Carole N. Moore, Shawn T. Moore, Individually (As Parents And Next Friends) And As Administrators Of The Estate Of Anthony C. Moore, Vs. Gregory Eckman, Molly Eckman, Nicole Eckman, And Pekin Insurance Company

IN THE SUPREME COURT OF IOWA
No. 08–0414
Filed March 6, 2009
CAROLE N. MOORE, SHAWN T.
MOORE, Individually (as Parents and
Next Friends) and as Administrators
of the Estate of ANTHONY C. MOORE,
Deceased,
Appellees,
vs.
GREGORY ECKMAN, MOLLY ECKMAN,
NICOLE ECKMAN, and PEKIN INSURANCE
COMPANY,
Appellants.
Appeal from the Iowa District Court for Iowa County, Amanda P.
Potterfield, Judge.
Pekin Insurance Company appeals in advance of judgment the
district court’s ruling denying its motion for partial summary judgment
on Carole Moore’s bystander liability claim. REVERSED AND
REMANDED.
John M. Bickel and Sarah W. Anderson of Shuttleworth &
Ingersoll, P.L.C., Cedar Rapids, for appellants.
Larry D. Helvey, Cedar Rapids, and James P. Craig and
Samantha C. Norris of Lederer Weston Craig, PLC, Cedar Rapids, for
appellees.
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BAKER, Justice.
Defendant Pekin Insurance Company appeals in advance of
judgment the district court’s ruling denying its motion for partial
summary judgment. Pekin claims that the district court erred in denying
it summary judgment on Carole Moore’s bystander liability claim
because under Iowa law, a bystander must have had a sensory and
contemporaneous observance of the injury-causing accident to recover
for negligent infliction of emotional distress. Pekin argues that Plaintiff
Carole Moore did not actually witness her son’s accident which resulted
in his death, but arrived immediately afterwards and, therefore, does not
meet the standard. We hold that the contemporaneous observance of the
accident is a requirement under Iowa case law. Because the undisputed
facts show that Carole Moore did not observe the accident, partial
summary judgment should have been granted, dismissing her bystander
liability claim.
I. Background Facts and Proceedings.
On the evening of May 13, 2005, Anthony Moore was sitting on the
trunk of the car that Nicole Eckman was driving. Eckman drove her car
forward with Anthony Moore still on the back. He fell off the back of the
car resulting in a head injury and ultimately his death. His mother,
Carole Moore, was not at the scene and did not see her son fall off the
car and hit the pavement. Rather, Carole Moore arrived at the scene
immediately after the accident occurred. She found him lying in the
street, unattended and seriously injured. She was the first person to
arrive at his side and the first person to render aid after the accident.
On May 7, 2007, plaintiffs Carole and Shawn Moore filed a petition
at law against Nicole Eckman, her parents Gregory and Molly Eckman,
and Pekin Insurance Company (“Pekin”), claiming that defendant Nicole
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Eckman was negligent in the operation of her vehicle and, as a result of
her negligence, Anthony Moore sustained a head injury which resulted in
his death. Plaintiffs stated claims for negligence, loss of consortium,
underinsured motorist coverage, and a bystander claim by Carole Moore
for negligent infliction of emotional distress. Pekin was the underinsured
motorist carrier.
Pekin filed a motion for partial summary judgment requesting
dismissal of Carole Moore’s bystander claim. Pekin argued that because
Carole Moore did not witness the accident itself, under Iowa law her
claim fails because a “sensory and contemporaneous observation” of the
accident itself is required to support a bystander claim.
The district court issued a ruling denying Pekin’s motion. The
district court found that there were factual issues precluding summary
judgment that should be resolved by a trier of fact. Pekin filed an
application for grant of appeal in advance of final judgment and stay of
proceedings pending appeal with this court. This court granted Pekin’s
application.
II. Scope of Review.
On appeal, the district court’s grant or denial of a motion for
summary judgment is reviewed for correction of errors at law. Iowa R.
App. P. 6.4; Clark v. Estate of Rice ex rel. Rice, 653 N.W.2d 166, 169
(Iowa 2002). Summary judgment is appropriate only when the record,
viewed in the light most favorable to the non-moving party, shows that
there are no genuine issues of material fact, and the moving party is
entitled to judgment as a matter of law. Parish v. Jumpking, Inc., 719
N.W.2d 540, 542–43 (Iowa 2006). To determine whether there is a
genuine issue of material fact, the court examines the pleadings,
depositions, answers to interrogatories, admissions on file, and affidavits.
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Iowa R. Civ. P. 237(c). Summary judgment is inappropriate if reasonable
minds would differ on how the factual issue should be resolved.
Dickerson v. Mertz, 547 N.W.2d 208, 212 (Iowa 1996).
III. Discussion and Analysis.
This case reaches us on Pekin’s appeal in advance of judgment
from the district court’s denial of its motion for partial summary
judgment. The district court found that “reasonable minds could
conclude that Carole Moore was located near the accident since she was
arriving at the scene to pick up Anthony Moore from work, and was the
first person to arrive at his side and render aid to him.” It is undisputed,
however, that Carole Moore did not see him fall from the car.
In Barnhill v. Davis, 300 N.W.2d 104, 106 (Iowa 1981), the Iowa
Supreme Court first recognized the claim of bystander liability.
Bystander liability allows a claim for emotional distress as a result of an
injury to another. In Barnhill, we set out the elements of a bystander
claim:
(1) The bystander was located near the scene of the
accident.
(2) The emotional distress resulted from a direct
emotional impact from the sensory and contemporaneous
observance of the accident, as contrasted with learning of
the accident from others after its occurrence.
(3) The bystander and the victim were husband and
wife or related within the second degree of consanguinity or
affinity.
(4) A reasonable person in the position of the
bystander would believe, and the bystander did believe, that
the direct victim of the accident would be seriously injured
or killed.
(5) The emotional distress to the bystander must be
serious.
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Id. at 108; accord Pekin Ins. Co. v. Hugh, 501 N.W.2d 508, 511 (Iowa
1993). In creating this test, we relied heavily upon the holding and
rationale of Dillon v. Legg, 441 P.2d 912, 920 (Cal. 1968) (holding that
the plaintiff could maintain a bystander claim for emotional distress even
though he was not himself at risk of being harmed).
In articulating the elements of the bystander test, we defined the
limits of liability to bystanders. Barnhill, 300 N.W.2d at 106. We noted
that under tort law, “[a] defendant who acts negligently is only liable for
injuries to others that are reasonably foreseeable.” Id. (citing Palsgraf v.
Long Island R.R., 162 N.E. 99, 100 (N.Y. 1928)).
In this case, we are only asked to determine the scope of recovery
under Barnhill. The only element at issue in Pekin’s motion for summary
judgment is whether Carole Moore’s “emotional distress resulted from a
direct emotional impact from the sensory and contemporaneous
observance of the accident, as contrasted with learning of the accident
from others after its occurrence.” Id. at 108. Pekin argues that one who
comes upon an injured family member but who did not witness the
injury-producing event does not meet this element of the test. Carole
Moore asserts that Barnhill separates emotionally distressed bystanders
into two camps: those who learn of an accident from others after its
occurrence and those who do not learn of the accident from others after
its occurrence.
We addressed this issue in Oberreuter v. Orion Industries, Inc., 342
N.W.2d 492, 494 (Iowa 1984) and again in Fineran v. Pickett, 465 N.W.2d
662, 663 (Iowa 1991). In Fineran, the victim was struck by an
automobile while riding her bicycle. 465 N.W.2d at 663. Her father and
sister were riding their bicycles some distance behind and arrived at the
injury scene approximately two minutes after the collision. Id. They first
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learned of the accident when they observed the victim lying in the
roadway being attended to by another person, unconscious and
appearing to be having a seizure. Id. The victim’s mother and another
sister arrived approximately five minutes later after being told of the
accident. Id.
In Fineran, we stated:
The criteria laid down in Barnhill make it clear that
bystander recovery for emotional distress is strictly limited to
situations which involve “witnessing peril to a victim,” and
which have produced emotional distress from “sensory and
contemporaneous observance of the accident as contrasted
with learning of the accident . . . after its occurrence.”
Unless we are to substantially depart from that requirement,
the judgment of the trial court was clearly correct. As we
recognized in Roberts v. Bruns, 387 N.W.2d 140 (Iowa 1986),
the issue presented in situations of this kind “is one of legal
causation, i.e., whether the policy of the law will extend
responsibility to those consequences which have in fact been
produced by a particular event.”
Prior to our Barnhill decision, this court had not
recognized a right to recover emotional distress damages
under any circumstances in the absence of physical injury.
We do not now dispute, and plaintiffs’ arguments
satisfactorily demonstrate, that emotional distress, often
severe, will frequently befall members of the family of a
severely injured person who do not meet the Barnhill
requirements. We were not oblivious to this possibility in
deciding that case. The requirement of “sensory and
contemporaneous observance of the accident” was purposely
adopted so as to not extend liability for emotional distress to
all situations in which such damages are foreseeable. We
opt to hold the line on this limitation.
Id. at 664.
We recognize that some courts allow recovery for bystander claims
where the plaintiff does not actually witness the accident itself, but
comes upon the scene soon afterwards, and witnesses the aftermath.
See, e.g., Gabaldon v. Jay-Bi Prop. Mgmt., Inc., 925 P.2d 510, 513 (N.M.
1996); Bowen v. Lumbermens Mut. Cas. Co., 517 N.W.2d 432, 445 (Wis.
1994). We also recognize that Barnhill can be read to use the elements
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set out in that case as mere guidelines to determine whether emotional
distress is foreseeable. It is clear from Fineran, however, that this court
has adopted a bright-line rule that family members who did not actually
witness the accident are not entitled to emotional distress damages. See,
e.g., Thing v. La Chusa, 771 P.2d 814, 827 (Cal. 1989) (“A ‘bright line in
this area of the law is essential.’ ”) (quoting Elden v. Sheldon, 758 P.2d
582, 588 (Cal. 1988)).
Further, despite Moore’s assertion to the contrary, we have made
no distinction between those who just came upon the scene of the
accident and those who learned of the accident from others after its
occurrence, as we have barred claims from both. Fineran, 465 N.W.2d at
664. The operative language is “the sensory and contemporaneous
observance of the accident.” The language “as contrasted with learning
of the accident from others after its occurrence” does not create a
separate class; it merely describes those who observed the accident.
The undisputed facts in this case show that Carole Moore did not
observe the accident. Although we recognize that her grief may be as
great or greater than one who observes the accident, the issue is whether
this is a requirement under our case law. We find that it is. Partial
summary judgment on Carole Moore’s bystander liability claim should
have been granted.
IV. Disposition.
The district court erred in denying partial summary judgment to
Pekin on Carole Moore’s bystander claim for negligent infliction of
emotional distress. We reverse the district court’s summary judgment
ruling and remand this case to the district court for entry of summary
judgment in favor of Pekin on Carole Moore’s claim.
REVERSED AND REMANDED.
All justices concur except Wiggins, J., who concurs specially.
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08–0414, Moore v. Eckman
WIGGINS, Justice (concurring specially).
I specially concur in the result, because Carole Moore only argues
that Barnhill v. Davis, 300 N.W.2d 104 (Iowa 1981), and Fineran v.
Pickett, 465 N.W.2d 662 (Iowa 1991), permitted her bystander claim,
rather than urge we extend our holding in bystander liability cases to
include persons who come on the scene of impact after the impact
occurred and before the injured party is removed. See Dale Joseph
Gilsinger, Annotation, Immediacy of Observation of Injury as Affecting
Right to Recover Damages for Shock or Mental Anguish from Witnessing
Injury to Another, 99 A.L.R. 5th 301, 342–53 (2002) (citing decisions from
other jurisdictions extending bystander liability to situations where the
plaintiff arrives at the impact site after impact occurred and before the
injured party is removed from the scene).