MEMORANDUM DECISION
Jul 08 2015, 8:19 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANTS ATTORNEY FOR APPELLEE
David A. Wilson Richard R. Skiles
Walter J. Alvarez, P.C. Skiles DeTrude
Crown Point, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Cindy Brothers, As Personal July 8, 2015
Representative of the Estate of Court of Appeals Case No.
Kristopher Stately, Deceased, 37A03-1410-CT-347
Alicia Arnold and Tiffany Appeal from the Jasper Circuit
Arnold, Court.
The Honorable John D. Potter,
Appellants-Plaintiffs, Judge.
Cause Nos. 37C01-1109-CT-757,
v. 37C01-1308-CT-583
Lake Holiday Enterprises, Inc.,
Appellee-Defendant.
Barteau, Senior Judge
[1] Lake Holiday has filed a petition for rehearing from this Court’s memorandum
decision reversing the trial court’s grant of summary judgment in its favor as to
all claims filed against it. We grant Lake Holiday’s petition for the sole purpose
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of addressing the issue of summary judgment with respect to Alicia and Tiffany
Arnold’s bystander claims of negligent infliction of emotional distress. We
decline to revisit our reversal of summary judgment as to the other claims in our
opinion.
[2] Alicia and Tiffany filed bystander claims for negligent infliction of emotional
distress resulting from their brother’s drowning. The designated materials
established that Alicia, who was visiting someone in Hammond, Indiana,
received a call from her mother, Cindy Brothers. Brothers told Alicia that
Kristopher had been swimming, went underwater, and had not resurfaced. The
two talked for approximately two to three minutes. Alicia then drove to
Brothers’ house in Hammond. The trip took approximately five minutes. The
two waited for Kristopher’s father, Alvin Stately, to arrive at the house.
Twenty minutes later after he arrived, Alvin, Alicia, and Brothers drove to Lake
Holiday Campground in DeMotte, Indiana. It was raining heavily during the
trip there, which took approximately thirty to forty minutes.
[3] Tiffany, her uncle, and her uncle’s children were at a grocery store in Lafayette,
Indiana when Tiffany’s uncle received a phone call. After he passed the
telephone to Tiffany, she went outside the store. Tiffany’s grandmother told
her that Kristopher had gone under the water at Lake Holiday and had not
resurfaced. Tiffany, who was crying, sat on her uncle’s car awaiting her uncle
and his children’s return from the store to the car. The trip to his house from
the store took approximately ten to fifteen minutes. They waited approximately
five to ten minutes for Tiffany’s aunt to return home from work. After she
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arrived, they drove to the campground, taking approximately thirty to forty
minutes to get there.
[4] After Tiffany arrived at the lake and waited, she observed divers bringing
Kristopher’s body out of the water in a body bag. She observed Kristopher’s
feet and what she described as a bunch of kelp. After Alicia arrived at the lake
she waited for approximately twenty minutes before Kristopher’s body was
pulled out of the water by divers. Alicia’s boyfriend then turned her around,
presumably to prevent her from seeing Kristopher’s body. She did, however,
observe responding personnel unsuccessfully attempting to revive her brother.
[5] The trial court granted summary judgment in favor of Lake Holiday as to those
claims.
[6] In Spangler v. Bechtel, 958 N.E.2d 458, 466 (Ind. 2011), the Supreme Court
emphasized that while Indiana does not recognize an action seeking damages
for emotional distress predicated upon a breach of an alleged duty not to inflict
emotional injury on another, actions seeking damages for emotional distress
resulting from the negligence are permitted where (1) the plaintiff has witnessed
or come to the scene soon thereafter the death or severe injury of a certain class
of relatives, or (2) the plaintiff has suffered a direct impact. Here, the bystander
rule applies. Under the bystander rule, “the death/severe injury must have
been proximately caused by the defendant’s breach of some cognizable legal
duty owed by the defendant to the relative at issue.” Id. (citing Groves v. Taylor,
729 N.E.2d 569, 573 (Ind. 2000)) (emphasis in original).
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[7] We determined that genuine issues of material fact pertaining to Kristopher’s
status on the Lake Holiday property precluded summary judgment on his
estate’s claims, therefore, it seemed to follow that summary judgment was
premature with respect to his sisters’ claims because the existence of a duty to
Kristopher, if any, was not yet determined. However, we conclude that the
proximity requirement for bystander recovery is dispositive of the sisters’ claims
and find that the entry of summary judgment in Lake Holiday’s favor was
appropriate and is affirmed.
[8] In Groves, the Supreme Court discussed the line of cases establishing in what
situations a plaintiff could recover for emotional trauma. For example, in
Shuamber v. Henderson, 579 N.E.2d 452, 456 (Ind. 1991), the Supreme Court
concluded that “a plaintiff is entitled to maintain an action to recover for that
emotional trauma without regard to whether the emotional trauma arises out of
or accompanies any physical injury to the plaintiff.” Later, in Conder v. Wood,
716 N.E.2d 432, 435 (Ind. 1999), the Supreme Court applied the Shuamber rule,
stating that in Shuamber the Court had “recognized the diminished significance
of contemporaneous physical injuries in identifying legitimate claims of
emotional trauma from the mere spurious.” “Rather, ‘direct impact’ is properly
understood as the requisite measure of ‘direct involvement’ in the incident
giving rise to the emotional trauma.” Id. The Court in Groves concluded that
“[g]iven that the prevention of merely spurious claims is the rationale for the
Shuamber rule, logic dictates that there may well be circumstances where, while
the plaintiff does not sustain a direct impact, the plaintiff is sufficiently directly
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involved in the incident giving rise to the emotional trauma that we are able to
distinguish legitimate claims from the mere spurious.” Groves, 729 N.E.2d at
572.
[9] In Smith v. Toney, 862 N.E.2d 656, 659 (Ind. 2007), the Court observed that the
Groves decision, allowing bystander recovery of damages for negligent infliction
of emotional distress, had followed the reasoning applied in Bowen v.
Lumbermens Mutual Casualty Co., 183 Wis. 2d 627, 517 N.W.2d 432 (1994) by
the Wisconsin Supreme Court. Our Supreme Court reaffirmed its agreement
with the approach taken in Bowen to the concerns present in bystander claims
seeking recovery for negligent infliction of emotional distress, and set forth the
three factors outlined in Bowen to be used in determining on the basis of public
policy whether liability for bystander recovery for negligent infliction of
emotional distress should be precluded. Those factors include 1) the severity of
the victim’s injury, 2) the relationship of the plaintiff to the victim, and 3) the
circumstances surrounding the plaintiff’s discovery of the victim’s injury. 862
N.E.2d at 660. The Court further held that those were issues of law to be
resolved by the trial court. Id.
[10] Among other issues decided in Smith, the issue of “whether the proximity
determination from Groves—whether a plaintiff ‘came on the scene soon after
the death of a loved one’—is a matter of time alone or also of circumstances”
was resolved. Id. at 662. The Court held that the determination is “both
temporal—at or immediately following the incident—and also circumstantial.”
Id. at 663. “The scene viewed by the claimant must be essentially as it was at
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the time of the incident, the victim must be in essentially the same condition as
immediately following the incident, and the claimant must not have been
informed of the incident before coming upon the scene.” Id.
[11] Here, the record reflects that both Alicia and Tiffany were notified separately by
telephone that their brother had gone underwater and had not resurfaced.
When Tiffany and Alicia arrived at the lake, Kristopher had been under water
for what Kristopher’s brother, Richard, estimated to be an hour or an hour and
a half. One sister arrived approximately forty minutes after learning of the
incident, and the other arrived approximately an hour after learning of the
incident by telephone. The proximity requirement was a matter of law for the
trial court to resolve and the requirement precludes Tiffany and Alicia’s
bystander recovery.
[12] We conclude that the trial court correctly granted summary judgment in favor
of Lake Holiday on Alicia and Tiffany’s claims, but find that our reversal of
summary judgment on the remaining claims remains appropriate.
[13] Affirmed in part, reversed in part and remanded.
Najam, J., concurs. Robb, J., concurs in result.
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