SW Legal studies in Business

Emotional Distress Claim Can Proceed Despite Not Witnessing Accident

Tennessee high court held that the parent and brother of a boy seriously injured could sue for emotional distress because of the condition of the boy when they arrived at the scene of an accident soon after it happened. Although they did not see the accident, the scene was not changed significantly from the moment it occurred, so the claim may proceed.

Topic Torts
Key Words

Negligent Infliction of Emotional Distress; Visual Witness

C A S E   S U M M A R Y

The Eskin’s son, Brendan, was picked up from school one day by a neighbor, Jan Durban. Another parent, Bartee, was in line to pick up her child when she lost control of her car, jumped the curb, seriously injuring Brendan, causing brain damage. Durban called Mrs. Eskin to tell her there was an accident. She came over to the school with her other son, Logan, not aware of the seriousness of the accident. She and Logan saw Brendan lying in a pool of blood. Mrs. Eskin became hysterical. The Eskins sued Bartee and the school. One claim was that of negligent infliction of emotional distress on Mrs. Eskin and Logan. Defendant requested that claim be dismissed because Mrs. Eskin did not witness the accident. The district court dismissed that claim, but the court of appeals reversed, holding the claim could proceed. Defendants appealed.


Affirmed. The Eskins established a triable claim for negligent infliction of emotional distress even though they did not see the injury-causing event. The tort requires proof of: 1) the actual or apparent death or serious injury of another caused by defendant’s negligence; 2) the existence of a close and intimate personal relationship between the plaintiff and the deceased or injured person; 3) the plaintiff’s observation of the actual or apparent death or serious physical injury at the scene of the accident before the scene has been materially altered; and 4) the resulting serious or severe emotional injury to the plaintiff caused by the observation. The Eskins arrived at the scene soon after the accident to see Brendan lying in a pool of blood appearing to be lifeless. The condition of the scene had not changed significantly from the time of the accident, so the Eskins’ claim can proceed.


Eskin v. Bartee, ---S.W.3d--- (2008 WL 3504934, Sup. Ct., Tenn., 2008)

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