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SNAP of Tennessee

Survivors Network of those Abused by Priests - Tennessee 

Tennessee Supreme Court Ruling 01/18/05

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

October 6, 2004 Session

JOHN DOE 1 EX REL. JANE DOE 1, ET AL. v. ROMAN CATHOLIC

DIOCESE OF NASHVILLE, ET AL.

Appeal by permission from the Court of Appeals, Middle Section

Davidson County Circuit Court

Nos. 00C-164 and 00C-172 Walter C. Kurtz, Judge

No. M2001-01780-SC-R11-CV - Filed January 18, 2005

In two separate civil actions, the plaintiffs, John Doe 1, Jane Doe 1 and John Doe 2 brought claims

of reckless infliction of emotional distress against the defendant, the Roman Catholic Diocese of

Nashville. The lawsuits were consolidated for certain pretrial purposes and also for purposes of

appellate review. The trial court denied in part the plaintiffs’ motion to compel the defendant to

provide answers to discovery and ultimately granted the defendant summary judgment as to all

plaintiffs. On appeal, the Court of Appeals, holding that reckless infliction of emotional distress

must be based on conduct that was directed at the plaintiff, affirmed summary judgment for the

defendant. The Court of Appeals also declined to consider the plaintiffs’ appeal of the partial denial

of their motion to compel, regarding the issue as moot. We granted the plaintiffs’ application for

permission to appeal. After carefully considering the relevant authority, we hold that to be

actionable, reckless infliction of emotional distress need not be based upon conduct that was directed

at a specific person or that occurred in the presence of the plaintiff. Applying this holding, we

conclude that the defendant is not entitled to summary judgment. Furthermore, in light of our

holding, we vacate the trial court’s denial of the plaintiffs’ motion to compel. We remand this case

to the trial court for further proceedings consistent with this opinion, including reconsideration of

the plaintiffs’ discovery requests.

Tenn. R. App. P. 11; Judgment of the Court of Appeals Reversed;

Case Remanded to the Trial Court

FRANK F. DROWOTA, III, C.J., delivered the opinion of the court, in which E. RILEY ANDERSON,

JANICE M. HOLDER, WILLIAM M. BARKER, J.J., and ALLEN WALLACE, SP. J., joined.

John A. Day, Brentwood, Tennessee, and John J. Hollins, Jr., Nashville, Tennessee, for the

appellants, John Doe 1 by next friend Jane Doe 1, Jane Doe 1, and John Doe 2.
*****************

Bishop Niedergeses served as Bishop of the Diocese from 1975 to 1992. He was succeeded by Bishop Edward 1

Kmiec ("Bishop Kmiec").

Father Giacosa testified that he informed Ms. Reid of the incident, but that she advised him that no report was 2

necessary because at the time (1986) the victim was an adult. However, Ms. Reid testified not only that she did not recall

Father Giacosa contacting her in the matter of McKeown, but also that she would have remembered it had he done so.

Ms. Reid further testified that had she been contacted, she would have recommended an investigation and the filing of

a report with the Department of Human Services.

-2-

Thomas F. Mink, II, Nashville, Tennessee, Keith W. Blair, Nashville, Tennessee, and L. Gino

Marchetti, Jr., Nashville, Tennessee, for the appellee, Roman Catholic Diocese of Nashville.

OPINION

I. Factual and Procedural Background

Because this appeal concerns a grant of summary judgment, the following statement of facts

is based upon a view of the record that is most favorable to the nonmoving parties, John Doe 1 by

his next friend Jane Doe 1 ("John Doe 1"), Jane Doe 1 individually and John Doe 2 (collectively the

"plaintiffs"). Robinson v. Omer, 952 S.W.2d 423, 424-25 (Tenn. 1997); Byrd v. Hall, 847 S.W.2d

208, 215 (Tenn. 1993). Edward McKeown ("McKeown") became a Roman Catholic priest in 1970

and soon thereafter began working for the defendant, the Roman Catholic Diocese of Nashville (the

"Diocese"). Over the next nineteen years, he worked in various parishes across Tennessee, serving

frequently in positions that brought him regularly into contact with youth.

In 1973, a minor boy attending a Diocesan school informed a priest with the Diocese, Father

Frank Richards ("Father Richards"), that during a camping trip McKeown had plied the boy with

alcohol and then forcibly molested him. Father Richards discounted the allegation and took no

follow-up action. In July 1986, a parent of the same boy informed Bishop James Niedergeses

("Bishop Niedergeses") of the Diocese that McKeown had sexually assaulted her son in 1972 or 1

1973; Bishop Niedergeses stated that the parent came forward in the interest of preventing such

abuse from recurring. When Bishop Niedergeses confronted McKeown with the allegation,

McKeown readily admitted to the abuse. Consequently, Bishop Niedergeses consulted with Father

Charley Giacosa ("Father Giacosa"), who as Episcopal Vicar of the Diocese assisted the Bishop with

personnel matters. The parties dispute whether Father Giacosa gave notice of the abuse to Alice

Reid of the Tennessee Department of Human Services and whether Ms. Reid recommended an

investigation and the filing of a report. Bishop Niedergeses testified that at the time he suspected 2

that he "needed to find out whether this person [McKeown] would be a threat to anybody else."

Although Bishop Niedergeses did not personally conduct such an investigation, he asked Father

Giacosa to "explore any possibilities." However, Father Giacosa testified not only that "[his] role

was not an investigative role," but also that he was unaware of any investigation whatsoever into the

scope of McKeown’s sexual misconduct.
*********************

Police reports from McKeown’s criminal prosecution indicate that McKeown’s victims tended to range from 3

ages fourteen to sixteen.

Dr. Valcour’s report counseled that placing McKeown in a position involving a high degree of public visibility 4

throughout the Diocese could pose serious "risks" both to McKeown and to the Diocese.

-3-

In response to the revelation of McKeown’s sexual misconduct, in September 1986 Father

Giacosa arranged for the St. Luke Institute in Maryland to conduct a ten-day psychological and

medical evaluation of McKeown. McKeown was diagnosed with pedophilia and ephebophilia, a

sexual disorder similar to pedophilia but characterized by attraction to adolescent males aged

fourteen to twenty. Records of the evaluation indicate that McKeown admitted that he had "had

sexual contact with approximately thirty boys over the past 14 years" and estimated that he had "had

sexual contact with minors on the average ‘once or twice a month’ for the past 14 years." The

typical age of his victims was stated to be twelve to thirteen years old. The records indicate that 3

McKeown made contact with his victims mostly "through the parish" and via his work with youth

and that he typically provided alcohol to the boys "as a seductive device." The records further state

that McKeown had engaged in molestation as recently as July 1986. Bishop Niedergeses first

testified that he received, read and relied on these records in his dealings with McKeown, but later

testified that he "had never seen them before" at the time of his deposition.

Nonetheless, in September 1986, Dr. Frank Valcour ("Dr. Valcour") of the St. Luke Institute

sent to Bishop Niedergeses a personally-addressed report which summarized McKeown’s evaluation.

This report noted that McKeown "in a forthright way acknowledge[d] other sexual contact over the

years" subsequent to his "first experience of sexual acting out [sic] with a minor" and that he was

"interested in correcting his behavior." Dr. Valcour’s report identified as troublesome McKeown’s

tendency to "offer alcohol to young people he was with to facilitate sexual interaction." Moreover,

Dr. Valcour cautioned, "I had mentioned to Father Giacozza [sic] over the phone that given the

number of sexual contacts, it might be prudent to review any assignment for Father McKeown that

would give him widespread public exposure." In conclusion, Dr. Valcour warned that it was 4

"absolutely imperative that [McKeown] not be in the presence of teenagers unless another

responsible adult is with him."

Father Giacosa not only denied discussing McKeown’s pattern of abuse with Dr. Valcour,

but also denied having any knowledge prior to McKeown’s criminal prosecution for sexual abuse

in 1999 that McKeown had had multiple victims. Father Giacosa testified that Bishop Niedergeses

never brought to his attention information concerning McKeown’s habitual sexual predation. Father

Giacosa further testified that had Bishop Niedergeses done so, he would have taken additional

remedial measures appropriate to such a broader scope of criminal misconduct by McKeown.

However, McKeown himself testified that neither Bishop Niedergeses nor Father Giacosa questioned

him as to whether he had sexually assaulted victims other than the boy whose parent came forward
*****************

According to Father Giacosa, at his urging sometime in 1985 or 1986, the Diocese invited a Father Jamail to 5

speak at a retreat to priests of the Diocese about the sexual abuse of minors. Father Jamail gave several presentations

in which he explained, among other things, the negative effects of pedophilia upon children and the need for pastoral

counseling of victims and their families.

At another time, Bishop Niedergeses testified that he had never read the reports. 6

In an October 1986 letter to the Institute of Living, Bishop Niedergeses stated that "I would very much like 7

to receive a comprehensive clinical evaluation of Father McKeown’s he[al]th problems. I’m sure he will give his

authorization for this." In February 1987, McKeown authorized the Institute of Living to release his medical records

to Bishop Niedergeses, and in April 1987, he did the same for Father Giacosa. Various notes by Institute of Living

personnel also indicate the periodic sharing of information with Bishop Niedergeses and Father Giacosa.

Depo-Provera is a synthetic steroid that serves when injected in males to inhibit production of testosterone, 8

a hormone connected with the male sex drive.

The Diocese never sent McKeown back to the Institute of Living. 9

-4-

in July 1986. Bishop Niedergeses admitted that he did not inquire into the number or identities of

McKeown’s other victims. 5

After receiving St. Luke Institute’s evaluation of McKeown, the Diocese decided to provide

him with in-patient treatment for his sexual disorder. The St. Luke Institute was then at full capacity,

and Dr. Valcour warned Bishop Niedergeses that waiting six to eight weeks to obtain an opening

there was risky and unwise. Therefore the Diocese sent McKeown in October 1986 to the Institute

of Living in Hartford, Connecticut. In informing McKeown of his assignment to in-patient

treatment, Bishop Niedergeses explained that "[e]vidently, you find it difficult to control your sexual

interest in adolescent boys;" Bishop Niedergeses testified that he referred to McKeown’s victims in

the plural because he relied on the reports furnished to him by the St. Luke Institute. McKeown 6

underwent intensive in-patient treatment at the Institute of Living from October 1986 to March 1987,

and he remained in Hartford for a short time thereafter for out-patient treatment.

During this time, the Institute of Living communicated with Bishop Niedergeses and Father

Giacosa concerning the progress of McKeown’s treatment, his history of sexually molesting

numerous minors, and his prognosis. In connection with McKeown’s release, Dr. Thomas Conklin 7

("Dr. Conklin") of the Institute of Living cautioned Bishop Niedergeses that "now and in the future"

McKeown should not be given responsibilities that "would place him in frequent or ongoing contact

with adolescents." Dr. Conklin also emphasized in an April 1987 letter to Father Giacosa that

McKeown’s condition would require permanent follow-up treatment: "There is no cure for Father

McKeown’s condition and so it is necessary that there be a continual program of therapy and

monitoring to help him to maintain the same degree of control that he has now into the future." In

addition to prescribing continued psychotherapy and weekly injections of Depo-Provera "for the 8

indefinite future," Dr. Conklin recommended to Father Giacosa that McKeown return to the Institute

of Living on an annual or semiannual basis for a "‘brief refresher course.’" 9
******************************

In notes from the meeting itself, Bishop Niedergeses discusses liability and exposure and is represented as 10

expressing his fear that "[t]hey have crucified some bishops. As there is more national exposure–it[’]s on peoples minds

more. The public has no mercy [and] compassion."

-5-

Upon his return to Nashville sometime in the Spring of 1987, McKeown continued

psychotherapy and Depo-Provera treatments. He lived on Diocesan property and resumed working

for the Diocese as co-director of a Diocese-wide program of group meetings designed to foster

spiritual development. McKeown also assisted in the performance of liturgical services at his

particular parish. Although the Diocese putatively forbade McKeown’s access to youth, the parties

dispute whether the Diocese actually placed effective restrictions on his involvement with minors.

The record shows that after his return from treatment McKeown heard children’s confessions,

participated openly in various Diocesan youth activities including overnight "lock-ins," and spent

time individually with minor boys with whom he had made contact through the Diocese. McKeown

invited Diocesan children to play with his toy train set which he had installed in the basement of his

church and frequently took boys with him to high school football games, toy train shows, and other

recreational events. The record also indicates that Bishop Niedergeses and Father Giacosa became

aware of some if not all of these activities no later than February 1989.

In March 1988, Father Xavier Mankel ("Father Mankel") informed Bishop Niedergeses that

a parent within the Diocese had revealed that in 1984 McKeown had molested her then fourteenyear-

old son. The parent came forward "to see that such activities don’t happen with other children,"

but Father Mankel discouraged her from "go[ing] public." Bishop Niedergeses testified that he did

not recall making any investigation into this new allegation, nor did he inform Father Giacosa, who

was ostensibly in charge of monitoring McKeown.

Bishop Niedergeses became increasingly concerned about McKeown’s continuing

inappropriate behavior. In December 1988, Bishop Niedergeses met with McKeown and Father

Giacosa concerning McKeown’s future with the Diocese. Father Giacosa’s notes in preparation for

the meeting (labeled "‘Top Secrecy’ ‘Could hurt your church’") indicate that he and Bishop

Niedergeses intended to pressure McKeown to leave the Diocese not only because they wanted to

protect Diocesan youth from abuse, but also because they wanted the Diocese to avoid financial

liability for his sexual misconduct and the scandalous publicity which might ensue from its

disclosure. The notes show that Father Giacosa and Bishop Niedergeses worried about the Diocese

being exposed in sensationalistic news television, such as Geraldo Rivera’s investigative show

"20/20." The notes also show that they considered McKeown’s sexual disorder to be incurable. 10

During the meeting itself, McKeown implied that he had had multiple victims in the past and stated

explicitly that "most of what [he] did was not here in this area" and that "other things could come

out." Notes taken during the meeting indicate that Bishop Niedergeses posed to McKeown various

options, including transfer to another diocese, leave of absence, suspension and transition to a

layperson status (laicization), all of which McKeown refused to consider.

After Bishop Niedergeses learned that McKeown had openly presented a minor boy with a

condom at a Christmas party, Bishop Niedergeses began the process of removing McKeown from

the Diocese involuntarily. McKeown acrimoniously opposed Bishop Niedergeses’ renewed

The April Decree superseded two prior "Precepts" of February and March 1989 which contained similar 11

provisions.
********************

In an August 1991 letter to Bishop Niedergeses, Dr. Griffin stated: 12

[McKeown] had to discontinue therapy because of ongoing uncertainties over the payment of the

account. When he obtained employment with the Metro Government, confusion developed as to the

responsibility of the Diocesan insurance plan versus that of the Metropolitan Government. In addition,

(continued...)

-6-

suggestions of options for leaving. Thus, in April 1989, Bishop Niedergeses issued a "Decree"11

which in relevant part: required McKeown to reside "outside the institutions of the Diocese";

relieved McKeown of all employment-related assignments with the Diocese; removed McKeown’s

priestly "faculties" in certain specific areas of ministry; removed from McKeown "all authorization

to act as a priest in any capacity either directly or indirectly in my [Bishop Niedergeses’] name or

that of the Catholic Church;" and provided a schedule for proposed financial assistance subsequent

to removal. The parties dispute whether the Decree completely terminated McKeown’s status as a

Roman Catholic cleric and whether the Diocese continued to bear responsibility for McKeown in

that respect.

By May 1989, having acquiesced to the terms of the Decree, McKeown ceased all

employment activities on behalf of the Diocese, moved off Diocesan property and began residing

at a mobile home community in the Nashville area. He obtained secular employment first with the

Muscular Dystrophy Foundation and later with the Juvenile Court Clerk of Davidson County and

the Nashville Metro Tax Assessor’s Office. In March 1990, McKeown informed Bishop

Niedergeses that he was working for the Juvenile Court Clerk, a position where McKeown came into

contact with minors.

From McKeown’s departure in 1989 until early 1994, the Diocese paid him a total of

approximately $51,500 in monthly installments. The parties disagree over the proper characterization

of these payments. The Diocese contends that the payments were customary charitable support

intended to assist McKeown in making the transition to secular life. However, the plaintiffs

maintain that the payments were made to buy McKeown’s silence about the sexual molestation of

Diocesan children. McKeown testified that during his negotiations with Bishop Niedergeses, he

demanded $50,000 in exchange for leaving. In a March 1989 letter to Bishop Niedergeses,

McKeown threatened: "If you fail to provide financial support to me as a result[] I will have no

choice but [to] seek recourse from the civil courts. As you know this will entail a public ‘airing’ of

this whole matter which I don’t want but will take in order to assure my personal security."

After McKeown’s departure, the Diocese continued to subsidize psychotherapy and Depo-

Provera treatments for McKeown primarily under the care of Dr. John Griffin ("Dr. Griffin"). The

Diocese provided health insurance until 1994. However, by sometime in 1991, McKeown felt

financially unable to pay for continued therapy and, in spite of the fact that both Dr. Griffin and

McKeown believed that treatment continued to be necessary, chose to discontinue treatment when

the total of McKeown’s unpaid bills surpassed $2,100. In an August 1991 letter to Bishop 12
***********************

(...continued) 12

spokepersons in the Diocesan office indicated an unwillingness to pay the portion of the bill not

covered by insurance. Fr. McKeown felt that his own income from employment was inadequate to

pay for psychiatric treatment.

The Diocese, however, claims that the failure to obtain treatment was primarily McKeown’s fault.

In 1996, a teacher and coach at the Diocesan high school informed McKeown that he was no longer permitted 13

to stand on the sidelines, although he could still attend games. In an apparently unsent letter addressed to McKeown by

Bishop Kmiec, Bishop Kmiec expressed concern that McKeown’s presence on the sidelines would cause the public to

think that McKeown served the Diocese in some representative capacity.

No police investigation was conducted at that time. 14

-7-

Niedergeses, Dr. Griffin not only informed Bishop Niedergeses that McKeown no longer was

receiving treatment, but also requested that the Diocese pay the remaining unpaid balance, which the

Diocese did.

Even after McKeown’s departure in 1989, he continued to make contact with youth via

Diocesan programs, to participate in various parish youth and recreational functions, to teach classes

at his parish, and to attend football games at a Diocesan high school, often standing on the sidelines

accompanied by an adolescent boy. Neither the parents nor the new priest of the parish which 13

McKeown attended were informed by the Diocese of McKeown’s tendency to molest young males

or of his involuntary removal from employment. Instead, the impression was given that McKeown

had taken a voluntary leave of absence.

On a regular basis from 1990 until at least 1996, McKeown sexually molested numerous

Diocesan boys with whom McKeown had made contact during that time through his parish and its

programs. In 1995, Bishop Kmiec, Bishop Niedergeses’ successor, became aware that a parent in

Knoxville alleged that McKeown had molested her son several years earlier. Nevertheless, Bishop

Kmiec neither confronted McKeown nor took other significant remedial action.

In 1991, McKeown met John Doe 2, a minor boy, at the mobile home community where they

both lived. Over time, McKeown gradually befriended John Doe 2’s family, representing himself

as a priest without a parish due to political differences with the Diocese. McKeown participated in

a variety of recreational activities with John Doe 2 and grew close to his family. Although John Doe

2 was not Roman Catholic and had no personal connection with the Diocese, at McKeown’s

invitation John Doe 2 occasionally participated in recreational activities with other minors from

McKeown’s parish, including standing with McKeown on the sidelines during football games at a

Diocesan high school. In approximately 1994, John Doe 2 started spending the night from time to

time at McKeown’s residence, and McKeown began sexually abusing him. The abuse continued

until discovered in May 1995 by John Doe 2’s mother, who confronted McKeown and reported her

concerns to the Nashville Metro Police Department. 14
**************************

The plaintiffs sued multiple defendants, but only the claims against the Diocese are relevant to this appeal. 15

-8-

In October 1995, John Doe 1, a minor boy, and his mother, Jane Doe 1, moved to the mobile

home community where McKeown resided. Within a short time, McKeown befriended John Doe

1 and his family, and McKeown soon developed a relationship of considerable intimacy with the

family. Due to intra-family problems, McKeown actually was entrusted with protective custody of

John Doe 1 beginning in 1997 or 1998. McKeown first molested John Doe 1 in November 1995

after providing him with alcohol; thereafter McKeown sexually abused him on a weekly basis from

February 1996 until January 1999. Although John Doe 1 was not Roman Catholic and had no prior

connection with the Diocese, he accompanied McKeown to numerous Diocesan high school football

games, standing with him on the sidelines where John Doe 1 observed McKeown talking with

priests. John Doe 1 also alleges that on a few occasions he attended church services with McKeown

at his parish and that on one of these occasions McKeown personally introduced him to Bishop

Kmiec. In January 1999, John Doe 1 revealed to a friend and then to his mother that McKeown had

been sexually molesting him. Jane Doe 1 confronted McKeown, who promptly confessed not only

to the sexual abuse of John Doe 1, but also to a litany of abuse of many other boys over many years.

Thereafter, Jane Doe 1 reported the abuse to the Nashville Metro Police Department. As a result,

McKeown was criminally prosecuted and is now incarcerated.

John Doe 1 along with his mother Jane Doe 1 and John Doe 2 filed separate civil suits against

the Diocese. The plaintiffs alleged that by outrageous acts and omissions, the Diocese recklessly 15

inflicted severe emotional harm upon the plaintiffs. The two cases were consolidated for various

pretrial purposes, including discovery. In a pretrial hearing, the trial court denied several parts of

the plaintiffs’ motion to compel discovery.

The Diocese moved for summary judgment as to all the plaintiffs, arguing that based on the

undisputed facts, the plaintiffs had failed to prove outrageous conduct and proximate causation. The

trial court granted the Diocese’s motions, holding that to be actionable under the tort of outrageous

conduct, a defendant’s reckless or intentional conduct must have been directed at a particular

plaintiff or the plaintiff must have had a close relationship to the individual at whom the conduct was

directed. The trial court found that "the conduct of Mr. McKeown in committing sexual assaults on

the plaintiffs [was] so attenuated and remote from the actions of the Diocese as to be non[-

]actionable."

The plaintiffs appealed both the trial court’s grant of summary judgment for the Diocese and

the trial court’s refusal to compel parts of the plaintiffs’ discovery requests served upon the Diocese.

The cases were consolidated for purposes of appeal. In the Court of Appeals, the plaintiffs

contended that the trial court erred in concluding that reckless infliction of emotional distress must

be directed at a particular person. The Court of Appeals, however, affirmed the trial court’s grant

of summary judgment.

Looking to cases from other states and drawing inferences from the facts of Tennessee

decisions, the Court of Appeals held that to satisfy the requirements of the tort of outrageous

-9-

conduct, "intent or reckless disregard of the consequences must be specific to a particular person."

In other words, "an identified individual (or group [of] individuals) [must be] the object of the intent

or reckless disregard." The Court of Appeals interpreted section 46 of the Restatement (Second) of

Torts (1965) as implicitly requiring this directed-at element for all claims under the tort of

outrageous conduct. The Court of Appeals further reasoned that to hold otherwise would "blur if

not eradicate the distinction between intentional infliction of emotional distress and its negligencebased

counterpart." The Court of Appeals declined to address the plaintiffs’ appeal of the trial

court’s denial of their motion to compel discovery, finding this issue to be moot. This Court granted

the plaintiffs’ application for permission to appeal.

II. Analysis

A. Reckless Infliction of Emotional Distress

The primary issue before this Court is whether in order to be actionable reckless infliction

of emotional distress must be based upon conduct that was directed at a specific person. Although

this question was similarly raised before us in Lourcey v. Estate of Scarlett, 146 S.W.3d 48 (Tenn.

2004), we chose not to address it because we determined that the tortious conduct in that case had

been intentionally directed at the plaintiff. We now decide this issue of first impression. Because

this issue concerns conclusions of law, our standard of review is de novo with no presumption of

correctness. S. Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710 (Tenn. 2001).

The tort of intentional infliction of emotional distress, also known as the tort of outrageous

conduct, was recognized in Tennessee in Medlin v. Allied Inv. Co., 398 S.W.2d 270, 274-75 (Tenn.

1966). Claims based on this tort seek recovery "for mental or emotional disturbance alone,

unconnected with any independently actionable tort or with any contemporaneous or consequential

objectively ascertainable injury." Id. at 272. Based on Medlin and its progeny, a plaintiff suing for

outrageous conduct must satisfy three elements: first, "the conduct complained of must be intentional

or reckless"; second, "the conduct must be so outrageous that it is not tolerated by civilized society";

and third, "the conduct complained of must result in serious mental injury." Bain v. Wells, 936

S.W.2d 618, 622 (Tenn. 1997); see Lourcey, 146 S.W.3d at 51; Miller v. Willbanks, 8 S.W.3d 607,

612 (Tenn. 1999). A causation requirement is implicit in the third element which necessitates that

the misconduct "result in serious mental injury."

These elements correspond with section 46(1) of the Restatement (Second) of Torts (1965)

("Second Restatement"). See Miller, 8 S.W.3d at 612 (stating that this Court has "ground[ed] the

cause of action for intentional infliction of emotional distress within the Restatement framework");

Medlin, 398 S.W.2d at 274 (basing its holding on the Second Restatement). Tennessee thus stands

in accord with the overwhelming majority of jurisdictions that have adopted fully or in part section

46 of the Second Restatement or that impose generally the same requirements even though they have
******************

See Am. Rd. Serv. Co. v. Inmon, 394 So. 2d 361, 362-65 (Ala. 1980); Tommy’s Elbow Room, Inc. v. 16

Kavorkian, 727 P.2d 1038, 1043 (Alaska 1986); Lucchesi v. Frederic N. Stimmell, M.D., Ltd., 716 P.2d 1013, 1015-16

(Ariz. 1986); Brown v. Tucker, 954 S.W.2d 262, 266 (Ark. 1997); Christensen v. Superior Court, 820 P.2d 181, 202

(Cal. 1991); Rugg v. McCarty, 476 P.2d 753, 756 (Colo. 1970); Petyan v. Ellis, 510 A.2d 1337, 1342 (Conn. 1986);

Howard Univ. v. Best, 484 A.2d 958, 985 (D.C. 1984); Food Fair, Inc. v. Anderson, 382 So. 2d 150, 153 (Fla. Dist. Ct.

App. 1980); Trimble v. Circuit City Stores, Inc., 469 S.E.2d 776, 778 (Ga. Ct. App. 1996); Hac v. Univ. of Haw., 73

P.3d 46, 60-61 (Haw. 2003); Evans v. Twin Falls County, 796 P.2d 87, 97 (Idaho 1990); Farnor v. Irmco Corp., 392

N.E.2d 591, 595 (Ill. App. Ct. 1979); Doe v. Methodist Hosp., 690 N.E.2d 681, 691 (Ind. 1997); Amsden v. Grinnell

Mut. Reinsurance Co., 203 N.W.2d 252, 255 (Iowa 1972); Wiehe v. Kukal, 592 P.2d 860, 862-63 (Kan. 1979); Craft

v. Rice, 671 S.W.2d 247, 251 (Ky. 1984); White v. Monsanto Co., 585 So. 2d 1205, 1209 (La. 1991); Vicnire v. Ford

Motor Credit Co., 401 A.2d 148, 154 (Me. 1979); Harris v. Jones, 380 A.2d 611, 614 (Md. 1977); Agis v. Howard

Johnson Co., 355 N.E.2d 315, 318-19 (Mass. 1976); Warren v. June’s Mobile Home Vill. & Sales, Inc., 239 N.W.2d

380, 390 (Mich. Ct. App. 1976); Dornfeld v. Oberg, 503 N.W.2d 115, 117-20 (Minn. 1993); Gall v. Great W. Sugar Co.,

363 N.W.2d 373, 376 (Neb. 1985); Star v. Rabello, 625 P.2d 90, 91-92 (Nev. 1981); Morancy v. Morancy, 593 A.2d

1158, 1159 (N.H. 1991); Buckley v. Trenton Sav. Fund Soc’y, 544 A.2d 857, 863 (N.J. 1988); Trujillo v. N. Rio Arriba

Elec. Coop., Inc., 41 P.3d 333, 342 (N.M. 2001); Howell v. N.Y. Post Co., 612 N.E.2d 699, 702 (N.Y. 1993); Dickens

v. Puryear, 276 S.E.2d 325, 332 (N.C. 1981); Sec. Nat’l Bank, Edgeley v. Wald, 536 N.W.2d 924, 927 (N.D. 1995);

Yeager v. Local Union 20, Teamsters, 453 N.E.2d 666, 671 (Ohio 1983); Kraszewski v. Baptist Med. Ctr. of Okla., 916

P.2d 241, 248-49 (Okla. 1996); Delaney v. Clifton, 41 P.3d 1099, 1106 (Or. Ct. App. 2002); Hoy v. Angelone, 720 A.2d

745, 753-54 (Pa. 1998); Vallinoto v. DiSandro, 688 A.2d 830, 839 (R.I. 1997); Upchurch v. N.Y. Times Co., 431 S.E.2d

558, 561 (S.C. 1993); Petersen v. Sioux Valley Hosp. Ass’n, 491 N.W.2d 467, 468-69 (S.D. 1992); Standard Fruit &

Vegetable Co. v. Johnson, 985 S.W.2d 62, 66-68 (Tex. 1998); Retherford v. AT&T Communications of the Mountain

States, Inc., 844 P.2d 949, 970-71 (Utah 1992); Crump v. P & C Food Mkts., Inc., 576 A.2d 441, 448 (Vt. 1990); Russo

v. White, 400 S.E.2d 160, 162 (Va. 1991); Reid v. Pierce County, 961 P.2d 333, 337 (Wash. 1998); Travis v. Alcon

Labs., Inc., 504 S.E.2d 419, 425 (W.Va. 1998); Anderson v. Cont’l Ins. Co., 271 N.W.2d 368, 378 (Wisc. 1978); Worley

v. Wyo. Bottling Co., 1 P.3d 615, 628 (Wyo. 2000).

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not expressly adopted the Second Restatement. Consequently, in resolving the issue presented by 16

this appeal, we begin, as did the Court of Appeals, with section 46.

It is important initially to clarify that section 46 divides the cause of action for outrageous

conduct into direct, first-party claims and indirect, bystander claims. Section 46 provides as follows:

(1) One who by extreme and outrageous conduct intentionally or recklessly

causes severe emotional distress to another is subject to liability for such emotional

distress, and if bodily harm to the other results from it, for such bodily harm.

(2) Where such conduct is directed at a third person, the actor is subject to

liability if he intentionally or recklessly causes severe emotional distress (a) to a

member of such person’s immediate family who is present at the time, whether or not

such distress results in bodily harm, or (b) to any other person who is present at the

time, if such distress results in bodily harm.

A direct action under subsection 46(1) allows a plaintiff to mount a prima facie claim by satisfying

with respect to himself or herself the standard elements of: (1) extreme and outrageous conduct; (2)

intent or recklessness; (3) causation; and (4) severe emotional harm.
***********************

In affirming summary judgment for the defendant, the court in Stidham stated that "the alleged outrageous 17

conduct in the instant case was not directed specifically toward the plaintiff." 1991 WL 116558, at *1. However, the

court was here remarking on the character of the plaintiff’s evidence and provided no clear holding of law on the

directed-at issue.

-11-

However, a bystander claim under subsection 46(2) imposes somewhat different

requirements. First, the tortfeasor’s outrageous conduct must have been intentionally or recklessly

"directed at a third person" in a way that satisfies as to the third party the outrageous conduct

requirement of subsection 46(1). Second, the bystander plaintiff must have suffered severe

emotional distress. Third, the plaintiff either must bear a close family relation to the third party or

such severe emotional distress must be suffered that it results in physical harm. In both instances,

the bystander plaintiff must have perceived contemporaneously and from close spatial proximity the

emotional harm inflicted upon the third party. Dan B. Dobbs, The Law of Torts § 307, at 833-34

(2001).

The Court of Appeals in this case inferred from the overall structure of section 46 that to be

actionable direct claims must be based upon conduct that had been "directed at" the plaintiff. The

Court of Appeals recognized that explicit directed-at language is contained solely in subsection

46(2). Nonetheless, the Court of Appeals stated, "While [subsection] 46(1) does not expressly

include the words, ‘directed at,’ it is clear from the structure of the entire section on ‘Outrageous

Conduct Causing Severe Emotional Distress’ that the requirement is understood."

In order to show that the directed-at requirement has been implicitly recognized in Tennessee,

the Court of Appeals supplied a catalog of outrageous conduct decisions in which the tortfeasor’s

conduct as a matter of fact had been directed toward a particular person. See, e.g., Miller, 8 S.W.3d

at 613-14 (doctor spreading false rumors that parent’s illegal drug use affected newborn infant);

Lawrence v. Stanford, 655 S.W.2d 927, 928 (Tenn. 1983) (veterinarian threatening to kill dog unless

owners paid bill); Goldfarb v. Baker, 547 S.W.2d 567, 568 (Tenn. 1977) (professor falsely accusing

student of misconduct and ejecting him from class); Dunn v. Moto Photo, Inc., 828 S.W.2d 747, 749

(Tenn. Ct. App. 1991) (film developer falsely obtaining nude photo of plaintiff and entrusting it to

fellow co-worker of plaintiff who displayed it at plaintiff’s workplace). We do not disagree with the

Court of Appeals’ characterization of the facts of these prior cases. Yet these decisions do not

compel us to conclude as a matter of law that no cause of action is available where the outrageous

conduct was not in fact directed at a specific person. The Court of Appeals also found the directed-at

requirement expressed as a matter of law in two Tennessee intermediate appellate court decisions.

See Gann v. Key, 758 S.W.2d 538 (Tenn. Ct. App. 1988); Thomas Stidham v. Mediquick of Bartlett,

Inc., No. 02A01-9102-CV-00014, 1991 WL 116558 (Tenn. Ct. App. July 2, 1991), no Tenn. R. App.

P. 11 application for permission to appeal filed. However, a careful reading of these cases reveals

that neither case clearly adopted the directed-at requirement. To the contrary, Gann actually 17
************************************

Gann is a case in which the parents of a child abuse suspect who was murdered by the victim’s grandfather 18

sued various police agents for outrageously disseminating to the public false information about the suspect. 758 S.W.2d

at 539-43. Although Gann states that the authorities which it cited involved "alleged outrageous conduct consist[ing]

of acts or words directly and specially communicated to the injured party," id. at 546, the court goes on to say:

In the present case the acts or words did not occur in the physical presence of plaintiffs nor were they

specially directed toward plaintiffs as by mail. Nevertheless, it is reasonable to concede that the use

of public communication, such as the news media, would not immunize one who intentionally or

recklessly inflicts serious emotional distress by acts or words which constitute outrageous conduct.

Id. (emphasis added). The court affirmed summary judgment, finding that the defendants’ conduct had not been

outrageous and that the defendants lacked the intent to inflict emotional harm. Id. at 549.

In a seventh state, Minnesota, the directed-at requirement for direct claims under subsection 46(1) must be 19

inferred from the treatment of subsection 46(2) bystander claims. See Dornfeld, 503 N.W.2d at 118-20; see also infra.

The Court of Appeals also cited to decisions of certain additional jurisdictions as requiring the directed-at element, but

those decisions do not clearly support the proposition. See Culpepper v. Pearl St. Bldg., Inc., 877 P.2d 877 (Colo. 1994);

Standard Fruit & Vegetable Co. v. Johnson, 985 S.W.2d 62 (Tex. 1998). Further, in Witherspoon v. Philip Morris Inc.,

964 F. Supp. 455, 463 (Dist. D.C. 1997) (applying District of Columbia law), a federal district court applying District

of Columbia law expressly required the directed-at element. In a subsequent case, Loughlin v. United States, 209

F.Supp.2d 165, 174 (Dist. D.C. 2002) (applying District of Columbia law),vacated by --- F.3d ---, 2004 WL 2937278

(D.C. Cir. Dec. 21, 2004), a federal district court ostensibly following Witherspoon held that toxic contamination of a

parcel of land by the United States military from 1917 to 1919 and the knowing sale years later of such land by American

University enabled "any subsequent user of the land–a specific individual" thus exposed to the toxin to mount a claim

for intentional infliction of emotional distress. The holding of Loughlin rendered unclear the true meaning of the

directed-at element under District of Columbia law. However, the recent vacatur of Loughlin for lack of supplemental

federal jurisdiction to decide tort claims based on District of Columbia law, 2004 WL 2937278, at *11-15, has nullified

the Loughlin holding. Nevertheless, even though Witherspoon unambiguously required a claim for intentional infliction

of emotional distress to be based upon conduct that was directed at a specific person, 964 F.Supp. at 463, the federal

district court in Witherspoon focused solely on intent without expressly discussing recklessness, id.

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acknowledges that outrageous conduct not specifically directed at a plaintiff could possibly be

actionable.18

The Court of Appeals also relied on case law from other jurisdictions. Our research reveals

that only six states have clearly decided that direct claims for intentional or reckless infliction of

emotional distress must be based upon conduct that had been directed at a specific person or

performed in the presence of the plaintiff: California, Georgia, Oregon, Pennsylvania, South Carolina

and Washington. See Christensen v.Superior Court, 820 P.2d 181, 202-04 (Cal. 1991); Ryckeley

v. Callaway, 412 S.E.2d 826, 829 (Ga. 1992); Meagher v. Lamb-Weston, Inc., 839 F. Supp. 1403,

1409 (D. Or. 1993) (applying Oregon law); Johnson v. Caparelli, 625 A.2d 668, 671-73 (Pa. 1993);

Upchurch v. N.Y. Times Co., 431 S.E.2d 558, 561 (S.C. 1993); Reid v. Pierce County, 961 P.2d 333,

337 (Wash. 1998). These decisions lack persuasive force. Some of the decisions provide little or 19

no basis for their holdings. For example, in Ryckeley, the Georgia Supreme Court held that

intentional infliction of emotional distress must be directed at the plaintiff, explaining without

further elaboration that such a requirement is an "appropriate and logical corollary to the impact

rule." 412 S.E.2d at 829-30. Similarly, in Johnson, the Pennsylvania Supreme Court simply

pronounced without providing supporting analysis that direct claims under subsection 46(1) must
*********************************

In Johnson, the Pennsylvania Supreme Court stated that Second Restatement subsection "46(1) applies to 20

situations in which a person suffers severe emotional distress as a result of outrageous conduct which is directed at that

individual." 625 A.2d at 671. However, the Court’s holding and the remainder of its discussion concern bystander

actions under subsection 46(2). Id. at 671-73. Johnson fails to explain why direct claims under subsection 46(1) must

be based on conduct that had been directed at the plaintiff.

For example, in Meagher, a federal district court applying Oregon law incorrectly predicated the cause of 21

action solely upon intent, failing to recognize recklessness as an available means for satisfying the state-of-mind element.

See 839 F. Supp. at 1408-09; contra Hammond v. Cent. Lane Communications Ctr., 816 P.2d 593, 598 (Or. 1991) ("A

plaintiff may recover for severe emotional distress without accompanying physical injury by showing recklessness or

a reduced level of intent . . . ."). Similarly, in Dornfeld, a decision based on a subsection 46(2) bystander claim, the

Minnesota Supreme Court focused too heavily on the intentional aspects of recklessness. 503 N.W.2d at 118-19 ("Thus,

in order to hold [the defendant] liable for reckless infliction of emotional distress, this court must find that his actions

were intentionally ‘directed at’ [the plaintiff’s] husband.") (emphasis added). Dornfeld thereby problematically

characterized recklessness as a state of mind which not only can but must be directed at a specific individual.

The Washington Supreme Court in Reid imported into subsection 46(1) direct claims the additional 22

requirements normally triggered only by subsection 46(2) bystander claims. 961 P.2d at 337.

The South Carolina Supreme Court adopted the holding of Christensen in Upchurch, 431 S.E.2d at 561. 23

It is instructive to note that Christensen falls within the context of California’s trend of retrogression toward 24

traditional, conservative limitations on tort recovery for negligent infliction of emotional harm, see Dobbs § 309, at 840-

41, which runs counter to Tennessee’s general negligence approach to negligent infliction of emotional distress adopted

in Camper v. Minor, 915 S.W.2d 437, 446 (Tenn. 1996).

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be based upon conduct that had been directed at the plaintiff. 625 A.2d at 671. Decisions from 20

certain other jurisdictions suffer from fatal imprecision concerning matters central to their holding,

typically by discounting recklessness or by confusing direct and bystander claims. 21 22

The California Supreme Court has provided the most cogent rationale for the directed-at

requirement in Christensen, 820 P.2d at 201-04. Christensen clearly holds that to mount a claim 23

for intentional or reckless infliction of emotional distress, "[i]t is not enough that the conduct be

intentional and outrageous. It must be directed at the plaintiff, or occur in the presence of a plaintiff

of whom the defendant is aware." Id. at 202. More specifically, intentional misconduct must be

directed at the plaintiff, while reckless misconduct must occur in the presence of the plaintiff of

whom the defendant is aware. Id. at 203-04. In Christensen, the Court was concerned above all

with setting limits on the scope of recovery, and to support its holding the Court looked to the

traditional characterization of outrageous conduct as an intentional tort. Id. at 203 ("[T]he tort is

properly categorized as intentional infliction of emotional distress, and presupposes action directed

at the plaintiff or undertaken with knowledge that the plaintiff will suffer emotional distress."). The

Court further reasoned that the directed-at and presence requirements are what "distinguish[]

intentional infliction of emotional distress from the negligent infliction of such injury." Id. at 202

(citing Ochoa v. Superior Court, 703 P.2d 1 (Cal. 1985)). 24
***********************

Although we refer to recklessness herein as a state-of-mind element, to be precise, recklessness as an element 25

applies both to state of mind and to conduct.

Gann confuses recklessness with intent in such a manner, incorrectly describing the standard as "intent to do 26

serious emotional injury to the plaintiffs, or [acting] with such recklessness as to impute such an intent." 758 S.W.2d

at 547.

In section 46 of the original Restatement of Torts (1934) ("First Restatement"), as a general rule no liability 27

arose from "conduct intended to cause emotional distress only." A 1948 Supplement to the First Restatement amended

section 46, recognizing a general cause of action for "conduct intended to cause emotional distress only." First

Restatement (Supp. 1948) (hereinafter "1948 Supplement") (reproduced in Restatement (Second) of Torts § 46

(Preliminary Draft No. 1, 1955)). However, the 1948 Supplement excluded recklessness, conceiving of the tort as purely

(continued...)

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A problem common to most, if not all, of the decisions holding that reckless infliction of

emotional distress must be based upon conduct that was directed at a specific individual or that

occurred in the presence of the plaintiff is the failure to pay adequate attention to the unique nature

of recklessness. An action predicated ab initio upon recklessness, such as reckless infliction of

emotional distress, is unusual in tort law because the fundamental analysis involves aspects which

resemble both negligence and intent. Restatement (Third) of Torts § 2 cmt. b (Tentative Draft No.

1, 2001) ("While there are general rules exposing persons to liability who cause harm intentionally

or negligently, there is no similar general rule subjecting to liability the person who causes harm

recklessly."); Dobbs § 27, at 51 ("Courts often recognize a kind of third category of fault that is

distinguishable from both intent and from negligence. This category is called recklessness or willful

and wanton misconduct. Not surprisingly, reckless conduct resembles both intentional conduct and

negligence, so this category adds a degree of confusion or uncertainty."); W. Page Keeton et al.,

Prosser & Keeton on the Law of Torts § 34, at 212 (5 ed. 1984) (stating that the "penumbra" of th

recklessness or "quasi-intent" lies between the doctrines of intent to do harm and ordinary

negligence).

When it comes to the state-of-mind element of outrageous conduct, courts have often failed 25

to distinguish adequately recklessness from intent, thereby rendering recklessness ineffective as an

independent predicate for satisfying the state-of-mind element. By requiring the tortfeasor’s 26

reckless misconduct to take place in the immediate presence of a plaintiff of whom the defendant

is aware, the majority position in Christensen, 820 P.2d at 201-04, indeed reduces recklessness

virtually to the same scope as intentional conduct. See Christensen, 820 P.2d at 205 (Mosk, J.,

concurring and dissenting) ("[T]he majority’s requirement that defendants consciously direct

outrageous conduct at plaintiffs makes the ‘recklessness’ prong indistinguishable from the

‘subjective intent’ prong.").

Courts are not alone in failing to distinguish adequately recklessness from intent. Section

46 of the Second Restatement has similarly provided an insufficient treatment of recklessness within

the context of the tort of outrageous conduct, thus itself serving as a source of confusion. Within the

Restatements, reckless infliction of emotional distress developed as a matter of secondary

importance. Further, the Second Restatement position on reckless infliction of emotional distress 27
********************

(...continued) 27

an intentional one. In 1965, the Second Restatement recognized reckless as well as intentional infliction of emotional

distress. See supra. Yet the case law which Second Restatement section 46 draws upon for its illustrations was on

average decided in 1934, a time when reckless infliction of emotional distress was apparently seldom cognizable and

intentional infliction of emotional distress was itself in a relatively embryonic stage of development. See generally

Calvert Magruder, Mental and Emotional Disturbance in the Law of Torts, 49 Harv. L. Rev. 1033, 1059 (1936) ("In

a further stage of development, cases might arise where liability would be imposed, though the defendant did not act

for the purpose of causing the mental disturbance, but realized, or perhaps should have realized, that such a consequence

would almost surely follow.") (emphasis added).

The Second Restatement’s own definition of recklessness as acts or omissions committed in reckless disregard 28

of an unreasonable risk that was known or should have been known, Second Restatement § 500, contradicts the concept

of action that is specifically directed at a particular individual. See Second Restatement § 500 cmt. d (It is not

necessary "that the actor know that there is anyone within the area made dangerous by his conduct. It is enough that he

knows that there is a strong probability that others may rightfully come within such zone.").

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is hampered by internal inconsistencies. Section 46 cross-references the definition of recklessness

provided in Second Restatement section 500, Second Restatement § 46 cmt. i, but this definition

contemplates recovery solely for physical harm, whereas section 46 allows recovery for emotional

harm standing alone without physical impact or manifestation. Compare Second Restatement § 46

with Second Restatement § 500 ("The actor’s conduct is in reckless disregard of the safety of another

if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or

having reason to know of facts which would lead a reasonable man to realize, not only that his

conduct creates an unreasonable risk of physical harm to another, but also that such risk is

substantially greater than that which is necessary to make his conduct negligent.") (emphasis added).

More significantly, applying the Second Restatement’s directed-at criterion to recklessness

necessarily confines and erodes the general nature of recklessness as defined in section 500. 28

In Tennessee, reckless misconduct generally has not been perceived as conduct which must

be directed toward specific, pre-identified victims. In Hodges v. S.C. Toof & Co., this Court

explained that a person engages in reckless misconduct "when the person is aware of, but

consciously disregards, a substantial and unjustifiable risk of such a nature that its disregard

constitutes a gross deviation from the standard of care that an ordinary person would exercise under

all the circumstances." 833 S.W.2d 896, 901 (Tenn. 1992); see also Brown v. Hamilton County,

126 S.W.3d 43, 49-50 (Tenn. Ct. App. 2003) (applying the Hodges definition of recklessness to a

civil claim outside the context of punitive damages). To "disregard" means "to give no thought to:

[to] pay no attention to." Webster’s Third New Int’l Dictionary 655 (1971). By contrast, to "direct"

action to or toward a person or object means "to aim fixedly: [to] concern or involve oneself

primarily or totally" with the target of one’s action. Id. at 640. Recklessness as conscious disregard

requires that the actor be aware of a substantial and unjustifiable risk of harm. However, as

conscious disregard, recklessness cannot require that the actor aim the conduct toward a specific

person or a specific result, for to do so would contradict the inattentive and thoughtless nature of

disregard. In short, the directed-at requirement is incompatible with the concept of recklessness

insofar as reckless misconduct has a general or random quality. James B. Brady, Recklessness,

Negligence, Indifference, and Awareness, 43 Mod. L. Rev. 381, 386 (1980) ("If the actor aims at the

consequences, then even if the expectation of the consequences is slight, he acts intentionally rather

-16-

than recklessly. From a negative viewpoint, then[,] desire for the possible consequences is

necessarily excluded from the concept of recklessness."); cf. State v. Payne, 7 S.W.3d 25, 29 (Tenn.

1999) (The criminal offense of reckless endangerment "can be committed against the public at large

. . ." if members of the public are in close enough proximity that there exists a reasonable probability

of death or serious injury.); Cook ex rel. Uithoven v. Spinnaker’s of Rivergate, Inc., 878 S.W.2d 934,

938 (Tenn. 1994) ("Driving while intoxicated on a public highway is gross negligence, or

recklessness, given the significant risk of serious bodily injury or death, not only to the intoxicated

driver, but [also] to unsuspecting motorists and pedestrians.").

Recklessness is a hybrid concept which resembles both negligence and intent, yet which is

distinct from both and can be reduced to neither. "A person acts intentionally when it is the person’s

conscious objective or desire to engage in the conduct or cause the result." Hodges, 833 S.W.2d at

901. Although the reckless actor intends to act or not to act, the reckless actor lacks the "conscious

objective or desire" to engage in harmful conduct or to cause a harmful result. See State v.

Kimbrough, 924 S.W.2d 888, 891 (Tenn. 1996) ("[R]ecklessness and negligence are incompatible

with desire or intention."); Dobbs § 147, at 351 (The reckless actor "does not intentionally harm

another, but he intentionally or consciously runs a very serious risk with no good reason to do so.").

Nevertheless, recklessness contains an awareness component similar to intentional conduct which

is not demanded of negligence. See Dobbs § 147, at 351 (Recklessness "entails a mental element

that is not necessarily required to establish gross negligence."); Brady, at 384 ("The element of

awareness of risk . . . does distinguish between recklessness and negligence."). Further, although

recklessness is typically a criterion for determining whether punitive damages are warranted in

negligence cases, cf. Hodges, 833 S.W.2d at 901, claims for reckless infliction of emotional distress

lack an underlying negligence claim. Therefore, a recklessness analysis is something unique which

differs from analyses based strictly on either intent or negligence. Courts requiring the directed-at

element generally have failed to recognize and to address the unique qualities of recklessness.

In addressing the unique nature of recklessness and the directed-at issue, we are confronted

with three options. First, we could simply eliminate recklessness as a means for satisfying the stateof-

mind element of outrageous conduct. See Alsteen v. Gehl, 124 N.W.2d 312, 317 (Wisc. 1963)

(refusing to recognize recklessness as a predicate state of mind for the tort of outrageous conduct).

Second, we could require that claims for reckless infliction of emotional distress must be based upon

conduct that had been directed at a specific individual or that occurred in the presence of the

plaintiff, thereby effectively collapsing recklessness into intent. See supra; see also Brady, at 394

(In applying the "aiming at" or directed-at requirement, "[t]he result is that every case of recklessness

can be converted to ‘intentionally exposing to the risk’ and so the distinction between recklessness

and intention is collapsed."). Third, we could reaffirm our recognition of infliction of emotional

distress predicated upon recklessness and expressly reject the directed-at requirement. We choose

the third option. Therefore, we hold that a claim of reckless infliction of emotional distress need not
******************

We express no opinion herein concerning whether claims of intentional infliction of emotional distress must 29

be based on conduct that was directed at a specific individual.

-17-

be based upon conduct that was directed at a specific person or that occurred in the presence of the

plaintiff.29

Our holding is consistent with Tennessee law and advances important policy considerations.

First, the courts shoulder the responsibility of providing a remedy to those who have been wrongly

injured. See Camper v. Minor, 915 S.W.2d 437, 441 (Tenn. 1996). To require a claim for reckless

infliction of emotional distress to be based upon conduct that was directed at a specific individual

would leave a gap in tort law where persons wrongly harmed would be deprived of a remedy. Cf.

Christensen, 820 P.2d at 205 (Mosk, J., concurring and dissenting). Second, this Court has strongly

affirmed the validity and significance of purely emotional harm as a basis for recovery, recognizing

that emotional harm in the absence of physical impact can be as damaging if not more damaging than

harm caused by physical impact. Medlin, 398 S.W.2d at 272-73. Third, we express confidence in

the court system to winnow out false and frivolous claims through the pretrial and trial processes and

through conscientious application of the elements necessary to establish causes of action for solely

emotional harm.

The elements of intentional and reckless infliction of emotional distress themselves perform

an important gatekeeping function for the purposes of ensuring the reliability of claims and of

preventing liability from extending unreasonably. Cf. Miller, 8 S.W.3d at 612. The outrageous

conduct requirement is a high standard which has consistently been regarded as a significant

limitation on recovery. To qualify as outrageous, conduct must be "‘so outrageous in character, and

so extreme in degree, as to go beyond all bounds of decency, and to be regarded as atrocious, and

utterly [i]ntolerable in a civilized community.’" Medlin, 398 S.W.2d at 274 (quoting Second

Restatement § 46 cmt. d). In Miller, this Court pointed out that the outrageousness requirement is

an "exacting standard" which provides the primary "safeguard" against fraudulent and trivial claims.

8 S.W.3d at 614 ("The risk of frivolous litigation . . . is alleviated in claims for intentional infliction

of emotional distress by the requirement that a plaintiff prove that the offending conduct was so

outrageous that it is not tolerated by a civilized society."). The mental harm which the plaintiff

suffered also must be demonstrated to have been particularly serious.

Further, the state-of-mind element of intent or recklessness places significant limitation on

recovery. Being required to prove the tortfeasor’s intent or recklessness imposes a significantly

higher burden than is required for mere negligence actions. See Christensen, 820 P.2d at 205 (Mosk,

J., concurring and dissenting) (The tort of outrageous conduct "may be distinguished from negligent

infliction of emotional distress . . . because recklessness requires a higher degree of fault than simple

negligence."); Dobbs § 27, at 52. The recklessness element requires the defendant to be aware of,

but consciously to disregard, a substantial and unjustifiable risk of such a nature that its disregard

constitutes a gross deviation from the standard of care which, under all the circumstances, an

ordinary person would have exercised. Hodges, 833 S.W.2d at 901. The reckless tortfeasor will be

liable only to persons who fall within the reasonably foreseeable scope of the particular substantial
**********************

A further corollary is that the additional requirements of subsection 46(2) (contemporaneous presence and 30

close relationship) will never be triggered for claimants under reckless infliction of emotional distress; in other words,

all plaintiffs will necessarily be treated as direct claimants. See Johnson v. Standard Fruit & Vegetable Co., 984 S.W.2d

633, 639-40 (Tex. Ct. App. 1997) (holding that a truck which careened into a parade after the driver fell asleep posed

"a direct threat to all the marchers who conceivably could have encountered the tractor trailer plowing through their

midst"), overruled by Standard Fruit & Vegetable Co. v. Johnson, 985 S.W.2d 62 (Tex. 1998).

Although Tennessee is one of an exceedingly small minority of jurisdictions which currently follow a general 31

foreseeability approach for negligent infliction of emotional distress, Dobbs § 312, at 850-51; see Sacco v. High Country

Indep. Press, Inc., 896 P.2d 411, 418 (Mont. 1995); Camper, 915 S.W.2d at 446, we think it unnecessary and unwise

for Tennessee courts to abandon established precedent by following Sacco in merging intentional, reckless and negligent

infliction into a single tort, wherein the higher levels of culpability serve merely to subject the defendant to punitive

damages, Sacco, 896 P.2d at 428-29. Causes of action in Tennessee for intentional, reckless and negligent infliction of

emotional distress retain respectively distinct and logically appropriate requirements and burdens.

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and unjustifiable risk consciously disregarded by the tortfeasor. See Tommy’s Elbow Room v.

Kavorkian, 727 P.2d 1038, 1044 (Alaska 1986) (holding that "in cases where the plaintiff alleges

that the defendant acted recklessly, it must be shown that the defendant acted in deliberate disregard

of a high degree of probability that the emotional distress will follow") (emphasis added); Public

Fin. Corp. v. Davis, 360 N.E.2d 765, 767 (Ill. 1976) (holding that liability for reckless infliction of

emotional distress "extends to situations in which there is a high degree of probability that severe

emotional distress will follow and the actor goes ahead in conscious disregard of it") (emphasis

added); cf. McClenahan v. Cooley, 806 S.W.2d 767, 775-76 (Tenn. 1991) (discussing foreseeability

and proximate causation in the context of negligence actions).

We acknowledge that our holding herein eliminates the distinction between direct claims and

bystander claims when the infliction of emotional distress claim is predicated upon recklessness.

Under section 46 of the Second Restatement, the criterion by which direct and bystander claims are

differentiated is the determination whether the misconduct was directed at the plaintiff or at a third

party. However, by holding that reckless infliction of emotional distress need not be directed at a

specific individual, the criterion for differentiating between direct and bystander claims in that

context is thus removed. Although this Court has never expressly recognized subsection 46(2) 30

bystander claims, we note that subsection 46(2) involves the kind of arbitrary requirements which

we analyzed and rejected within the context of negligent infliction of emotional distress in Camper,

915 S.W.2d at 440-46. 31

B. Summary Judgment

Having held that reckless infliction of emotional distress need not be based upon conduct that

was directed at a specific person or that took place in the presence of the plaintiff, we now address

the plaintiffs’ appeal of the lower courts’ grant of summary judgment in favor of the Diocese.

Summary judgment requires a demonstration that there is no genuine issue as to any material fact

and that the moving party is entitled to judgment as a matter of law. Tenn. R. Civ. P. 56.04; Byrd

v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993). The moving party bears the initial burden of

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demonstrating that it has satisfied these requirements. Staples v. CBL & Assocs., Inc., 15 S.W.3d

83, 88 (Tenn. 2000). When the burden of persuasion at trial falls on the nonmoving party, as in this

case, the moving party must satisfy its initial burden either by affirmatively negating an essential

element of the nonmoving party’s claim or by conclusively establishing an affirmative defense. See

McCarley v. West Quality Food Serv., 960 S.W.2d 585, 588 (Tenn. 1998); see also Celotex Corp.

v. Catrett, 477 U.S. 317, 331 (1986) (Brennan, J., dissenting). A moving party may accomplish this

burden "with or without supporting affidavits," Tenn. R. Civ. P. 56.02, but mere conclusory

assertions that the nonmoving party has failed to make its claims are insufficient, Robinson v. Omer,

952 S.W.2d 423, 426 (Tenn. 1997). If the moving party fails to negate the claims at issue, the

burden never shifts to the nonmoving party to produce evidence establishing the existence of a

genuine issue for trial, and the motion for summary judgment must fail. Blair v.West Town Mall,

130 S.W.3d 761, 767-68 (Tenn. 2004).

However, if the moving party meets its initial burden, the nonmoving party may not simply

rest upon its pleadings, but assumes the burden of producing evidence establishing the existence of

a disputed fact relating to the essential elements of its claims. Staples, 15 S.W.3d at 89. The

nonmoving party may meet this burden by:

(1) pointing to evidence establishing material factual disputes that were over-looked

or ignored by the moving party; (2) rehabilitating the evidence attacked by the

moving party; (3) producing additional evidence establishing the existence of a

genuine issue for trial; or (4) submitting an affidavit explaining the necessity for

further discovery . . . .

McCarley, 960 S.W.2d at 588 (citing Byrd, 847 S.W.2d at 216 n.6); see also Tenn. R. Civ. P. 56.06

(The nonmoving party must "set forth specific facts showing that there is a genuine issue for trial.").

The trial court "must take the strongest legitimate view of the evidence in favor of the nonmoving

party, allow all reasonable inferences in favor of that party, and discard all countervailing evidence."

Byrd, 847 S.W.2d at 210-11. Further, summary judgment shall be denied if there is "‘any doubt

whether or not a genuine issue exists.’" McCarley, 960 S.W.2d at 588 (quoting Byrd, 847 S.W.2d

at 211).

On appellate review of a summary judgment motion, we review the record de novo,

according no presumption of correctness to the trial court’s determination. Webber v. State Farm

Mut. Auto. Ins. Co., 49 S.W.3d 265, 269 (Tenn. 2001). Further, we must view the evidence in a

light most favorable to the nonmoving party, drawing all reasonable inferences in that party’s favor

and discarding all countervailing evidence. Shadrick v. Coker, 963 S.W.2d 726, 731 (Tenn. 1998).

Summary judgment is inappropriate unless the facts and the conclusions to be drawn from them

permit a reasonable person to reach only a single conclusion. Pero’s Steak & Spaghetti House v.

Lee, 90 S.W.3d 614, 620 (Tenn. 2002).

We begin our analysis by stating the requirements for reckless infliction of emotional

distress. Three elements are required: first, the conduct complained of must have been reckless;

second, the conduct must have been so outrageous that it is not tolerated by civilized society; third,

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the conduct complained of must have caused serious mental injury. See Bain, 936 S.W.2d at 622.

In order to mount a prima facie case, the plaintiff need not allege that the defendant’s reckless

misconduct had been directed at a specific person or that it had occurred in the plaintiff’s presence.

In considering the Diocese’s motions for summary judgment as to the plaintiffs’ outrageous

conduct claims, both the trial court and the Court of Appeals required reckless infliction of emotional

distress to be directed at a specific individual. Were the directed-at requirement for reckless

infliction of emotional distress applicable, the Diocese could potentially sustain a successful motion

for summary judgment based on its Statement of Undisputed Material Facts filed in support of its

motions for summary judgment. However, in light of our rejection of the directed-at requirement,

a broader range of facts is material to determining whether the plaintiffs have established against the

Diocese a prima facie case of reckless infliction of emotional distress.

Considering the record in a light most favorable to the plaintiffs, Staples, 15 S.W.3d at 89,

there are several disputed or possibly disputed material facts concerning the Diocese’s conduct and

its awareness that McKeown presented a substantial and unjustifiable risk of harm to young males.

The parties dispute whether Bishop Niedergeses or Father Giacosa became aware that McKeown,

through habitual sexual predation, had molested a large number of boys and had committed sexual

misconduct as recently as 1986. The parties dispute whether the Diocese failed to report or to

investigate the known abuse and whether the Diocese failed to place effective restrictions on

McKeown’s contact with youth even after his sexual disorder became known. Similarly, disputes

exist as to the nature of the Diocese’s connection to McKeown after his removal from employment

in 1989. There is dispute as to the proper characterization of the Diocese’s payments to McKeown

and as to whether the Diocese undertook but failed to continue to provide treatment in spite of

knowing about McKeown’s harmful tendencies. The parties dispute whether McKeown continued

to have some official clerical status and what inferences are to be drawn therefrom. Also disputed

is whether the Diocese knew of McKeown’s inappropriate involvement with young males in the

context of Diocesan programs even after McKeown was removed from his employment position in

1989.

These disputed issues are material to the plaintiffs’ claims for reckless infliction of emotional

distress and raise a genuine question for the trier of fact. See Byrd, 847 S.W.2d at 214-15.

Consequently, the Diocese has failed to satisfy its initial requirement of demonstrating the absence

of a genuine dispute of material fact with respect to the elements of the plaintiffs’ reckless infliction

of emotional distress claims. See McCarley, 960 S.W.2d at 588. A grant of summary judgment

concerning these claims is thus inappropriate. Therefore, as to John Doe 1, Jane Doe 1 and John Doe

2, we reverse the Court of Appeals’ affirmation of summary judgment in favor of the Diocese, and

we remand this case to the trial court for further proceedings consistent with this opinion.

C. Motion to Compel Discovery

Decisions concerning pretrial discovery are matters of a trial court’s discretion. Benton v.

Snyder, 825 S.W.2d 409, 416 (Tenn. 1992); Boyd v. Comdata Network, Inc., 88 S.W.3d 203, 211

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(Tenn. Ct. App. 2002). An appellate court, therefore, must review such decisions under an abuse

of discretion standard. Benton, 825 S.W.2d at 416. A trial court abuses its discretion when it applies

an incorrect legal standard or reaches a decision which is against logic or reasoning and which causes

an injustice to the complaining party. Clinard v. Blackwood, 46 S.W.3d 177, 182 (Tenn. 2001)

(citing State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999)).

The trial court denied several parts of the plaintiffs’ consolidated motion to compel the

Diocese to respond to various discovery requests. The Court of Appeals stated that

none of the discovery denied or limited by the trial court’s order dealt with

information that would establish the elements the trial court and this court have found

missing in the plaintiffs’ claim for intentional infliction of emotional distress through

outrageous conduct. Consequently, the issue of the limitation of discovery is now

moot in view of our holding [that intentional and reckless infliction of emotional

distress must be based upon conduct that was directed at a specific individual].

However, given our rejection of the directed-at limitation on reckless infliction of emotional distress,

this issue of discovery is no longer moot. Therefore, we review the trial court’s determination of the

matter.

The trial court applied a legal standard for reckless infliction of emotional distress which

required the reckless misconduct to have been directed at the plaintiffs or the plaintiff to have had

a close relationship to a third person at whom the misconduct was directed, a standard which we

herein have rejected. A broader range of facts is likely to be material to reckless misconduct which

need not be directed at a particular individual or occur in the plaintiff’s presence than to reckless

misconduct which must be so performed. Therefore, we vacate the trial court’s denial of the

plaintiffs’ motion to compel discovery insofar as the denial pertains to discovery requests affected

by our rejection of the directed-at requirement for reckless infliction of emotional distress. We

remand this matter to the trial court for reconsideration of the discovery requests in light of and in

a manner consistent with this opinion.

III. Conclusion

We hold that a claim for reckless infliction of emotional distress need not be based upon

conduct that was directed at a specific person or that occurred in the presence of the plaintiff. The

holding of the Court of Appeals in this regard is therefore reversed. Concerning the Diocese’s

motions for summary judgment in this case, we find that the Diocese failed to satisfy its initial

requirement of demonstrating that there is no genuine issue of material fact remaining to be decided.

Therefore, we reverse as to all plaintiffs the lower courts’ grant of summary judgment in favor of the

Diocese. Further, we vacate the trial court’s partial denial of the plaintiffs’ motion to compel

discovery. We remand this case to the trial court for further proceedings consistent with this opinion,

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including reconsideration of the plaintiffs’ discovery requests. Costs of this appeal are taxed to the

defendant, the Diocese.

______________________________________

FRANK F. DROWOTA, III, CHIEF JUSTICE