ATTORNEY FOR APPELLANTS: ATTORNEYS FOR APPELLEES:
HAROLD T. HARPER RANDALL J. NYE
Harper and Rogers JULIE R. HUBLY
Valparaiso, Indiana Beckman, Kelly & Smith
CHARLES C. HOPPE, JR.
Knight, Hoppe, Kurnick & Knight
COURT OF APPEALS OF INDIANA
PHILLIP BLACKWELL, MARCIA )
BLACKWELL, and MICHELE BLACKWELL, )
vs. ) No. 64A04-0112-CV-554
DYKES FUNERAL HOMES, INC., )
and GRACELAND CEMETERY )
ASSOCIATION, INC., )
APPEAL FROM THE PORTER SUPERIOR COURT
The Honorable Jeffrey L. Thode, Special Judge
Cause No. 64D05-9909-CT-2036
July 17, 2002
Today we once again revisit the scope of our impact rule as it
relates to a claim for the negligent infliction of emotional distress. Appellants-plaintiffs
Phillip, Marcia and Michele Blackwell (collectively, the Blackwells) appeal the trial courts grant
of summary judgment in favor of the appellees-defendants Dykes Funeral Home, Inc., (Dykes)
and Graceland Cemetery Association, Inc. (Graceland), regarding their claims against the appellants for
negligent infliction of emotional distress. Specifically, the Blackwells contend that the trial
courts entry of summary judgment in favor of Dykes and Graceland as to
these counts along with their claim for punitive damages should be set aside
because the designated evidence sufficiently established their direct involvement with the traumatic event
that caused their injuries.
Concluding that the Blackwells established a genuine issue of material fact with respect
to their claim against Dykes, we reverse the grant of summary judgment in
its favor. However, finding that the designated evidence failed to establish any
genuine issue of material fact as to Gracelands liability, we affirm the trial
courts entry of summary judgment as to the Blackwells claim against it.
The undisputed facts are that on December 13, 1987, Phil Blackwell, the twenty-year-old
son of Marcia and Phillip, shot and killed himself at the family residence.
Phils body was initially transported to Porter Memorial Hospital and was later
taken to Dykes, the funeral home that the Blackwells chose to handle the
The Blackwells met with Patricia Dykes
See footnote to make the final arrangements. They
informed Patricia that they wanted Phils body to be cremated. Thus, they
chose an urn for the remains. Later that day, the Blackwells went
to Graceland and requested that Phils remains be entombed at Gracelands Chapel of
Peace in a glass niche. Upon receiving Phils body, Dykes arranged to
have the cremation performed at Calvary Crematory in Portage. Calvary then picked
up the body at Dykes where it was cremated on December 15, 1987.
Thereafter, Calvary returned the cremated remains to Dykes within a day or
two after picking up the body.
A memorial service for Phil was held at Dykes on December 17, 1987.
Following the service, the Blackwells left the urn at Dykes so it
could be transported to Graceland. Several days later, Dykes contacted Marcia and
told her that the urn was too large and would not fit in
the niche that had been chosen. In response, Marcia told Patricia that
Dykes could make the decision for a replacement urn as long as it
was comparable and . . . something nice. Appellants App. p. 235,
270-71. Patricia transported the urn to Graceland on December 17, 1987. When Patricia
determined that it would not fit into the niche, she returned it to
Dykes. The Blackwells have not designated any evidence showing that Graceland ever
took possession of the urn.
When Marcia first visited the niche at Graceland, she went inside the
chapel and sat in the pews but did not approach the niche that
was covered with dark amber glass. The Blackwells were not able to
view the urn because it would have appeared only as a shadow behind
the glass. However, in June 1999, Marcia requested that the
urn be brought closer to the front of the niche. Sometime in
July of that year, Marcia received a telephone call from Robert Downey--the vice
president of the company that owned Gracelandinforming her that Phils remains were not
in the niche. Downey explained that the niche was empty when Graceland
personnel opened it.
As a result of the incident, Phillip and Marcia Blackwell filed a four-count
complaint against Dykes and Graceland on September 14, 1999. Counts I and
II sought damages for breach of contract, where the Blackwells contended that both
defendants were liable for losing the remains. They claimed that the breach
was extreme, outrageous, grossly negligent and reckless and, therefore, were entitled to punitive
damages. Appellants App. p. 17. Counts III and IV alleged that
Dykes and Graceland were liable for the intentional and negligent infliction of emotional
distress where they sought damages for shock, overwhelming mental anguish, psychological injury and
emotional trauma. Appellants App. p. 19.
Thereafter, Dykes and Graceland move for partial summary judgment. On October 24,
2001, the trial court granted those motions on the issues of intentional and
negligent infliction of emotional distress and punitive damages on the breach of contract
claims. In its order, the court determined that the Blackwells claims for
intentional infliction of emotional distress could not proceed because there was no intent
on the part of the Dykes or Graceland to inflict intentional harm.
Rather, the court determined that Dykes and Graceland exhibited poor judgment. Appellants
App. p. 7. It was also determined that the Blackwells had failed
to meet the criteria to support a claim for the negligent infliction of
emotional distress against either defendant. Appellants App. p. 8. Inasmuch as
the Blackwells claims for the negligent and intentional infliction of emotional distress could
not succeed, the trial court also concluded that punitive damages could not be
awarded. The trial court, however, permitted the Blackwells breach of contract claims
against Dykes and Graceland to proceed. The Blackwells now appeal the claim
with respect to their cause of action against Dykes and Graceland for the
negligent infliction of emotional distress.
DISCUSSION AND DECISION
I. Standard of Review
On appeal from the grant of summary judgment, this court faces the same
issues that were before the trial court and analyzes them in the same
manner. Moberly v. Day, 757 N.E.2d 1007, 1009 (Ind. 2001). The
purpose of summary judgment is to terminate litigation when there is no material
fact in dispute and the case can be determined as a matter of
law. W.M.T. v. A.R.H., 638 N.E.2d 815, 817 (Ind. Ct. App. 1994).
When a movant for summary judgment presents evidence that negates an element
of the plaintiffs cause of action and there is a prima facie showing
in this evidence, the burden shifts to the plaintiff to demonstrate the existence
of a genuine factual issue. If the plaintiff does not show the
existence of a factual issue, the entire action will fail. Chester v.
Indianapolis Newspapers, Inc., 553 N.E.2d 137, 141 (Ind. Ct. App. 1990). The
opposing party must designate to the court each material issue of fact that
precludes entry of summary judgment and the evidence relevant thereto. Ind. Trial
Rule 56(C). A factual issue is material for the purposes of T.R.
56(C) if it bears on the ultimate resolution of a relevant issue.
Murphy v. Mellon Accountants Profl Corp., 538 N.E.2d 968, 969 (Ind. Ct. App.
1989). A factual issue is genuine if it is not capable of
being conclusively foreclosed by reference to undisputed facts. Id. As a
result, despite conflicting facts and inferences on some elements of a claim, summary
judgment may be proper where there is no dispute or conflict regarding a
fact that is dispositive of the claim. Id. If the opposing
party fails to meet its responsive burden, the court shall render summary judgment.
W.M.T., 638 N.E.2d at 817. We view the pleadings, depositions, answers
to interrogatories, and affidavits in the light most favorable to the non-moving party.
Carie v. PSI Energy, Inc., 715 N.E.2d 853, 855 (Ind. 1999).
II. The Blackwells Claims
The Blackwells contend that the trial court erred in granting summary judgment as
to its claims against Dykes and Graceland for the negligent infliction of emotional
distress. Although no physical impact occurred here, the Blackwells maintain that the
circumstances dictate that their claim should proceed.
In resolving this issue, we first note that claims for the negligent infliction
of emotional distress were traditionally analyzed under the traditional impact rule. In
accordance with this doctrine, no recovery for emotional damages was available unless the
emotional trauma or distress was accompanied by and resulted from a physical injury
caused by an impact to the plaintiff. See Shuamber v. Henderson, 579
N.E.2d 452, 454 (Ind. 1991). The underlying rationale for Indianas traditional impact
rule was that absent physical injury, mental anguish is speculative, subject to exaggeration,
likely to lead to fictitious claims, and often so unforeseeable that there is
no rational basis for awarding damages. Cullison v. Medley, 570 N.E.2d 27,
29 (Ind. 1991). In Shuamber, however, our supreme court modified the impact
rule noting that very few states still require that the emotional distress arise
out of a physical injury. The Shuamber court determined:
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 . . . 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
Id. at 456.
The Blackwells point out here that this court was asked to extend Shuamber
to circumstances that involved an eight-year-old girl who, while walking to the mailbox
with her six-year-old brother, heard the impact of a police car strike her
brother in Groves v. Taylor, 711 N.E.2d 861, 862 (Ind. Ct. App.
1999). In rejecting that request, we noted that Shuamber requires a plaintiff
to show that she sustained a direct impact by the negligence of another
and that she suffered an emotional trauma as a result of that direct
involvement. Id. at 864.
In granting transfer, our supreme court observed that:
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.
Groves v. Taylor, 729 N.E.2d 569, 572 (Ind. 2000). It was not disputed
in Groves that the plaintiff did not suffer the kind of direct impact
required by Shuamber to recover as a bystander for emotional distress. Id.
at 572. However, the court in Groves went on to recognize that
the plaintiff must: (1) witness; (2) a fatal or serious physical injury caused
by the defendants negligent conduct (3) to a spouse, parent, child, grandparent, grandchild
or sibling. Id. at 572-73. As in Shuamber, the Groves court
evaluated a negligent infliction of emotional distress claim in the context of a
bystander suffering emotional distress that resulted from a physical injury that had occurred
to another person. In a more recent case, it was determined that
a mother, whose three-month-old child died from multiple congenital birth defects, could claim
damages for emotional distress in her medical malpractice action under the modified
impact rule. Bader v. Johnson, 732 N.E.2d 1212 (Ind. 2000). Our
supreme court commented that:
[b]ecause the etiology of emotional disturbance is usually not as readily apparent as
that of a broken bone following an automobile accident, courts have been concerned
. . . that recognition of a cause of action for [emotional] injury
when not related to any physical trauma may inundate judicial resources with a
flood of relatively trivial claims, many of which may be imagined or falsified,
and that liability may be imposed for highly remote consequences of a negligent
Id. at 1221 (alterations and omission in original)(quoting Consolidated Rail Corp. v. Gottshall,
512 U.S. 532, 545 (1994)).
Here, we note that the Blackwells, as bystanders, claim that they suffered emotional
distress that resulted from the alleged negligent conduct that involved a close relatives
remains. Even though the tripartite test set forth above may be inapposite
here, our supreme courts reasoning in Groves is persuasive and compelling. While
there was no physical impact, the Blackwells have alleged serious emotional trauma
and it is of a kind that a reasonable person would experience.
In our view, this is the type of claim that our supreme court
spoke of in Groves where the plaintiff is sufficiently and directly involved in
the incident giving rise to the emotional trauma. The rationale underlying the
impact rule that prevents concocted claims of mental anguish, is not implicated here.
We are satisfied that the evidence designated to the trial court in
this case is such that the alleged mental anguish suffered by the Blackwells
is not likely speculative, exaggerated, fictitious, or unforeseeable. See Bader, 732 N.E.2d
at 1221. Provided they can prevail on their negligence claim, we see
no reason why the Blackwells should not be able to claim damages for
emotional distress. As a result, we conclude that the trial court erred
in granting summary judgment for Dykes, and the Blackwells claim against it should
be permitted to proceed.
We note, however, that the Blackwells have not designated any evidence showing that
Graceland ever took possession of the urn. Rather, the Blackwells have only
asserted that Patricia Dykes brought [the urn], found that it didnt fit and
took it back to Dykes. Appellants Br. at 4. Because the
facts did not support an inference that Graceland took possession of the urn,
the Blackwells have failed to state a claim against it. Thus, we
decline to disturb the trial courts entry of summary judgment in Gracelands favor.
Judgment affirmed in part, reversed in part and remanded for further proceedings consistent
with this opinion.
SULLIVAN, J., and DARDEN, J., concur.
Patricias duties included arranging funerals, bookkeeping and following every detail
of the families from the minute they step in the office. Appellants
App. p. 234, 326-30.
Footnote: We note that the Blackwells have filed a reply brief,
wherein they have alleged for the first time that the trial courts decision
should be reversed on the basis of res ipsa loquitur. In accordance
with Ind. Appellate Rule 46(C), which provides in part that no new issues
shall be raised in the reply brief, we grant Gracelands Motion to Strike
Reply Brief of the Appellants filed with this court on May 23, 2002.