{ "id": 2532105, "name": "JACQUELINE HARRINGTON GARDNER, Administratrix of the Estate of Seth Campbell Gardner, JACQUELINE HARRINGTON GARDNER, Individually v. BENJAMIN A. GARDNER", "name_abbreviation": "Gardner v. Gardner", "decision_date": "1993-10-08", "docket_number": "No. 285A92", "first_page": "662", "last_page": "669", "citations": [ { "type": "official", "cite": "334 N.C. 662" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "418 S.E.2d 260", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": -1 }, { "cite": "106 N.C. App. 635", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 5313372 ], "year": 1992, "opinion_index": -1, "case_paths": [ "/nc-app/106/0635-01" ] }, { "cite": "45 ALR4th 234", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "719 P.2d 193", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10406108 ], "year": 1986, "pin_cites": [ { "page": "198" } ], "opinion_index": 0, "case_paths": [ "/p2d/719/0193-01" ] }, { "cite": "90 S.E. 809", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1916, "opinion_index": 0 }, { "cite": "172 N.C. 661", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11255194 ], "year": 1916, "opinion_index": 0, "case_paths": [ "/nc/172/0661-01" ] }, { "cite": "11 S.E. 1044", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1890, "opinion_index": 0 }, { "cite": "107 N.C. 370", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273699 ], "year": 1890, "opinion_index": 0, "case_paths": [ "/nc/107/0370-01" ] }, { "cite": "243 S.E.2d 143", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "144" } ], "opinion_index": 0 }, { "cite": "36 N.C. App. 146", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551769 ], "year": 1979, "pin_cites": [ { "page": "147" } ], "opinion_index": 0, "case_paths": [ "/nc-app/36/0146-01" ] }, { "cite": "329 S.E.2d 355", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "366", "parenthetical": "quoting Williams v. Power & Light Co., 36 N.C. App. 146, 147, 243 S.E.2d 143, 144, rev'd on factual grounds, 296 N.C. 400, 250 S.E.2d 255 (1979)" } ], "opinion_index": 0 }, { "cite": "313 N.C. 338", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4725019 ], "year": 1985, "pin_cites": [ { "page": "355", "parenthetical": "quoting Williams v. Power & Light Co., 36 N.C. App. 146, 147, 243 S.E.2d 143, 144, rev'd on factual grounds, 296 N.C. 400, 250 S.E.2d 255 (1979)" } ], "opinion_index": 0, "case_paths": [ "/nc/313/0338-01" ] }, { "cite": "250 S.E.2d 255", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1979, "pin_cites": [ { "page": "257" } ], "opinion_index": 0 }, { "cite": "296 N.C. 400", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566400 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "402" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0400-01" ] }, { "cite": "180 S.E.2d 823", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "830" } ], "opinion_index": 0 }, { "cite": "278 N.C. 523", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561041 ], "year": 1971, "pin_cites": [ { "page": "534" } ], "opinion_index": 0, "case_paths": [ "/nc/278/0523-01" ] }, { "cite": "395 S.E.2d 85", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 11, "year": 1990, "pin_cites": [ { "page": "93" }, { "page": "97" }, { "page": "98" }, { "parenthetical": "emphasis added" }, { "page": "97", "parenthetical": "emphasis added" }, { "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "327 N.C. 283", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2497384 ], "weight": 4, "year": 1990, "pin_cites": [ { "page": "296" }, { "page": "304" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0283-01" ] }, { "cite": "418 S.E.2d 260", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1992, "pin_cites": [ { "page": "263" }, { "page": "263", "parenthetical": "Eagles, J., dissenting" } ], "opinion_index": 0 }, { "cite": "106 N.C. App. 635", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 5313372 ], "year": 1992, "pin_cites": [ { "page": "639" } ], "opinion_index": 0, "case_paths": [ "/nc-app/106/0635-01" ] }, { "cite": "435 S.E.2d 320", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 1 }, { "cite": "334 N.C. 669", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2529064 ], "year": 1993, "opinion_index": 1, "case_paths": [ "/nc/334/0669-01" ] }, { "cite": "395 S.E.2d 85", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 1 }, { "cite": "327 N.C. 283", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2497384 ], "year": 1990, "opinion_index": 1, "case_paths": [ "/nc/327/0283-01" ] }, { "cite": "435 S.E.2d 320", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "323" } ], "opinion_index": 2 }, { "cite": "334 N.C. 669", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2529064 ], "year": 1993, "pin_cites": [ { "page": "675" } ], "opinion_index": 2, "case_paths": [ "/nc/334/0669-01" ] } ], "analysis": { "cardinality": 751, "char_count": 17141, "ocr_confidence": 0.749, "pagerank": { "raw": 3.0794110974044273e-07, "percentile": 0.8578901704307857 }, "sha256": "465ffe8d86caf6ef3aadf3709bc0c03f3ec77f0549edf4ddfcd6093f2eeadf16", "simhash": "1:09c9792b016f027b", "word_count": 2723 }, "last_updated": "2023-07-14T14:40:35.485142+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JACQUELINE HARRINGTON GARDNER, Administratrix of the Estate of Seth Campbell Gardner, JACQUELINE HARRINGTON GARDNER, Individually v. BENJAMIN A. GARDNER" ], "opinions": [ { "text": "WHICHARD, Justice.\nThis case presents the question whether a mother who is not present at the scene of a car accident in which her child is injured may recover for negligent infliction of emotional distress (NIED) when she suffers mental anguish upon being informed of the accident, rushing to the hospital where she observes resuscitative efforts by emergency personnel upon her child, and later learning of her child\u2019s death. We hold that because the pleadings and forecast of evidence fail to establish the reasonable foreseeability of her injury, she cannot, and we therefore reverse the decision of the Court of Appeals and remand for reinstatement of the trial court\u2019s order dismissing plaintiff\u2019s NIED claim with prejudice.\nOn 18 August 1990, thirteen-year-old Seth Campbell Gardner was injured when the truck being driven by his father, defendant Benjamin Gardner, ran into a bridge abutment on a rural road near Greenville. The accident occurred several miles away from the home of Seth\u2019s maternal grandmother, where his mother .plaintiff Jacqueline Gardner, was residing. Upon learning of the accident by telephone, plaintiff went directly to the emergency room at Pitt County Memorial Hospital. About five minutes after she arrived, she saw her son wheeled into the emergency room and observed emergency room personnel applying resuscitative techniques to him. The boy was taken immediately to a treatment room, and plaintiff was taken to a private waiting room. Plaintiff did not see her son again but periodically was advised of his condition. Some time later plaintiff was told that her son had died and was requested to donate his organs.\nIn her capacity as administratrix plaintiff sued defendant for the wrongful death of their minor son, and in her individual capacity she sued him for negligent infliction of emotional distress. She alleged that she suffered severe emotional distress and, as a result, has sought and received professional counseling; that the injury to her son and emotional distress she suffered were caused by defendant\u2019s negligence; and that it was reasonably foreseeable that defendant\u2019s negligent conduct would cause her severe emotional distress.\nThe trial court treated defendant\u2019s motion to dismiss as a motion for summary judgment. For purposes of that motion the parties stipulated that their son had died as a result of defendant\u2019s negligence and that plaintiff had suffered severe emotional distress as a result of the accident and death. The trial court granted summary judgment as to plaintiff\u2019s claim for NIED and dismissed that claim with prejudice. It ruled that, as a matter of law, plaintiff could not establish a claim for NIED because she did not witness the accident nor was she in sufficiently close proximity thereto to satisfy the \u201cforeseeability factors\u201d set forth in Johnson v. Ruark Obstetrics, 327 N.C. 283, 395 S.E.2d 85 (1990).\nOn appeal, the Court of Appeals held that plaintiff\u2019s emotional distress as a result of defendant\u2019s negligence was foreseeable. Emphasizing that the Ruark factors were not requirements for foreseeability but were \u201cto be considered on the question of foreseeability,\u201d the court stated:\nIn common experience, a parent who sees its mortally injured child soon after an accident, albeit at another place, perceives the danger to the child\u2019s 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 ... a parent who is actually exposed to the scene of the accident.\nGardner v. Gardner, 106 N.C. App. 635, 639, 418 S.E.2d 260, 263 (1992). The court held that defendant \u201ccould have reasonably foreseen that his negligence might be a direct and proximate cause of the plaintiff\u2019s emotional distress,\u201d id., and it accordingly reversed the trial court.\nJudge Eagles dissented on the grounds that plaintiff did not observe and was not in close proximity to the negligent act and therefore \u201cfailed to establish sufficient proximity to satisfy the foreseeability requirements of Ruark.\u201d Id. at 640, 418 S.E.2d at 263 (Eagles, J., dissenting). Defendant appealed to this Court as a matter of right based on the dissent. N.C.G.S. \u00a7 7A-30(2) (1989).\nSummary judgment can be sustained only if \u201cthe pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.\u201d N.C.G.S. \u00a7 1A-1, Rule 56(c) (1990). \u201c[I]ts purpose is to eliminate formal trials where only questions of law are involved.\u201d Kessing v. Mortgage Corp., 278 N.C. 523, 534, 180 S.E.2d 823, 830 (1971). It is, however, \u201ca drastic measure, and it should be used with caution.\u201d Williams v. Power & Light Co., 296 N.C. 400, 402, 250 S.E.2d 255, 257 (1979). Notwithstanding, \u201csummary judgment ... is proper where the evidence fails to establish negligence on the part of defendant ... or establishes that the alleged negligent conduct was not the [foreseeable and] proximate cause of [plaintiff\u2019s] injury.\u201d Rorrer v. Cooke, 313 N.C. 338, 355, 329 S.E.2d 355, 366 (1985) (quoting Williams v. Power & Light Co., 36 N.C. App. 146, 147, 243 S.E.2d 143, 144, rev\u2019d on factual grounds, 296 N.C. 400, 250 S.E.2d 255 (1979)).\nIn Johnson v. Ruark Obstetrics, 327 N.C. 283, 395 S.E.2d 85, we concluded that an action for negligent infliction of emotional distress had its roots in one hundred years of North Carolina jurisprudence, beginning with Young v. Telegraph Co., 107 N.C. 370, 11 S.E. 1044 (1890). We noted that Young and, subsequently, Bailey v. Long, 172 N.C. 661, 90 S.E. 809 (1916), permitted a cause of action for emotional distress arising not from a plaintiff\u2019s concern for his own welfare, but from his concern for that of another. Ruark, 327 N.C. at 296, 395 S.E.2d at 93. From these cases we concluded that in order to state a claim for negligent infliction of emotional distress, a \u201cplaintiff need not allege or prove any physical impact, physical injury, or physical manifestation of emotional distress.\u201d Id. at 304, 395 S.E.2d at 97. The only requisite allegations were \u201cthat (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.\u201d Id. \u201c \u2018[S]evere emotional distress,\u2019 \u201d we specified, \u201cmeans any 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.\u201d Id. The touchstone for whether a plaintiff may recover for NIED is whether \u201cthe plaintiff can prove that he or she has suffered such severe emotional distress as a proximate and foreseeable result of the defendant\u2019s negligence.\u201d Id. To guide the determination of whether the plaintiff\u2019s injury was a foreseeable result of the defendant\u2019s negligence, we suggested three factors to be considered: \u201c[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.\u201d Id. at 305, 395 S.E.2d at 98. Notably, these factors were not termed \u201celements\u201d of the claim. They were neither requisites nor exclusive determinants in an assessment of foreseeability, but they focused on some facts that could be particularly relevant in any one case in determining the foreseeability of harm to the plaintiff. Whatever their weight in this determination, we stressed that \u201c[questions of foreseeability and proximate cause must be determined under all the facts presented\u201d in each case. Id. (emphasis added).\nIn this case the parties stipulated to two of the three factors necessary to state a claim for NIED. They agreed that their minor son died as a result of defendant\u2019s negligence and that plaintiff suffered severe emotional distress as a result of the accident and the death of her son. The third 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. In order to determine whether there is a genuine issue of material fact as to this question, we must look at all of the facts guided by the factors suggested in Ruark.\nPlaintiff here, like the plaintiffs in Ruark, alleges that she is the parent of the child who died as a result of defendant\u2019s negligence. Plaintiff was not, however, in close proximity to, nor did she observe, defendant\u2019s negligent act. At the time defendant\u2019s vehicle struck the bridge abutment, plaintiff was at her mother\u2019s house several miles away. This fact, while not in itself determinative, unquestionably militates against defendant\u2019s being able to foresee, at the time of the collision, that plaintiff would subsequently suffer severe emotional distress as a result of his accident. Because she was not physically present at the time of defendant\u2019s negligent act, plaintiff was not able to see or hear or otherwise sense the collision or to perceive immediately the injuries suffered by her son. Her absence from the scene at the time of defendant\u2019s negligent act, while not in itself decisive, militates against the foreseeability of her resulting emotional distress.\nFurther, and more importantly, to establish an NIED claim a plaintiff must allege and prove \u201cthat severe emotional distress was a foreseeable and proximate result of [the] negligence . . .; mere temporary fright, disappointment or regret will not suffice.\u201d Ruark, 327 N.C. at 304, 395 S.E.2d at 97 (emphasis added). \u201cIn this context, the term \u2018severe emotional distress\u2019 means any emotional or mental disorder, such as . . . 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.\u201d Id. (emphasis added). While anyone should foresee that virtually any parent will suffer some emotional distress \u2014 \u201ctemporary disappointment ... or regret\u201d \u2014 in the circumstances presented, to establish a claim for NIED the law requires reasonable foresight of an emotional or mental disorder or other severe and disabling emotional or mental condition. Here, 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.\nThat plaintiff suffered severe emotional distress upon seeing her son in the emergency room undergoing resuscitative efforts a period of time after the accident, and upon learning subsequently of his death, is stipulated. Nevertheless, absent reasonable foreseeability, this is not an injury for which defendant is legally accountable. \u201c[P]art of living involves some unhappy and disagreeable emotions with which we must cope without recovery of damages.\u201d Gates v. Richardson, 719 P.2d 193, 198 (Wyo. 1986). Given her absence from the time and place of the tort and her failure to show that defendant knew she was susceptible to an emotional or mental disorder or other severe and disabling emotional or mental condition as a result of his negligence and its consequences, we hold that 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.\nThe trial court thus properly granted summary judgment to defendant on the NIED issue. The decision of the Court of Appeals reversing that judgment is accordingly reversed, and the cause is remanded to the Court of Appeals for further remand to the Superior Court, Pitt County, for reinstatement of the order of summary judgment for defendant on plaintiff\u2019s claim, in her individual capacity, for negligent infliction of emotional distress.\nREVERSED AND REMANDED.", "type": "majority", "author": "WHICHARD, Justice." }, { "text": "Chief Justice EXUM\ndissenting.\nWhile agreeing that the majority has identified the appropriate legal principles to resolve this case, I cannot agree with its application of them to the facts here. Because of the close family relationship between the tortfeasor, the child and the plaintiff, I believe a jury might appropriately find that the tortfeasor should reasonably have foreseen that if he negligently killed the child of his marriage to plaintiff, plaintiff would suffer severe emotional distress, even as that term is defined by the majority.\nThis case is not entirely like Sorrells, decided today, or Ruark, but it is much closer to Ruark \u2014 close enough so that our decision in Ruark should control. Indeed, the foreseeability issue here seems more easily resolved in plaintiff\u2019s favor than it was in Ruark. In Ruark the alleged tortfeasor was a physician whose negligence allegedly caused the death of the fetus of the plaintiff who was his patient. Here the tortfeasor is plaintiff\u2019s husband who, according to the stipulations, negligently caused the death of his and plaintiff\u2019s thirteen-year-old child, in turn causing plaintiff to suffer severe emotional distress. Because of the deceased child\u2019s age, thirteen, the parent-child bonding and the parents\u2019 emotional investment in the child were likely to be quite strong. That the tortfeasor is plaintiff\u2019s husband and was the child\u2019s father and the child was born of his and plaintiff\u2019s marriage further exacerbate the total tragedy.\nThe majority says, quoting from a Wyoming case, that \u201cpart of living involves some unhappy and disagreeable emotions with which we must cope without recovery of damages.\u201d While true as far as it goes, this aphorism should have no application to the psychological and emotional trauma which any mother must surely suffer when her . thirteen-year-old child is killed by the negligence of her husband who is also the child\u2019s father. A more emotionally shattering family tragedy is hard to imagine. That it would likely produce severe emotional distress on the part of the child\u2019s mother when she learns of it, however physically close to the accident scene itself she might have been, seems to me reasonably foreseeable to the father-husband tortfeasor. At least a jury might reasonably find it to be so.\nFor these reasons, I vote to affirm the decision of the Court of Appeals.\n. Sorrells v. M.Y.B. Hospitality Ventures of Asheville, 334 N.C. 669, 435 S.E.2d 320 (1993).\n. Johnson v. Ruark Obstetrics, 327 N.C. 283, 395 S.E.2d 85 (1990).", "type": "dissent", "author": "Chief Justice EXUM" }, { "text": "Justice MEYER\nconcurring in result.\nI concur only in the result reached by the majority for the reasons expressed in my concurring in result opinion in Sorrells v. M.Y.B. Hospitality Ventures, 334 N.C. 669, 675, 435 S.E.2d 320, 323 (1993).", "type": "concurrence", "author": "Justice MEYER" } ], "attorneys": [ "Gaskins and Gaskins, P.A., by Herman E. Gaskins, Jr., for plaintiff-appellee.", "Baker, Jenkins, Jones & Daly, P.A., by Ronald G. Baker and R.B. Daly, Jr., for defendant-appellant.", "Nichols, Caffrey, Hill, Evans & Murrelle, by Richard L. Pinto, for North Carolina Association of Defense Attorneys, amicus curiae." ], "corrections": "", "head_matter": "JACQUELINE HARRINGTON GARDNER, Administratrix of the Estate of Seth Campbell Gardner, JACQUELINE HARRINGTON GARDNER, Individually v. BENJAMIN A. GARDNER\nNo. 285A92\n(Filed 8 October 1993)\nDamages \u00a7 21 (NCI4th); Negligence \u00a7 19 (NCI4th)\u2014 child injured in car accident \u2014 negligence by defendant \u2014emotional distress of mother not foreseeable\nPlaintiff mother could not recover for negligent infliction of emotional distress when she suffered mental anguish upon being informed that her child was in a car accident caused by defendant\u2019s negligence, rushing to the hospital where she observed resuscitation efforts by emergency personnel upon her child, and later learning of her child\u2019s death where plaintiff was not present at the time of defendant\u2019s negligent act, and there was no allegation or forecast of evidence that defendant knew that plaintiff was subject to an emotional or mental disorder or other severe or disabling emotional or mental condition as a result of his negligence and its consequences, since plaintiff\u2019s injury was not reasonably foreseeable by defendant and its occurrence was too remote from the negligent act itself to hold defendant liable for such consequences.\nAm Jur 2d, Damages \u00a7 251 et seq.; Negligence \u00a7 488 et seq.\nRecovery of damages for grief or mental anguish resulting from death of child \u2014 modern cases. 45 ALR4th 234.\nChief Justice Exum dissenting.\nJustice MEYER concurring in the result.\nAppeal by defendant pursuant to N.C.G.S. \u00a7 7A-30(2) from a decision of a divided panel of the Court of Appeals, 106 N.C. App. 635, 418 S.E.2d 260 (1992), reversing an order for partial summary judgment in favor of defendant entered by Duke, J., on 31 May 1991 in Superior Court, Pitt County. Heard in the Supreme Court 14 January 1993.\nGaskins and Gaskins, P.A., by Herman E. Gaskins, Jr., for plaintiff-appellee.\nBaker, Jenkins, Jones & Daly, P.A., by Ronald G. Baker and R.B. Daly, Jr., for defendant-appellant.\nNichols, Caffrey, Hill, Evans & Murrelle, by Richard L. Pinto, for North Carolina Association of Defense Attorneys, amicus curiae." }, "file_name": "0662-01", "first_page_order": 686, "last_page_order": 693 }