{ "id": 11434344, "name": "DEBRA RILEY, PLAINTIFF-APPELLANT v. LINDA DeBAER and TIM MILLER, DEFENDANTS-APPELLEES", "name_abbreviation": "Riley v. DeBaer", "decision_date": "2001-06-19", "docket_number": "No. COA00-675", "first_page": "357", "last_page": "363", "citations": [ { "type": "official", "cite": "144 N.C. App. 357" } ], "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": "528 S.E.2d 402", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "404", "parenthetical": "stating the elements for a claim NIED as: \"(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 \"mental anguish\"), and (3" } ], "opinion_index": 0 }, { "cite": "137 N.C. App. 534", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11094522 ], "year": 2000, "pin_cites": [ { "page": "538", "parenthetical": "stating the elements for a claim NIED as: \"(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 \"mental anguish\"), and (3" } ], "opinion_index": 0, "case_paths": [ "/nc-app/137/0534-01" ] }, { "cite": "528 S.E.2d 368", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "371-72", "parenthetical": "\"An action for negligent infliction of emotional distress requires a showing that defendant negligently engaged in conduct, which was reasonably foreseeable to cause, and did in fact cause, plaintiff to suffer severe emotional distress.\"" } ], "opinion_index": 0 }, { "cite": "137 N.C. App. 319", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11093190 ], "year": 2000, "pin_cites": [ { "page": "325", "parenthetical": "\"An action for negligent infliction of emotional distress requires a showing that defendant negligently engaged in conduct, which was reasonably foreseeable to cause, and did in fact cause, plaintiff to suffer severe emotional distress.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/137/0319-01" ] }, { "cite": "395 S.E.2d 85", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "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": "307" }, { "page": "304" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0283-01" ] }, { "cite": "496 S.E.2d 577", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1998, "pin_cites": [ { "page": "580" } ], "opinion_index": 0 }, { "cite": "347 N.C. 638", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551095 ], "weight": 6, "year": 1998, "pin_cites": [ { "page": "645" }, { "page": "640" }, { "page": "641" }, { "page": "640" }, { "page": "645-46" } ], "opinion_index": 0, "case_paths": [ "/nc/347/0638-01" ] }, { "cite": "522 S.E.2d 88", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "90", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "135 N.C. App. 622", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11242273 ], "year": 1999, "pin_cites": [ { "page": "624", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc-app/135/0622-01" ] }, { "cite": "51 S.E.2d 491", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1949, "pin_cites": [ { "page": "494-95" } ], "opinion_index": 0 }, { "cite": "229 N.C. 757", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12168035 ], "year": 1949, "pin_cites": [ { "page": "762" } ], "opinion_index": 0, "case_paths": [ "/nc/229/0757-01" ] }, { "cite": "381 S.E.2d 773", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "324 N.C. 577", "category": "reporters:state", "reporter": "N.C.", "year": 1989, "opinion_index": 0 }, { "cite": "376 S.E.2d 11", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "12" } ], "opinion_index": 0 }, { "cite": "92 N.C. App. 733", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527611 ], "year": 1989, "pin_cites": [ { "page": "735" } ], "opinion_index": 0, "case_paths": [ "/nc-app/92/0733-01" ] }, { "cite": "493 S.E.2d 74", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "127 N.C. App. 663", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11799643 ], "weight": 6, "year": 1997, "pin_cites": [ { "page": "667" }, { "page": "668" }, { "page": "676" }, { "page": "677" }, { "page": "676" } ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0663-01" ] } ], "analysis": { "cardinality": 738, "char_count": 15336, "ocr_confidence": 0.744, "pagerank": { "raw": 1.0058513887074281e-07, "percentile": 0.5406973533978235 }, "sha256": "90c460d8923ab77c0d9b20f5b2e25897bd5c4c9559b95aade0c196dcf3371c3c", "simhash": "1:01c3fe720636289f", "word_count": 2381 }, "last_updated": "2023-07-14T14:55:44.896074+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge EAGLES and Judge MCCULLOUGH concur." ], "parties": [ "DEBRA RILEY, PLAINTIFF-APPELLANT v. LINDA DeBAER and TIM MILLER, DEFENDANTS-APPELLEES" ], "opinions": [ { "text": "BRYANT, Judge.\nPlaintiff was employed as a manager of a Family Dollar Store. On 1 October 1990, she sustained a shoulder injury while retrieving a box from an overhead shelf. Plaintiff experienced pain in her left shoulder, arm and neck as a result of the injury. Plaintiff sought treatment with orthopaedic surgeon Dr. William Somers, on 11 October 1990. Dr. Somers prescribed physical therapy, however, physical therapy did not improve plaintiff\u2019s condition. Plaintiff also received injections into her left shoulder, but her condition did not improve as a result of the injections.\nOn 5 June 1991, plaintiff underwent surgery to repair a labral tear in her shoulder. Although plaintiff regained the motor strength in her shoulder, she continued to experience pain in her neck and shoulder. Plaintiff underwent additional shoulder surgery on 16 March 1992, but the pain in her left shoulder continued.\nDr. Somers, on 7 November 1991, referred plaintiff to neurologist Dr. Alan Finkel for evaluation and management of her shoulder pain. Dr. Finkel referred plaintiff to psychologist Dr. Helen Rogers for management of depression related to her chronic pain and for evaluation of cognitive dysfunction which she suffered following a seizure in July 1993. Plaintiff began treatment with Dr. Rogers commencing 10 August 1993, and has continued to receive Drs. Finkel and Rogers\u2019 services.\nPlaintiff received temporary total disability benefits following her 5 June 1991 surgery. In 1993, Aetna Insurance Company (Aetna), the worker\u2019s compensation carrier for the Family Dollar Stores, referred plaintiff to Atlantic Behavioral Health Systems, Inc. (Atlantic), a vocational rehabilitation specialist, for evaluation of plaintiff\u2019s capabilities and to assist plaintiff in finding appropriate employment. Atlantic employees Linda DeBaer, a certified vocational rehabilitation specialist, and Tim Miller worked most closely with plaintiff during her evaluation.\nPlaintiff was enrolled in an Atlantic program titled \u2018Job Club\u2019. The program assisted injured workers in returning to the workforce. Plaintiff met with employees of Job Club in February 1994 and began participating in the program on 8 March 1994.\nOn 1 March 1994, plaintiff and DeBaer met with Dr. Somers to discuss appropriate jobs for the plaintiff. Dr. Somers approved plaintiff to seek light sedentary employment. Dr. Finkel advised DeBaer that plaintiff would be starting a new medication regimen and during the first few days she would need to be absent from Job Club. Neither Drs. Finkel nor Rogers advised Atlantic that plaintiff should not participate in Job Club.\nWhile participating in Job Club, plaintiff interviewed for several positions. After interviewing for a job as an .appointment setter for a photography studio, plaintiff was offered a position, however, she did not accept the offer.\nAetna determined that plaintiff had failed to accept a job offer within her capabilities and that she had sabotaged other job interviews. On 5 April 1994, Aetna unilaterally terminated plaintiffs worker\u2019s compensation benefits. On 3 May 1994, the Industrial Commission (Commission) allowed Aetna to cease payment of temporary total disability compensation to plaintiff. On 21 March 1996, the Commission entered an opinion and award stating that the termination of temporary total disability compensation had been improperly granted, and awarded plaintiff past and future benefits. The Commission also awarded plaintiff attorney\u2019s fees for the wrongful termination of benefits. Upon appeal to this Court, the Commission\u2019s opinion and award was upheld, except the award of attorney\u2019s fees was found to be inappropriate.\nOn 7 April 1997, plaintiff commenced this action in the District Court Division of Durham County, pursuing the claim of negligent infliction of emotional distress (NIED) against defendants Linda DeBaer and Tim Miller individually and Atlantic Behavioral Health Systems, Inc., now doing business as Carolina Rehabilitation, and previously doing business as Total Rehabilitation, Inc. (Total Rehab). Plaintiff contended that defendants were both personally negligent and professionally negligent in their pursuit of plaintiff\u2019s vocational rehabilitation.\nDefendants filed an answer on 27 October 1997 alleging that plaintiff failed to state a claim upon which relief could be granted pursuant to Rule 12 of the North Carolina Rules of Civil Procedure. In addition, defendants denied plaintiff\u2019s claims of NIED and negligence. Plaintiff made a motion to amend the complaint and submitted an amended complaint on 8 October 1999, which more completely detailed the claim of NIED.\nOn 3 September 1999, defendants made a motion for summary judgment pursuant to Rule 56 of the North Carolina Rules of Civil Procedure, based on the pleadings, responses to written discovery and depositions taken. Superior Court Judge Howard E. Manning, Jr, entered his order on 9 March 2000 granting defendants\u2019 motion for summary judgment. Judge Manning based his ruling solely on the NIED standard announced in Lorbacher v. Housing Authority of City of Raleigh, 127 N.C. App. 663, 493 S.E.2d 74 (1997). Because Lorbacher is not the appropriate standard, we reverse the decision of the trial court granting summary judgment for the defendants.\nI.\nThe plaintiff makes several arguments on appeal, however, we only address plaintiff\u2019s first argument as it is the dispositive issue on appeal. Plaintiff contends that the trial court erred in relying upon Lorbacher as controlling authority concerning the issue of NIED.\nSupreme Court decisions that change existing law are presumed to apply retroactively absent compelling reasons for limiting their retroactive effects. Fowler v. North Carolina Dept. of Crime Control & Public Safety, 92 N.C. App. 733, 735, 376 S.E.2d 11, 12, rev. denied, 324 N.C. 577, 381 S.E.2d 773 (1989). By mere implication, a subsequent decision cannot be held to overrule a prior case, unless the principle is directly involved and the inference is clear and compelling. Cole v. Cole, 229 N.C. 757, 762, 51 S.E.2d 491, 494-95 (1949). However, when changes are made retroactive, the changes apply to five categories of cases: (1) cases in which a new rule is announced; (2) cases in which factual event, trial, and appeal are all at an end but in which a collateral attack is brought; (3) cases pending on appeal when a decision is announced; (4) cases awaiting trial; and (5) cases initiated in the future but arising from earlier occurrences. Alexander v. Quattlebaum, 135 N.C. App. 622, 624, 522 S.E.2d 88, 90 (1999) (emphasis added).\nIn March 1997, our Court announced its decision in Lorbacher. In that case, Lorbacher was the \u201cDirector of Development\u201d for the Raleigh Housing Authority, and partly responsible for supervising employees, visiting construction sites and monitoring for construction compliance. Lorbacher, 127 N.C. App. at 667, 453 S.E.2d at 76. On 29 June 1992, Lorbacher lost his driving privileges and consequently, his employment was terminated. However, on 8 August 1992, Lorbacher\u2019s employment was reinstated based on his agreement to find transportation for any necessary travel.\nAs a result of the negligent maintenance of a Walnut Terrace Apartment heating system, two apartment residents died from carbon monoxide poisoning. At a wrongful death trial, Lorbacher gave deposition testimony regarding the Housing Authority\u2019s knowledge of the dangerous condition and failure to take any remedial action. Lorbacher was subsequently discharged, supposedly because of his failure to obtain acceptable transportation arrangements that were necessary for the adequate performance of his job. Id. Lorbacher brought suit claiming, inter alia, negligent and intentional infliction of emotional distress caused by the Housing Authority\u2019s wrongful discharge. Lorbacher, 127 N.C. App. at 668, 453 S.E.2d at 77. The trial court dismissed Lorbachers\u2019 negligent and intentional infliction of emotional distress claims. Lorbacher appealed the dismissal decision to our Court.\nThe Lorbacher Court, announced the standard for a claim of NIED as requiring the plaintiff to show that the defendant: (1) negligently engaged in conduct; (2) it was reasonably foreseeable that the conduct would cause the plaintiff severe mental anguish; and (3) the conduct did cause the plaintiff to suffer severe mental anguish. Lorbacher, 127 N.C. App. at 676, 453 S.E.2d at 81.\nTo satisfy the first element of the NIED, the Lorbacher Court required the plaintiff to show the defendant\u2019s conduct was extreme and outrageous. Lorbacher, 127 N.C. App. at 677, 453 S.E.2d at 82. The Court did not distinguish a plaintiffs burden as to the first element of a NIED claim from the burden a plaintiff must satisfy when asserting an intentional infliction of emotional distress claim. The Court found that the plaintiff did not show that the Housing Authority\u2019s conduct was extreme and outrageous, thus the Court affirmed dismissal action as to emotional distress claims.\nIn 1998, the North Carolina Supreme Court in McAllister v. Ha, 347 N.C. 638, 496 S.E.2d 577 (1998), stated that when a plaintiff asserts a claim of NIED, \u201c[a]lthough an allegation of ordinary negligence will suffice, a plaintiff must also allege that severe emotional distress was the foreseeable and proximate result of such negligence in order to state a claim; mere temporary fright, disappointment or regret will not suffice.\u201d McAllister, 347 N.C. at 645, 456 S.E.2d at 583 quoting Johnson v. Ruark Obstetrics & Gynecology Assoc., P.A., 327 N.C. 283, 395 S.E.2d 85 (1990).\nIn McAllister, plaintiffs had a baby on 8 May 1991. McAllister, 347 N.C. at 640, 496 S.E.2d at 580. In June 1991, plaintiffs received a letter from the State Health Department advising them that they needed to be tested for sickle cell disease because of the genetic traits carried by the wife. Plaintiffs went to the medical offices of Khie Sem Ha, M.D., where blood samples were drawn and sent to the State Laboratory of Public Health. Ha told plaintiffs if he found anything of concern in the lab results, he would call them. Plaintiffs never heard from defendant concerning the lab results, although plaintiffs visited him four additional times between June 1991 and September 1993.\nIn September 1993, the wife became pregnant with plaintiffs\u2019 second child, who was bom on 27 May 1994. In June 1994, plaintiffs learned that their second child had sickle cell disease. They also learned that the results of the 1991 lab work showed the plaintiff-husband carried the sickle cell trait. Plaintiffs filed suit claiming inter alia that Ha was negligent in his duties, and that Ha\u2019s actions amounted to extreme and outrageous conduct resulting in plaintiffs suffering extreme mental distress and financial loss. McAllister, 347 N.C. at 641, 456 S.E.2d S.E.2d at 580. The trial court granted Ha\u2019s motion to dismiss for failure to state a claim. McAllister, 347 N.C. at 640, 456 S.E.2d at 579. This Court, reversed the trial court\u2019s order dismissing the emotional distress claim and remanded the case. On discretionary review, the Supreme Court affirmed this Court\u2019s decision to reverse.\nAlthough the McAllister Court did not directly state that its decision overruled the holding in Lorbacher, the same principle is directly involved in both cases and the inference in McAllister is clear and compelling \u2014 an allegation of ordinary negligence will suffice as the first prong in a claim of NIED.\nWe must note that both the Lorbacher and McAllister Courts cited to Johnson for their respective definitions for a claim of NIED. Lorbacher, 127 N.C. App. at 676, 483 S.E.2d at 81; McAllister, 347 N.C. at 645-46, 496 S.E.2d at 582-83 The Johnson Court required for a showing of NIED that: l)the defendant negligently engaged in some act; 2) it was reasonably foreseeable that the conduct would cause the plaintiff severe emotional distress; and 3) the plaintiff did suffer severe emotional distress caused by defendant\u2019s negligent act. Johnson, 327 N.C. at 307, 345 S.E.2d at 97. The Johnson Court further stated that although an allegation of ordinary negligence will suffice, the plaintiff must allege that the severe emotional distress was the foreseeable and proximate result of defendant\u2019s negligent actions. Id.\nIn the instant case, plaintiff filed the complaint in April 1997, approximately one month after the Lorbacher decision; but the motion for summary judgment was not heard until after the decision in McAllister. The trial court was bound by the retroactive application of our Supreme Court\u2019s interpretation in McAllister of the elements necessary to establish a NIED claim. Absent a compelling reason to limit the retroactive effect of McAllister, we reverse the decision of the trial court granting summary judgment based solely on Lorbacher.\nWe also note that more recent Court of Appeals decisions have excluded the extreme and outrageous conduct requirement for a claim of NIED. See Simmons v. Chemol Corp., 137 N.C. App. 319, 325, 528 S.E.2d 368, 371-72 (2000) (\u201cAn action for negligent infliction of emotional distress requires a showing that defendant negligently engaged in conduct, which was reasonably foreseeable to cause, and did in fact cause, plaintiff to suffer severe emotional distress.\u201d); Johnson v. Scott, 137 N.C. App. 534, 538, 528 S.E.2d 402, 404 (2000) (stating the elements for a claim NIED as: \u201c(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\u201d) citing Johnson v. Ruark Obstetrics & Gynecology Assoc., RA., 327 N.C. at 304, 395 S.E.2d at 97.\nFor all of the reasons stated above, the decision of the trial court is\nReversed.\nChief Judge EAGLES and Judge MCCULLOUGH concur.", "type": "majority", "author": "BRYANT, Judge." } ], "attorneys": [ "Browne, Flebotte, Wilson and Horn, P.L.L.C., by Martin J. Horn, for plaintiff-appellant.", "Newsom, Graham, Hedrick & Kennon, P.A., by William P. Daniell, for defendants-appellees." ], "corrections": "", "head_matter": "DEBRA RILEY, PLAINTIFF-APPELLANT v. LINDA DeBAER and TIM MILLER, DEFENDANTS-APPELLEES\nNo. COA00-675\n(Filed 19 June 2001)\nEmotional Distress\u2014 negligent infliction \u2014 summary judgment\nThe trial court erred by granting summary judgment in favor of defendants on plaintiffs negligent infliction of emotional distress (NIED) claim based on the trial court\u2019s use of an erroneous standard in a prior Court of Appeals case requiring plaintiff to show defendant\u2019s conduct was extreme and outrageous to satisfy the first element of NIED, because: (1) an allegation of ordinary negligence will suffice as the first prong in a claim of NIED; (2) the trial court was bound by the retroactive application of our Supreme Court\u2019s interpretation of the elements necessary to establish a NIED claim, which includes an allegation of ordinary negligence along with the allegation that severe emotional distress was the foreseeable and proximate result of such negligence; and (3) recent Court of Appeals decisions have excluded the extreme and outrageous conduct requirement.\nAppeal by plaintiff from judgment entered 9 March 2000 by Judge Howard E. Manning, Jr. in Durham County Superior Court. Heard in the Court of Appeals 20 April 2001.\nBrowne, Flebotte, Wilson and Horn, P.L.L.C., by Martin J. Horn, for plaintiff-appellant.\nNewsom, Graham, Hedrick & Kennon, P.A., by William P. Daniell, for defendants-appellees." }, "file_name": "0357-01", "first_page_order": 385, "last_page_order": 391 }