Groves v. Taylor

Attorneys for Appellants

Frederick N. Hadley

Indianapolis, Indiana

W. Scott Montross

Townsend & Montross

Indianapolis, Indiana

Attorneys for Appellees

Jeffrey A. Modisett

Attorney General of Indiana

Carol A. Nemeth

J.T. Whitehead

Deputy Attorney General

Indianapolis, Indiana

Attorneys for Amicus Curiae The Defense Trial Counsel of Indiana

Stephen R. Pennell

Ann Marie Waldron

Stuart & Branigan

Lafayette, Indiana

James D. Johnson

Mattingly, Rudolph, Fine &

Porter, LLP.

Evansville, Indiana

IN THE

INDIANA SUPREME COURT

TERRY L. GROVES and ELIZABETH GROVES, Parents of TERRY L. GROVES, II, and

MARYBETH ELLEN GROVES, by her next friend TERRY L. GROVES,

Appellants (Plaintiffs below),

v.

JACQUELINE TAYLOR, INDIANA STATE POLICE, and the STATE OF INDIANA,

Appellees (Defendants below).

)

)

)

)

) Supreme Court No.

) 14S01-0006-CV-358

)

) Court of Appeals No.

) 14A01-9808-CV-284

)

)

)

)

APPEAL FROM THE DAVIESS CIRCUIT COURT

The Honorable P. J. Pierson, Special Judge

Cause No. 14C01-9412-CT-315

ON PETITION TO TRANSFER

June 7, 2000

SULLIVAN, Justice.

While standing in her driveway, plaintiff MaryBeth Groves heard the

loud “pop” of a vehicle fatally striking her brother and turned to observe

his body as it rolled off the highway. She appeals lower court

determinations disallowing her pursuit of mental trauma damages under the

modified impact rule. Finding sufficient direct involvement, we hold that

the plaintiff may present her mental trauma claim to a jury.

Background

A summary of the facts most favorable to the judgment show that on

August 29, 1994, eight-year-old MaryBeth and her six-year-old brother,

Terry, walked down the driveway of their home, which was located on State

Road 58. MaryBeth watched as her brother crossed the highway towards the

mailbox. As Terry reached to check the mail, MaryBeth turned and began

walking back toward the house. Suddenly, MaryBeth heard a “big pop.” She

turned to see what had happened and saw her brother’s body as it rolled off

of the highway. A police vehicle had just struck Terry. The driver

immediately turned around and went back to the accident scene. MaryBeth

was frightened as the police vehicle sped toward her and she turned and ran

to get her mother.

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 action against the State.[1] 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 brother’s death. The

State filed a motion for partial summary judgment seeking judgment as a

matter of law on MaryBeth’s 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, J., concurring).

Discussion

I

In Shuamber v. Henderson, 579 N.E.2d 452 (Ind. 1991), we set forth the

rule for when a person who witnesses a physical injury negligently

inflicted on another is entitled to recover for emotional distress. There

we said:

When . . . a plaintiff sustains a direct impact by the negligence of

another and, by virtue of that direct involvement sustains 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 plaintiff.

Id. at 456.

In 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.

2000).

In the present case, it is undisputed that the plaintiff did not

suffer the kind of direct impact 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 bicycle.[2] Id. at 435. The court’s

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 victim’s 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 serious 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 one witnesses 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 one’s 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 nevertheless 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 defendant’s negligent or otherwise tortuous conduct.

II

Although MaryBeth was not the primary victim of the alleged negligent

conduct, she witnessed the gruesome aftermath of her younger brother being

struck and violently killed by a speeding automobile. She was close enough

to hear the “pop” of the impact and observe her brother’s body as it rolled

off the highway after being struck.

In order for a bystander to recover for emotional distress resulting

from physical injury 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. Second, MaryBeth was Terry’s sister and so the

relationship test is also satisfied. Id. Third and finally, MaryBeth

witnessed a portion of the injury-producing event, specifically her

brother’s 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 MaryBeth’s allegations have met the alternate

criteria of direct involvement and may proceed. Defendants are not

entitled to judgment as a matter of law.

Conclusion

We therefore grant transfer, vacate the opinion of the Court of

Appeals, vacate the trial court’s grant of summary judgment, and remand to

the trial court for further proceedings consistent with this opinion.

SHEPARD, C.J., and DICKSON, BOEHM and RUCKER, JJ., concur.

-----------------------

[1] Ind. Code § 9-21-1-8 (1993) provides that persons who drive an

authorized emergency vehicle, such as a police car, are not relieved from

the duty to drive “with due regard for the safety of all persons,” even

though such drivers may disobey certain rules of the road. See also

Quakenbush v. Lackey, 622 N.E.2d 1284, 1290 (Ind. 1993).

[2] Wisconsin law required that the plaintiff’s “emotional distress

[have] an accompanying or resulting physical injury.” Bowen, 517 N.W.2d at

441.