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NIED claim allowed for parents of child shot at day care


The parents of a two-year-old girl who was fatally shot by another child at an unlicensed day care facility will be able to bring a claim for negligent infliction of emotional distress against the operators of the day care despite the fact that the parents did not witness the shooting.

A divided panel of the North Carolina Court of Appeals found that the parents’ emotional distress was sufficiently foreseeable to support a claim, reversing a trial court’s decision to dismiss the claims.

In 2015 Delia Newman dropped off her daughter Abby at the residence of Heather and James Stepp while she attended class for her ultrasound technician degree. The Stepps operated an unlicensed day care facility out of their home, and at the time of the incident they had left their kitchen unattended with no adult supervision.

Abby and the Stepps’ minor children were present, as was a loaded 12-gauge shotgun, owned by the Stepps, lying across the kitchen table. The Stepps had not used the safety or trigger guard to prevent discharge, and their five-year-old discharged the gun in Abby’s direction, striking her in the chest at close range.

Abby was pronounced dead on her arrival at a nearby hospital. Abby’s father, Jeromy Newman, heard about a shooting at the Stepps’ address over a CB radio and drove to their house. He saw the ambulance and observed as Abby was removed; Delia joined him at the hospital soon after.

The Newmans sued the Stepps, alleging negligent infliction of emotional distress (NIED), intentional infliction of emotional distress, violation of a safety statute, and loss of consortium. Henderson County Superior Court Judge Gregory Horne granted the Stepps’ motion to dismiss. 

Appealing only the dismissal of the NIED claim, the Newmans argued that their emotional distress was foreseeable even though they were not physically present to observe the shooting. In a divided Sept. 3 opinion authored by Judge Wanda Bryant, the majority agreed and reversed the dismissal of the NIED claim.  

“The relevant facts show that plaintiffs arrived at the hospital within minutes of the shooting incident and observed Abby wounded by the shotgun blast—Jeromy, in particular, observed Abby as she arrived at the hospital and was transported from her ambulance to the hospital,” Bryant wrote.

“Delia arrived immediate thereafter and held her fatally wounded two-year-old in her arms for as long as hospital personnel would allow. Plaintiffs—who, as parents to Abby, experienced the events immediately prior to and following Abby’s death in the aftermath of her arrival at the hospital—asserted severe emotional distress from the manner in which they suffered the death of their daughter. The existence of the close parent-child familial relationship, of which defendants were well aware of, supports foreseeability.”

Sufficient factual allegations

Focused on the dispositive issue of foreseeability, Bryant noted that North Carolina has “long recognized” claims of NIED arising out of concern for another person. The Newmans set forth factual allegations for a proper claim of NIED, she wrote, including that the Stepps failed to unload the firearm prior to laying it on the kitchen table, where it was readily available to the minor children that had unfettered access to the entire home.

Further, the Newmans alleged that the Stepps failed to check the firearm to see if it was unloaded, lacked the proper training prior to possessing such a firearm, and neglected to properly supervise the minor children that were in their home. They also detailed their severe emotional distress as a result of the incident, with Delia under constant psychiatric care and unable to deal with Abby’s possessions, wishing for her own death.

“Taking these allegations as true, plaintiffs sufficiently stated facts, which set forth their severe emotional distress as a direct, reasonable and foreseeable result of defendants’ negligence, to enable them to proceed with a claim for NIED,” Bryant wrote.

Given that the Stepps admitted to many of the allegations in the complaint—that they operated an unlicensed facility and left a loaded shotgun on the kitchen table, which was discharged and caused Abby’s death—dismissing the case was particularly inappropriate, the court added.

“Allegations regarding whether defendants’ negligence was in fact the foreseeable and proximate cause of plaintiffs’ injury are proper questions for the jury to decide,” Bryant said.

The majority also recommended that the trial court re-evaluate the Newmans’ loss of consortium claim on remand, as it was “sufficiently pled and derived from the claim for NIED.”

Appeal in the future

In a concurring opinion, Judge Valerie Zachary wrote that she found the allegations “tend to favor the foreseeability of Plaintiffs’ severe emotional distress.” But she expressed concern about the need for limits on a defendant’s liability under the NIED tort, writing that it should be limited to instances “where it would be generally viewed as appropriate and not excessive.”

Judge John M. Tyson dissented. While he acknowledged the “shock and anguish” of the plaintiffs, their proper remedy was through a claim for wrongful death, he said.

“The negligent act at issue occurred prior to the fateful moment: leaving a loaded shotgun on the kitchen table, the failure to keep the shotgun from being available to children, the lack of supervision of the children resulting in unfettered access to the loaded shotgun,” Tyson wrote. “Defendants’ five-year-old child, who pulled the trigger discharging the weapon, is legally incapable of forming ill intent or culpability for the act. Neither parent can show either close proximity to or personal observation of any such negligence, only the wrenching experiences of its tragic aftermath.”

Asheville attorney Ervin L. Ball, Jr., who represented the Stepps, plans to appeal the decision to the North Carolina Supreme Court and predicted a reversal.

“These facts are as sad as it gets, but Judge Tyson got it right—the plaintiffs are advancing a wrongful death claim, not a NIED claim,” he said. “These types of claims should have a high threshold, or the courts will be filled with cases every time somebody gets upset.”

Frank B. Jackson of Henderson, who represented the plaintiffs, disagreed.

“If the decision stands, it would let some people into the courthouse who need to be there,” he said. “It just doesn’t make common sense that someone who learns of their child’s death a few minutes after it happens suffers less than someone who happens to be in the car with them or sees the wreck.”

The 36-page decision is Newman v. Stepp (Lawyers Weekly No. 011-231-19). The full text of the opinion is available online at

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