News

Ruling revives lawsuit over toddler’s death

By Bill Moss, Published: January 22, 2021

A lawsuit by the parents of a toddler accidentally shot to death while in the care of an unlicensed daycare home has been revived by a state Supreme Court ruling.

The state’s highest court last month upheld an N.C. Court of Appeals decision that had reversed a trial court decision in favor of the defendants. The defendants had argued in Henderson County Superior Court that the plaintiffs’ lawsuit made claims that were barred by a state Supreme Court precedent limiting similar claims of emotional harm from a wrongful death.

“In this tragic case, the facts are undisputed,” the Supreme Court said in the opening line of a 19-page opinion supporting the case brought by the child’s parents.

On Oct. 26, 2015, Angel Newman dropped off her 2-year-old daughter, Abby, at the Crab Creek home of James and Heather Stepp, who operated an unlicensed daycare where Heather regularly cared for Abby and other children in addition to her own. Around 8 that morning, Abby and several other children wandered into the kitchen, where a loaded 12-gauge shotgun that James “Bo” Stepp had used for hunting the day before had been left on a table. One of the Stepps’ children under the age of 5 “somehow discharged the shotgun,” striking Abby in the chest at close range.

After Heather Stepp called 911, Abby’s father, Jeromy Newman, heard the emergency dispatch on his radio. A volunteer firefighter, Newman was shocked to hear the report that “a young female child” had been critically wounded at an address that he recognized. As he raced toward the Stepps’ home, he spotted the ambulance carrying Abby and followed it to Mission Hospital. Angel, who had been taking an ultrasound certification at A-B Tech, got the call from her husband and reached the Mission ER shortly after Abby arrived. “At that point, Angel Newman was informed of Abby’s death and was allowed to hold Abby’s body for an extended period of time,” the justices said in the 6-1 opinion.

The Newmans sued in 2018, asserting that the negligence of the Stepps was to blame for their daughter’s death. Represented by Frank B. Jackson and James L. Palmer of F.B. Jackson & Associates, the couple argued that the Stepps failed to unload the shotgun, failed to check to make sure it was unloaded or use a safety or trigger lock, failed to teach the young children in the home about the danger firearms pose and failed to properly supervise the children in their home.

As a result of their daughter’s death, the Newmans have suffered severe emotional distress, the lawsuit said. Angel Newman has required “constant psychiatric care” because “etched in her memory” is the experience of “holding her lifeless daughter in her arms at Mission Hospital.” She has convinced herself that she, too, is going to die “because God would not allow her to suffer as she has suffered without taking her life also.” Angel dropped out of A-B Tech, is unable to tend to regular household chores and often cannot leave her home at all. The couple has “lost normal husband and wife companionship and consortium,” Jackson argued in the lawsuit.

The case never reached trial. In January 2019, Superior Court Judge Gregory Horne granted the defendants’ motion to dismiss the case. Jackson appealed, winning at 2-1 before the N.C. Court of Appeals and 6-1 at the N.C. Supreme Court filed on Dec. 18.

“This only allows me to try the case,” Jackson said in an interview. “There have been three or four cases in the last 20 years or so that says basically you had to be present at the time of the incident (of wrongful death) and see the incident, which makes no sense at all.”

He said he didn’t know how soon the case might be scheduled for a jury trial in Henderson County Superior Court, although it’s possible it could take a couple of years. That could depend, too, on whether the defendants succeed in an effort for a rehearing before the state’s highest court.

“We do plan to file a petition for a rehearing,” defense attorney J. Boone Tarlton said. “We’re working on that right now.”

The motion to dismiss by the defense pivoted on the question of foreseeability and on precedents in similar cases claiming “negligent infliction of emotional distress,” or NIED.

“The main grounds (for a rehearing) is the prior Supreme Court precedent wasn’t followed, so there’s a conflict between that one and this one,” Tarlton said. “My main focus is just getting the court to really address this conflict. It’s important to understand that the foreseeability question is absolutely pivotal in the NIED claim. The wrongful death claim isn’t involved in this at all.”

In fact, the Jackson law firm has filed a separate wrongful death lawsuit, which is pending in the Henderson County court and could go forward even if the separate NIED case falls.

The 6-1 state Supreme Court majority acknowledged its previous orders forming the boundaries for an NIED case but said the “question of reasonable foreseeability must be determined under all of the facts presented and … resolved on a case-case basis …”

In his dissent, Justice Paul Newby, who was elected chief justice on Nov. 3, acknowledged that “the heartbreak of a parent from the loss of a child cannot be overstated,” underscoring that with the plaintiffs’ own assertion: “The shock and anguish suffered by plaintiffs upon learning of the wholly unexpected death of their young daughter is unfathomable to anyone not experiencing a similar loss.”

“Were we writing on a blank slate,” Newby wrote, he would side with plaintiffs, where “my sympathies lie.” But he warned that the court majority “strays from our jurisprudence” in a controlling precedent (Johnson v. Ruark Obstetrics and Gynecology) in order to “fashion a different legal remedy to address this tragedy.”

“The Johnson factors have worked well for 30 years,” concluded Newby, who now leads a state Supreme Court that where the Democratic majority dropped from 6-1 to 4-3 after the November election. “The majority assures that these new considerations will not open a floodgate of new NIED claims — only time will tell … Because I believe the trial court faithfully applied our NIED jurisprudence, I would affirm its decision.”