“Where Does This Tort End?” Drawing the Line on Negligent Infliction of Emotional Distress Claims in Indiana
By: Tracey S. Wetzstein
On September 21, 2015, the Indiana Supreme Court issued its unanimous opinion in Clifton v. McCammack, 49D02-1504-CT-228, which reaffirmed the limits on the “bystander rule” as applied to negligent infliction of emotional distress claims (“NIED”).
In Indiana, NIED claims had been carefully limited. Spangler v. Bechtel, 958 N.E.2d 458, 466 (Ind. 2011). A claim for NIED arising out of the negligence of another was only permitted in two situations: “where the plaintiff has (1) witnessed or come to the scene soon thereafter the death or severe injury of certain classes of relatives (i.e., the bystander rule), or (2) suffered a direct impact (i.e., the modified impact rule).” Id.; see also Atlantic Coast Airlines v. Cook, 857 N.E.2d 989, 998 (Ind. 2006); Groves v. Taylor, 729 N.E.2d 569, 573 (Ind. 2000); Shaumber v. Henderson, 579 N.E.2d 452, 456 (Ind. 1991). Simply put, in order to recover damages for NIED, the plaintiff had to be able to satisfy either the bystander rule or the modified impact rule. Spangler, 958 N.E.2d at 465; Atlantic Coast Airlines, 857 N.E.2d at 998.
The bystander rule specifically would allow for recovery on a claim for NIED if the plaintiff could establish that he actually witnessed or came on the scene soon after the death or serious injury of a loved one, such as a child, that was caused by the defendant’s negligent conduct. Smith v. Toney, 862 N.E.2d 656, 659 (Ind. 2007); Spangler, 958 N.E.2d at 465; Groves, 729 N.E.2d at 573. However, the Indiana Supreme Court has acknowledged that “[b]ystander claims are not meant to compensate every emotional trauma. Rather they are limited to those that arise from the shock of experiencing the traumatic event.” Smith, 862 N.E.2d at 663.
In Clifton, the Indiana Supreme Court was presented with the issue of whether a plaintiff has a viable NIED claim when the plaintiff had some knowledge of the incident, then went to the scene of the incident. The plaintiff in this case shared a home with his adult son. The son left the home on his moped, and was killed in a motor vehicle accident approximately fifteen minutes later. While the father was watching television, there was “breaking news” of a motorbike fatality in the vicinity. There were no pictures or video of the scene, and the news segment did not identify the victim. The father knew that the decedent has just left on his motorbike, and that the reported accident scene was along the route that the decedent usually took. The father reported having a “very bad feeling,” so he quickly drove to the scene of the accident.
Upon arriving at the scene, the father saw a body covered with a sheet, with the shoes sticking out, and a moped. The father immediately recognized both the shoes and the moped as belonging to his son. The father did see the ambulance arrive, but did not see the body being loaded into the ambulance.
At the trial court level, the defendant filed summary judgment on the basis that the NIED claim did not meet the requirements of the bystander rule. The trial court granted summary judgment in favor of the defendant, finding that the plaintiff had failed to meet the temporal and circumstantial requirements as set forth in Smith v. Toney, 862 N.E.2d 656 (Ind. 2007).
The Court of Appeals reversed the trial court’s ruling. The Court first determined that the plaintiff had come onto the scene soon after the “death or severe injury of a loved one,” so the timing, proximity, and circumstances requirements were fulfilled. Clifton v. McCammack, 20 N.E.3d 589, 596-97 (Ind. Ct. App. 2014). The court also found that the plaintiff had not been directly informed of the decedent’s involvement in the crash prior to arriving at the scene. Id. at 600. The court therefore held that the bystander rule had been satisfied.
The Indiana Supreme Court accepted transfer, and soundly reversed the Court of Appeals on September 21, 2015. Noting the importance of “bright line rules” for this claim, particularly as a lack of clarity could result in an unlimited number of potential claimants, the Indiana Supreme Court reaffirmed the limits of the claim. First, the Court noted that the scene as witnessed by the father had materially changed from the time of the accident. The body had been moved and covered. As such, the father did not experience the “uninterrupted flow of events” following the collision, or have the “sudden sensory experience” necessary to establish a direct involvement in the accident. The Court found that as a matter of law, the father did not view the “gruesome aftermath” of the incident. Clifton v. McCammack, 2015 WL 5547140, *8 (Ind. 2015).
Next, the Court found that another circumstantial factor required—but not met—was that the claimant must not have been informed of the incident before coming upon the scene. In Clifton, the father had learned of the accident through indirect means, so recovery was precluded. The Court noted that this circumstantial factor had an element of fortuity: a bystander arrives at an accident scene unwittingly. There could be no period of time during which the bystander could “brace” himself.
Finally, the Court explained that major public policy concerns necessitated the drawing of bright lines with regard to this type of claim. In this time of texting, tweeting, and social media, to allow a claimant to recover when the emotional distress resulted from seeing or being exposed to a news story would result in virtually unlimited litigation.
The Indiana Supreme Court has reaffirmed and clarified the basic elements of a negligent infliction of emotional distress claim under the theory of bystander recovery: 1.) the scene viewed by the claimant must be essentially as it was at the time of the incident; (2.) the victim must be in essentially the same condition as immediately following the accident; and, 3.) the claimant must not have direct or indirect prior knowledge of the incident before coming upon the scene. Clifton, 2015 WL 554710, ** 8, 9 (Ind. 2015); Smith, 862 N.E.2d at 663; York v. Fredrick, 947 N.E.2d 969, 974 (Ind. Ct. App. 2011).
 Justice Mark S. Massa, June 11, 2015, during oral arguments in Clifton v. McCammack, 49S02-1504-CT-228.
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