in the Court of Appeals 22 May 2019.
by plaintiffs from order entered 9 January 2019 by Judge
Gregory Horne in Henderson County No. 18 CVS 1052 Superior
Jackson & Associates Law Firm, PLLC, by Frank B. Jackson,
Barden & Cury P.A., by Ervin L. Ball, Jr., and J. Boone
Tarlton, for defendants-appellees.
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.
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.
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
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.
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
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. Plaintiffs timely appeal.
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.
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).
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.
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.
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
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).
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
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
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
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.
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.
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
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)).
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