Frederick N. Hadley
W. Scott Montross
Townsend & Montross
Attorneys for Appellees
Jeffrey A. Modisett
Attorney General of Indiana
Carol A. Nemeth
Deputy Attorney General
Attorneys for Amicus Curiae The Defense Trial Counsel of Indiana
Stephen R. Pennell
Ann Marie Waldron
Stuart & Branigan
James D. Johnson
Mattingly, Rudolph, Fine &
Appellants (Plaintiffs below ),JACQUELINE TAYLOR, INDIANA STATE POLICE, and the STATE OF INDIANA, Appellees (Defendants below).
) Supreme Court No.
) Court of Appeals No.
June 7, 2000
Terry L. Groves and Elizabeth Groves, as parents of Terry L. Groves, II,
deceased, and MaryBeth, by her next friend Terry L. Groves, filed a personal
injury/wrongful death a
ction against the State.
Mr. and Mrs. Groves alleged that
Trooper Taylor negligently caused the death of their son. MaryBeth alleged that
she suffered emotional distress as a result of witnessing the negligent accident that
caused her brothers death. The State filed a motion for partial summary
judgment seeking judgment as a matter of law on MaryBeths claim for negligent
infliction of emotional distress. In its motion, the State alleged that because
the undisputed facts showed that MaryBeth did not suffer any direct physical impact
as a result of the accident involving her brother, partial summary judgment was
appropriate under the rule established in Shuamber v. Henderson, 579 N.E.2d 452 (Ind.
1991). Following a hearing, the trial court entered partial summary judgment in
favor of the State.
The Court of Appeals affirmed.
Groves v. Taylor, 711 N.E.2d 861 (Ind.
Ct. App. 1999). Judge Kirsch wrote separately to note that traumatic events
can have severe, debilitating and foreseeable emotional effect even if not accompanied by
physical injury, a direct impact or a direct involvement. Id. at 864 (Kirsch,
Conder v. Wood, 716 N.E.2d 432 (Ind. 1999), we applied the Shuamber
rule for the first time. In that case, a truck had hit
and knocked down plaintiff Wood's companion. Wood pounded on the side of
the truck in a frantic attempt to get the driver to stop before
the truck crushed her companion. In finding that Wood sustained the requisite
direct impact under Shuamber to maintain an action for negligent infliction of emotional
distress, we said:
[I]n Shuamber, we recognized the diminished significance of contemporaneous physical injuries in identifying
legitimate claims of emotional trauma from the mere spurious. Rather, direct impact
is properly understood as the requisite measure of direct involvement in the incident
giving rise to the emotional trauma. Viewed in this context, we find
that it matters little how the physical impact occurs, so long as that
impact arises from the plaintiff's direct involvement in the tortfeasor's negligent conduct.
Id. at 435; see also Alexander v. Scheid, 726 N.E.2d 272, 283-84 (Ind.
In the present case, it is undisputed that the plaintiff did not suffer
the kind of direct i
mpact required by Shuamber to recover as a bystander
for emotional distress. However, as the foregoing passage from Conder makes clear,
the reason for requiring direct involvement is to be able to distinguish legitimate
claims of the emotional trauma from the mere spurious. The value of requiring
direct impact is that it provides clear and unambiguous evidence that the plaintiff
was so directly involved in the incident giving rise to the emotional trauma
that it is unlikely that the claim is merely spurious.
Given that the prevention of merely spurious claims is the rationale for the
Shuamber rule, logic dictates that there may well be circumstances where, while the
plaintiff does not sustain a direct impact, the plaintiff is sufficiently directly involved
in the incident giving rise to the emotional trauma that we are able
to distinguish legitimate claims from the mere spurious.
Not long ago, the Wisconsin Supreme Court faced the same question. In
Bowen v. Lumbermens Mut. Cas. Co., 517 N.W.2d 432 (Wis. 1994), a mother
sought damages for the mental trauma she suffered after witnessing the gruesome aftermath
of the defendant negligently colliding with her fourteen-year-old son who was riding his
Id. at 435. The courts decision, authored by now-Chief Justice
Shirley Abrahamson, observed that [h]istorically, the tort of negligent infliction of emotional distress
has raised two concerns: (1) establishing the authenticity of the claim and
(2) ensuring fairness of the financial burden placed upon a defendant whose conduct
was negligent. Bowen, 517 N.W.2d at 443. The court proceeded to
analyze these concerns in the context of negligent infliction of emotional distress on
a bystander and concluded that three factors, taken together, help assure that the
claim in this case is genuine [and] that allowing recovery is not likely
to place an unreasonable burden upon the defendant. Id. at 444.
These factors were that the victim was seriously injured, that the plaintiff was
the victims mother, and that the plaintiff witnessed an extraordinary event. Id.
Much like the Wisconsin court, we believe these three considerations, taken together,
provide a legitimate alternate basis for distinguishing legitimate claims of emotional distress from
the merely spurious.
First, [a] fatal injury or a physical injury that a reasonable person would
view as s
erious can be expected to cause severe distress to a bystander.
Less serious physical harm to a victim would not ordinarily result in
severe emotional distress to a reasonable bystander of average sensitivity. Id.
Second, emotional distress may accompany the death or severe injury of persons such
as friends, acquaintances, or passersby. But the emotional trauma that occurs when
tnesses the death or severe injury of a loved one with a
relationship to the plaintiff analogous to a spouse, parent, child, grandparent, grandchild, or
sibling is unique in human experience and such harm to a plaintiff's emotional
tranquility is so serious and compelling as to warrant compensation. Id. (footnote
omitted). Limiting recovery to those plaintiffs who have the specified relationships with
the victim acknowledges the special quality of such relationships yet places a reasonable
limit on the liability of the tortfeasor. Id.
Third, [w]itnessing either an incident causing death or serious injury or the gruesome
aftermath of such an event minutes after it occurs is an extraordinary experience,
distinct from the experience of learning of a loved ones death or severe
injury by indirect means. Id. at 444-45.
We therefore hold that where the direct impact test is not met, a
bystander may neve
rtheless establish direct involvement by proving that the plaintiff actually witnessed
or came on the scene soon after the death or severe injury of
a loved one with a relationship to the plaintiff analogous to a spouse,
parent, child, grandparent, grandchild, or sibling caused by the defendants negligent or otherwise
In order for a bystander to recover for emotional distress resulting from physical
njury negligently inflicted on another, a plaintiff must sustain emotional trauma, which is
serious in nature and of a kind and extent normally expected to occur
in a reasonable person. Shuamber, 579 N.E.2d at 456. In addition,
the plaintiff must have had sufficient direct involvement with the injury-causing event that
legitimate claims of emotional trauma can be distinguished from the mere spurious.
Conder, 716 N.E.2d at 435. In both Shuamber and Conder, this latter
requirement was met by the plaintiff sustaining a direct impact. But MaryBeth
did not suffer a direct impact in this case. We turn instead
to the alternate criteria of direct involvement adopted today.
First, the injury suffered by Terry was fatal and so meets the criteria
of severity. Se
cond, MaryBeth was Terrys sister and so the relationship test
is also satisfied. Id. Third and finally, MaryBeth witnessed a portion
of the injury-producing event, specifically her brothers body as it rolled off the
highway after being struck, resulting in his death. The criteria of observing
the traumatic event are also met.
We therefore find that MaryBeths allegations have met the alternate criteria of direct
nvolvement and may proceed. Defendants are not entitled to judgment as a
matter of law.
SHEPARD, C.J., and DICKSON, BOEHM and RUCKER, JJ., concur.