                   IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2013-IA-01291-SCT

ENTERGY MISSISSIPPI, INC.

v.

MARY BETHANNE ACEY


DATE OF JUDGMENT:                         07/17/2013
TRIAL JUDGE:                              HON. JOHNNIE E. WALLS, JR.
TRIAL COURT ATTORNEYS:                    JOHN H. DUNBAR
                                          JAMES W. SNIDER, JR
                                          FRED M. RIDOLPHI, JR.
COURT FROM WHICH APPEALED:                TUNICA COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                  JOHN H. DUNBAR
                                          JAMES W. SNIDER, JR.
ATTORNEYS FOR APPELLEE:                   CHARLES BUCKLEY GRAVES, JR.
                                          FRED M. RIDOLPHI, JR.
NATURE OF THE CASE:                       CIVIL - PERSONAL INJURY
DISPOSITION:                              REVERSED AND REMANDED - 10/23/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       PIERCE, JUSTICE, FOR THE COURT:

¶1.    One afternoon in Tunica County, Mississippi, A.A., a minor, was electrocuted while

playing on the farmland of David and Sherry Melton. Riley Berry, who worked for the

Meltons, had parked a cotton picker under an allegedly sagging power line, which was

owned by Entergy Mississippi, Inc. Ultimately, A.A. climbed onto the cotton picker, touched

the power line, and was electrocuted. Berry’s deposition provides that he and his sons were

unaware that A.A. and the Meltons’ daughter were playing nearby. One of Berry’s sons saw
a flash out of the corner of his eye, while the men were working on their vehicles. Berry

stated that they immediately began running in the direction of the flash and discovered A.A.

on top of the cotton picker. Berry’s son was able to move A.A. and hand her to Berry, who

held A.A. until emergency medical responders arrived.

¶2.      At the time of the accident, A.A.’s mother, Mary Bethanne Acey, was en route to

Moon Lake, in Coahoma County, Mississippi, with her son and Charles Graves. A Tunica

County 911 dispatcher called Graves to inform him of the accident. Graves immediately

turned the car around to proceed to the Meltons’ home. Acey then spoke with the dispatcher,

who explained the gravity of the situation to Acey and informed her that A.A. had been

“shocked.” Acey arrived at the accident scene and saw her daughter in Berry’s arms. Acey’s

affidavit explains that she observed smoke coming from her daughter’s skin, skin flaking and

turning gray, fingers missing and bones exposed, and she could smell the odor of burning

flesh.

¶3.      Emergency medical responders arrived shortly after Acey’s arrival. A.A. suffered

severe burns to both of her arms and her hip. A.A. subsequently was airlifted to Le Bonheur

Children’s Hospital in Memphis, Tennessee, and was later transferred to Shriners Hospitals

for Children in Cincinnati, Ohio, which specializes in treating burn patients.

¶4.      Thereafter, Acey commenced legal action on behalf of A.A., and individually, against

Entergy, David and Sherry Melton, Melton Farms, Mary Mac, Inc., and Norfleet

Investments, LP (“Defendants”). Defendants settled all claims on behalf of A.A. Regarding

Acey’s individual bystander claims for emotional distress, Entergy moved for summary

judgment and moved to strike the affidavits of Acey and Dr. William Hickerson. The trial


                                              2
court subsequently denied each motion. According to the trial court, based on the nature of

A.A.’s injuries, this case “cries out for the expansion of” the factors provided by the

California Supreme Court in “Dillon [v. Legg, 68 Cal. 2d 728, 740-41, 69 Cal. Rptr. 72, 81,

441 P. 2d 912, 920 (Cal. 1968)], adopted by this Court in Entex, Inc. v. McGuire, 414 So.

2d 437, 444 (Miss. 1982).     Thereafter, Entergy was granted interlocutory appeal by this

Court on the following issues:

       I.     Whether the trial court erred in denying Entergy’s Motion for
              Summary Judgment on Plaintiff’s bystander claim for emotional
              distress.

       II.    Whether the trial court erred in denying Entergy’s Motion to
              Strike the Affidavit of Dr. William Hickerson.

       III.   Whether the trial court erred in denying Entergy’s Motion to
              Strike the Affidavit of Mary Bethanne Acey.

¶5.    Because this Court finds that Entergy’s motion for summary judgment should have

been granted, we will discuss the merits of only Issue I.

                                 STANDARD OF REVIEW

¶6.    We review the denial of summary judgment de novo and consider all evidence before

this Court. Moore ex rel. Moore v. Mem’l Hosp. of Gulfport, 825 So. 2d 658, 663 (Miss.

2002). The evidence is examined in the light most favorable to the nonmoving party. Id.

The movant is entitled to judgment as a matter of law, having summary judgment entered in

its favor, if there is no genuine issue of material fact. Id.

                                         ANALYSIS

       I.     Whether the trial court erred in denying Entergy’s Motion for
              Summary Judgment on Plaintiff’s bystander claim for emotional
              distress.

                                               3
¶7.    As both parties point out, Acey’s bystander claim for emotional distress is subject to

the test provided by this Court in Entex, where this Court adopted the test established by the

California Supreme Court in Dillon. Entex, 414 So. 2d at 444. Dillon is the seminal case

which instituted the bystander theory of recovery, by allowing a plaintiff to recover for

emotional distress after witnessing her child’s death, based on the theory that liability should

turn not on the risk of physical injury to the plaintiff (the “impact doctrine”), but on

foreseeability of emotional harm to the mother. Dillon, 441 P.2d at 920.

¶8.    Briefly, by way of background, courts originally were reluctant to allow any recovery

for intangible harms such as fright or emotional distress resulting from negligent conduct.

See Prosser and Keeton, The Law of Torts §54, 360 (5th ed. 1984). Later, plaintiffs were

allowed to recover for the emotional distress occasioned by the fear for their own safety, but

only when accompanied by physical impact. Prosser and Keeton, supra § 54, 363-64. The

“impact doctrine” later became regarded as inherently arbitrary because of the apparent

discontinuity between the rule’s scope and underlying purpose. As one commentator

observed, “a near miss may be as frightening as a direct hit.” Richard N. Pearson, Liability

to Bystanders for Negligently Inflicted Emotional Harm–A Comment on the Nature of

Arbitrary Rules, 34 U. Fla. L. Rev. 477, 488 (1982). The “impact doctrine” eventually was

replaced by a rule allowing recovery for the emotional distress resulting from threats to the

plaintiff’s physical safety, regardless of physical impact, if the plaintiff was within the “zone

of physical impact or danger.” Thing v. La Chusa, 771 P.2d 814, 832 (Cal. 1989) (Kaufman,

J., specially concurring).




                                               4
¶9.    In First National Bank v. Langley, 314 So. 2d 324 (Miss. 1975), this Court

abandoned the “impact doctrine.” We held that “genuine cases of injury growing out of

negligent acts of another–which are reasonably foreseeable as in other negligent cases–will

not be dismissed simply because there was no trauma nor impact on the body of the injured

claimant.” Id. at 339. Notably, Langley was not a bystander case. Rather, the plaintiff there

was the person upon whom the negligent conduct was inflicted. Id. at 325. Because Langley

was not a bystander case, Langley made no mention of the “zone of danger” rule adopted by

a majority of jurisdictions after they abandoned the “impact doctrine.”

¶10.   Significantly, Dillon rejected the “zone of danger” rule, finding it “hopeless[ly]

artificial[].” Dillon, 441 P.2d at 915. In Dillon, the plaintiff’s daughter was struck and killed

by an automobile. Id. at 914. The plaintiff witnessed the accident, but from a location where

the plaintiff herself was not in physical danger. Id. at 915. The Dillon Court reasoned that

the “zone of danger” concept inevitably collapses under similar reasons for rejecting the

“impact rule,” because “the only reason for the requirement of presence in that zone lies in

the fact that one within it will fear the danger of [i]mpact.” Id.

¶11.   Finding Dillon persuasive, Entex set forth the following factors, taken verbatim from

Dillon, that must be considered when determining whether a bystander may recover for

emotional-distress damages:

       (1) Whether plaintiff was located near the scene of the accident as contrasted
       with one who was a distance away from it. (2) Whether the shock resulted
       from a direct emotional impact upon plaintiff from the sensory and
       contemporaneous observance of the accident, as contrasted with learning of the
       accident from others after its occurrence. (3) Whether plaintiff and the victim
       were closely related, as contrasted with an absence of any relationship or the
       presence of only a distant relationship.

                                               5
Entex, 414 So. 2d at 444 (citing Dillon, 441 P.2d at 920). In Entex, this Court made no

mention of the “zone of danger” rule. The Entex Court simply noted that Langley had

abandoned the “impact doctrine” and found Dillon’s bystander rule persuasive.

¶12.   Here, because Acey undisputably fails to meet the first two Dillon or Entex factors,

she does not qualify for emotional-distress recovery under Mississippi bystander law.

Inexplicably, the dissent finds these two factors neutral. They are not. And, as will be

explained, not even under California’s bystander law would Acey’s bystander claim prevail

under these two factors. Contrary to the dissent’s understanding, the Dillon factors–under

present California law–are not merely guidelines that should be “take[n] into account” 1 in

determining whether a plaintiff is a foreseeable victim of the defendant’s negligence; they

indeed are matter-of-law prerequisites that a claimant must meet. See Thing v. La Chusa,

771 P.2d 814, 830 (Cal. 1989); see also Bird v. Saenz, 51 P.3d 324, 327 (Ca. 2002) (noting

that La Chusa made the Dillon factors mandatory requirements that bystander claims for

emotional distress must satisfy to be accepted as valid) (emphasis added).

¶13.   Further, there are numerous problems with the dissent’s rationale, which we will point

out because, if it were to be applied in this state, Mississippi’s bystander law would no doubt

result in infinite liability in almost every negligence action. See, e.g., Dillon, 441 P.2d at 919

(“In order to limit the otherwise potential infinite liability which would follow every

negligent act, the law of torts holds defendant amenable only for injuries to others which to

defendant at the time were reasonably foreseeable.”).


       1
        Entex incorporated language from Dillon with no discussion as to why it found the
case persuasive. Entex, 414 So. 2d at 444.

                                                6
¶14.   The first problem with the dissent’s rationale is its sole focus on the fact that Acey

witnessed her daughter’s injury, but not the accident itself. This goes squarely against both

Dillon’s and Entex’s second foreseeability factor, which inquires whether the

mental/emotional shock “resulted from the sensory and contemporaneous observance of the

accident, as contrasted with learning of the accident from others after its occurrence.” Entex,

414 So. 2d at 444 (emphasis added). Every parent will witness the result(s) of his or her

child’s accident, but Dillon and Entex limited the range of foreseeable plaintiffs to those who

sensorily or contemporaneously observed the accident.

¶15.   Here, the record evidence undisputably shows that Acey did not witness the accident.

Rather, Acey learned of the accident from her son, who learned of the accident from a 911

dispatcher. This circumstance raises numerous questions that the dissent fails to take into

consideration. Because Acey was not present at the scene of the accident when the accident

occurred, did anyone owe Acey a duty not to allow her onto the premises after she learned

of the accident in order to prevent the mental/emotional distress Acey claims resulted from

witnessing her daughter’s injuries? Likewise, did anyone owe Acey a duty not to inform her

of the accident? Or did Acey owe a duty to herself not to go to her daughter?

¶16.   These, of course, are inane questions from a common-sense standpoint. But they are

very real inquiries that must be considered with regard to the degree of Entergy’s

foreseeability–the cornerstone of a defendant’s duty and liability. Is this for the factfinder

to resolve, or is it a legal question reserved for the court? Assuming the former, what type

of evidence must be put before the factfinder to allow the factfinder to determine

foreseeability?

                                              7
¶17.   In La Chusa, 771 P.2d 814, 819 (Ca. 1989), the California Supreme Court examined

these types of rhetorical, legal questions and acknowledged that subsequent interpretation of

Dillon’s guidelines by California courts had produced arbitrary and conflicting results and

“ever widening circles of liability.” 2 The La Chusa Court corrected course. In place of

Dillon’s “nonexclusive” guidelines, the La Chusa Court made the Dillon factors mandatory

requirements that bystander claims for emotional distress must satisfy to be accepted as valid.

Specifically, La Chusa held “that a plaintiff may recover damages for emotional distress

caused by observing the negligently inflicted injury of a third person if, but only if, said

plaintiff: (1) is closely related to the injury victim; (2) is present at the scene of the injury-

producing event at the time it occurs and is then aware that it is causing injury to the victim;

and (3) as a result suffers serious emotional distress–a reaction beyond that which would be

anticipated in a disinterested witness and which is not an abnormal response to the

circumstances.” In applying these requirements to the facts before it, the La Chusa Court

held that, as a matter of law, the plaintiff/mother could not state a claim for negligent

infliction of emotional distress. The plaintiff mother had been nearby when the defendant’s

automobile struck and injured her child, but the mother had not seen and heard the accident.

The mother, like Acey, became aware of the accident only when someone told her it had

occurred, and the mother rushed to the scene and saw her child lying injured and unconscious




       2
         The special concurrence in La Chusa noted that a majority of jurisdictions have
rejected bystander liability in favor of the zone-of-danger rule, for the reason that “Dillon’s
confident prediction that future courts would be able to fix just and sensible boundaries on
bystander liability has been found to be wholly illusory–both in theory and in practice.” La
Chusa, 771 P.2d at 833 (Kaufman, J., specially concurring).

                                                8
on the road. The La Chusa Court found that, under these facts, the mother could not satisfy

the requirement of having been present at the scene of the injury-producing event at the time

it occurred and of having been aware that it was causing injury to the victim. The La Chusa

Court reinforced its conclusion by disapproving the suggestion in prior California cases

(proceeding on rationale similar to the dissent here) that a negligent actor is liable to all

persons “who may have suffered emotional distress on viewing or learning about the

injurious consequences of his conduct” rather than on viewing the injury-producing event

itself. Id. at 830.

¶18.    A California case noted by the La Chusa Court is Hathaway v. Superior Court, 112

Cal. App. 3d 728, 169 Cal. Rptr. 435 (1980), which addressed a very similar type claim as

the one here before us. In Hathaway, parents alleged a cause of action for negligent

infliction of emotional distress for their son’s death. Hathaway, 112 Cal. App. 3d at 730.

While parents were at their inlaws’ residence, their son was playing outside and was

electrocuted by an evaporator cooler just installed outside the inlaws’ home. Id. Another

child had come into the home and told the parents their son was hurt. Id. at 731. The parents

immediately went outside, saw their son lying in a puddle of water, and watched efforts to

save the boy’s life. Id. The trial court denied the parents’ claim under Dillon’s forseeability

standard, because when the parents arrived outside approximately one minute after the event,

the event which had constituted the accident had ended. The Court of Appeal, Fifth District

of California, affirmed the trial court’s dismissal because the evidence was uncontradicted

that the plaintiffs did not sensorily perceive the injury-causing event, but saw only the results

after the accident was over. Id. at 736.

                                               9
¶19.   Here, as Entergy asserts, Mississippi law has been consistent regarding bystander

recovery for emotional-distress damages. No case from either this Court or a federal court

construes or guesses Mississippi substantive law and sustains a cause of action by a third-

party plaintiff against an alleged tortfeasor on the theory of bystander recovery, where the

plaintiff was not present at the time of the accident and learned of the accident only after its

occurrence. See Miss. State Fed’n of Colored Women’s Club Housing for Elderly in

Clinton, Inc. v. L.R., 62 So. 3d 351, 359 (Miss. 2010) (affirming trial court’s directed verdict

against mother’s bystander claim for emotional distress because mother was not present on

the premises of apartment complex where her eleven-year daughter was statutorily raped);

Summers ex. rel. Dawson v. St. Andrew’s Episcopal Sch., 759 So. 2d 1203, 1210 (Miss.

2000) (holding that parents of young student molested by other students on school

playground were not foreseeable plaintiffs for third-party, emotional-distress recovery

because the parents were not located near the scene when the events occurred); see also

Miles ex rel. Miles v. VT Halter Marine Inc., 792 F. Supp. 2d 919, 925-26 (E.D. La. 2011)

(summary judgment entered against father of worker killed in shipyard accident claiming

mental distress because alleged distress suffered by father was not caused by

contemporaneous observance of accident; even though father was working nearby and came

upon scene shortly after accident when resuscitation efforts were underway, father did not

witness accident); Moore v. Kroger Co., 800 F. Supp. 429, 433 (N.D. Miss. 1992) (denied

emotional-distress claims of family members of victim of motor-vehicle accident when

family members did not witness accident); Campbell v. Beverly Enters., 724 F. Supp. 439,

440 (S.D. Miss. 1989) (denied emotional distress claim of family members of an allegedly

                                              10
mistreated nursing-home patient because family members did not observe the alleged

mistreatment).

¶20.   The dissent finds Entergy’s precept–and our acknowledgment of it–disingenuous

because the federal courts made Erie 3 guesses as to prevailing Mississippi bystander law.

The dissent, however, overlooks all the Mississippi case law that plainly rejects the dissent’s

position and rationale.

¶21.   The dissent next calls us out for spending the first seven pages of our analysis relying

principally on California caselaw to point out why the dissent is wrong instead of analyzing

the case at hand. Here is why we did so. Prior to the dissent, our opinion began by

thoroughly analyzing this case under the Dillon factors adopted by Entex (see supra and

infra). The dissent, however, realizing that the undisputed facts of this case do not ascribe

to the plain language of the Dillon/Entex factors, responded by contending that we had

misinterpreted Entex. According to the dissent, because the Entex Court favorably quoted

from Dillon, where the Dillon Court stated that courts should “take into account” the three

Dillon factors when evaluating whether a bystander was a foreseeable plaintiff, we were

wrong to treat these factors as prerequisites. And, according to the dissent, “a jury should

decide whether the unique aspects of this burn injury should entitle Acey to relief.” In

response, we posed a number of questions that we had hoped the dissent would take into

consideration, as California ultimately was forced to do.4 The dissent’s response: “I simply

       3
           Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 188 (1938).
       4
          Again, we point out that, even under Dillon or pre-La Chusa, Acey would not have
been entitled to bystander recovery under California law, as the Hathaway case, supra,
illustrates.

                                              11
am not concerned with post-Dillon jurisprudence in California.                  My concern is

[Mississippi’s] bystander liability jurisprudence, and [that] this Court never has said–until

today–that the Dillon factors are ‘mandatory requirements.’”

¶22.     We failed. Rather than offer any legal explanation (or–rather–reasoning) why or how

someone who was neither at or near the scene of the accident when it occurred, nor

experienced a sensory or contemporaneous observation of the accident, may constitute a

foreseeable plaintiff for bystander recovery under the Entex standards, the dissent stresses

that Entex instructs that the Dillon factors need only be taken “into account.” The only

conclusion this logic yields is that Entex provides no standard at all. We do not so interpret

Entex.

¶23.     Briefly, the following language from Entex is all the Entex Court relayed from

Dillon:

         The reasoning of the California Court in Dillon v. Legg, 68 Cal. 2d 728, 69
         Cal. Rptr. 72, 441 P.2d 912 (1968) in setting out the following factors in this
         type of claim is persuasive:

                In determining, . . . whether defendant should reasonably foresee
                the injury to plaintiff, or, . . . whether defendant owes plaintiff
                a duty of due care, the courts will take into account such factors
                as the following: (1) Whether plaintiff was located near the
                scene of the accident as contrasted with one who was a distance
                away from it. (2) Whether the shock resulted from a direct
                emotional impact upon plaintiff from the sensory and
                contemporaneous observance of the accident, as contrasted with
                learning of the accident from others after its occurrence. (3)
                Whether plaintiff and the victim were closely related, as
                contrasted with an absence of any relationship or the presence
                of only a distant relationship. Dillon [68 Cal. 2d at 740-41, 69
                Cal. Rptr. at 80, 441 P.2d at 920].

Entex, 414 So. 2d at 444 (emphasis added).

                                                12
¶24.   Again, the Entex Court provided no discussion whatever as to why it found Dillon

persuasive, only that it did so under the facts of the case before it. The Entex Court found

all three Dillon factors were affirmatively met (not neutral). Thus, the plaintiff, McGuire,

had presented a valid claim for bystander recovery. McGuire was located between fifteen

and twenty feet from his home when it exploded. Entex, 414 So. 2d at 439. McGuire’s wife

was inside the home. Id. McGuire heard his wife’s screams and saw their home consumed

in flames. Id. McGuire assisted his wife in escaping from the burning home right before a

second explosion occurred. Id. After considering the Dillon factors, this Court affirmed a

verdict in McGuire’s favor. Id at 444.

¶25.   In the case before us, Acey analogizes her situation to that in Entex and argues that

her claims satisfy the Dillon factors. It is undisputed that Acey satisfies the third factor of

Dillon, because Acey is A.A.’s mother, therefore, they are closely related. Entex, 414 So.

2d at 444 (citing Dillon, 441 P. 2d at 920). But Acey fails under the first two factors.

¶26.   Acey argues that factor one, whether plaintiff was located near the scene of the

accident, is satisfied, because she arrived at the accident scene within minutes; her daughter

was continuing to be injured as a result of the accident, since her body was still smoking and

her skin was flaking, and A.A. was still located at the accident scene.5 Entex, 414 So. 2d at


       5
         For the sake of thoroughness, Acey contends that she arrived at the accident scene
in seven minutes; however, this is based upon the usual travel time between where Acey was
located when she learned of the accident and the accident scene. More than seven minutes
would have elapsed between the time of the accident and the time Acey arrived at the scene.
There is no indication in the record of the exact time A.A. was electrocuted, however, the
record shows the following course of events: (1) the 911 call was placed at 10:45 a.m.,
reporting A.A.’s accident; (2) emergency responders were dispatched at 10:55 a.m.; (3) Acey
received a phone call from the 911 dispatcher informing her of the accident at an unknown

                                              13
444 (citing Dillon, 441 P. 2d at 920). Acey compares her subsequent presence at the accident

scene to the situation in Entex by stating that Acey helped pull her daughter from the cotton

picker, which is comparable to McGuire pulling his wife from a burning house. Entex, 414

So. 2d at 439. However, unlike McGuire, Acey was not present during the negligent event,

and witnessed only the result of Entergy’s alleged negligence. See, e.g., Hathaway, 169 Cal.

Rptr. 435. The deposition testimony of Acey, Berry, and Berry’s son states that Berry’s son

moved A.A. from the top of the cotton picker and handed her to Berry, who held A.A. on the

side-platform of the cotton picker until emergency responders arrived to remove A.A. from

the machinery.

¶27.   Regardless of who removed A.A. from the cotton picker, it is undisputed that Acey

was not present when A.A. grabbed the power line or when Berry and his son pulled A.A.

down from the top of the cotton picker. Accordingly, we find that Acey does not meet the

first factor of the Dillon or Entex test.

¶28.   Next, Acey argues that factor two, whether plaintiff suffers from the sensory and

contemporaneous observation of the accident, as contrasted with learning of the accident

from others after its occurrence, is satisfied, because she was not informed of her child’s

specific injuries before she arrived at the scene, and A.A.’s injuries were still developing

when she arrived. Id. Acey goes on to compare this argument to the situation in Entex,

because McGuire, at the time of the explosion, had his back turned away from the home.



time after the accident was reported; (4) emergency responders arrived at the accident scene
at 11:12 a.m.; (5) Acey’s testimony states that she thinks that the emergency responders
arrived within a few minutes of her arrival; (6) twenty-seven minutes elapsed between the
time the 911 call was made and the time that emergency responders arrived on the scene.

                                             14
Entex, 414 So. 2d at 439. Acey therefore argues that McGuire saw only the aftereffects,

which is the same as Acey seeing the aftereffects when she arrived at the accident scene

minutes later. However, as previously stated, Entex states that McGuire was present at the

very moment the accident occurred and simultaneously heard his wife cry out. Id. at

Undoubtedly, McGuire experienced a sensory and contemporaneous observation of the

accident itself, not the aftereffects, as Acey contends.

¶29.   Acey next calls attention to Campbell. In Campbell, the federal district court found

that plaintiffs could not recover emotional-distress damages for injuries inflicted on their

mother as a result of alleged mistreatment while she was living in a nursing home.

Campbell, 724 F. Supp. at 440. The court opined that the Mississippi Supreme Court would

not consider recovery without the occurrence of a “traumatic physical injury” or “threatened

violent physical injury,” and therefore denied plaintiffs’ claim. Campbell, 724 F. Supp. at

442. In the case sub judice, Acey misconstrues the district court’s statement to mean that

bystanders who do not witness the negligent act can recover if direct physical injury or

threatened violent physical injury was witnessed. As pointed out by the federal district court

in Moore, Campbell, in making an Erie determination, merely assumed without deciding that

even if third-party plaintiffs could recover without witnessing the actual event, the Campbell

plaintiffs could not recover from such a claim because they could not make out a case for

actual physical injuries suffered by the patient as a result of defendants’ alleged negligence.

Moore, 800 F. Supp. at 434 (construing Campbell, 724 F. Supp. at 441-442).

¶30.   Further, this Court in Summers noted that Campbell did not expand the holding in

Entex–nor could it. Summers, 759 So. 2d at 1210. In Summers, parents brought an action

                                              15
against St. Andrew’s Episcopal School, alleging they had suffered emotional distress

resulting from their daughter’s involvement in an incident while she was under the school’s

supervision. Summers, 759 So. 2d at 1206-10. This Court upheld the trial court’s grant of

summary judgment, holding that the parents’ emotional distress did not equate to a

contemporaneous observation because they were not located at or near the scene of the

incident when the incident occurred. Summers, 759 So. 2d at 1211. In its opinion, this

Court pointed to the fact that the plaintiffs in Moore argued that the language in Campbell

expanded the holding of Entex, thus recognizing recovery for emotional distress even when

the plaintiff was outside the area of “immediate sensory perception.” Summers, 759 So. 2d

at 1210 (citing Moore, 800 F. Supp. at 433). Summers agreed with Moore’s holding that

“after-the-fact witnesses” cannot be included in the class of foreseeable plaintiffs.

Summers, 759 So. 2d at 1210 (citing Moore, 800 F. Supp. at 434).

¶31.   Lastly, Acey argues that the facts of this case are similar to a California Court of

Appeals case in which the Court chose not to bar the plaintiff’s claims alleging emotional

distress from arriving at his home after emergency responders had arrived to extinguish a fire

at his residence and to rescue his family members who were still inside. Zuniga v. Housing

Auth., 41 Cal. App. 4th 82, 103, 48 Cal. Rptr. 2d 353, 364, 95 Cal. Daily Op. Serv. 9689

(Cal. Ct. App. 1995), abrogated on other grounds by Zelig v. County of Los Angeles, 27 Cal.

App. 4 th 1112, 1138, 45 P.3d 1171 (Cal. 2002). However, the California court specified that

recovery was not barred because the accident was still occurring when plaintiff arrived at the

scene. Id. At the time the plaintiff arrived, the fire was still blazing, and his family members

were still trapped inside. Id. The court distinguished the situation from Fife v. Astenius, in

                                              16
which the court barred recovery for family members who heard a vehicle collision and

subsequently climbed over a wall to find a family member inside one of the vehicles.

Zuniga, 41 Cal. App. 4th at 103, 48 Cal. Rptr. 2d at 364 (citing Fife v. Astenius, 232 Cal.

App. 3d 1090, 1092-93, 284 Cal. Rptr. 16 (Cal. Ct. App. 1991)). The court in Fife held that

the family did not contemporaneously observe the accident. Id. Accordingly, we find the

facts of the case before us are distinguishable from Zuniga because, as previously stated,

Acey was not at the scene of the accident when it occurred.

¶32.   Therefore, Acey does not satisfy factor two of the Dillon test because she did not

experience a sensory or contemporaneous observation of the accident. Summers, 759 So.

2d at 1211. Acey was an after-the-fact witness, thus, an unforeseeable plaintiff. Summers,

759 So. 2d at 1210. The United States District Court for the Eastern District of Louisiana

recently interpreted and applied Mississippi law regarding bystander claims. Miles ex rel.

Miles v. VT Halter Marine Inc., 792 F. Supp. 2d 919, 925-26 (E.D. La. 2011). In Miles, a

father and son were employed at the same shipyard but were, at the time, working on

different parts of the barge, when the son fell and ultimately died. Miles, 792 F. Supp. 2d

at 926. Testimony revealed that the father was informed of the accident and then walked to

the accident scene, which was a five-to-ten minute walk. Id. When the father arrived, “he

witnessed the aftereffects of the accident, namely five or six others performing resuscitation

efforts and attempting to aid his son by placing an oxygen mask around his neck and a

stretcher under his body.” Id. The district court determined that Mississippi law would not

allow the father to recover because he did not “actually witness the accident,” which resulted

in his son’s injuries and later death. Id. Again, it is important to note that caselaw focuses

                                             17
on the individual’s observation of the accident rather than the observation of the resulting

injury caused by the accident. See Summers, 759 So. 2d at 1210 (Miss. 2000); Moore , 800

F. Supp. at 434; Miles, 792 F. Supp. 2d at 925-26; Fife, 232 Cal. App. 3d 1092-93, 284 Cal.

Rptr. 16.

                                      CONCLUSION

¶33.   The Entex factors are mandatory requirements that bystander claims for emotional

distress must satisfy to be accepted as valid under Mississippi law. Acey is barred from

recovery because she was not near or at the scene of the accident, nor did she experience a

sensory or contemporaneous observation of the accident. Therefore, summary judgment

should be entered in favor of Entergy, and the judgment of the Circuit Court of Tunica

County is reversed and remanded for proceedings consistent with this opinion.

¶34.   REVERSED AND REMANDED.

     WALLER, C.J., RANDOLPH, P.J., CHANDLER AND COLEMAN, JJ., CONCUR.
COLEMAN, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED
BY RANDOLPH, P.J., CHANDLER AND PIERCE, JJ. LAMAR, J., DISSENTS WITH
SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J., KITCHENS AND KING,
JJ.

       COLEMAN, JUSTICE, SPECIALLY CONCURRING:

¶35.   I concur with the majority. As I appreciate it, the question before the Court in the case

sub judice is whether Entergy owed a legal duty of due care to the plaintiff, Mary Bethanne

Acey. I agree with the majority that, upon application of the Entex factors, Entergy did not

and that the case should be reversed. I write separately for two purposes. First, I think it

worth the time to emphasize that the question of whether a legal duty of due care exists is one

of law and not fact. That it presents a question of law matters in the summary judgment


                                              18
context, as I explain more fully below. Second, I write to further explore Campbell v.

Beverly Enterprises, 724 F. Supp. 439 (S.D. Miss. 1989), and the ways in which various

courts have confused the effect it has, if any, on the law governing bystander recovery in

Mississippi.

¶36.   The Court in Entex v. McGuire, 414 So. 2d 437 (Miss. 1982), gave two purposes for

which the three-factor test at issue in the instant appeal – whereby courts in Mississippi could

ascertain whether a defendant would be liable for emotional distress damages suffered by a

bystander – could be used. One of the two was for a determination of “whether [a] defendant

owes [a] plaintiff a duty of due care. . . .” Id. at 444. In our four-part negligence framework

– duty, breach, causation, and damages – the question of whether one owes a duty of due care

to another is one of law and lies within the sole province of the court. Rein v. Benchmark

Constr. Co., 865 So. 2d 1134, 1143 (¶ 29) (Miss. 2004) (“In analyzing an actor’s alleged

negligence, this Court asks whether a duty exists and whether it has been breached. That is

a question of law.”) The judge, not the jury, decides whether an injury is reasonably

foreseeable for the purpose of determining the first of the four negligence prongs – the

existence of a legal duty. Id. (citing Lyle v. Mladinich, 584 So. 2d 397, 399 (Miss. 1991)).

¶37.   Summary judgment is appropriate when the question presented for determination –

such as whether a legal duty exists in a negligence action – is one of law rather than fact.

City of Jackson v. Gardner, 108 So. 3d 927, 928 (¶ 4) (Miss. 2013). When no disputed facts

exist, even mixed questions of law and fact become questions of law only. Hernandez v.

Vickery Chevrolet-Oldsmobile Co., Inc., 652 So. 2d 179, 182 (Miss. 1995). Neither my

review of the case nor the dissent has revealed to me any contested issues of fact that the jury

                                              19
would need to determine in order for the Court to now conduct its de novo review of the issue

presented. Although there are some contested issues of fact, e.g., when the plaintiff learned

of the accident that injured her daughter, I agree with the majority and am of the opinion that

taking all disputed facts in a light most favorable to plaintiff still yields the result that, as a

matter of law, the defendant owed no duty of due care to the plaintiff in the case sub judice.

¶38.    In a final matter, the majority discusses at length Campbell, 724 F. Supp. at 439, as

well as a long line of cases that followed it. I write separately to explain my opinion that

Campbell does not apply to the instant facts, and misapplication of Campbell threatens to

confuse the test for whether a bystander can recover under negligent infliction of emotional

harm.

¶39.    Acey called attention to Campbell, arguing that bystanders who witness the injury can

recover if there was direct “physical” or “threatened violent physical injury.” See Campbell,

724 F. Supp at 442. Acey takes the above-quoted language directly from Campbell, but –

as the majority notes – she misconstrues it. The majority argues that Acey misconstrues

Campbell because it is an isolated statement that does not simply mean bystanders can

recover when the victim suffers threatened or physical injury.

¶40.    In Campbell, the children of a nursing home patient sued as a third party in a negligent

infliction of emotional harm suit claiming “prolonged neglect toward their mother [that was]

allegedly caused by acts which were intentional, outrageous, callous, willful, wanton and in

a reckless disregard of the their mother’s rights.” Id. at 441 (emphasis added). The plaintiffs

could not point to any one “accident” that caused injury to their mother. See Entex, 414 So.

2d at 444 (citing Dillon v. Legg, 68 Cal. 2d 728, 740-41 (1968)) (listing the factors for third

                                                20
party emotional distress recovery). Faced with an issue of first impression, the district court

surmised what the Mississippi Supreme Court would do in a similar situation – a situation

where there is no specific traumatic event. The court determined that recovery would be an

option, in the absence of a specific traumatic event, only when there was a “specific and

serious physical injury” or “at least threatened violent physical injury” to the immediate

victim – not the children bringing the suit. Campbell, 724 F. Supp at 441-42. The Campbell

court denied recovery, stating that the children had not alleged that the mother had “suffered

a violent or traumatic injury at the hands of defendant.” Id. at 442.

¶41.   The statements by the Campbell Court, as presented here by Acey, could be

interpreted to mean that all a third party would need to prove to recover is that the victim

suffered a physical injury; however, the judge in Campbell wrote that he read Entex to allow

a bystander to recover only when the bystander witnesses “a sudden and unexpected

traumatic event rather than a continuous series of events.” Campbell, 724 F. Supp. at 441.

The judge then hedged his Erie bet by continuing,

       However, even were this court of the view that the Mississippi Supreme Court
       would allow third-party mental distress recovery in the absence of a specific
       traumatic event, it is this court’s opinion that such recovery would not be
       permitted without a specific and serious physical injury to another with whom
       a plaintiff shares a close relationship.

Id. at 441-442; see Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).

¶42.   Later courts have misconstrued Campbell in another way. Because Campbell was an

issue of first impression – of whether a third party can recover for mental distress in the

absence of a specific traumatic event – the Campbell court first traced the law for whether

a plaintiff who was directly harmed by the defendant’s negligence can recover mental

                                              21
distress damages. The court then shifted to explain the law at issue, the law for third party

recovery for mental distress when the third party’s family member was directly harmed. The

Campbell opinion contains two distinct parts, and each part of the opinion traces different,

yet related, areas of the law. However, courts have misinterpreted and mixed up Campbell’s

treatment of the two distinct areas of the law. Courts have implanted language dealing solely

with direct plaintiff recovery to third party plaintiff recovery. Campbell states, in reference

to direct-plaintiff recovery:

       Thus, a person subjected to the negligent act of another can recover mental
       distress damages if that distress results in a medically cognizable condition
       for which treatment is required; if, rather than merely negligent, the
       defendant’s conduct is malicious, intentional or grossly negligent, recovery
       may be had despite the absence of any physical manifestation of the
       emotional distress of the affected individual so long as the conduct is such
       that the resulting emotional distress was reasonably foreseeable.

Campbell, 724 F. Supp. at 440 (emphasis added). Campbell appends that the standard for

direct plaintiff recovery is simply the “garden variety” negligence standard. Id.

¶43.   Courts have interpreted the above “malicious, intentional, or grossly negligent”

language in the context of third party recovery. Summers ex rel. Dawson v. St. Andrew’s

Episcopal School, Inc., 759 So. 2d 1203 (Miss. 2000), stated, under the issue determining

whether third party recovery survived summary judgment, that “[t]he plaintiffs . . . fail under

the premises of Campbell because there is no documented physical injury to [the child] nor

is there evidence of malicious, gross negligence on the part of [the school].” Id. at 1211.

Moore v. Kroger Co., 800 F. Supp. 429 (N.D. Miss. 1992), correctly draws the distinction

between the two parts of the Campbell opinion stating:




                                              22
       [I]n a discussion leading to [the] holding, the Campbell court traced the law
       in Mississippi concerning mental distress damages in the absence of physical
       manifestation. The court first discussed the law with respect to the immediate
       victim, who, depending on the maliciousness and gross nature of the
       negligence, could seek recovery despite the absence of actual physical injury.
       ...
       Campbell’s discussion of grossly negligent behavior was in conjunction with
       the emotional distress of the immediate victim.

Id. at 433 (emphasis added). Thus, following the same reasoning promulgated by Moore,

malicious and gross negligence applies where the immediate victim is seeking recovery, and

as outlined above, Campbell’s holding applies to fact situations where there is no specific

traumatic event. In the instant case, Acey is not the immediate victim, and there was a

specific traumatic event: A.A. touched the power wire and was electrocuted. Therefore,

Campbell does not apply, and Summers does not provide a valid argument for Acey to

recover.

       RANDOLPH, P.J., CHANDLER AND PIERCE, JJ., JOIN THIS OPINION.

       LAMAR, JUSTICE, DISSENTING:

¶44.   I do not agree that – at this stage of this proceeding and on this record – we can find

as a matter of law that Acey cannot recover as a bystander.

¶45.   As the majority points out, there are generally three factors that this Court considers

to determine if a defendant should reasonably foresee injury to a bystander:

       (1) Whether plaintiff was located near the scene of the accident as contrasted
       with one who was a distance away from it. (2) Whether the shock resulted
       from a direct emotional impact upon plaintiff from the sensory and
       contemporaneous observance of the accident, as contrasted with learning of the
       accident from others after its occurrence. (3) Whether plaintiff and the victim
       were closely related, as contrasted with an absence of any relationship or the
       presence of only a distant relationship.



                                             23
Entex, Inc. v. McGuire, 414 So. 2d 437, 444 (Miss. 1982). But the majority then proceeds

to treat these three factors as a bright-line rule that absolutely bars recovery. This, in my

view, is an incorrect interpretation of Entex. In fact, the Entex Court favorably quoted the

Supreme Court of California in Dillon v. Legg,6 where the California Court stated that courts

should “take into account” the factors quoted above when evaluating whether a bystander

was a foreseeable plaintiff – which is a far cry from treating the factors as “mandatory

requirements” that a bystander must meet. Entex, 414 So. 2d at 444.

¶46.   Importantly, a closer review of the analysis in Dillon reveals that these factors are to

be evaluated as a whole:

       The evaluation of these factors will indicate the [d]egree of the defendant’s
       foreseeability: obviously defendant is more likely to foresee that a mother who
       observes an accident affecting her child will suffer harm than to foretell that
       a stranger witness will do so. Similarly, the degree of foreseeability of the third
       person’s injury is far greater in the case of his contemporaneous observance
       of the accident than that in which he subsequently learns of it. The defendant
       is more likely to foresee that shock to the nearby, witnessing mother will cause
       physical harm than to anticipate that someone distant from the accident will
       suffer more than a temporary emotional reaction. All these elements, of course,
       shade into each other; the fixing of obligation, intimately tied into the facts,
       depends upon each case.

Dillon, 441 P.2d at 920-21.

¶47.   Here, it is undisputed that factor three weighs heavily in Acey’s favor. And I find

that, as this case currently stands, factors one and two are neutral at best. There is testimony

in the record that Acey arrived at the accident scene within seven minutes, where her

daughter was still experiencing the effects of the severe electrical shock. Specifically, Acey




       6
           441 P.2d 912 (Cal. 1968).

                                               24
testified via affidavit that she observed smoke coming from her daughter’s skin, the skin

flaking and turning gray, her daughter’s fingers missing and bones exposed, and that she

could smell the odor of burning flesh – in other words, the injury was still occurring. Also,

Acey’s daughter had not been removed from the accident site when she arrived – she was

being held by one of the farmers on the platform of the cotton-picker.

¶48.   I agree with Justice Coleman that “the question of whether a legal duty of due care

exists is one of law and not fact.” But that determination cannot be made in a vacuum,

because it is axiomatic that the existence of a duty necessarily depends on the specific facts

of each case. And for purposes of a summary-judgment review, we are to view the facts in

the light most favorable to Acey. If we do as instructed by the Entex Court and simply take

these factors “into account,” I cannot join the majority’s conclusion that Acey may not

recover as a matter of law.

¶49.   Moreover, I note that virtually all of the authority relied on by the majority is from

federal courts making Erie guesses as to the current state of Mississippi bystander law. So

the majority’s statement that “Mississippi law has been consistent regarding bystander

recovery for emotional-distress damages” is disingenuous. (Maj. Op. ¶19). The majority

relies heavily on federal court opinions waxing eloquently on Mississippi bystander law

instead of actually analyzing the Dillon factors as Entex instructs. There is simply nothing

in Entex or any of this Court’s other precedent that categorically bars Acey’s recovery here.

¶50.   As a final note, it is interesting to me that the majority spends the first seven pages of

its analysis pointing out all the reasons I am wrong instead of analyzing the case at hand,

relying principally on caselaw from California. I do not “misunderstand” the application of

                                              25
the Dillon factors; rather, I simply am not concerned with post-Dillon jurisprudence in

California. My concern is our bystander liability jurisprudence, and the fact remains that this

Court never has said – until today – that the Dillon factors are “mandatory requirements.”

¶51.   I stress again that Entex instructs this Court to take the Dillon factors “into account.”

My response to the majority’s statement that I am overlooking “all the Mississippi caselaw

that plainly rejects” my position is simple: “What law?” Simply because the majority has

been able to locate some cases in which bystander recovery was ultimately denied does not

mean that our jurisprudence– properly interpreted –transforms the Dillon factors into

mandatory requirements or categorically bars recovery here. The majority’s concern that my

rationale will “no doubt result in infinite liability” is simply unfounded. I say nothing more

than that our current jurisprudence does not, as a matter of law, bar Acey’s recovery here.

¶52.   For these reasons, I would dismiss this interlocutory appeal and allow the parties to

proceed with discovery and trial.

       DICKINSON, P.J., KITCHENS AND KING, JJ., JOIN THIS OPINION.




                                              26
