In two recent holdings, the Indiana Supreme Court has expanded the proximity requirement with respect to claims for negligent infliction of emotional distress. At common law, recovery of damages for negligent infliction of emotional distress is only permitted in three instances: (1) when the plaintiff suffered a direct physical impact resulting in physical injury (the impact rule); (2) when the plaintiff suffered a direct physical impact and the defendant’s negligence results in the injury or death of a third party (the modified impact rule); and (3) when the plaintiff witnesses a relative’s death or severe injury or viewed the immediate aftermath of the incident (the bystander rule). K.G. by Next Friend Ruch v. Smith, 178 N.E.3d 300, 303 (Ind. 2021). The bystander rule is the most liberal of the three and at common law required three elements: (1) the bystander must come on the scene at or immediately following the incident; (2) the claimant must not have been informed of the incident before coming upon the scene; and, (3) the scene and victim must be in essentially the same condition as immediately following the incident. Ceres Sols. Coop., Inc. v. Est. of Bradley, No. 21A-CT-377, 2022 WL 108931, at *3 (Ind. Ct. App. Jan. 12, 2022).
In December 2021, the Indiana Supreme Court held in Ruch that a “narrow expansion” of the bystander rule was required in the spirit of justice. Ruch, 178 N.E.3d at 300. In doing so, the Indiana Supreme Court held that when a caretaker assumes responsibility for a child and owes a duty of care to the child’s guardian, a claim against the caretaker for negligent infliction of emotional distress may proceed when the guardian later discovers “with irrefutable certainty” that the caretaker sexually abused the child and that abuse severely impacts the guardian’s emotional health. Id.
In Ruch, the plaintiff’s minor child was severely disabled and attended a school where she received special needs services, including diaper changes by an instructional assistant. Id. The instructional assistant sexually abused the child during a diaper change and the plaintiff discovered the sexual abuse over two years later when the instructional assistant confessed. Id. The plaintiff filed a civil lawsuit against the instructional assistant, the school and the school district in her individual capacity alleging emotional distress as a result of her child’s abuse which inhibited her ability to care for her child and required her to place the child in a chronic care facility. Id. The plaintiff admitted during the summary judgment phase that her claims did not meet the modified impact or bystander rule under common law in order to be awarded damages under her negligent infliction of emotional distress claim. However, she asked the court to create a “bright line rule” allowing for her recovery given her unique circumstances. Id. The trial court granted summary judgment for defendants and the plaintiff appealed. Id. at 304. The Indiana Court of Appeals affirmed the trial court’s holding with respect to the plaintiff’s individual claims for negligent infliction of emotional distress. Id.
The Indiana Supreme Court granted transfer and reversed the Appellate Court’s holding. Id. The Supreme Court agreed that the plaintiff’s claims fell beyond the confines of the common law modified impact and bystander rules. However, the Supreme Court examined the evolution of the common law rules regarding negligent infliction of emotional distress claims and the policy reasons behind those rules. Ultimately, the Court determined that the circumstances presented in Ruch compelled further evolution of the bystander rule and did not present any public policy concerns. Id. Specifically, the Court reasoned that in cases of child sexual molestation, the act of sexually molesting a child is hidden through concealment and rarely will a bystander witness the harm of its aftermath. Id. at 308. The Court explained that the lack of proximity to the tortious act does not reduce a guardian’s shock of learning of the traumatic event and the emotional trauma experienced by guardians who learn of this traumatic—even indirectly—is “so ‘compelling as to warrant compensation.’” Id. Thus, under the new rule imposed by the Indiana Supreme Court, a guardian may recover on a claim for negligent infliction of emotional distress when their child has been entrusted with a caretaker, the caretaker owed a duty of care to the child’s guardian, the guardian later learns with irrefutable certainty that the caretaker sexually abused the child and the abuse severely impacts the guardian’s emotional health. Id.
The Supreme Court held that this new carve out to the bystander proximity requirement includes sufficient protections against public policy concerns. Id. In particular, the new carve out meets the requirements of serious harm to the victim and a close familial relationship between the victim and plaintiff of the bystander rule. Id. 308-309. The carve out also limits guardians’ claims against those with a duty of care to the guardian which ensures protection against open-ended liability and requires irrefutable certainty of the tort’s commission. Id. at 309. Finally, the discovery of the abuse must severely impact the guardian’s mental health requiring a showing of medical or psychiatric treatment, lack of daily functioning or dramatic changes to the guardian’s demeanor toward family and friends. Id. Because the Supreme Court determined that the facts in Ruch met all requirements under the new carve out to the proximity requirement of the bystander rule, it reversed the Appellate Court’s grant of summary judgment to the defendants and remanded the case to the trial court. Id. at 313.
More recently, in January 2022, the Indiana Court of Appeals further expanded the proximity requirement in Bradley. Bradley, No. 21A-CT-377, 2022 WL 108931, at *1. In Bradley, the defendant company refilled a propane tank at the plaintiff’s home but failed to check for leaks. Id. At 2:30 a.m. the following morning, the plaintiff’s son turned on a lamp which resulted in an explosion and house fire. The son suffered severe burns but was able to escape the home. A firefighter who lived nearby responded to the fire and the firefighter’s wife set up a roadblock three-quarters of a mile from the plaintiff’s home. The plaintiff was travelling home from work when he came upon the roadblock around 5:20 a.m., saw the flames and knew they were coming from his home. Id. He passed through the roadblock arriving at his home at 5:24 a.m. Id. at *2. The plaintiff witnessed his son on a gurney who appeared sunburnt with singed hair. The firefighters had to wait until the flames decreased so they could enter the portion of the house where the plaintiff’s wife was thought to be located. Once she was located, the firefighters made the plaintiff leave the scene so his wife could be removed from the house. The plaintiff’s wife died in the fire. Id.
The plaintiff filed a lawsuit against the defendant alleging, in part, negligent infliction of emotional distress as to injuries suffered by both his son and wife. Id. The trial court granted the defendant’s motion for summary judgment with respect to the plaintiff’s claims as to his son but denied its motion with respect to the plaintiff’s claims as to his wife. Both plaintiff and defendant appealed. Id.
This was a case of first impression in Indiana because the injury-producing event was not instantaneous but rather an on-going event. Id. at *3. Thus, the Appellate Court looked to other jurisdictions to determine whether the plaintiff met the first prong of the bystander rule, i.e., the circumstances surrounding the plaintiff’s discovery of his son’s and wife’s injuries. Id. The Appellate Court determined that although the plaintiff arrived nearly three hours after the initial explosion, the fire was ongoing when he arrived, he came upon the scene while his son was still present and was at the scene for nearly two hours before firefighters found and removed his wife from the home, thus, satisfying the first prong of the bystander rule. Id. at *4. The Appellate Court also held that the plaintiff discovered the incident upon coming upon the roadblock and seeing the flames at his home, which satisfied the second prong. Id.
As for the third prong—whether plaintiff witnessed a portion of the gruesome aftermath of the incident—the Appellate Court also found in favor of the plaintiff. Id. at *5. With respect to the plaintiff’s son, the Court held that the plaintiff witnessed the burns on his son’s face in front of his burning home which satisfied the requirement. Id. at *4-*5. For the plaintiff’s claims of emotional distress for his wife’s injuries, the Court had to determine whether the plaintiff experienced a “sudden sensory observation” or experience without actually viewing the body of his wife. Id. at *5. Again, the Court looked to other jurisdictions for guidance and held that it was not necessary for the plaintiff to witness the actual injury being inflicted to his wife by the fire provided that the plaintiff was at the scene of the fire and was sensorially aware of the fire that inflicted injury to the victim. Id. at *7. The fact that the firefighters removed the plaintiff from the scene implied that the wife’s body was in such a disturbing condition that the plaintiff should not be subjected to the traumatic visual. Id. Thus, the bystander rule was expanded by the Indiana Appellate Court to afford a plaintiff recovery for negligent infliction of emotional distress for injuries suffered to a relative under a non-visual sensory perception rule. Id.
These cases evidence that Indiana Courts are beginning to expand the requirements of negligent infliction of emotional distress claims to a broader category of plaintiffs. Although the Courts remain steadfast in ensuring that the expansions of the common law rules protect against open-ended liability, deter a floodgate of litigation and protect public policy concerns, continued expansion of these rules on a case-by-case basis may encourage more plaintiffs to seek damages under a negligent infliction of emotional distress theory.
If you have questions about negligent infliction of emotional distress claims, contact Melanie Kalmbach at firstname.lastname@example.org or your DSV attorney.
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