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.