Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Newman v. Stepp

Court of Appeals of North Carolina

September 3, 2019

DELIA NEWMAN, ET UX, Plaintiffs,

          Heard in the Court of Appeals 22 May 2019.

          Appeal by plaintiffs from order entered 9 January 2019 by Judge Gregory Horne in Henderson County No. 18 CVS 1052 Superior Court.

          F.B. Jackson & Associates Law Firm, PLLC, by Frank B. Jackson, for plaintiffs-appellants.

          Ball Barden & Cury P.A., by Ervin L. Ball, Jr., and J. Boone Tarlton, for defendants-appellees.

          BRYANT, JUDGE.

         Where plaintiffs properly alleged severe emotional distress to support foreseeability in their claim of negligent infliction of emotional distress, we reverse the trial court's ruling for judgment on the pleadings in favor of defendants and remand this case for further proceedings.

         Plaintiffs Delia Newman and Jeromy Newman (collectively "plaintiffs") appeal from the trial court's judgment on the pleadings in favor of defendants Heather Stepp and James Stepp (collectively "defendants"), whose negligence caused the death of plaintiffs' two-year-old daughter, "Abby." Plaintiffs filed their complaint asserting claims for negligent infliction of emotional distress ("NIED"), intentional infliction of emotional distress ("IIED"), violation of a safety statute, and loss of consortium. Defendants filed an answer--denying negligence and wrongdoing--which contained a motion for judgment on the pleadings pursuant to Rule 12(c) of the Rules of Civil Procedure.

         According to the complaint, on 26 October 2015, plaintiff Delia Newman (hereinafter "Delia") left Abby in the temporary care of defendants at their residence while she attended class for her Ultrasound Technician degree. Defendants operated an unlicensed childcare facility at their residence and regularly cared for other children, including Abby, during the day. At the time of the incident, about 8:00 a.m. that morning, the kitchen was left unattended with no adult supervision. Abby and defendants' minor children were present and had "unfettered access to [a] loaded shotgun which was lying on the kitchen table." The loaded 12 gauge shotgun was owned by defendants, and defendant Heather Stepp had not completed a firearms safety course. Defendants also had not utilized the safety or trigger guard to prevent discharge.

         The shotgun was discharged in Abby's direction by one of defendants' children, who was under the age of five. Abby was struck at close range and the shotgun blast penetrated her chest causing her to bleed profusely. Abby was transported to a nearby hospital, where she was pronounced dead upon arrival due to the chest wound she sustained.

         Plaintiff Jeromy Newman (hereinafter "Jeromy") heard about Abby's shooting over a CB radio--her injury was dispatched as a "young female child [who] was critically wounded by the discharge of a shotgun at close range at the babysitter's home and that her condition was extremely critical." Jeromy heard defendants' address over the radio and proceeded to defendants' house. While on the way to their house, Jeromy saw the ambulance that he learned "contain[ed] his daughter who was still alive at the time" and followed it to the hospital. He observed Abby as she was removed from the ambulance. When Jeromy inquired about Abby's condition, he was told that Abby had died in the ambulance or immediately after arriving at the hospital. Delia arrived at the hospital shortly after the incident due to the close proximity of her school to the hospital. Upon arrival, she was informed of Abby's death. Delia held Abby's lifeless body until she was forced to leave the room.

         On 3 December 2018, a hearing was held on defendants' 12(c) motion in Henderson County Superior Court before the Honorable Gregory Horne, Judge presiding. Judge Horne, after reviewing the pleadings and hearing arguments of counsel, dismissed plaintiffs' claims with prejudice.[1] Plaintiffs timely appeal.

         On appeal, plaintiffs contend the trial court erred by entering judgment on the pleadings in favor of defendants. Plaintiffs appear to only challenge the trial court's ruling as to the NIED claim; therefore, the remaining claims are not subjects of this appeal.

         We consider whether plaintiffs asserted the claim in their complaint with sufficient specificity to withstand judgment on the pleadings, and review "[the] trial court's order granting a motion for judgment on the pleadings de novo." Erie Ins. Exch. v. Builders Mut. Ins. Co., 227 N.C.App. 238, 241, 742 S.E.2d 803, 807 (2013).

         "Judgment on the pleadings, pursuant to Rule 12(c), is appropriate when all the material allegations of fact are admitted in the pleadings and only questions of law remain." Id. (citation omitted). In considering a motion for judgment on the pleadings, "[t]he trial court is required to view the facts and permissible inferences in the light most favorable to the nonmoving party." Ragsdale v. Kennedy, 286 N.C. 130, 137, 209 S.E.2d 494, 499 (1974). "All well[-]pleaded factual allegations in the nonmoving party's pleadings are taken as true and all contravening assertions in the movant's pleadings are taken as false." Id. "When the pleadings do not resolve all the factual issues, judgment on the pleadings is generally inappropriate." Id.

          In the instant case, plaintiffs alleged severe emotional distress resulting from Abby's tragic death and sought recovery of damages for NIED. The dispositive issue surrounding plaintiffs' claim for NIED is foreseeability.

         North Carolina has long recognized claims of NIED arising out of concern for another person. See Bailey v. Long, 172 N.C. 661, 90 S.E. 809 (1916) (holding that the plaintiff can bring a cause of action for emotional distress after the death of his wife arising from his concern for another person). To establish a claim for NIED, "a plaintiff must allege that (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) the conduct did in fact cause the plaintiff severe emotional distress." Johnson v. Ruark Obstetrics & Gynecology Assocs., P.A., 327 N.C. 283, 304, 395 S.E.2d 85, 97 (1990). "Further, a plaintiff may recover for his or her severe emotional distress arising due to concern for another person, if the plaintiff can prove that he or she has suffered such severe emotional distress as a proximate and foreseeable result of the defendant's negligence." Id.

         Our Supreme Court has stated:

In making this foreseeability determination, the factors to be considered include, but are not limited to: (1) the plaintiff's proximity to the negligent act causing injury to the other person, (2) the relationship between the plaintiff and the other person, and (3) whether the plaintiff personally observed the negligent act.
However, such factors are not mechanistic requirements [such that] the absence of which will inevitably defeat a claim for negligent infliction of emotional distress. The presence or absence of such factors simply is not determinative in all cases. Therefore, North Carolina law forbids the mechanical application of any arbitrary factors-such as a requirement that the plaintiff be within a zone of danger created by the defendant or a requirement that the plaintiff personally observe the crucial negligent act-for purposes of determining foreseeability.
Rather, the question of reasonable foreseeability under North Carolina law must be determined under all the facts presented, and should be resolved on a case-by-case basis by the trial court and, where appropriate, by a jury.

Sorrells v. M.Y.B. Hosp. Ventures of Asheville, 334 N.C. 669, 672-73, 435 S.E.2d 320, 322 (1993) (internal citations and quotation marks omitted). "[A]bsent reasonable foreseeability, the defendant will not be liable for the plaintiff's severe emotional distress." Riddle v. Buncombe Cty. Bd. of Educ., __ N.C.App. __, __, 805 S.E.2d 757, 760 (2017).

         Here, plaintiffs asserted factual allegations in their complaint that set forth a proper claim for NIED showing: 1) defendants engaged in negligent conduct, 2) it was foreseeable that such conduct would cause severe emotional distress to plaintiffs, and 3) their conduct did in fact cause severe emotional distress. The factual allegations are as follows:

32. Defendants failed to unload the firearm prior to laying it on the kitchen table, where it was readily available to the minor children that had unfettered access to the entire home.
33. Defendants failed to "check" the firearm to [ensure] it was unloaded prior to allowing the [p]laintiffs' child inside their home.
34. Defendants failed to properly educate their young children regarding firearms and the dangers involved with "playing" with said firearm.
35. Defendants failed to [ensure] that they had the proper training prior to possessing such a firearm.
36. Defendants failed to properly supervise the minor children that were in their home.
37. That the actions of the [d]efendants were a direct and proximate cause of the injuries and death of [Abby.]
39. It was reasonably foreseeable that the conduct of the [d]efendants, and the wounding and death of [Abby] would cause the [p]laintiffs severe emotional distress, including but not limited to:
a. Both [p]laintiffs have incurred severe emotional distress. The mother [Delia] has incurred such severe emotional distress that she has been under constant psychiatric care and has been placed on numerous strong anti-depressants as well as other medications.
b. The mother has had etched in her memory the sight of her lifeless daughter in her arms at Mission Hospital.
c. The mother has convinced herself that she also is going to die, because God would not allow her to suffer as she has suffered without taking her life also.
d. The mother is still unable to deal with the possessions of her dead daughter but has kept every possession in a safe place.
e. At times[, ] the mother has wished death for herself.
f. The mother has not been able to tend to her usual household duties and has stopped her efforts to obtain the degree she had sought[.] g. There are days the mother has trouble leaving her home.
h. Both [p]laintiffs have lost normal husband and wife companionship and consortium.
i. As a result of all the aforesaid, the mother has been rendered disabled for periods of time since her daughter's death.

         Taking these allegations as true, plaintiffs sufficiently stated facts, which set forth their severe emotional distress as a direct, reasonable, and foreseeable result of defendants' negligence, to enable them to proceed with a claim for NIED.

         The relevant facts show that plaintiffs arrived at the hospital within minutes of the shooting incident and observed Abby wounded by the shotgun blast--Jeromy, in particular, observed Abby as she arrived at the hospital and was transported from the ambulance to the hospital. Delia arrived immediately thereafter and held her fatally wounded two-year-old in her arms for as long as hospital personnel would allow. Plaintiffs--who, as parents to Abby, experienced the events immediately prior to and following Abby's death in the aftermath of her arrival at the hospital-- asserted severe emotional distress from the manner in which they suffered the death of their daughter. The existence of the close parent-child familial relationship, of which defendants were well aware of, supports foreseeability.

         "Common sense and precedent tell us that a defendant's negligent act toward one person may proximately and foreseeably cause emotional distress to another person and justify his recovering damages, depending upon their relationship and other factors present in the particular case." Ruark, 327 N.C. at 300, 395 S.E.2d at 95. Thus, we reject defendants' erroneous contention that plaintiffs cannot support a NIED claim because they were not physically present to observe the actual shooting of Abby, and therefore, their injury was not reasonably foreseeable. See id. at 291, 395 S.E.2d at 89 ("[O]ur law includes no arbitrary requirements to be applied mechanically to claims for negligent infliction of emotional distress.").

         Further, granting judgment on the pleadings was inappropriate, especially where, as here, plaintiffs allege defendants' negligence was in fact the foreseeable and proximate cause of plaintiffs' severe emotional distress. We note that defendants admitted the following, in relevant part, in their answer: 1) they operated an unlicensed child care facility, 2) they had young children in their home, 3) defendant James Stepp owned the shotgun, 4) the loaded shotgun was on the kitchen table, 5) the shotgun was discharged at their residence, 6) Abby was shot and bled from the wound caused by the discharge of the shotgun, and 7) Abby died as a result of the shotgun blast. However, allegations regarding whether defendants' negligence was in fact the foreseeable and proximate cause of plaintiffs' injury are proper questions for the jury to decide. See id. at 292, 395 S.E.2d at 90 ("The difficulty of measuring damages to the feelings is very great, but the admeasurement is submitted to the jury in many other instances, . . . and it is better it should be left to them, under the wise supervision of the presiding judge, with his power to set aside excessive verdicts, than, on account of such difficulty, to require parties injured in their feelings by the negligence, the malice or wantonness of others, to go without remedy." (citation omitted)).

         Therefore, we conclude that plaintiffs sufficiently alleged a claim for NIED as the facts as set forth in the complaint support foreseeability. Additionally, since plaintiffs' claim for loss of consortium was sufficiently pled and derived from the claim for NIED, we recommend that on remand the trial court re-evaluate its ruling on the loss of consortium claim as well. See Nicholson v. Hugh Chatham Mem'l Hosp., Inc.,300 N.C. 295, 304, 266 S.E.2d 818, 823 (1980) ("[A] spouse may maintain a cause of action for loss of consortium due to the negligent actions of third parties so ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.