Attorneys for Appellant Attorneys For Amicus Curiae Attorneys for
Gil I. Berry, Jr. John C. Trimble Nicholas C. Pappas
Buck Berry Landau & Breunig Dina M. Cox Sandra Boyd Williams
Indianapolis, Indiana Lewis & Wagner Locke Reynolds Boyd &
Indianapolis, Indiana Weisell
James D. Johnson
Rudolf Fine Porter & Johnson LLP
JOYCE S. ROSS,
Appellant (Plaintiff below),
RAMINDER CHEEMA and PILLOW
EXPRESS DELIVERY SERVICE, INC.,
Appellees (Defendants below).
) Supreme Court No.
) Court of Appeals No.
On August 3, 1996, Ross filed a complaint for damages against Cheema and Pillow Express, alleging negligent infliction of emotional distress. At trial, Defendants successfully moved for summary judgment, arguing that the Indiana impact rule barred Ross's recovery. The Court of Appeals reversed, finding that because Ross sustained a direct impact from
Defendant's negligence, she was not precluded by the modified impact rule from maintaining
her action for negligent infliction of emotional distress. Ross v. Cheema, 696 N.E.2d 437,
439 (Ind. Ct. App. 1998).
In Shuamber v. Henderson, 579 N.E.2d 452 (Ind. 1991), this Court set forth the rule
governing negligent infliction of emotional distress claims. Shuamber modified prior Indiana
law, which held that damages for emotional distress were recoverable only where the
emotional distress is accompanied by, and results from, a contemporaneous physical injury.
See,e.g., New York, Chicago, & St. Louis R.R. Co. v. Henderson, 237 Ind. 456, 477, 146
N.E.2d 531, 543 (1957). In doing so, this Court did away with the physical injury
requirement, concluding instead that:
When . . . a plaintiff sustains a direct impact by the negligence of another and, by virtue of that direct involvement sustains an emotional trauma which is serious in nature and of a kind and extent normally expected to occur in a
reasonable person, we hold that such a plaintiff is entitled to maintain an
action to recover for that emotional trauma without regard to whether the
emotional trauma arises out of or accompanies any physical injury to the
Shuamber, 579 N.E.2d at 456. Hence, the modified rule maintains the requirement of a
direct impact, but that impact need not result in a physical injury, nor need the emotional
trauma result from a physical injury.
In the present case, Ross was sitting in her living room when Cheema began the pounding on her door that is alleged to have caused her emotional distress. This pounding, Ross asserts, constitutes a direct impact within the meaning of Indiana's modified impact rule, and thereby entitles her to maintain her action for negligent infliction of emotional distress. It does not. Prior to Shuamber, Indiana's impact rule required a direct impact, which resulted in physical injury, which in turn resulted in the actionable emotional distress. Boston v. Chesapeake & O. Ry., 223 Ind. 425, 428-29, 61 N.E.2d 326, 327 (1945). In causing the requisite physical injuries, the direct impact is properly understood as being physical in nature. Though removing the physical injury element, Shuamber in no way altered the impact element of the rule. For purposes of the modified rule, the direct impact sustained by the plaintiff must necessarily be a physical one. It is clear from the facts of this case that Ross, in merely hearing a loud pounding at her door, did not sustain the direct physical impact necessary to maintain an action for negligent infliction of emotional
distress under the modified impact rule.See footnote
SHEPARD, C.J., and SELBY and BOEHM, JJ., concur.
DICKSON, J., dissents without opinion.
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