              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA16-1155

                               Filed: 17 October 2017

Buncombe County, No. 16 CVS 625

NICHOLAS A. RIDDLE, Plaintiff

             v.

BUNCOMBE COUNTY BOARD OF EDUCATION; JAMES BEATTY, in his
Individual Capacity, and in his Official Capacity with the Buncombe County Board
of Education; and RODERICK BROWN, JR., in his Individual Capacity, and in his
Official Capacity with the Buncombe County Board of Education, Defendants


      Appeal by plaintiff from order entered 19 May 2016 by Judge Gary Gavenus in

Buncombe County Superior Court. Heard in the Court of Appeals 19 April 2017.


      Charles G. Monnett III & Associates, by Randall J. Phillips, for plaintiff-
      appellant.

      York Williams, L.L.P., by Gregory C. York and Jared A. Johnson, for defendant-
      appellees.

      Ball Barden & Cury, P.A., by Alexandra Cury, for defendant-appellee Roderick
      Brown, Jr., in his individual capacity.


      CALABRIA, Judge.


      Nicholas A. Riddle (“plaintiff”) appeals from the trial court’s order dismissing

his action pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) (2015). Plaintiff alleged

negligent infliction of emotional distress claims against the Buncombe County Board

of Education (“BCBE”); James Beatty (“Beatty”), individually and in his official

capacity with the BCBE; and Roderick Brown, Jr. (“Brown”), individually and in his
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                                      Opinion of the Court



official capacity with the BCBE (collectively, “defendants”). On appeal, the issue is

whether it was reasonably foreseeable that plaintiff would suffer severe emotional

distress as a proximate result of defendants’ allegedly negligent acts, which led to the

death of plaintiff’s teammate and friend, Donald Boyer Crotty (“Crotty”).         After

careful review, we hold that plaintiff’s injury was not reasonably foreseeable.

Therefore, we affirm the trial court’s order dismissing plaintiff’s action.

                                 I.        Background

      As plaintiff’s claims were dismissed pretrial pursuant to N.C. Gen. Stat. § 1A-

1, Rule 12(b)(6), “the facts set forth herein are taken from the allegations of the

complaint, which must be taken as true at this point.” Johnson v. Ruark Obstetrics

& Gynecology Assocs., P.A., 327 N.C. 283, 286, 395 S.E.2d 85, 87, reh’g denied, 327

N.C. 644, 399 S.E.2d 133 (1990).

      In July 2011, Beatty was a teacher and the varsity football coach at T.C.

Roberson High School (“T.C. Roberson”) in Buncombe County, North Carolina.

Plaintiff and Brown were members of the football team. T.C. Roberson football

players had access to various equipment, including a John Deere motorized vehicle

(“the John Deere”) that was routinely used to move items during and after practice.

Beatty authorized the team’s use of the John Deere, notwithstanding the fact that all

players were minors and that none of BCBE’s representatives had ever trained or

instructed them regarding the vehicle’s safe operation.



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        According to the complaint, on 11 July 2011, plaintiff, Brown, and other

members of the team were scrimmaging and participating in drills on the T.C.

Roberson football field. Beatty instructed Brown to use the John Deere to transport

large Gatorade coolers across the field from an area near the 50-yard line. Brown,

traveling at an unsafe and excessive rate of speed, drove the John Deere across the

field as plaintiff, Crotty, and several players walked toward him. When they realized

that Brown was driving directly at them, the players moved to avoid the John Deere.

However, Brown simultaneously turned the steering wheel to the right and collided

with Crotty, entrapping him with the front hood of the vehicle. Crotty’s head struck

the asphalt running track, and the John Deere’s right tires traveled over his body and

head. Crotty immediately displayed signs of brain injury and was only partially

responsive as witnesses tended to him.

        On 11 February 2016, plaintiff filed the instant action in Buncombe County

Superior Court.1 Plaintiff alleged, inter alia, that Beatty and Brown committed

negligent acts that proximately and foreseeably caused plaintiff to suffer severe

emotional distress, and that all defendants were jointly and severally liable for

plaintiff’s injury.2 On 1 April 2016, defendants filed an answer denying negligence



        1  Plaintiff also filed a separate cause of action against BCBE alleging violations of his
constitutional rights. Plaintiff voluntarily dismissed the constitutional claim at the hearing on
defendants’ motion to dismiss on 9 May 2016.
        2 In addition to negligent infliction of emotional distress, plaintiff’s complaint also asserted a

claim for “uninsured and/or underinsured motorist coverages.” However, because plaintiff’s appellate
brief does not address this claim, we will not discuss it further on appeal.

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and asserting various affirmative defenses.       Defendants’ answer also included a

motion to dismiss for failure to state a claim upon which relief could be granted,

pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6). Following a hearing, the trial court

granted defendants’ motion to dismiss. Plaintiff appeals.

                                   II.     Analysis

      Plaintiff argues that the trial court erroneously granted defendants’ motion to

dismiss because he sufficiently alleged claims for negligent infliction of emotional

distress arising out of concern for (1) himself and (2) his teammate and friend, Crotty.

We disagree.

      A Rule 12(b)(6) motion to dismiss “tests the legal sufficiency of the complaint.

In ruling on the motion the allegations of the complaint must be viewed as admitted,

and on that basis the court must determine as a matter of law whether the allegations

state a claim for which relief may be granted.” Stanback v. Stanback, 297 N.C. 181,

185, 254 S.E.2d 611, 615 (1979) (citations omitted). On appeal, “[t]his Court must

conduct a de novo review of the pleadings to determine their legal sufficiency and to

determine whether the trial court’s ruling on the motion to dismiss was correct.”

Leary v. N.C. Forest Prods., Inc., 157 N.C. App. 396, 400, 580 S.E.2d 1, 4, aff’d per

curiam, 357 N.C. 567, 597 S.E.2d 673 (2003).

      “An action for the negligent infliction of emotional distress may arise from a

concern for one’s own welfare, or concern for another’s.” Robblee v. Budd Servs., Inc.,



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136 N.C. App. 793, 795, 525 S.E.2d 847, 849, disc. review denied, 352 N.C. 676, 545

S.E.2d 228 (2000). To state a claim for negligent infliction of emotional distress, the

plaintiff must allege that: “(1) the defendant negligently engaged in conduct, (2) it

was reasonably foreseeable that such conduct would cause the plaintiff severe

emotional distress, and (3) the conduct did in fact cause the plaintiff severe emotional

distress.” Sorrells v. M.Y.B. Hosp. Ventures of Asheville, 334 N.C. 669, 672, 435

S.E.2d 320, 321-22 (1993) (citation and internal ellipsis omitted).

      The term “severe emotional distress” means “an emotional or mental disorder,

such as, for example, neurosis, psychosis, chronic depression, phobia, or any other

type of severe and disabling emotional or mental condition which may be generally

recognized and diagnosed by professionals trained to do so.” Id. at 672, 435 S.E.2d at

322. While no physical injury is required, Ruark, 327 N.C. at 304, 395 S.E.2d at 97,

North Carolina courts have consistently reiterated that the plaintiff’s emotional

distress must be severe in order to recover under this tort. See id. (explaining that

“mere temporary fright, disappointment or regret will not suffice”); see also Pierce v.

Atl. Grp., Inc., 219 N.C. App. 19, 32, 724 S.E.2d 568, 577 (affirming the trial court’s

12(b)(6) dismissal of the plaintiff’s claim where the sole allegation of emotional

distress was “serious on and off the job stress, severely affecting his relationship with

his wife and family members”), disc. review denied, 366 N.C. 235, 731 S.E.2d 413

(2012).



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      Moreover, absent reasonable foreseeability, the defendant will not be liable for

the plaintiff’s severe emotional distress. See Gardner v. Gardner, 334 N.C. 662, 667,

435 S.E.2d 324, 328 (1993) (stating that “[p]art of living involves some unhappy and

disagreeable emotions with which we must cope without recovery of damages”).

Accordingly, where the defendant’s conduct would not cause injury to a person of

normal sensitivity, “proof of knowledge by the defendant of the plaintiff’s peculiar

susceptibility to emotional distress is required . . . .” Wrenn v. Byrd, 120 N.C. App.

761, 767, 464 S.E.2d 89, 93 (1995) (construing Gardner, 334 N.C. at 667, 435 S.E.2d

at 328 (additional citations omitted)), disc. review denied, 342 N.C. 666, 467 S.E.2d

738 (1996).

      “Questions of foreseeability and proximate cause must be determined under all

the facts presented, and should be resolved on a case-by-case basis by the trial court

and, where appropriate, by a jury.” Ruark, 327 N.C. at 305, 395 S.E.2d at 98. “[T]he

trial judge is required to dismiss the claim as a matter of law upon a determination

that the injury is too remote.” Wrenn, 120 N.C. App. at 765, 464 S.E.2d at 92. In

actions arising from concern for another’s welfare—frequently called “bystander

claims”—factors bearing on foreseeability include “the plaintiff’s proximity to the

negligent act, the relationship between the plaintiff and the other person for whose

welfare the plaintiff is concerned, and whether the plaintiff personally observed the

negligent act.” Ruark, 327 N.C. at 305, 395 S.E.2d at 98. However, these are not



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“mechanistic requirements,” and “[t]he presence or absence of such factors simply is

not determinative in all cases.” Sorrells, 334 N.C. at 672, 435 S.E.2d at 322.

      Here, as in many negligent infliction of emotional distress cases, the

dispositive issue is foreseeability. At the hearing on 9 May 2016, the trial court

granted defendants’ motion to dismiss after finding no “reasonable foreseeability . . .

that would lead to the plaintiff’s alleged severe emotional distress.” The following

paragraphs of plaintiff’s complaint address the foreseeability of his injury:

             25. As Defendant Brown approached the players who were
             walking and then struck Donald Crotty, Plaintiff Nicholas
             A. Riddle narrowly avoided being struck by the John Deere
             while still in close proximity to Donald Crotty, and
             experienced fear, terror and severe emotional distress for
             his own safety and the safety of the other football players.

             ...

             27. Plaintiff witnessed the injuries to Crotty from being
             struck by [the] John Deere vehicle, experienced severe
             emotional distress at that time, and the Plaintiff has in fact
             since continued to suffer since the event from the type of
             severe emotional distress recognized and diagnosed by
             professionals trained to do so, and has required care,
             treatment, therapy and medications from medical and
             mental healthcare providers as a proximate result thereof.

             28. Plaintiff and Donald Crotty were both personally
             known to Defendants Beatty and Brown as fellow
             teammates and friends; Plaintiff was physically present in
             the immediately [sic] vicinity of, and contemporaneously
             observed, Defendants’ negligent acts and the resulting
             injuries to Donald Crotty; and, Defendants Beatty and
             Brown knew or reasonably should have foreseen that their
             negligence and resulting injury to Donald Crotty would


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             cause . . . the severe emotional distress suffered by Plaintiff
             Nicholas A. Riddle, and that Plaintiff would be susceptible
             thereto.

      Taking these allegations as true, we first address plaintiff’s claim arising from

concern for himself. The sole allegation that could arguably support such a claim is

in paragraph 25, in which plaintiff states he “narrowly avoided being struck by the

John Deere while still in close proximity to Donald Crotty, and experienced fear,

terror and severe emotional distress for his own safety . . . .” However, allegations of

“temporary fright” are insufficient to satisfy the element of severe emotional distress.

Ruark, 327 N.C. at 304, 395 S.E.2d at 97. While plaintiff avers in paragraph 27 that

he “has in fact since continued to suffer since the event from the type of severe

emotional distress recognized and diagnosed by professionals trained to do so,” the

remainder of the paragraph’s allegations clearly pertain to his distress at

“witness[ing] the injuries to Crotty,” i.e. plaintiff’s “concern for another.” Accordingly,

plaintiff’s claim arising from concern for himself fails as a matter of law.

      We next address plaintiff’s claim arising out of concern for his teammate and

friend, Crotty.    As plaintiff acknowledges, this appears to be a “case of first

impression” in North Carolina’s bystander claim jurisprudence, as our prior cases

have all involved close familial relationships. See, e.g., Andersen v. Baccus, 335 N.C.

526, 439 S.E.2d 136 (1994) (husband-wife and parent-child); Sorrells v. M.Y.B. Hosp.

Ventures of Asheville, 334 N.C. 669, 435 S.E.2d 320 (1993) (parent-child); Gardner v.



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Gardner, 334 N.C. 662, 435 S.E.2d 324 (1993) (parent-child); Johnson v. Ruark

Obstetrics & Gynecology Assocs., P.A., 327 N.C. 283, 395 S.E.2d 85 (1990) (parent-

unborn child); Wrenn v. Byrd, 120 N.C. App. 761, 464 S.E.2d 89 (1995) (wife-

husband). Plaintiff cites no case from any jurisdiction legitimizing a bystander claim

similar to that which he alleges in this case. However, he is correct that under Ruark,

“the relationship between the plaintiff and the other person for whose welfare the

plaintiff is concerned” is but one factor to consider in determining foreseeability. 327

N.C. at 305, 395 S.E.2d at 98.

      Nevertheless, applying the Ruark factors to the complaint, we conclude that

plaintiff’s allegations are insufficient to establish the reasonable foreseeability of his

severe emotional distress. That plaintiff “was physically present in the immediate[]

vicinity of, and contemporaneously observed” Crotty’s injuries favors foreseeability.

Id. However, no factor is determinative in all cases. Sorrells, 334 N.C. at 672, 435

S.E.2d at 322.    Here, plaintiff’s allegations regarding his relationship with Crotty

fail to support the foreseeability of his injury. Except for paragraph 28’s statement

that defendants knew plaintiff and Crotty “as fellow teammates and friends,” the

complaint contains no allegation or facts suggesting that the pair shared an

unusually close relationship. Nor does plaintiff explain how his friendship with

Crotty demonstrates any “peculiar susceptibility” to severe emotional distress.

Wrenn, 120 N.C. App. at 767, 464 S.E.2d at 93.



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      In conclusion, we hold that plaintiff’s complaint fails to state a cognizable claim

for negligent infliction of emotional distress arising from concern for himself or

Crotty. Therefore, we affirm the trial court’s order dismissing plaintiff’s action.

      AFFIRMED.

      Judges DIETZ and MURPHY concur.




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