Emotional Distress And The ‘Bystander Rule’

How Does Negligent Infliction Of Emotional Distress Work?

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, who had been caring for Ray following his back surgery six months prior.

At 11:15 one morning, Darryl left home on his moped to head to town. Unbeknownst to Ray, he was involved in a tragic accident. Ruby McCammack negligently pulled out in front of him. As Ray watched TV at home, he saw a breaking news story of a motorbike fatality on Kentucky Avenue.

Ray had a horrible feeling knowing that his son had left on a moped and usually took the route. So, he immediately got in his car and drove to the scene, where he saw several emergency vehicles gathered around the wrecked car and moped.

Next to them was a body under a blanket with its feet exposed. Ray recognized the moped and saw the protruding shoes were those of his son. Shortly after, a police officer took him to an Arby’s restaurant and called a chaplain. A woman also spoke to him, 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 on 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 injured by others have long been able to claim emotional distress as part of their overall damages. However, for those who suffered emotional distress but weren’t involved and or physically injured, 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 accompanied by, and resulted from, a physical injury caused by an impact of the person seeking recovery could recover. This was known as the impact rule. The purpose for this limitation, the courts reasoned, was that the courts would otherwise be flooded with spurious claims by parties who had lost loved ones in accidents.

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 resulted from a physical injury negligently inflicted on another person. The impact rule required that the emotional distress derives 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 Groves v. Taylor. In Groves, the court ruled that in some cases, although there may not be a direct impact, 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 born:

[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.

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. 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, recovery 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.

It is worth mentioning that 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 did not involve any accident.

Can I Sue For Emotional Distress As A Bystander?

Those who aren’t present can still qualify as “bystanders” if they arrive at 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 traditional factors were stretched. Ray Clifton:

• Learned of the accident on television despite not being sure it was his son;
• Arrived approximately 45 minutes after the accident and 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);
• Never saw his son’s body – the “gruesome aftermath” – only his moped up against the car and his shoes protruding from under the blanket;
• 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.”