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Butz v. Holder12/21/1993
JOHNSON, Judge.
Our reasoning in Butz v. Holder, 112 N.C. App. 116, 434 S.E.2d 862 (1993) was based substantially on Gardner v. Gardner, 106 N.C. App. 635, 418 S.E.2d 260 (1992), rev'd, 334 N.C. 662, 435 S.E.2d 324 (1993) and Sorrells v. M. Y. B. Hospitality Ventures of Asheville, 108 N.C. App. 668, 424 S.E.2d 676, rev'd, 334 N.C. 669, 435 S.E.2d 320 (1993). Our Supreme Court has since issued opinions reversing both Gardner and Sorrells. Defendant timely petitioned for rehearing and we granted this petition.
We briefly revisit the facts of Butz. 13-year-old Dwayne John Butz was hit and killed by an automobile driven by defendant. At the time of the accident, which occurred on a bridge, decedent was riding his bicycle on Rural Road 1415 which was approximately one-half mile from his parents' home.
A neighbor went to decedent's home and informed plaintiff father, Earl R. Butz, of the accident; plaintiff father immediately went to the site of the accident where he learned his son had been killed. Decedent was covered with a sleeping bag in the road. Plaintiff mother, Linda M. Butz, and brother, Marc Butz, arrived shortly thereafter, separately.
During the months following the accident, as a result of emotional distress, plaintiff mother sought psychiatric and psychological care and plaintiff father developed high blood pressure.
We held in Butz "where plaintiffs father and mother of the decedent arrived at the scene of the accident shortly after its occurrence, defendant could have reasonably foreseen that negligence on defendant's part might be a direct or proximate cause of plaintiff parents' emotional distress. We hold that this issue of foreseeability as to the parents for negligent infliction of emotional distress is one for the jury." Butz, 112 N.C. App. at 120, 434 S.E.2d at 864.
We relied upon Sorrells in our previous Butz decision. Sorrells involved a 21-year-old son who was killed in an automobile accident, his body mutilated, after being negligently served alcohol by the defendant bartender. The action in Sorrells was brought by the parents of the decedent; our Court held that the issue of foreseeability in Sorrells was one for the jury. On appeal as of right, the Supreme Court reversed, holding that this accident was not reasonably foreseeable.
The Court noted that to state a claim for negligent infliction of emotional distress (NIED), "the plaintiff need only 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, 334 N.C. at 672, 435 S.E.2d at 321-22, quoting Johnson v. Ruark Obstetrics, 327 N.C. 283, 304, 395 S.E.2d 85, 97 (1990). The factors to consider in making this foreseeability determination "include, but are not limited to : (1) 'the plaintiff's proximity to the negligent act' causing injury to the other person, (2) 'the relationship between the plaintiff and the other person,' and (3) 'whether the plaintiff personally observed the negligent act.'" Sorrells, 334 N.C. at 672, 435 S.E.2d at 322, quoting Ruark, 327 N.C. at 305, 395 S.E.2d at 98. (Emphasis retained.) The Court stated that in
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