Emotional Distress and the ‘Bystander Rule’

The Ever-Broadening Class Of Plaintiffs

On November 14, 2014, the Indiana Court of Appeals released its opinion in Clifton v. McCammack, No. 49A02-1404-CT-276. In doing so, it interpreted existing Indiana precedent to allow emotional distress damages to a broader class of persons. In this case, Ray Clifton had been living with his 51-year-old son, Darryl Clifton, who had been caring for his father following Ray’s back surgery six months prior. At 11:15 one morning, Darryl left home on his moped to head to town. Unbeknownst to his father Ray, he was involved in a tragic accident with a negligent driver, Ruby McCammack, who pulled out in front of him. As Ray watched T.V. at home, he saw a breaking news story of a “motorbike fatality on Kentucky Avenue.” Knowing that his son had left on a moped and usually took the route, Ray had a horrible feeling. He immediately got in his car and went to the scene where he saw several emergency vehicles gathered around the wrecked care and moped. Right next to them was a dead body covered by a blanket with the feet exposed. He recognized the moped, and saw that the protruding shoes of the dead body were those of his son, Darryl. He was led to an Arby’s restaurant by a police officer who called a chaplain. A woman spoke to him as well, telling him that she was at the scene and comforted Darryl, praying with him until he died.

Ray Clifton sued McCammack for negligent infliction of emotional distress. The court threw out his case one summary judgment, but the decision was reversed on appeal. The significance of this just-published court opinion requires a review of the development of this area of law over the past several years.

People who are injured by others have long been able to claim “emotional distress” as part of their overall damages. However, for those who suffer emotional distress but weren’t involved and don’t have a physical injury, the right lies in an independent claim for “negligent infliction of emotional distress”. Such a claim has always been limited, and over the years, a handful of notable Indiana cases have established who could make such a claim. Originally, recovery was available only to those whose distress was: (a) accompanied by, and (b) resulted from, a physical injury caused by an impact to the person seeking recovery could recover. This was known as the “impact rule.” The purpose for this limitation, the courts reasoned, was that otherwise the courts would be flooded with claims by parties who had lost loved ones in accidents. The fear was that there would be “spurious” claims.

The first notable expansion of the rule came in 1991 from the Indiana Supreme Court in the case, Shuamber v. Henderson. The Schuamber Court held that the tort could apply in certain cases where the emotional distress was the result of a physical injury negligently inflicted on another person. (The “impact rule” required that the emotional distress derive from one’s own physical injuries). However, the recovering parties in Schuamber were the mother and sister who were in the vehicle with the boy when he was killed in an accident. This became known as the “modified impact rule.” Then in 2000, the Indiana Supreme Court again expanded the right to recover in the case Groves v. Taylor. In Groves, the court ruled that, in some cases there may be no direct impact, but the plaintiff is sufficiently directly involved in the incident that the court can distinguish the legitimate claims from the “mere spurious.” Thus, what became known as the “bystander rule” was borne:

[W]here 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.

(Worth mentioning in the line of cases marking the evolution of emotional distress expansion cases is Blackwell v. Dykes Funeral Homes, Inc. in 2002. The Indiana Court of Appeals went even further and allowed emotional distress recovery to two parents whose child’s cremated remains were lost by a funeral home. The facts did not support the requirements of the impact rule or the bystander rule. But one could hardly question the genuine nature of the parents’ emotional suffering. The case is of questionable precedent given that it was not a ruling by the highest court, and does not involve any type of accident).

Thus, under the bystander rule, even if someone was neither involved in nor witnessed the accident of a loved one, if they “come up on the scene soon after” the accident they may be able to recover. How “soon after” the accident has been held to be a question of law for the judge to decide, and in the 2007 case Smith v. Toney, the Indiana Supreme Court adopted the reasoning of a Wisconsin case and held that this proximity limitation was not just a question of the amount of time that had elapsed, but of the circumstances as well. Therefore, while there is no established bright line as to when a close relative must arrive at a scene, recover should be allowed “only by claimants who witnessed the accident or experienced the ‘gruesome aftermath’ of the accident ‘minutes’ after the accident occurred with the victim at the scene.” Bystander claims are not intended to compensate everyone who loses a loved one. The right to recover damages is reserved for bystanders whose emotional distress arises from the shock of experiencing the traumatic event. It is not for those who learn of the event indirectly.

In sum, those who aren’t present can still qualify as “bystanders” if they come upon the scene so soon afterward that what they see and experience upon arrival is essentially as shocking as if they had been there when the incident occurred. This new decision in the Clifton case is notable because many of the traditional factors were stretched. Ray Clifton learned of the accident on television (although he wasn’t sure it was his son), arrived 45 minutes after the accident and approximately 23 minutes after Darryl passed away (not immediately), the vehicles and body were not in their original spots (but a witness described the scene as essentially the same), Ray never saw his son’s body-the “gruesome aftermath” (just his moped up against the car and his shoes extending from under the cover), and finally, that he voluntarily exposed himself to the scene. Despite these factors, the Court ruled that Clifton did view the “gruesome aftermath of Darryl’s death, and accordingly his claim satisfies the temporal prong of the bystander rule’s proximity requirement.”