                                                                                        03/29/2017




               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                               January 17, 2017 Session

       RICHARD LANE, ET AL. v. ESTATE OF GARY K. LEGGETT

                  Appeal from the Circuit Court for Sumner County
                   No. 83CC12014CV59        Joe Thompson, Judge
                      ___________________________________

                           No. M2016-00448-COA-R3-CV
                       ___________________________________

This appeal arises from an action to recover for emotional injuries allegedly sustained
when the decedent/defendant’s automobile drove into Plaintiff’s business, struck a gas
meter, and started a fire, which destroyed the business. The Plaintiff filed suit alleging
causes of action for negligence and negligence per se and sought damages for emotional
distress. The Defendant moved for summary judgment on the ground that Tennessee law
does not recognize a cause of action for emotional injuries arising out of damage to or
loss of property. The trial court granted summary judgment to Defendant on the
negligent infliction of emotional distress claims, finding that Plaintiff did not establish
that the injury was the proximate and foreseeable result of the Defendant’s negligence.
The court dismissed the remaining claim on the basis of the prior suit pending doctrine
due to a pending interpleader action filed by Defendant’s liability insurer. Plaintiff
appeals; we affirm the judgment of the trial court.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

RICHARD H. DINKINS, J., delivered the opinion of the court, in which FRANK G.
CLEMENT, JR., P.J., M.S., and ANDY D. BENNETT, J., joined.

Benjamin K. Dean, Springfield, Tennessee, for the appellant, Richard Lane.

Louis Andrew McElroy, Knoxville, Tennessee, for the appellee, Joe R. Johnson, Estate of
Gary Leggett.

                                       OPINION

I. FACTUAL AND PROCEDURAL HISTORY

     Richard Lane operated an antique business, gift shop, and garden center located on
Highway 31W in White House, Tennessee. On January 22, 2013, Gary Leggett was
driving his vehicle on Highway 31W when he rear-ended another vehicle, left the
roadway at a high rate of speed, and ran the vehicle into the building that housed Mr.
Lane’s business. The vehicle struck the building’s natural gas meter, resulting in a fire
that burned for several hours and caused the complete loss of the business. Mr. Lane was
not at the business at the time but returned upon being alerted that it was on fire. Mr.
Leggett died at the scene as a result of the accident.

       On January 22, 2014, Mr. Lane (“Plaintiff”) filed suit against Mr. Leggett’s estate
(“Defendant”), alleging that Mr. Leggett’s negligence resulted in a collision that caused
“the Plaintiff’s business and contents [to be] damaged and consumed by a great fire” and
that “[a]s a result of observing the fire and the circumstances surrounding the same,
including having narrowly escaped being present when the incident occurred, the Plaintiff
has been caused severe mental and emotional injuries and has had to seek the assistance
of a psychologist and psychiatrist . . . [and] has been diagnosed with Post Traumatic
Stress Disorder and Anxiety.”

       Lane subsequently amended his complaint by naming a different administrator ad
         1
litem, adding the phrase “reckless” to his description of the decedent’s operation of his
vehicle, and adding the phrase “and his reckless and wanton acts” to a sentence in the
prayer for relief. Defendant answered, generally denying liability and asserting that “the
Plaintiff has failed to state a claim upon which relief can be granted. . . . More
specifically, Plaintiff is making a claim for Negligent Infliction of Emotional Distress
against this Defendant for alleged property damage. A relief for said claim is not
provided under Tennessee Law.”

        Defendant subsequently moved for summary judgment, contending that negligent
infliction of emotional distress is not a cause of action intended to permit recovery for
emotional distress arising in connection with property damage. Along with the motion,
Defendant filed a statement of undisputed facts that quoted from four paragraphs in the
amended complaint:2

             1. Plaintiff, Richard R. Lane, at the time of the incident in issue, operated
             an antique business, gift shop and garden center at 3210 Highway 31W,


1
    The new administrator ad litem was appointed to avoid a potential conflict of interest.
2
  On appeal, Plaintiff questions the propriety of Defendant’s citation to facts alleged in the complaint in
the statement of undisputed facts, rather than Defendant supporting the motion by affidavits. This
concern is unwarranted. Tennessee Rule of Civil Procedure 56.02 permits the summary judgment motion
to be accompanied “with or without supporting affidavits.” Rule 56.04 requires the court, in ruling on the
motion, to consider the pleadings, among other filings, in ruling on the motion. There is no impropriety
in Defendant’s action in this regard.

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       White House, Tennessee 37188. (Plaintiff’s Amended Complaint,
       Paragraph 1).

       2. On or about January 22, 2013, the Defendant/Decedent was driving
       Southbound on Highway 31W in White House, Tennessee. (Plaintiff’s
       Amended Complaint, Paragraph 4).

       3. After having rear ended another vehicle and leaving the scene at a high
       rate of speed, the Defendant proceeded down Highway 31W until such time
       as he exited the roadway and collided with . . . the structure of the
       Plaintiff’s business located at 3210 Highway 31W, White House,
       Tennessee 37188. (Plaintiff’s Amended Complaint, Paragraph 4).

       4. As a result of the collision between the Defendant/Decedent and the
       Plaintiff’s business, the Plaintiff’s business and contents were damaged and
       consumed by a great fire which was caused by the Defendant having struck
       the natural gas meter to the business. The Plaintiff had just left the building
       approximately 15 minutes before the incident occurred. (Plaintiff’s
       Amended Complaint, Paragraph 7).

       5. After being alerted that the incident had occurred the Plaintiff returned to
       the business to find the property engulfed in flames. The fire fueled by the
       natural gas raged for several hours after the accident, the Plaintiff having
       left the scene at approximately midnight the same evening. (Plaintiff’s
       Amended Complaint, Paragraph 8).

       Plaintiff agreed that the above statements are undisputed. As part of his response
opposing the motion, Plaintiff filed a statement of 22 additional undisputed facts, 21 of
which addressed the severity of Plaintiff’s emotional injuries and various aspects of his
treatment. The remaining statement asserted that the Decedent’s vehicle was traveling 95
miles per hour at the time of impact. Defendant objected to all of the statements on the
basis that they were not supported by evidence properly in the record or otherwise
admissible.3

        After a hearing, the trial court granted partial summary judgment to Defendant on
Plaintiff’s claim for negligent infliction of emotional distress, holding that “Lane has
failed to establish that his emotional injury was a proximate and foreseeable result of
Leggett’s negligence.” Citing an interpleader action that had been filed by the auto
liability insurance carrier for Mr. Leggett, Defendant then moved for dismissal of the

3
 The court did not address Defendant’s objection in ruling on the motion, and neither party raises the
objection as an issue on appeal.

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remaining claims on the basis of the doctrine of prior suit pending4 or, alternatively, to
consolidate Plaintiff’s remaining claims for property damage with the interpleader action.
The trial court granted the motion and dismissed Plaintiff’s complaint without prejudice.

        Plaintiff moved to alter or amend the judgment, arguing inter alia that the prior
suit pending doctrine was not applicable because Plaintiff’s claim for reckless infliction
of emotional distress was not raised in, and the administrator ad litem was not a party to,
the interpleader action. The court denied the motion, stating that “after reviewing the
pleadings of Richard Lane,” it “concluded that Richard Lane had not stated a claim for
relief based upon reckless infliction of emotional distress.”

        Plaintiff appeals, raising the following issues for our review:

        1. Whether the trial court erred in granting Defendant/Appellee’s summary
        judgment motion dismissing the Plaintiff/Appellant’s claims for negligent
        infliction of emotional distress.

        2. Whether the trial court erred in dismissing the Plaintiff/Appellant’s
        claim for intentional/reckless infliction of emotional distress.

II. STANDARD OF REVIEW

       We review the trial court’s ruling on a motion for summary judgment de novo,
without a presumption of correctness. Rye v. Women’s Care Ctr. of Memphis, MPLLC,
477 S.W.3d 235, 250 (Tenn. 2015) (citing Abshure v. Methodist Healthcare-Memphis
Hosp., 325 S.W.3d 98, 103 (Tenn. 2010); Bain v. Wells, 936 S.W.2d 618, 622 (Tenn.
1997)). Our review requires “a fresh determination of whether the requirements of Rule
56 of the Tennessee Rules of Civil Procedure have been satisfied.” Id. (citing Estate of
Brown, 402 S.W.3d 193, 198 (Tenn. 2013)). Under Rule 56, summary judgment is
appropriate when “the 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

4
  “[A] case is subject to dismissal if there is a prior lawsuit pending involving the same parties and the
same subject matter.” West v. Vought Aircraft Indus., Inc., 256 S.W.3d 618, 620 (Tenn. 2008). In West,
this Court observed that:

        There are four essential elements to a defense of prior suit pending: 1) the lawsuits must
        involve identical subject matter; 2) the lawsuits must be between the same parties; 3) the
        former lawsuit must be pending in a court having subject matter jurisdiction over the
        dispute; and 4) the former lawsuit must be pending in a court having personal jurisdiction
        over the parties.”

256 S.W.3d at 623 (citing Cockburn v. Howard Johnson, Inc., 215 Tenn. 254, 385 S.W.2d 101, 102
(1964)).

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material fact and that the moving party is entitled to a judgment as a matter of law.”
Tenn. R. Civ. P. 56.04. We review the applicability of the prior suit pending doctrine de
novo, as it is a matter of law. Pitts v. Villas of Frangista Owners’ Ass’n, Inc., No.
M2010-01293-COA-R3-CV, 2011 WL 4378027, at *4 (Tenn. Ct. App. Sept. 20, 2011)
(citing West v. Vought Aircraft Indus., Inc., 256 S.W.3d 618, 622 (Tenn. 2008); City of
Newport v. Masengill Auction Co., 19 S.W.3d 789, 792 (Tenn. Ct. App. 1999)).

III. ANALYSIS

      Our review of the grant of summary judgment requires us to resolve whether and
under what circumstances Tennessee recognizes a cause of action for negligent infliction
of emotional distress when the emotional distress is alleged to have been caused by a
defendant’s negligence that results in damage to property.

        The law of negligent infliction of emotional distress has been called “one of the
most disparate and confusing areas of tort law.” Camper v. Minor, 915 S.W.2d 437, 440
(Tenn. 1996). To recover damages based on a claim of negligent infliction of emotional
distress, a plaintiff must prove each of the elements of general negligence: “duty, breach
of duty, injury or loss, causation in fact, and proximate, or legal, cause.” Id. at 446. A
plaintiff must also prove that he or she has suffered a “serious” or “severe” emotional
injury.5 Id. The tort has been asserted in various factual scenarios;6 however, no case has

5
 The Supreme Court set forth a list of nonexclusive factors that could support a plaintiff’s claim that he
or she has suffered a serious mental injury:

        (1) Evidence of physiological manifestations of emotional distress, including but not
        limited to nausea, vomiting, headaches, severe weight loss or gain, and the like;
        (2) Evidence of psychological manifestations of emotional distress, including but not
        limited to sleeplessness, depression, anxiety, crying spells or emotional outbursts,
        nightmares, drug and/or alcohol abuse, and unpleasant mental reactions such as fright,
        horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, and
        worry;
        (3) Evidence that the plaintiff sought medical treatment, was diagnosed with a medical or
        psychiatric disorder such as post-traumatic stress disorder, clinical depression,
        traumatically induced neurosis or psychosis, or phobia, and/or was prescribed
        medication;
        (4) Evidence regarding the duration and intensity of the claimant’s physiological
        symptoms, psychological symptoms, and medical treatment;
        (5) Other evidence that the defendant’s conduct caused the plaintiff to suffer significant
        impairment in his or her daily functioning; and
        (6) In certain instances, the extreme and outrageous character of the defendant’s conduct
        is itself important evidence of serious mental injury.

Rogers v. Louisville Land Co., 367 S.W.3d 196, 209–10 (Tenn. 2012). The above factors can inform the
court’s analysis when a claim of intentional infliction of emotional distress or negligent infliction of
emotional distress is made, since “the torts of intentional infliction of emotional distress and negligent
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explicitly held that negligent infliction of emotional distress is a cognizable claim when a
plaintiff’s emotional injuries arise solely out of property damage. We find instructive the
statement of the Tennessee Supreme Court in Whaley v. Perkins:

        Subject to some exceptions, generally, under ordinary circumstances, there
        can be no recovery for mental anguish suffered by plaintiff in connection
        with an injury to his or her property. Where, however, the act occasioning
        the injury to the property is inspired by fraud, malice, or like motives,
        mental suffering is a proper element of damage.

197 S.W.3d 665, 670 (Tenn. 2006) (quoting 25 C.J.S. Damages § 99 (2002)).7 Courts of
other states have reached a similar conclusion. The Texas Court of Appeals has noted

infliction of emotional distress share a common, identical element — the ‘serious or severe’ mental injury
requirement.” Rogers, 367 S.W.3d at 206 (footnote omitted).
6
  See, e.g., Laxton v. Orkin Exterminating Co. Inc., 639 S.W.2d 431, 434 (Tenn. 1982) (permitting the
plaintiffs to recover damages for mental anguish resulting from the defendant’s contamination of the
plaintiff’s water supply where the defendant’s negligence caused “mental disturbance, without
accompanying physical injury or physical consequences,” and there was no “other independent basis for
tort liability”); Camper v. Minor, 915 S.W.2d 437, 443 (Tenn. 1996) (permitting the plaintiff to recover
for emotional injuries sustained in a car wreck that left him physically unhurt and adopting the “general
negligence approach”); Ramsey v. Beavers, 931 S.W.2d 527 (Tenn. 1996) (permitting a plaintiff who saw
his mother die when she was hit by a car to recover for emotional injuries although he was not physically
injured or in immediate danger of being physically injured, and holding that, in such circumstance, the
plaintiff must establish: 1) that he or she was sufficiently near the injury-causing event to allow sensory
observation of the event, and 2) that the injury was, or was reasonably perceived to be, serious or fatal);
Sallee v. Barrett, 171 S.W.3d 822, 825 (Tenn. 2005) (holding that a plaintiff, who suffered “severe and
permanent emotional distress and post-traumatic stress disorder” when the gun of a City of Clarksville
police officer standing nearby discharged and the bullet struck the ground near the plaintiff, stated a cause
of action for negligent infliction of emotional distress, but dismissing the case because the plaintiff had
not named the city as a defendant); Filson v. Seton Corp., No. M2006-02301-COA-R9-CV, 2009 WL
196048, at *1-2 (Tenn. Ct. App. Jan. 27, 2009) (holding that the plaintiff, a new mother who had been
brought the wrong infant to nurse and then was sent home with an infant believed to be the correct child
to await the results of the DNA testing, stated a cause of action for negligent infliction of emotional
distress but granting summary judgment to the hospital due to the lack of expert proof as to the severity of
the plaintiffs’ emotional injuries).
7
  In the 2012 edition of Corpus Juris Secundum, section 99 was relocated to section 112; section 112 now
reads as follows:

               Subject to some exceptions, as where there was fraud, malice, or the like, or
        a trespass or nuisance, mental anguish suffered in connection with an injury to
        property is not an element of damages.

                Although there is authority to the contrary, there is ordinarily no recovery for
        mental anguish suffered by the plaintiff in connection with an injury to his or her
        property. Some identified exceptions to the general rule of nonrecovery include: (1)
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that “[m]ental anguish damages are not recoverable as a matter of law for the negligent
destruction of property,” but “‘[m]ental anguish damages are recoverable for some
common law torts that generally involve intentional or malicious conduct such as libel.’”
Beaumont v. Basham, 205 S.W.3d 608, 619 (Tex. Ct. App. 2006) (quoting City of Tyler v.
Likes, 962 S.W.2d 489, 495 (Tex. 1997)). Similarly, California courts have held, in the
context of a claim for negligent infliction of emotional distress, that “[n]o California case
has allowed recovery for emotional distress arising solely out of property damage, absent
a threshold showing of some preexisting relationship or intentional tort.” Cooper v.
Superior Court, 200 Cal. Rptr. 746, 748 (Cal. Ct. App. 1984); see also Erlich v. Menezes,
981 P.2d 978, 985 (Cal. 1999); Lubner v. City of Los Angeles, 53 Cal.Rptr.2d 24, 29 (Cal.
Ct. App. 1996).

       The documents filed in support of and in opposition to the motion for summary
judgment, along with the pleadings, shows that Defendant’s negligence resulted in
property damage; Plaintiff has not alleged or shown fraud, malice, or like motives on
Defendant’s part. Absent such a threshold showing, the law does not permit recovery for
Plaintiff’s emotional injuries. Accordingly, Defendant is entitled to summary judgment
on this claim as a matter of law.

        Plaintiff asserts that the dismissal of his claim for reckless infliction of emotional
distress8 was error. We do not agree. For the same reasons that there is no recovery on
the claim of negligent infliction of emotional distress, there is no recovery for reckless
infliction of emotional distress on the facts presented. Plaintiff has not alleged or
established facts that would show an intentional act or ill motive so as to support a claim
for emotional distress arising from Defendant’s destruction of his property.




          property damaged by an intentional or illegal act; (2) property damaged by acts for which
          the tortfeasor will be strictly or absolutely liable; and (3) property damaged at a time that
          the owner thereof is present or situated nearby and the owner experiences trauma as a
          result. Also, where the act occasioning the injury to the property is inspired by fraud,
          malice, or like motives, mental suffering is a proper element of damage.

25 C.J.S. Damages § 112 (footnotes omitted).
8
    Our Supreme Court has held:

          “[Th]e requirements for reckless infliction of emotional distress . . . are . . . first, the
          conduct complained of must have been reckless; second, the conduct must have been so
          outrageous that it is not tolerated by civilized society; third, the conduct complained of
          must have caused serious mental injury.

Doe 1 ex rel. Doe 1 v. Roman Catholic Diocese of Nashville, 154 S.W.3d 22, 41 (Tenn. 2005).
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       Our disposition of this issue renders moot Plaintiff’s concern that the court erred
in dismissing the suit pursuant to the prior suit pending doctrine; his claim for property
damage is being adjudicated in the interpleader action.

IV. CONCLUSION

     For the foregoing reasons and on the grounds stated herein, we affirm the grant of
summary judgment and dismissal of this case.




                                                RICHARD H. DINKINS, JUDGE




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