Plaintiff was employed as a manager of a Family Dollar Store.
On 1 October 1990, she sustained a shoulder injury while retrieving
a box from an overhead shelf. Plaintiff experienced pain in her
left shoulder, arm and neck as a result of the injury. Plaintiff
sought treatment with orthopaedic surgeon Dr. William Somers, on 11
October 1990. Dr. Somers prescribed physical therapy, however,
physical therapy did not improve plaintiff's condition. Plaintiff
also received injections into her left shoulder, but her condition
did not improve as a result of the injections. On 5 June 1991, plaintiff underwent surgery to repair a labral
tear in her shoulder. Although plaintiff regained the motor
strength in her shoulder, she continued to experience pain in her
neck and shoulder. Plaintiff underwent additional shoulder surgery
on 16 March 1992, but the pain in her left shoulder continued.
Dr. Somers, on 7 November 1991, referred plaintiff to
neurologist Dr. Alan Finkel for evaluation and management of her
shoulder pain. Dr. Finkel referred plaintiff to psychologist Dr.
Helen Rogers for management of depression related to her chronic
pain and for evaluation of cognitive dysfunction which she suffered
following a seizure in July 1993. Plaintiff began treatment with
Dr. Rogers commencing 10 August 1993, and has continued to receive
Drs. Finkel and Rogers' services.
Plaintiff received temporary total disability benefits
following her 5 June 1991 surgery. In 1993, Aetna Insurance Company
(Aetna), the worker's compensation carrier for the Family Dollar
Stores, referred plaintiff to Atlantic Behavioral Health Systems,
Inc. (Atlantic), a vocational rehabilitation specialist, for
evaluation of plaintiff's capabilities and to assist plaintiff in
finding appropriate employment. Atlantic employees Linda DeBaer, a
certified vocational rehabilitation specialist, and Tim Miller
worked most closely with plaintiff during her evaluation.
Plaintiff was enrolled in an Atlantic program titled 'Job
Club'. The program assisted injured workers in returning to the
workforce. Plaintiff met with employees of Job Club in February
1994 and began participating in the program on 8 March 1994.
On 1 March 1994, plaintiff and DeBaer met with Dr. Somers todiscuss appropriate jobs for the plaintiff. Dr. Somers
approved
plaintiff to seek light sedentary employment. Dr. Finkel advised
DeBaer that plaintiff would be starting a new medication regimen
and during the first few days she would need to be absent from Job
Club. Neither Drs. Finkel nor Rogers advised Atlantic that
plaintiff should not participate in Job Club.
While participating in Job Club, plaintiff interviewed for
several positions. After interviewing for a job as an appointment
setter for a photography studio, plaintiff was offered a position,
however, she did not accept the offer.
Aetna determined that plaintiff had failed to accept a job
offer within her capabilities and that she had sabotaged other job
interviews. On 5 April 1994, Aetna unilaterally terminated
plaintiff's worker's compensation benefits. On 3 May 1994, the
Industrial Commission (Commission) allowed Aetna to cease payment
of temporary total disability compensation to plaintiff. On 21
March 1996, the Commission entered an opinion and award stating
that the termination of temporary total disability compensation had
been improperly granted, and awarded plaintiff past and future
benefits. The Commission also awarded plaintiff attorney's fees for
the wrongful termination of benefits. Upon appeal to this Court,
the Commission's opinion and award was upheld, except the award of
attorney's fees was found to be inappropriate.
On 7 April 1997, plaintiff commenced this action in the
District Court Division of Durham County, pursuing the claim of
negligent infliction of emotional distress (NIED) against
defendants Linda DeBaer and Tim Miller individually and AtlanticBehavioral Health Systems, Inc., now doing business as Carolina
Rehabilitation, and previously doing business as Total
Rehabilitation, Inc. (Total Rehab). Plaintiff contended that
defendants were both personally negligent and professionally
negligent in their pursuit of plaintiff's vocational
rehabilitation.
Defendants filed an answer on 27 October 1997 alleging that
plaintiff failed to state a claim upon which relief could be
granted pursuant to Rule 12 of the North Carolina Rules of Civil
Procedure. In addition, defendants denied plaintiff's claims of
NIED and negligence. Plaintiff made a motion to amend the complaint
and submitted an amended complaint on 8 October 1999, which more
completely detailed the claim of NIED.
On 3 September 1999, defendants made a motion for summary
judgment pursuant to Rule 56 of the North Carolina Rules of Civil
Procedure, based on the pleadings, responses to written discovery
and depositions taken. Superior Court Judge Howard E. Manning, Jr.
entered his order on 9 March 2000 granting defendants' motion for
summary judgment. Judge Manning based his ruling solely on the NIED
standard announced in Lorbacher v. Housing Authority of City of
Raleigh, 127 N.C. App. 663, 493 S.E.2d 74 (1997). Because Lorbacher
is not the appropriate standard, we reverse the decision of the
trial court granting summary judgment for the defendants.
I.
The plaintiff makes several arguments on appeal, however, we
only address plaintiff's first argument as it is the dispositive
issue on appeal. Plaintiff contends that the trial court erred inrelying upon
Lorbacher as controlling authority concerning the
issue of NIED.
Supreme Court decisions that change existing law are presumed
to apply retroactively absent compelling reasons for limiting their
retroactive effects.
Fowler v. North Carolina Dept. of Crime
Control & Public Safety, 92 N.C. App. 733, 735, 376 S.E.2d 11, 12,
rev.
denied, 324 N.C. 577, 381 S.E.2d 773 (1989)
. By mere
implication, a subsequent decision cannot be held to overrule a
prior case, unless the principle is directly involved and the
inference is clear and compelling.
Cole v. Cole, 229 N.C. 757, 762,
51 S.E.2d 491, 494-95 (1949)
. However, when changes are made
retroactive, the changes apply to five categories of cases: (1)
cases in which a new rule is announced; (2) cases in which factual
event, trial, and appeal are all at an end but in which a
collateral attack is brought; (3) cases pending on appeal when a
decision is announced; (4) cases awaiting trial; and
(5) cases
initiated in the future but arising from earlier occurrences.
Alexander v. Quattlebaum, 135 N.C. App. 622, 624, 522 S.E.2d 88, 90
(1999) (emphasis added).
In March 1997, our Court announced its decision in
Lorbacher.
In that case, Lorbacher was the “Director of Development” for the
Raleigh Housing Authority, and partly responsible for supervising
employees, visiting construction sites and monitoring for
construction compliance.
Lorbacher, 127 N.C. App. at 667, 453
S.E.2d at 76
. On 29 June 1992, Lorbacher lost his driving
privileges and consequently, his employment was terminated.
However, on 8 August 1992, Lorbacher's employment was reinstatedbased on his agreement to find transportation for any necessary
travel.
As a result of the negligent maintenance of a Walnut Terrace
Apartment heating system, two apartment residents died from carbon
monoxide poisoning. At a wrongful death trial, Lorbacher gave
deposition testimony regarding the Housing Authority's knowledge of
the dangerous condition and failure to take any remedial action.
Lorbacher was subsequently discharged, supposedly because of his
failure to obtain acceptable transportation arrangements that were
necessary for the adequate performance of his job.
Id. Lorbacher
brought suit claiming,
inter alia, negligent and intentional
infliction of emotional distress caused by the Housing Authority's
wrongful discharge.
Lorbacher, 127 N.C. App. at 668, 453 S.E.2d at
77. The trial court dismissed Lorbachers' negligent and intentional
infliction of emotional distress claims. Lorbacher appealed the
dismissal decision to our Court.
The
Lorbacher Court, announced the standard for a claim of
NIED as requiring the plaintiff to show that the defendant: (1)
negligently engaged in conduct; (2) it was reasonably foreseeable
that the conduct would cause the plaintiff severe mental anguish;
and (3) the conduct did cause the plaintiff to suffer severe mental
anguish.
Lorbacher, 127 N.C. App. at 676, 453 S.E.2d at 81.
To satisfy the first element of the NIED, the
Lorbacher Court
required the plaintiff to show the defendant's conduct was extreme
and outrageous.
Lorbacher, 127 N.C. App. at 677, 453 S.E.2d at 82.
The Court did not distinguish a plaintiff's burden as to the first
element of a NIED claim from the burden a plaintiff must satisfywhen asserting an intentional infliction of emotional distress
claim.
The Court found that the plaintiff did not show that the
Housing Authority's conduct was extreme and outrageous, thus the
Court affirmed dismissal action as to emotional distress claims.
In 1998, the North Carolina Supreme Court in
McAllister v. Ha,
347 N.C. 638, 496 S.E.2d 577 (1998), stated that when a plaintiff
asserts a claim of NIED, “[a]lthough an allegation of ordinary
negligence will suffice, a plaintiff must also allege that severe
emotional distress was the foreseeable and proximate result of such
negligence in order to state a claim; mere temporary fright,
disappointment or regret will not suffice.”
McAllister, 347 N.C. at
645, 456 S.E.2d at 583
quoting Johnson v. Ruark Obstetrics &
Gynecology Assoc., P.A., 327 N.C. 283, 395 S.E.2d 85 (1990)
.
In
McAllister, plaintiffs had a baby on 8 May 1991.
McAllister , 347 N.C. at 640, 496 S.E.2d at 580
. In June 1991,
plaintiffs received a letter from the State Health Department
advising them that they needed to be tested for sickle cell disease
because of the genetic traits carried by the wife. Plaintiffs went
to the medical offices of Khie Sem Ha, M.D., where blood samples
were drawn and sent to the State Laboratory of Public Health. Ha
told plaintiffs if he found anything of concern in the lab results,
he would call them. Plaintiffs never heard from defendant
concerning the lab results, although plaintiffs visited him four
additional times between June 1991 and September 1993.
In September 1993, the wife became pregnant with plaintiffs'
second child, who was born on 27 May 1994. In June 1994, plaintiffs
learned that their second child had sickle cell disease.
They alsolearned that the results of the 1991 lab work showed the plaintiff-
husband carried the sickle cell trait. Plaintiffs filed suit
claiming
inter alia that Ha was negligent in his duties, and that
Ha's actions amounted to extreme and outrageous conduct resulting
in plaintiffs suffering extreme mental distress and financial loss.
McAllister, 347 N.C. at 641, 456 S.E.2d S.E.2d at 580. The trial
court granted Ha's motion to dismiss for failure to state a claim.
McAllister, 347 N.C. at 640, 456 S.E.2d at 579. This Court,
reversed the trial court's order dismissing the emotional distress
claim and remanded the case. On discretionary review, the Supreme
Court affirmed this Court's decision to reverse.
Although the
McAllister Court did not directly state that its
decision overruled the holding in
Lorbacher, the same principle is
directly involved in both cases and the inference in
McAllister is
clear and compelling - - an allegation of ordinary negligence will
suffice as the first prong in a claim of NIED.
We must note that both the
Lorbacher and
McAllister Courts
cited to
Johnson for their respective definitions for a claim of
NIED.
Lorbacher, 127 N.C. App. at 676, 483 S.E.2d at 81;
McAllister, 347 N.C. at 645-46, 496 S.E.2d at 582-583 The
Johnson
Court required for a showing of NIED that: 1)the defendant
negligently engaged in some act; 2) it was reasonably foreseeable
that the conduct would cause the plaintiff severe emotional
distress; and 3) the plaintiff did suffer severe emotional distress
caused by defendant's negligent act.
Johnson, 327 N.C. at 307, 345
S.E.2d at 97. The
Johnson Court further stated that although an
allegation of ordinary negligence will suffice, the plaintiff mustallege that the severe emotional distress was the foreseeable and
proximate result of defendant's negligent actions.
Id.
In the instant case, plaintiff filed the complaint in April
1997, approximately one month after the
Lorbacher decision; but the
motion for summary judgment was not heard until after the decision
in
McAllister. The trial court was bound by the retroactive
application of our Supreme Court's interpretation in
McAllister of
the elements necessary to establish a NIED claim. Absent a
compelling reason to limit the retroactive effect of
McAllister, we
reverse the decision of the trial court granting summary judgment
based solely on
Lorbacher.
We also note that more recent Court of Appeals decisions have
excluded the extreme and outrageous conduct requirement for a claim
of NIED.
See Simmons v. Chemol Corp., 137 N.C. App. 319, 325, 528
S.E.2d 368, 371-72 (2000) (“An action for negligent infliction of
emotional distress requires a showing that defendant negligently
engaged in conduct, which was reasonably foreseeable to cause, and
did in fact cause, plaintiff to suffer severe emotional
distress.”);
Johnson v. Scott, 137 N.C. App. 534, 538, 528 S.E.2d
402, 404 (2000)(stating the elements for a claim NIED as: “(1) the
defendant negligently engaged in conduct,(2) it was reasonably
foreseeable that such conduct would cause the plaintiff severe
emotional distress (often referred to as “mental anguish”), and
(3)the conduct did in fact cause the plaintiff severe emotional
distress”)
citing Johnson v. Ruark Obstetrics & Gynecology Assoc.,
P.A., 327 N.C. at 304, 395 S.E.2d at 97.
For all of the reasons stated above, the decision of the trialcourt is
Reversed.
Chief Judge EAGLES and Judge McCULLOUGH
concur
.
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