Analysis: In Rondal Akers v. Prime Succession of Tennessee, Inc., No. E2009-02203-SC-R11-CV, 2012 WL 4320591 (Tenn. 2012) the Tennessee Supreme Court discussed the tort of intentional infliction of emotional distress. The Court dealt with a claim filed by parents against a crematorium for allegedly mishandling their deceased son’s body that was sent to the crematorium for cremation. Akers at 1. The crematorium allegedly buried the body on the property (authorities discovered body parts for over 230 people on the property) instead of cremating it as requested. The ashes provided to the parents were tested and consisted of a mixture of soil and cement. Akers at 2. The facts surrounding this crematorium (Tri-State Crematory in Noble, Georgia) received national attention and there have been numerous lawsuits filed.
The legal argument raised on appeal in this case was whether the trial court should have granted a motion for “judgment notwithstanding the verdict (“JNOV”) or for a new trial” on an infliction of emotional distress claim. Akers at 4. The defendant argued that in Tennessee there are two separate causes of action for infliction of emotional distress, one for “intentional infliction” and another for “reckless infliction”. Akers at 4 (the defendant cited the Tennessee Supreme Court decision of Doe 1 ex rel. Doe 1 v. Roman Catholic Diocese of Nashville, 154 S.W.3d 22 (Tenn. 2005) for this proposition).
The defendant argued that because the plaintiff did not specifically allege a claim for a “reckless infliction of emotional distress” in the complaint (the plaintiff only alleged a claim for “intentional infliction” of emotional distress), then the claim should be barred. Akers at 4. They further argued the jury’s reliance upon proof involving reckless infliction of emotional distress should not be sufficient because the plaintiffs did not actually alleged a claim for reckless infliction of emotional distress. The argument was essentially that because “reckless infliction” is a separate claim from “intentional infliction” then the failure to plead a claim for “reckless infliction” bars recovery for that claim.
The Tennessee Supreme Court disagreed with the defendant’s position. The Court found the elements for intentional infliction of emotional distress were recently reaffirmed in the Tennessee Supreme Court decision of Rogers v. Louisville Land Company, 367 S.W.3d 196 (Tenn. 2012) which found as follows:
The elements of an intentional infliction of emotional distress claim are that the defendant's conduct was (1) intentional or reckless, (2) so outrageous that it is not tolerated by civilized society, and (3) resulted in serious mental injury to the plaintiff.
As a result, it is clear that the name of the tort in question “intentional infliction” is a little misleading because “reckless” conduct satisfies the first element of the tort. The Tennessee Supreme Court therefore clarified this issue as follows:
Since Doe 1 was decided, there has been some confusion and inconsistency regarding whether “reckless infliction of emotional distress” is a separate and distinct tort from intentional infliction of emotional distress.... [We have] observed numerous times that intentional infliction of emotional distress can be proven by a showing of either reckless or intentional behavior. This approach is consistent with the Restatement (Second) of Torts and the Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 45 (Tentative Draft No. 5, 2007). Although Doe 1 makes it clear that the analysis differs somewhat when the claimant alleges reckless conduct, it does not expressly hold that reckless infliction of emotional distress is a separate tort.
Akers at 5 (quoting Rogers at 205). As a result, the Akers Court found that the plaintiffs were not precluded from recovery for “intentional infliction” of emotional distress due to the failure to assert a claim for “reckless infliction” of emotional distress. This is because the requirements for a claim for “intentional infliction” of emotional distress can be satisfied by the establishment of “reckless” conduct under Tennessee Law. Based on this decision it now appears clear that there are not two separate claims for “intentional infliction” and “reckless infliction” of emotional distress. Rather, the tort of intentional infliction of emotional distress includes “reckless” conduct.