ATTORNEYS FOR APPELLANT: ATTORNEY FOR APPELLEE:
W. SCOTT MONTROSS CAREN L. POLLACK
JOHN F. TOWNSEND, III Mandel Pollack & Horn, P.C.
Townsend & Montross Indianapolis, Indiana
SHEILA RITCHHART, ) ) Appellant-Plaintiff, ) ) vs. ) No. 49A02-0307-CV-579 ) INDIANAPOLIS PUBLIC SCHOOLS, ) ) Appellee-Defendant. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Patrick L. McCarty, Judge
Cause No. 49D03-0108-CT-1276
July 23, 2004
OPINION - FOR PUBLICATION
KIRSCH, Chief Judge
The second test has come to be referred to as the zone of
danger test. It came into use at roughly the same time as the
physical impact test, and had been adopted by several jurisdictions at the time
FELA was enacted. Perhaps based on the realization that a near miss
may be as frightening as a direct hit, the zone of danger test
limits recovery for emotional injury to those plaintiffs who sustain a physical impact
as a result of a defendants negligent conduct, or who are placed in
immediate risk of physical harm by that conduct. That is, those within the
zone of danger of physical impact can recover for fright, and those outside
of it cannot. The zone of danger test currently is followed in
The third prominent limiting test is the relative bystander test, which was first
enunciated in Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d
912 (1968). In Dillon, the California Supreme Court rejected the zone of danger
test and suggested that the availability of recovery should turn, for the most
part, on whether the defendant could reasonably have foreseen the emotional injury to
the plaintiff. The court offered three factors to be considered as bearing on
the question of reasonable foreseeability:
(1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it. (2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence. (3) Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship. Id. at 740-41, 69 Cal.Rptr. at 80, 441 P.2d at 920. The courts of nearly half the States now allow bystanders outside of the zone of danger to obtain recovery in certain circumstances for emotional distress brought on by witnessing the injury or death of a third party (who typically must be a close relative of the bystander) that is caused by the defendants negligence. Most of these jurisdictions have adopted the Dillon factors either verbatim or with variations and additions, and have held some or all of these factors to be substantive limitations on recovery.
Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 547-49, 114 S. Ct. 2396,
2407 (1994). The court also explained that m
any jurisdictions that follow the
zone of danger or relative bystander tests also require that a plaintiff demonstrate
a physical injury or effect that is the direct result of the emotional
injury in order to recover. Id. at n.11.
Prior to 1991, Indiana adhered to the impact rule in claims for negligent infliction of emotional distress. Shuamber v. Henderson, 579 N.E.2d 452, 454 (Ind. 1991). Under the impact rule, a plaintiff had to suffer a physical injury in order to recover damages for emotional distress in negligence actions. Id. In Shuamber, our supreme court relaxed the rule and held that to recover for the negligent infliction of emotional distress, it was sufficient for the plaintiff to demonstrate a direct impact resulting from the negligence of another if, by virtue of that direct involvement, the plaintiff sustained an emotional trauma which is serious in nature and of a kind and extent normally expected to occur in a reasonable person. Id. at 456.
In Ross v. Cheema, 716 N.E.2d 435 (Ind. 1999), the court held that the direct impact necessary to sustain an action for negligent infliction of emotional distress must be physical in nature. In Ross, our supreme court reversed a decision of this court which had held that the plaintiff, an elderly woman sitting in the living room of her home, had sustained a sufficient impact to maintain the action where the defendant had loudly banged on the front door of her home, forced open a locked screen door, twisted the knob on the inner door of her home back and forth, and then again pounded loudly on the door. See Ross v. Cheema, 696 N.E.2d 437 (Ind. Ct. App. 1998).
In Conder v. Wood, 716 N.E.2d 432 (Ind. 1999), decided the same day as Ross, the court relaxed the requirements of the modified impact rule. There, the plaintiff was attempting to cross the street when a companion was struck and fatally injured by a truck. After the initial collision, the truck was still moving forward and was about to run over the plaintiffs companion a second time when the plaintiff pounded on the side of the truck in an attempt to get it to stop. Without mentioning Ross, the court held that the pounding constituted a sufficient impact to satisfy the rule. The court retained the direct physical impact requirement, but held that the impact need not cause physical injury, and the emotional trauma need not result from the physical injury. Id. See also Alexander v. Scheid, 726 N.E.2d 272 (Ind. 2000) (destruction of healthy lung tissue by cancerous tumor sufficient for modified impact test).
Thus, in each of these cases, the court required that the plaintiff personally experience some type of touching, not in the sense of a battery, but in the sense of a physical sensation, whether labeled a physical impact, modified physical impact, (Shuamber) or direct involvement (Conder).
This court has applied this test in a handful of cases, including Powdertech v. Joganic, 776 N.E.2d 1251 (Ind. Ct. App. 2002), where the court held that a plaintiff in an action for disability discrimination under the Americans with Disabilities Act, retaliatory discharge for claiming workers compensation benefits, and emotional distress could not maintain a claim for negligent infliction of emotional distress because there was no direct physical impact. Id. at 1263. See also Munsell v. Hambright, 776 N.E.2d 1272 (Ind. Ct. App. 2002) (holding that plaintiff could not maintain an action for negligent infliction of emotional distress where there was no impact of any kind to the plaintiff or his close relative). But see Keim v. Potter, 783 N.E.2d 731 (Ind. Ct. App. 2003) (plaintiff could maintain claim for negligent infliction of emotional distress against physician who negligently misdiagnosed plaintiff as having hepatitis C even though plaintiff did not suffer the kind of physical impact required by Shuamber).
Less than one year after Ross and Conder, in Groves v. Taylor, 729 N.E.2d 569 (Ind. 2000), our supreme court retreated from the physical impact requirement and created a new class of potential negligent infliction of emotional distress plaintiffs: relative bystanders. Groves involved an eight-year-old child who had witnessed an automobile accident in which her six-year-old brother was fatally injured. The court stated that a physical impact was not required where a sufficient direct involvement could be shown. Id. at 573. The court noted that the value of the physical impact requirement 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. Id. at 572. The court went on to say that there are circumstances other than direct physical impact that also evidence the required level of involvement. Specifically, the court stated that there was a sufficient basis for distinguishing legitimate from spurious claims when three conditions are met. First, the plaintiff witnesses an injury that is either fatal or so serious that it would be expected to cause severe distress to the bystander. Second, the plaintiff has a relationship to the primary victim that is analogous to a spouse, parent, child, grandparent, grandchild or sibling. While acknowledging that emotional distress may accompany the death or severe injury of friends, acquaintances, and passersby, the court said that limiting recovery to those plaintiffs with specified relationships recognizes the special quality of these relationships but places a reasonable limit on the liability of the tortfeasor. Third, the plaintiff witnesses the incident causing the death or serious injury or the gruesome aftermath minutes after it occurs. The court specifically contrasted this with the non-compensable experience of learning of a loved ones death or severe injury by indirect means. Id. Thus, the relative bystander test, which requires no touching or physical sensation, was born.
Our supreme court juxtaposed these two tests in Bader v. Johnson, 732 N.E.2d 1212 (Ind. 2000). There, the court summarized the evolution of the law regarding negligent infliction of emotional distress in Indiana and the physical touching requirement. The court then held that the parents of an infant born with hydrocephalus and multiple congenital birth defects could maintain a claim for negligent infliction of emotional distress against a physician who performed prenatal genetic testing and failed to alert them of the abnormal results in time to terminate the pregnancy. The court explained:
In this case we find that [the mothers] continued pregnancy and the physical transformation her body underwent as a result, satisfy the direct impact requirement of our modified impact rule. Provided she can prevail on her negligence claim, we see no reason why [the mother] should not be able to claim damages for emotional distress. By contrast, [the father] did not suffer a direct impact as a result of Healthcare Providers alleged negligence. We disagree with his argument to the contrary. Rather, at most [the father] is a relative bystander, a classification of potential victims this court has recently adopted in Groves v. Taylor, 729 N.E.2d 569, 572-73 (Ind.2000). Whether [the father] can prevail on his claim for emotional distress damages depends on the evidence adduced at trial.
Id. at 1222 (footnote omitted).
We have applied the relative bystander test only once. In Blackwell v. Dykes Funeral Home, 771 N.E.2d 692 (Ind. Ct. App. 2002), trans. denied (2003), this court was faced with the negligent infliction of emotional distress claim of a relative. In that case, a panel of this court reversed the trial courts grant of summary judgment and held that parents of a deceased were sufficiently and directly involved in an incident in which a funeral home lost the remains of their son such that they could maintain an action for negligent infliction of emotional distress. While noting that the tripartite test set out in Groves was inapposite, the court found that the plaintiffs claims satisfied the underlying rationale of Groves and that the plaintiffs claim of emotional trauma was of a kind that a reasonable person would experience and is not likely speculative, exaggerated, fictitious or unforeseeable. Id. at 697.
Here, Ritchhart does not claim any sort of physical touching from the incident that gave rise to the suit. Rather, her claim is based on her emotional distress regarding IPSs treatment of Joshua. Thus, this case falls squarely under the Groves line of cases that use the relative bystander test. Moreover, we need not look to the underlying rationale of Groves, as the Blackwell court was required to do, because the Groves test is relevant to these facts.
Instead, we employ the three-part test set out in Groves. The second part of the test, that the plaintiff and the primary victim have a close family relationship, is obviously satisfied here. Joshua is the primary victim in this incident; Ritchhart is Joshuas mother. This certainly constitutes a close family relationship. However, Ritchharts claim fails to satisfy either the first or the third parts of the test. Joshua was not physically injured. Moreover, Ritchhart did not witness any part of the incident giving rise to her complaint. Instead, this situation is more akin to that identified by the Groves court as the non-compensable experience of learning of a loved ones death or severe injury by indirect means. Groves, 729 N.E.2d at 573 (quotations omitted). While Ritchhart certainly heard upsetting news regarding her son, first that he was lost, and then later, that he had been delivered to the wrong house, she did not personally witness an upsetting scene or its gruesome aftermath. Id. Under the Groves standard, Ritchhart may not recover for negligent infliction of emotional distress on these facts. The trial court did not err in granting summary judgment.
RILEY, J., and ROBB, J., concur.