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Lachenman v. Stice11/30/2005
ur supreme court's reasoning in Groves is persuasive and compelling. While there was no physical impact, the Blackwells have alleged serious emotional trauma and it is of a kind that a reasonable person would experience." Blackwell, 771 N.E.2d at 697 (emphasis supplied).
We understand the holding in Blackwell to be a fact-specific expansion of the Groves bystander rule in that the court specifically mentioned the plaintiffs as "bystanders," and referred directly to Groves.
In Keim v. Potter, 783 N.E.2d 731 (Ind. Ct. App. 2003), and Ryan v. Brown, 827 N.E.2d 112 (Ind. Ct. App. 2005), both plaintiffs brought suit for medical malpractice. In Keim, the court held that a mistaken diagnosis of hepatitis C, a life-altering and potentially deadly illness, was sufficient "direct involvement" to allow a recovery for negligent infliction of emotional distress. 783 N.E.2d at 735. The court in Ryan, following Keim, held that the plaintiff could satisfy the modified impact rule where she alleged that the defendants committed medical malpractice which led to her miscarrying. 827 N.E.2d at 121. So far as our research has revealed, aside from cases involving the bystander rule as set forth in Groves and expanded in Blackwell, the only cases in which a direct, physical impact was not a prerequisite for recovery for negligent infliction of emotional distress involved medical malpractice.
Turning to the present case, the designated evidence construed in the light most favorable to Lachenman reveals no direct physical impact to her. Lachenman appears to concede in her appellant's brief that she did not sustain any bodily injury. Appellant's Brief at 12. She testified in her deposition that no one was bitten or injured during the attack which resulted in her dog's death, and she does not allege medical malpractice. Thus, we conclude that she fails to meet the requirements of the modified impact rule.
We also conclude that Lachenman fails to fit within the bystander rule. Lachenman is correct to note that the bystander rule does not require that the plaintiff witness a severe injury only to a spouse, parent, child, grandparent, grandchild, or sibling; the rule also includes "loved one with a relationship to the plaintiff analogous" to such persons. Groves, 729 N.E.2d at 572. However, we cannot agree with Lachenman's argument that she meets the requirements of the bystander rule because the rule "clearly covers her beloved pet." Appellant's Brief at 17. We are not willing to expand the bystander rule to include pets, however beloved by their owners. Such an expansion, if warranted, would be the prerogative of our Supreme Court. We therefore reject the notion that witnessing the death or severe injury of a pet is sufficient direct involvement to allow a claim of negligent infliction of emotional distress. Indeed, if witnessing the death or severe injury of a unknown third party, or perhaps even an acquaintance, is insufficient to give rise to a claim of negligent infliction of emotional distress under the rule announced in Groves, then we cannot say that witnessing the death or severe injury of an animal could give rise to such a claim.
We further note that although many pets are beloved by their owners, they remain property. The plaintiffs in Ketchmark, supra, lost heirlooms, photos, and a family home during a natural gas explosion. In rejecting the plaintiffs' claim of negligent infliction of emotional distress, the court in Ketchmark observed that we have generally refused to allow recovery for emotional distress where there has been only an economic loss. See 818 N.E.2d at 524-25. The loss of a pet dog is similarly only an economic loss which does not support a claim of neglig
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