04/07/2022 IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE June 1, 2021 Session

SHERMAN FRANKLIN, JR. v. DURHAM SCHOOL SERVICES, L.P., ET AL.

Appeal from the Circuit Court for Hamilton County No. 17C1279 John B. Bennett, Judge ___________________________________

No. E2020-00715-COA-R10-CV ___________________________________

This extraordinary appeal arises from a school bus crash in November 2016, which resulted in the tragic death of six children attending Woodmore Elementary School in Chattanooga.^[1] Plaintiff, an educational assistant at Woodmore, sued the employer of the bus driver for, inter alia, reckless infliction of emotional distress (“RIED”). The educational assistant alleged that the employer’s failure to address the bus driver’s dangerous driving despite receiving numerous warnings disregarded the children’s safety, constituted reckless and outrageous conduct, and caused him serious mental injuries. The trial court denied the employer’s motion to dismiss the claim, finding that the educational assistant had sufficiently alleged outrageous conduct on the part of the employer and that he had met all other pleading requirements to sustain his RIED claim. Employer appeals. Although we agree with the trial court that the educational assistant sufficiently alleged conduct so outrageous by the employer that it cannot be tolerated by civilized society, we hold that the educational assistant is not a person who falls within the reasonably foreseeable scope of the particular substantial and unjustifiable risk consciously disregarded by the employer and, therefore, cannot recover under a reckless infliction of emotional distress claim. Consequently, we reverse the trial court’s finding on this latter issue and remand the case for dismissal of the action against employer.

Tenn. R. App. P. 10 Extraordinary Appeal; Judgment of the Circuit Court Affirmed in Part and Reversed in Part; Case Remanded

KRISTI M. DAVIS, J., delivered the opinion of the court, in which D. MICHAEL SWINEY, C.J., AND THOMAS R. FRIERSON, II, J., joined.

history of reckless and dangerous driving. For example, Franklin alleged that he “spent as much or more time with the students during waking hours than the parents did”; that he “was a surrogate father to many of the students in the bus, including students who were badly injured and students who died due to the crash”; that he “was at the hospital shortly after the crash and . . . saw the children severely injured and watched as [sic] at least one child as he fought for his life, but died”; and that, at the urging of the National Transportation Safety Board (“NTSB”), he “watched the video of the crash in order to identify where each kid was seated, [and] saw the children actually being injured and pinned and trapped on the bus.” As to Walker’s driving, the Amended Complaint stated that Woodmore teachers, staff, and parents knew about Walker’s reckless driving habits, which “were frequently reported to Durham who did no investigation and who did nothing.” Franklin also alleged that Durham “knew or should have known that a crash involving serious injury and death to the students would have a serious and debilitating effect on the teachers and staff at the school.”

Two weeks later, Durham renewed its motion to dismiss, restating its original arguments and also contending that Franklin did not allege in the Amended Complaint a type of relationship with the students “that falls outside the normal realm of a general staff- student relationship” so as to support his claim for negligent infliction of emotional distress. Moreover, Durham argued, there is no legal or factual basis for concluding that a “good school staff member” automatically becomes a surrogate parent or has a close and intimate personal relationship of the nature contemplated by the courts when granting relief for emotional distress. With respect to the new allegations concerning Walker’s frequent and widely known reckless driving, Durham insisted that such conduct is not sufficiently outrageous to support a claim for intentional infliction of emotional distress.

Franklin filed a brief opposing the motion to dismiss, emphasizing that Durham’s “inaction, which they knew could lead to the serious injury and death of a bus load of children, is so outrageous that it cannot be tolerated by civilized society” and that Durham “knew or should have known that a crash involving serious injury and death to the students would have a serious and debilitating effect on the teachers and staff at the school.” In reply, Durham contended that Franklin’s negligent infliction of emotional distress claim fails not only because he did not allege the requisite close and intimate personal relationship with the students, but also because he neither witnessed the bus crash nor the scene before it was materially altered, as required by our Supreme Court in Ramsey v. Beavers, 931 S.W.2d 527 (Tenn. 1996) and Eskin v. Bartee, 262 S.W.3d 727 (Tenn. 2008), respectively.

Over Durham’s objection, the trial court granted Franklin’s motion to amend his complaint a second time. This Second Amended Complaint, filed on January 30, 2019, added, inter alia, the following relevant allegations concerning Walker’s repeated driving misconduct and Durham’s failure to take any action despite having knowledge of the same: • That Durham had “received over one thousand notifications from Zonar3 that . . . Walker was speeding while driving his school bus.” • That Durham was aware that in August and September of 2016, “Walker was at fault in two accidents within a period of thirty-four days.” • That Durham knew “Walker would slam on his brakes to make the children [on the bus] hit their heads” and “had even seen video where Walker was talking on a telephone with a blue tooth headset while driving the school bus.” • That Durham knew “Walker had fallen asleep at the wheel on two occasions.” • That Durham took no action when “Walker missed five out of five mandatory safety meetings during his short term of employment with Durham.” • That five days before the bus crash, on November 16, 2016, Durham received notice that on that same date, “six students reported that Walker was intentionally swerving the bus to knock the children out of their seats.” • That Durham had information from Zonar that on November 16, 2016, Walker “had twenty five separate speeding incidents . . . [and in] five of the incidents, he was speeding more than twenty miles over the speed limit.” • That Durham was in possession of, but failed to review promptly, a twenty-six-minute video of the November 16, 2016 incident showing “dramatic and intentional attempts by Walker to throw the children off their seats and injure them,” prior to the bus crash five days later on November 21, 2016. • That Durham “had no central place to log complaints which were made by other drivers or complaints made by the public . . . [and] no central place to record violations of their own regulations and did not even have a policy on documenting complaints.” • That Durham “did no investigation of Walker’s speeding events . . . [and] not even an investigation of Walker’s speeding incident on the dates of his two at-fault accidents.” • That Durham failed to test Walker for alcohol and controlled substance abuse after his two at-fault accidents, as required by federal regulations. • That Durham did not document in its daily log “complaints by parents that were emailed to [Durham] . . . [nor] put in Walker’s file, and were not even forwarded to a training or safety supervisor. There was no investigation and no discipline of Walker.” • That “all of the above cited facts amounted to a reckless indifference to the lives and safety of the children riding on the buses and to others in the community.”

Franklin later filed a supplemental memorandum of law to elaborate on the RIED claim and related allegations raised in his Second Amended Complaint. He emphasized our Supreme Court’s holding in Doe 1 ex rel. Doe 1 v. Roman Catholic Diocese of Nashville, 154 S.W.3d 22, 38 (Tenn. 2005), that an actionable claim for “reckless infliction of emotional distress need not be based upon conduct that was directed at a specific person or that occurred in the presence of the plaintiff.” The rest of his memorandum restated the bulk of the allegations made in his Second Amended Complaint.

Durham submitted to the trial court a consolidated supplemental brief in further support of its renewed motion to dismiss.^[4] Durham asserted that, concerning RIED claims, Doe retained a foreseeability requirement by stating that “[t]he reckless tortfeasor will be liable only to persons who fall within the reasonably foreseeable scope of the particular substantial and unjustifiable risk consciously disregarded by the tortfeasor.” Id. at 39. Moreover, Durham contended, it would seem anomalous that a non-bystander, such as Franklin, could meet the higher burden to recover for reckless infliction of emotional distress but be denied relief for negligent infliction of emotional distress based on the same facts. Durham added that the facts alleged by Franklin to show Durham’s negligent supervision and retention of Walker, even if true, do not amount to extreme and outrageous conduct.

After a hearing on Durham’s renewed motion to dismiss, the trial court filed a written order on July 15, 2019. The trial court found that “the allegations in the [Second] Amended Complaint show a closeness of relationship between the plaintiff and the children, and a very serious driving problem with Mr. Walker.” The trial court denied Durham’s motion to dismiss Franklin’s RIED claim, concluding that he satisfied the claim’s pleading requirements because “(1) the conduct alleged is outrageous as a matter of law, (2) [Durham] had knowledge prior to the accident that any intentional or reckless injury done to the children would have an adverse impact on plaintiff’s emotional state; and (3) the plaintiff otherwise meets the requirements of Doe . . . , and falls within the reasonably foreseeable scope of persons who could be injured by the particular substantial and unjustifiable risk consciously disregarded by the tortfeasor.” Franklin’s claim for negligent infliction of emotional distress was dismissed because he “did not go to the scene of the accident, and therefore does not satisfy the factors required to proceed with this cause of action.” Likewise, the trial court dismissed the claim for breach of contract, finding that Franklin made no allegations with respect to the consideration required to form a contract.

After the trial court denied the parties’ motions for interlocutory appeal under Rule 9 of the Tennessee Rules of Appellate Procedure, Durham applied to this Court for an extraordinary appeal, see Tenn. R. App. P. 10, which we granted.

ISSUES PRESENTED

Our July 9, 2020 Order granting Durham’s application for an extraordinary appeal delineates the following issues on appeal: 1) Whether Plaintiff’s complaint survives a motion to dismiss by sufficiently alleging conduct so outrageous that it is not tolerated by civilized society; and

2) Whether Plaintiff’s complaint survives a motion to dismiss by sufficiently alleging that Plaintiff is a person who falls within the reasonably foreseeable scope of the particular substantial and unjustifiable risk consciously disregarded by the tortfeasors.

STANDARD OF REVIEW

In an extraordinary appeal, appellate courts apply the same standard of review that would have been applied to the issues in an appeal as of right. Chapman v. DaVita, Inc., 380 S.W.3d 710, 712 (Tenn. 2012); Culbertson v. Culbertson, 455 S.W.3d 107, 124 (Tenn. Ct. App. 2014). The trial court’s denial of Durham’s motion to dismiss “is a question of law, which this Court reviews de novo with no presumption of correctness.” See Heaton v. Mathes, No. E2019-00493-COA-R9-CV, 2020 WL 1652571, at *3 (Tenn. Ct. App. Apr. ^[3], 2020) (citations omitted). Our Supreme Court has set forth the parameters of our review:

A Rule 12.02(6) motion challenges only the legal sufficiency of the complaint, not the strength of the plaintiff’s proof or evidence. The resolution of a 12.02(6) motion to dismiss is determined by an examination of the pleadings alone. A defendant who files a motion to dismiss admits the truth of all of the relevant and material allegations contained in the complaint, but . . . asserts that the allegations fail to establish a cause of action.

In considering a motion to dismiss, courts must construe the complaint liberally, presuming all factual allegations to be true and giving the plaintiff the benefit of all reasonable inferences. A trial court should grant a motion to dismiss only when it appears that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief.

Webb v. Nashville Area Habitat for Human., Inc., 346 S.W.3d 422, 426 (Tenn. 2011) (cleaned up). However, this Court is “not required to accept as true assertions that are merely legal arguments or ‘legal conclusions’ couched as facts.” Id. at 427.

ANALYSIS

The overarching issue before us is whether the trial court correctly denied Durham’s motion to dismiss Franklin’s RIED claim.^[5] We begin by summarizing the legal principles governing this cause of action. As stated by our Supreme Court, the required elements of a RIED claim are: (1) the conduct complained of must have been reckless; (2) the conduct must have been so outrageous that it is not tolerated by civilized society; and (3) the conduct complained of must have caused serious mental injury to the plaintiff. Doe, 154 S.W.3d at 41 (citing Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997)); see also Rogers, 367 S.W.3d at 205. In Doe, the Court also held that the plaintiff need not allege that the reckless conduct of the defendant “was directed at a specific person or that [it] occurred in the presence of the plaintiff.” 154 S.W.3d at 38–39. The Court explained that the requirements of the tort itself—a reckless state of mind, outrageous conduct, and serious mental harm to the plaintiff—“perform an important gate-keeping function for the purposes of ensuring the reliability of claims and of preventing liability from extending unreasonably.” Id. at 39. Further, the Court explained that “[t]he reckless tortfeasor will be liable only to persons who fall within the reasonably foreseeable scope of the particular substantial and unjustifiable risk consciously disregarded by the tortfeasor.” Id. at 39–40 (citing Tommy’s Elbow Room v. Kavorkian, 727 P.2d 1038, 1044 (Alaska 1986); Public Fin. Corp. v. Davis, 360 N.E.2d 765, 767 (Ill. 1976); McClenahan v. Cooley, 806 S.W.2d 767, 775–76 (Tenn. 1991)). We now address in turn the two issues presented in this appeal.

I. Outrageous Conduct

In its order denying Durham’s motion to dismiss Franklin’s RIED claim, the trial court stated that the conduct alleged was “outrageous as a matter of law.” Our Supreme Court has repeatedly and unwaveringly held that to satisfy the outrageousness element, the defendant’s alleged conduct must be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency and to be regarded as atrocious, and utterly intolerable in a civilized community.” Medlin v. Allied Inv. Co., 398 S.W.2d 270, 274 (Tenn. 1966) (quoting Restatement (Second) of Torts § 46 cmt. d (1965)); see also Doe, 154 S.W.3d at 39; Lourcey v. Est. of Scarlett, 146 S.W.3d 48, 51 (Tenn. 2004); Miller v. Willbanks, 8 S.W.3d 607, 614 (Tenn. 1999); Bain v. Wells, 936 S.W.2d 618, 623 (Tenn. 1997); Moorhead v. J. C. Penney Co., 555 S.W.2d 713, 717 (Tenn. 1977). Put another way: “Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous.’” Restatement (Second) of Torts § 46 cmt. d. By contrast, conduct consisting of ‘“mere insults, indignities, threats, annoyances, petty oppression, or other trivialities”’ is not sufficient to support liability under this tort. Medlin, 398 S.W.2d at 274 (citation omitted). Given this high threshold, courts have a duty to determine in the first instance “whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery.” Id. at 275 (citation omitted).

We have no difficulty concluding that Durham’s alleged conduct, or rather complete lack of action, was outrageous. Walker had only been employed by Durham as a bus driver for four months prior to the accident, but his tenure was littered with examples of unbelievably dangerous conduct about which Durham allegedly did nothing. According to Franklin, months prior to the November 2016 crash, Durham was aware that Walker was at fault in two motor vehicle accidents in August and September 2016, respectively; that Walker had fallen asleep at the wheel at least twice; that he would slam on the brakes to make the students on the bus hit their heads; and that he had missed every single mandatory safety meeting during his employment with Durham. In addition, Zonar, the company engaged by Durham to monitor its drivers’ speeding practices, had notified Durham that Walker had been speeding more than one thousand times while driving the school bus. In fact, Zonar notified Durham that on November 16, 2016, five days prior to the deadly crash, it had registered twenty five separate speeding incidents, with Walker going more than twenty miles per hour over the speed limit in five of them. Franklin alleges that Durham did nothing with this information. Specifically, Durham did not test Walker for alcohol and controlled substance abuse after his two at-fault accidents, as required by federal regulations; it did not investigate Walker’s repeated speeding events, not even those that occurred on the dates of his two at-fault accidents; and it had no system to log and address complaints made about its drivers or violations of its own regulations.

Durham argues its conduct was not outrageous because “[t]he outrageous conduct requirement is a high standard which has consistently been regarded as a significant limitation on recovery,” Doe, 154 S.W.3d at 39, and because the allegations made by Franklin “are not dissimilar from those commonly made against transportation service providers whose employees are alleged to have caused fatal accidents” and amount to no more than ‘“[p]oor management [and] deviations from business practices,”’ see Rhodes v. Bates Rubber, Inc., No. 1:19-cv-01030-STA-jay, 2019 WL 2723237, at *5 (W.D. Tenn. June 27, 2019). Such allegations, Durham posits, are not “unusual” enough to state a claim for reckless infliction of emotional distress.

Durham’s reliance on Rhodes is misplaced. In that case, the plaintiff asserted an intentional infliction of emotional distress claim based on age discrimination by his former employer. Id. at *1. The plaintiff alleged that his direct supervisor “demeaned him by using condescending language . . . and by calling him patronizing names during discussions with other plant employees” and that the supervisor “used [a] supposed violation of company policy as a pretext to terminate [the plaintiff’s] employment.” Id. at *4. The federal district court determined that in Tennessee, “malice and bad intent simply do not suffice to show that a person’s actions” satisfy the outrageous conduct requirement. Id. at *6. As that court noted, ‘“mere insults, indignities, threats, annoyances, petty oppression or other trivialities’ cannot constitute outrageous conduct.” Id. at *4 (quoting Bain, 936 S.W.2d at 622). Respectfully, the allegations made by the plaintiff in Rhodes are not remotely within the same universe as those made by Franklin. While the conduct of the supervisor in Rhodes is certainly not appropriate workplace demeanor and may have unfairly—even discriminatorily—caused the plaintiff to lose his employment, id., that conduct never created or ignored a risk of serious physical harm to individuals placed under the employer’s care. We find that the allegations in the present case are not analogous to those in “a run-of-the-mill wrongful termination or disparate treatment case.” Id. at *5. Rhodes is inapposite here.

Durham also submits that “if even criminal intent or malicious intent is insufficient to sustain an intentional or reckless infliction of emotional distress claim, the common allegations of mismanagement and recklessness made here against Durham will not do.” Franklin’s allegations are not common allegations of mismanagement. They are allegations of severe and extreme reckless disregard for unbelievably dangerous behavior. Durham seemingly conflates the first element of a RIED claim (i.e., the tortfeasor’s state of mind while engaging in the conduct at issue) with the second (i.e., the conduct’s outrageous character and extreme degree). This argument is unavailing.

Durham also calls our attention to two emotional distress cases based on intentional acts of the defendant as examples of the type of “exceptional” conduct that may qualify as outrageous and to show why its own conduct does not rise to that level. See Lourcey, 146 S.W.3d at 52 (where defendant estate’s decedent instructed plaintiff to call 911 because wife was having a seizure and then proceeded to shoot both wife and himself in the head in the presence of plaintiff); Levy v. Franks, 159 S.W.3d 66, 84 (Tenn. Ct. App. 2004) (where defendant made death threats and fired shots near plaintiff’s home). Again, Durham’s argument is misplaced. First, both cases involved intentional conduct directed at the plaintiffs; here, we are dealing with Durham’s recklessness. In Lourcey, the decedent’s intentional conduct posed a substantial risk of emotional harm to plaintiff; here, Durham’s reckless conduct ignored a substantial risk of both emotional and physical harm. Contrary to Durham’s argument, its alleged conduct is on par with that of the tortfeasors in Lourcey and Levy.

Durham points out that the element of outrageous conduct “is an exacting standard” meant to filter out “fraudulent and trivial claims.” Miller, 8 S.W.3d at 614. We agree. There is no indication in this record that Franklin’s claims are fraudulent—and they are certainly not trivial. The allegations here are not simply of poor management or deviation from business practices commonly alleged by plaintiffs against transportation service providers. We hold that a jury could reasonably conclude that Durham’s conduct, “considered as a whole, was extreme, outrageous and intolerable in present day society.” Moorhead, 555 S.W.2d at 717.

The factual allegations in Franklin’s pleadings are sufficient to satisfy the outrageous conduct element of a RIED claim. Franklin alleges that Durham was aware of, but chose to ignore, a plethora of incidents indicating that the on-the-job conduct of one of its employees, Walker, presented an imminent risk of serious harm to the students. Inexplicably, Durham allowed Walker to continue driving a school bus full of elementary school children, despite having received multiple warnings of Walker’s dangerous behavior. Six children were killed and scores of others were injured. The trial court correctly concluded that the plaintiff sufficiently alleged the element of outrageous conduct.

II. Reasonably Foreseeable Scope of the Risk

With respect to the second issue for review, the trial court found that Franklin’s “allegations in the [Second] Amended Complaint show a closeness of relationship between the plaintiff and the children.” The trial court’s order also stated that Durham “had knowledge prior to the accident that any intentional or reckless injury done to the children would have an adverse impact on plaintiff’s emotional state,” that Franklin “otherwise meets the requirements of Doe,” and that he “falls within the reasonably foreseeable scope of persons who could be injured by the particular substantial and unjustifiable risk[] consciously disregarded by the tortfeasor.”

A brief review of the facts in Doe is instructive. The plaintiffs in that case had been sexually molested as minor boys by a priest formerly employed by the Roman Catholic Diocese of Nashville. Id. at 24–30. They sued the Diocese for reckless infliction of emotional distress, alleging that—despite being fully aware that the former priest had a long history of sexually molesting numerous boys—the Diocese recklessly permitted the priest to have continued access to male minors, including plaintiffs, through Diocese- related activities and events for more than two decades. Id. This Court affirmed the trial court’s grant of summary judgment in favor of the Diocese, concluding that a reckless infliction of emotional distress claim must be based on conduct that was directed at the plaintiff. Id. at 31. Our Supreme Court, however, reversed and held that “to be actionable, reckless infliction of emotional distress need not be based upon conduct that was directed at a specific person or that occurred in the presence of the plaintiff.” Id. at 24. The Court reasoned that “the directed-at requirement is incompatible with the concept of recklessness insofar as reckless misconduct has a general or random quality.” Id. at 39 (citations omitted). Having set aside the directed-at requirement, the Court explained that “[t]he elements of intentional and reckless infliction of emotional distress themselves perform an important gatekeeping function for the purposes of ensuring the reliability of claims and of preventing liability from extending unreasonably.” Id. In this context, the Court specifically stated that a “reckless tortfeasor will be liable only to persons who fall within the reasonably foreseeable scope of the particular substantial and unjustifiable risk consciously disregarded by the tortfeasor.” Id. at 39–40 (citations omitted) (emphasis added).

Here, Durham acknowledges that under Doe, “a claim of reckless infliction of emotional distress need not be based upon conduct that was directed at a specific person or that occurred in the presence of the plaintiff.” 154 S.W.3d at 38–39. Durham argues, however, that the plaintiff does not fall within the reasonably foreseeable scope of the risk

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consciously disregarded by the tortfeasor. Durham argues that the following factors are probative on this issue: whether the plaintiff witnessed the injury-producing accident; whether the plaintiff went to the scene of the accident before it was materially altered; and whether the plaintiff had a close and intimate personal relationship with the accident’s victims. Durham submits that neither the trial court nor Franklin has explained how an educational assistant who never visited the scene of the bus crash falls within the reasonably foreseeable scope. We agree with Durham.

Although Tennessee appellate courts had not specifically articulated the “reasonably foreseeable scope” constraint on recovery until Doe, this limitation is consistent with our Supreme Court’s recognition that the requirements of a RIED claim must “perform an important gate-keeping function for the purposes of ensuring the reliability of claims and of preventing liability from extending unreasonably.” Id. at 39. Our task here then, as recognized in the order granting this Rule 10 extraordinary appeal, is to determine whether Franklin sufficiently alleged that he is a person who falls within the reasonably foreseeable scope of the particular substantial and unjustifiable risk consciously disregarded by Durham.^[6] In other words, did Franklin sufficiently allege that he was among the class of persons for whom there was a high degree of probability that severe emotional distress would follow after the bus crash? See id. at 39–40 (citing Tommy’s Elbow Room v. Kavorkian, 727 P.2d 1038, 1044 (Alaska 1986); Public Fin. Corp. v. Davis, 360 N.E.2d 765, 767 (Ill. 1976)).

We acknowledge that neither our Supreme Court nor this Court has outlined the parameters of the inquiry to determine whether a person falls within the reasonably foreseeable scope of plaintiffs in a RIED claim. Appellate court opinions subsequent to Doe did not need to address whether the plaintiffs had met the “reasonably foreseeable scope” requirement because, generally, the plaintiff was either a person immediately subject to the defendant’s outrageous conduct or a family member of that person. See, e.g., Rogers, 367 S.W.3d at 211 (after cemetery became overgrown and ill-maintained, mother sued cemetery where son had been buried); Lourcey, 146 S.W.3d at 49–50 (defendant purposely shot his wife and then himself in the plaintiff’s presence); Harris v. Horton, 341 S.W.3d 264, 266 (Tenn. Ct. App. 2009) (mother and sister of man who died in a motor vehicle accident sued paramedic who circulated photos of the accident scene and decedent’s corpse at a driver’s education class). The circumstances in those cases leave little doubt that the plaintiffs were persons who fell within the reasonably foreseeable scope of the particular substantial and unjustifiable risk consciously disregarded by the defendants.

Our Supreme Court’s jurisprudence concerning the role of foreseeability in the