Ross v. Cheema

SULLIVAN, Judge,

concurring.

In my view, the underlying facts of Shuamber v. Henderson, (1991) Ind., 579 N.E.2d 452 , would have justified recovery for emotional distress under the pre-existing physical impact rule and without modifying the test. In that.ease, the automobile collision constituted a physical impact sufficient to cause plaintiffs own physical injuries in addition to the emotional distress occasioned by her son’s death in the crash. I can only presume, therefore, that it was the intention of the court to “modify” the rule for fixture cases. In this sense, in stating that “[w]hen, as here” the plaintiff sustains a “direct impact”/“direct involvement” ( 579 N.E.2d at 456 ), the court was merely restating the preexisting rule as to ‘ impact, but in dictum pronounced that in the future the emotional distress need not be accompanied by physical injury to the plaintiff. I'find no case, subsequent to Shuamber, supra, which has allowed' recovery for emotional distress' without a pre-Shuamber physical impact or an accompanying physical injury. Compare Holloway v. Bob Evans Farms, Inc., (1998) Ind.App., 695 N.E.2d 991 (eating one-half of a meal containing a worm was clearly direct impact with “wormy food” although the worm itself was not consumed), Dollar Inn, Inc. v. Slone, (1998) Ind.App., 695 N.E.2d 185 (plaintiff stabbed in thumb by hypodermic needle concealed in center tube of roll of toilet paper was clearly a direct impact), and J.L. v. Mortell (1994) Ind.App., 633 N.E.2d 300 , trans. denied (inappropriate vaginal massage by physical therapist causing emotional distress was clearly a direct impact) with Gorman v. I & M Electric Co., Inc. (1994) Ind. App., 641 N.E.2d 1288 , trans. denied (recovery-for -emotional distress denied because plaintiff did not suffer an impact when she escaped a negligently-caused fire to her house, but suffered emotional distress mistakenly thinking her child was still in the house.)

Although' the impact rule has been not been “modified” into extinction, the continued presence of the “direct impact”/“direct involvement” requirement makes it necessary, in future eases not involving a claim for physical injury accompanied by emotional distress, to force square-peg facts into the round-hole physical impact test.

I acknowledge that a “modified” impact test may be viewed as a way to retain a degree of restraint upon remote or speculative emotional stress claims. However, I subscribe to the wisdom and validity of the approach reflected in footnote 3 of the majority opinion herein. In this light and in light of the “modified” test, I therefore concur in reversal of the summary judgment which was entered in favor of the defendants.