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Lachenman v. Stice11/30/2005
ment. Fearing that the truck would further crush her friend as it moved forward, Wood pounded on the side of the truck in an attempt to get the driver's attention. Although the truck came to a stop just before it ran over Brittain's head, she died at the scene. Wood sued Conder for, among other things, negligent infliction of emotional distress. The trial court denied Conder's motion for summary judgment. Upon transfer, our Supreme Court discussed the modified impact rule from Shuamber, and stated that the rule "maintains the requirement of a direct physical impact." Conder, 716 N.E.2d at 434. The court also addressed the plaintiff's claim that she sustained a direct impact by pounding on the side of the truck, stating:
"'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 (footnote omitted).
The court held that Wood clearly sustained an "impact" by pounding on the truck, that she suffered emotional trauma as a result of her direct involvement in Conder's negligence, and that Conder was therefore not entitled to judgment as a matter of law. Id.
After the Conder decision, the court held in Alexander v. Scheid, 726 N.E.2d 272 (Ind. 2000), that destruction of healthy tissue as a result of defendant's alleged medical malpractice was sufficient physical impact under the modified impact rule.
The next significant development in the law of negligent infliction of emotional distress occurred in Groves v. Taylor, 729 N.E.2d 569 (Ind. 2000). In Groves, our Supreme Court adopted what has been referred to as the "bystander" or "relative bystander" rule. In that case, the plaintiff, an eight-year-old girl, watched her brother cross a highway to get the mail. The plaintiff turned away from her brother to walk back to her house when she heard a loud "pop." Id. at 571. She turned around and although she did not see the impact, did see her brother's body roll off the highway as a result of being hit by a car. Upon transfer from an affirmance of summary judgment in favor of the defendants, our Supreme Court noted that it was undisputed that the plaintiff had not suffered the kind of "direct impact" required by the impact rule as modified in Shuamber. Groves, 729 N.E.2d at 572. The court nevertheless held that:
"the reason for requiring direct involvement is to be able to distinguish legitimate claims of 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." Id.
After analyzing a Wisconsin case involving similar facts, the Groves court held:
"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 [tortious] conduct." Id. at 573.
In Bader v. Johnson, 732 N.E.2d 1212 (Ind. 2000), a case decided later that year, Mrs. Johnson, who had previously given birth to a child with hydrocephalus, sought consultation from Dr. Bader, but Dr. Bader's office failed to schedule her for follow-up treatment and fai
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