [ "/nc-app/116/0663-01" ] }, { "cite": "486 S.E.2d 220", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "parenthetical": "hereinafter USF&G" }, { "page": "227" } ], "opinion_index": 0 }, { "cite": "346 N.C. 185", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139553, 139621, 139351, 139480, 139647 ], "year": 1997, "pin_cites": [ { "parenthetical": "hereinafter USF&G" } ], "opinion_index": 0, "case_paths": [ "/nc/346/0185-02", "/nc/346/0185-05", "/nc/346/0185-01", "/nc/346/0185-04", "/nc/346/0185-03" ] }, { "cite": "476 S.E.2d 404", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1996, "pin_cites": [ { "page": "406" }, { "page": "406" }, { "page": "406" } ], "opinion_index": 0 }, { "cite": "124 N.C. App. 224", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11889215 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "226" }, { "page": "227" } ], "opinion_index": 0, "case_paths": [ "/nc-app/124/0224-01" ] } ], "analysis": { "cardinality": 754, "char_count": 14688, "ocr_confidence": 0.775, "pagerank": { "raw": 1.6212920642515113e-07, "percentile": 0.6872784861202332 }, "sha256": "7543f7b3c7ea627cb9f21d08782bb3915515b724f3e4bed8c2f1a4486d900b7a", "simhash": "1:095044301e772a5c", "word_count": 2308 }, "last_updated": "2023-07-14T18:42:18.277293+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges LEWIS and McGEE concur." ], "parties": [ "STEPHANIE S. JOHNSON and DEBORAH S. GILBERT, Plaintiffs v. SANDRA V. SCOTT, Defendant" ], "opinions": [ { "text": "JOHN, Judge.\nPlaintiffs Stephanie S. Johnson (Johnson) and Deborah S. Gilbert (Gilbert) appeal the trial court\u2019s grant of defendant Sandra V. Scott\u2019s motion for summary judgment. We affirm.\nPlaintiffs are sisters and the daughters of Duke Tyler Scott (Mr. Scott), now deceased. Defendant Scott is the step-mother of plaintiffs, having married Mr. Scott in 1982. Mr. Scott died 19 March 1993 as a result of a gunshot wound inflicted by defendant.\nPlaintiffs thereafter filed suit against defendant, asserting, inter alia, claims of wrongful death, negligence, and for the return of personal property. Plaintiffs\u2019 initial action was settled 6 April 1994 upon execution by the parties of a \u201cStipulation of Settlement\u201d agreement (the settlement agreement). Defendant therein agreed to a monetary and property settlement with plaintiffs in exchange for the latters\u2019 promise \u201cto remain silent\u201d during the plea bargaining and sentencing phases of defendant\u2019s impending criminal trial.\nThe settlement agreement further provided, however, that any claim of plaintiffs for negligent infliction of emotional distress against defendant would survive\ninsofar as the same may exist against Defendant and Defendant\u2019s carrier of the homeowners insurance (believed to be USF&G) on the premises and home of Defendant at which the incident occurred.Plaintiff understands that Defendant may be obliged under her insurance contract with USF&G or said carrier to assist the carrier in the defense of the surviving claim(s) herein described. . . .\n... In the event that Plaintiff is unable to make or prove a case or succeed against Defendant such that Defendant\u2019s insurance policy carrier is liable, then Plaintiff shall have no other or further recourse against Defendant except as otherwise agreed upon in this Settlement Agreement. In the event that any judgment shall be entered against Defendant in this surviving issue, then Defendant\u2019s real or personal belongings shall not be subject to execution, it being the understanding and agreement by and between the parties that the sole source of collection shall be the Defendant\u2019s insurance policy and/or carrier .... Defendant shall exercise all reasonable steps and measures to assist Plaintiff in the collection of any such judgment . . . which shall not be in breach of Defendant\u2019s contract with the insurance carrier.\nPlaintiffs filed the instant suit 21 March 1994 alleging negligent infliction of emotional distress. Defendant\u2019s 10 August 1995 motion for summary judgment was continued by the trial court pending resolution of a separate suit filed by United States Fidelity & Guaranty Company (USF&G) against defendant, seeking a declaratory judgment (the declaratory judgment action) as to USF&G\u2019s obligation to defend or afford coverage to defendant in the case sub judice.\nThe trial court allowed USF&G\u2019s motion for summary judgment in the declaratory judgment action on 28 July 1995 and \u201crelieved [USF&G] of any obligation to defend or afford coverage to the defendant Scott.\u201d Defendant filed timely notice of appeal of the court\u2019s 28 July 1995 ruling, but failed to file a supporting brief. USF&G thereupon moved to dismiss defendant\u2019s appeal pursuant to N.C.R. App. P. 13(c) (\u201c[i]f an appellant fails to file and serve his brief. .. the appeal may be dismissed\u201d), which motion was allowed 29 February 1996.\nIn the declaratory judgment action, plaintiffs likewise attempted to appeal the grant of summary judgment in favor of USF&G. This Court held plaintiffs were not real parties in interest and also dismissed their appeal. See U.S. Fidelity and Guaranty Co. v. Scott, 124 N.C. App. 224, 226, 476 S.E.2d 404, 406 (1996), disc. review denied, 346 N.C. 185, 486 S.E.2d 220 (1997) (hereinafter USF&G). In the course of the opinion, however, we observed\nthat even if Johnson and Gilbert had the right to appeal, we would affirm the trial court\u2019s decision to grant summary judgment in USF&G\u2019s favor on the ground that the insurer had no obligation to Johnson and Gilbert where Scott, the insured, was protected by a covenant not to execute.\nId. at 227, 476 S.E.2d at 406.\nThe trial court in the case sub judice thereafter reconsidered defendant\u2019s motion for summary judgment, and granted her motion 13 February 1998. Plaintiffs timely appealed.\nSummary judgment is properly granted when the pleadings, depositions, answers to interrogatories, admissions and affidavits on file show no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. N.C.G.S. \u00a7 1A-1, Rule 56(c) (1999); Davis v. Town of Southern Pines, 116 N.C. App. 663, 665, 449 S.E.2d 240, 242 (1994), disc. review denied, 339 N.C. 737, 454 S.E.2d 648 (1995). A summary judgment movant bears the burden of showing that\n(1) an essential element of plaintiffs claim is nonexistent; (2) plaintiff cannot produce evidence to support an essential element of its claim; or (3) plaintiff cannot surmount an affirmative defense raised in bar of its claim.\nLyles v. City of Charlotte, 120 N.C. App. 96, 99, 461 S.E.2d 347, 350 (1995), rev\u2019d on other grounds, 344 N.C. 676, 477 S.E.2d 150 (1996).\nA court ruling upon a motion for summary judgment must view the evidence in the light most favorable to the non-movant, accepting all its asserted facts as true and drawing all reasonable inferences in its favor. Kennedy v. Guilford Tech. Community College, 115 N.C. App. 581, 583, 448 S.E.2d 280, 281 (1994).\nHowever, once the moving party presents an adequately supported motion, the opposing party must come forward with specific facts (not mere allegations or speculation) that controvert the facts set forth in the movant\u2019s evidentiary forecast.\nId. As stated in G.S. \u00a7 1A-1, Rule 56(e):\nWhen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.\nIn short, \u201cplaintiffs must. . . forecast sufficient evidence of all essential elements of their claims.\u201d Waddle v. Sparks, 331 N.C. 73, 82, 414 S.E.2d 22, 27 (1992).\nThe parties disagree as to the effect on the instant action of this Court\u2019s earlier ruling dismissing plaintiffs\u2019 appeal and thereby discharging USF&G from any obligation to afford coverage to defendant. See USF&G, 124 N.C. App. at 227, 476 S.E.2d at 406. In essence, defendant maintains she was entitled to summary judgment because (1) the parties\u2019 settlement agreement limited plaintiffs\u2019 recovery on their negligent infliction of emotional distress claim to the amount recoverable from defendant\u2019s homeowner\u2019s insurance carrier; and, (2) defendant\u2019s carrier, USF&G, was absolved from liability in the USF&G decision, thereby precluding any recovery by plaintiffs from USF&G.\nPlaintiffs counter that defendant materially breached the settle: ment agreement by failing to file a brief in the previous appeal. As a consequence, plaintiffs continue, they\nare no longer obligated to the bilateral agreement that the sole source of collection of any . . . judgment shall be [defendant\u2019s] insurance policy and/or carrier.\nIt is unnecessary to resolve the parties\u2019 dispute on this issue, however, in that an alternative ground sustains the trial court\u2019s grant of summary judgment. See Nifong v. C. C. Mangum, Inc., 121 N.C. App. 767, 768, 468 S.E.2d 463, 465 (\u201c[i]f the trial court grants summary judgment, the decision should be affirmed on appeal if there is any ground to support the decision\u201d), aff\u2019d, 344 N.C. 730, 477 S.E.2d 150 (1996). Specifically, we conclude plaintiffs failed to \u201cproduce evidence to support an essential element of [their] claim.\u201d Lyles, 120 N.C. App. at 99, 461 S.E.2d at 350.\nThe elements of a claim for negligent infliction of emotional distress are that\n(1) the defendant negligently engaged in conduct, (2) it was reasonably foreseeable that such conduct would cause the plaintiff severe emotional distress (often referred to as \u201cmental anguish\u201d), and (3) the conduct did in fact cause the plaintiff severe emotional distress.\nJohnson v. Ruark Obstetrics, 327 N.C. 283, 304, 395 S.E.2d 85, 97 (1990).\nOur Supreme Court has defined severe emotional distress as\nany emotional or mental disorder, such as, for example, neurosis, psychosis, chronic depression, phobia, or any other type of severe and disabling emotional or mental condition which may be generally recognized and diagnosed by professionals trained to do so.\nId. The distress must indeed be severe; \u201cmere temporary fright, disappointment or regret will not suffice.\u201d Id. Further,\n\u201c[i]t is for the court to determine whether on the evidence severe emotional distress can be found; it is for the jury to determine whether, on the evidence, it has in fact existed.\u201d\nWaddle, 331 N.C. at 84, 414 S.E.2d at 28 (quoting Restatement (Second) of Torts \u00a7 46 cmt. j (1965)).\nIn the case sub judice, assuming arguendo plaintiffs produced adequate evidence of the first two prongs of negligent infliction of emotional distress, their forecast of evidence was deficient, see Waddle, 331 N.C. at 82, 414 S.E.2d at 27, on the remaining prong requiring a showing that plaintiffs indeed suffered \u201csevere emotional distress,\u201d Johnson, 327 N.C. at 304, 395 S.E.2d at 97, in consequence of the conduct of defendant.\nThe sole evidence relative to characterization of the nature of their alleged emotional distress was located in plaintiffs\u2019 responses to defendant\u2019s interrogatories, attached to defendant\u2019s summary judgment motion. Taken in the light most favorable to plaintiffs, Kennedy, 115 N.C. App. at 583, 448 S.E.2d at 281, plaintiffs\u2019 verified answers indicated Johnson had experienced \u201cdifficulty sleeping\u201d since her father\u2019s death and suffered from nightmares and periodic loss of appetite, diagnosed as \u201cstress related gastinitis\u201d by a physician who recommended counseling. Plaintiffs\u2019 responses reflected that Gilbert similarly encountered trouble sleeping and had \u201cbecome fearful of the dark.\u201d Both in discovery and in their appellate brief, plaintiffs concede neither was ever \u201cdiagnosed by any doctor as suffering from neurosis, psychosis, chronic depression, phobia or any other type of severe mental condition.\u201d\nWe first note Gilbert\u2019s assertion she had \u201cbecome fearful of the dark\u201d was unaccompanied by any details reflecting that such fear might properly be labeled a phobia. A phobia is defined as \u201can exaggerated and often disabling fear.\u201d Webster\u2019s Third New International Dictionary 1699 (1966). Moreover, neither of the plaintiffs alleged her difficulty with sleeping resulted either in visits to a physician, required use of any medication, even \u201cover-the-counter\u201d sleep aids, or had in any manner disrupted that plaintiff\u2019s life. Although Johnson claimed to suffer from \u201cstress related gastinitis,\u201d this was qualified by the statement that her loss of appetite was periodic. Similarly, Gilbert claimed that the \u201cstress of dealing with her father\u2019s death\u201d contributed to Gilbert\u2019s \u201ctemporarily separating from her husband.\u201d (emphasis added).\nBased upon the evidence adduced below, we cannot say the alleged emotional distress of plaintiffs as described in their responses to defendant\u2019s interrogatories met the requisite level of \u201csevere\u201d emotional distress. See Waddle, 331 N.C. at 84, 414 S.E.2d at 27-28 (\u201c \u2018[t]he law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it. The intensity and the duration of the distress are factors to be considered in determining its severity.\u2019 \u201d) (quoting Restatement (Second) of Torts \u00a7 46 cmt. j). The Johnson definition of \u201csevere emotional distress\u201d mandates that plaintiffs forecast evidence they suffered from a \u201cneurosis, psychosis, chronic depression, [or] phobia\u201d or from\nany other type of severe and disabling emotional or mental condition which may be generally recognized and diagnosed by professionals trained to do so.\nJohnson, 327 N.C. at 304, 395 S.E.2d at 97. Neither condition described by plaintiffs, loss of sleep nor loss of appetite, qualified under the showing sub judice as \u201csevere and disabling.\u201d Id.\nAccordingly, defendant met her summary judgment burden of demonstrating the absence of an essential element of plaintiffs\u2019 claim, i.e., severe emotional distress. See Young v. Fun Services-Carolina, Inc., 122 N.C. App. 157, 159, 468 S.E.2d 260, 262 (\u201cdefendant moving for summary judgment may prevail by affirmatively showing by affidavits or depositions offered by any party, or other devices permitted by Rule 56, [such as answers to interrogatories,] that an essential element of a plaintiff\u2019s claim is lacking\u201d), disc. review denied, 344 N.C. 444, 476 S.E.2d 134 (1996).\nSince [defendant thereby] successfully shifted the burden to plaintiffs, they were required to \u201cproduce a forecast of evidence demonstrating that [they] will be able to make out at least a prima facie case at trial.\u201d\nId. at 162, 468 S.E.2d at 263 (quoting Collingwood v. G.E. Real Estate Equities, 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989)). Plaintiffs having presented no evidence aliunde their responses to defendant\u2019s interrogatories tendered to the trial court by defendant, the court did not err in granting defendant\u2019s motion for summary judgment. See G.S. \u00a7 1A-1, Rule 56(e).\nAffirmed.\nJudges LEWIS and McGEE concur.", "type": "majority", "author": "JOHN, Judge." } ], "attorneys": [ "Hunter Law Firm, by Robert R. Seidel and R. Christopher Hunter, for plaintiffs-appellants.", "Spears, Barnes, Baker, Wainio & Whaley, L.L.P., by Jessica S. Cook and Alexander H. Barnes, for defendant-appellee." ], "corrections": "", "head_matter": "STEPHANIE S. JOHNSON and DEBORAH S. GILBERT, Plaintiffs v. SANDRA V. SCOTT, Defendant\nNo. COA99-71\n(Filed 18 April 2000)\nEmotional Distress\u2014 loss of sleep \u2014 loss of appetite \u2014 not sufficiently severe \u201e\nThe trial court did not err by granting summary judgment for defendant on a claim for negligent infliction of emotional distress arising from the shooting of plaintiff\u2019s father by defendant, their step-mother. Although the parties\u2019 contentions involved the effect of a settlement agreement limiting any recovery to homeowner\u2019s insurance proceeds and a prior ruling discharging the insurance company, alternative grounds for upholding the summary judgment exist in that the loss of sleep and loss of appetite described by plaintiffs do not meet the requisite level of severe emotional distress.\nAppeal by plaintiffs from judgment entered 13 February 1998 by Judge Donald W. Stephens in Durham County Superior Court. Heard in the Court of Appeals 20 October 1999.\nHunter Law Firm, by Robert R. Seidel and R. Christopher Hunter, for plaintiffs-appellants.\nSpears, Barnes, Baker, Wainio & Whaley, L.L.P., by Jessica S. Cook and Alexander H. Barnes, for defendant-appellee." }, "file_name": "0534-01", "first_page_order": 566, "last_page_order": 572 }