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Lachenman v. Stice11/30/2005
led to forward ultrasound results to Mrs. Johnson's treating physician, which results indicated that the child she was carrying also had hydrocephalus. When Mrs. Johnson's treating physician eventually detected the abnormalities, it was too late to terminate the pregnancy. Mrs. Johnson later gave birth to a child with multiple birth defects who died after four months. The Johnsons sued Dr. Bader and her employer, and the trial court denied the defendants' motion for summary judgment. Upon transfer, our Supreme Court again discussed the evolution of the impact rule, noting that the modified impact rule still required "physical impact." Id. at 1221. Applying the rule to the facts of that case, the court held that Mrs. Johnson's "continued pregnancy and the physical transformation her body underwent as a result satisf the direct impact requirement of our modified impact rule." Id. at 1222. With regard to Mr. Johnson's claims, however, the court held that he suffered no direct impact. Id. Nevertheless, the court remanded to allow him to present evidence that he fit within the "relative bystander rule" adopted in Groves. Bader, 732 N.E.2d at 1222.
Thus, after our Supreme Court had further expanded the possibility of recovery for negligent infliction of emotional distress by adoption of the bystander rule in Groves, it reaffirmed that the modified impact rule still required physical impact in Bader. Several subsequent cases from this court have required a direct physical impact under the modified impact rule. See Munsell v. Hambright, 776 N.E.2d 1272 (Ind. Ct. App. 2002) (holding that where designated evidence revealed no impact of any kind upon plaintiff, and plaintiff did not fit within bystander rule, summary judgment was properly entered for defendants upon plaintiff's claim of negligent infliction of emotional distress); Powdertech, Inc. v. Joganic, 776 N.E.2d 1251 (Ind. Ct. App. 2002) (noting that modified impact rule requires physical impact, court held that summary judgment should have been granted to defendant upon plaintiffs' claim of negligent infliction of emotional distress resulting from employer 's act of firing employee pursuant to employment policy); Ritchhart v. Indianapolis Pub. Schs., 812 N.E.2d 189 (Ind. Ct. App. 2004) (holding that summary judgment was properly entered for defendant school corporation on plaintiff's claim of negligent infliction of emotional distress where no physical impact occurred and bystander rule was inapposite); cf. Ketchmark v. N. Ind. Pub. Serv. Co., 818 N.E.2d 522 (Ind. Ct. App. 2004) (summary judgment properly entered in favor of defendant utility company where plaintiff's claim of negligent infliction of emotional distress was not supported by direct impact upon or threat of injury to a person, either the plaintiff or a loved one).
A few opinions from this court, however, have more liberally applied the modified impact rule and the relative bystander rule. In Blackwell v. Dykes Funeral Homes, Inc., 771 N.E.2d 692 (Ind. Ct. App. 2002), trans. denied, the court reversed an entry of summary judgment in favor of the defendant funeral home. In that case, the plaintiffs sued the funeral home after their son's cremated remains were not entombed at a cemetery as requested. In fact, the niche the plaintiffs had visited, thinking it contained their son's ashes, was empty. It was undisputed that no physical impact had taken place. After discussing Shuamber, Groves, and Bader, the court wrote:
"Here, we note that the Blackwells, as bystanders, claim that they suffered emotional distress that resulted from the alleged negligent conduct that involved a close relative's remains. Even though the tripartite test set forth [in Groves] may be inapposite here, o
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