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Indiana Supreme Court Refuses to Expand Bystander Recovery in Claims of Negligent Infliction of Emotional Distress

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By Lyndsay Ignasiak

October 19, 2015

The bystander rule for negligent infliction of emotional distress provides recovery to persons who experience emotional distress from witnessing the sudden and unexpected death or serious injury of a close family member as a result of the actions of a tortfeasor.  Just recently, the Indiana Supreme court declined to expand the tort to situations where a person learns of an incident from watching the news or from social media. 

In Clifton v. McCammack, No. 49S02-1504-CT-228, 2015 WL 5547140, at *1 (Ind. Sept. 21, 2015), the Plaintiff Ray Clifton heard on the news about a fatal crash involving a moped that had recently occurred.  Fearing that the accident involved his son—who had left the house in that direction on his moped—Mr. Clifton traveled to the scene of the accident.  When he arrived he saw police cars and emergency personnel.  He also saw his son’s moped, and a body covered by a sheet which he identified as his son by the shoes he was wearing.  Mr. Clifton’s son had been pronounced dead at the scene of the accident approximately twenty-five minutes earlier.  Mr. Clifton filed a claim for negligent infliction of emotional distress against the driver of the vehicle that fatally injured his son.  The trial court granted summary judgment in favor of the Defendant.  The appellate court, however, reversed, finding that Clifton met the requirements for a bystander claim as a matter of law.  Clifton v. McCammack, 20 N.E.3d 589, 601 (Ind. Ct. App. 2014), overruled by 2015 WL 5547140.  The case then proceeded to the Indiana Supreme Court, where the court affirmed the decision of the trial court, finding that the factors for a bystander claim had not been met. 

For policy reasons and to avoid “spurious claims and open-ended liability,” the Indiana Supreme Court has limited the scope of recovery for negligent infliction of emotional distress.  Clifton, 2015 WL 5547140, at *4-5.  In order to recover, the family member-claimant must come upon the scene “‘at or immediately following the incident,’” id. at *5(quoting Smith v. Toney, 862 N.E.2d 656, 663 (Ind. 2007)); the scene viewed must be essentially the same as it was at the time of the incident; “the victim must be in essentially the same condition as immediately following the incident,” id.; and “the claimant must not have been informed of the incident before coming upon the scene,” id. (internal quotation marks and citations omitted).

In Clifton, the Indiana Supreme Court specifically disapproved of other cases that had expanded the ability of non-eyewitnesses to recover, and held that the factors must be strictly met in order for a bystander claim to proceed.  The court stated:

To allow a claimant to recover under a bystander theory when his or her emotional distress begins as a result of seeing a news story or the like would result in virtually limitless litigation.  Our quickly evolving state of social media and instantaneous news coverage further underscores the importance of setting parameters for this tort.  We are at a point in time when people are often subjected to seeing live, streaming footage—on high-definition televisions, smart phones, or other devices—of emergencies possibly involving their immediate beloved relatives.  There must be a point at which a defendant’s exposure to liability for negligent infliction of emotional distress ends—not to diminish real anguish, but simply because pragmatism demands that the line be drawn somewhere.  And our precedent has drawn that line by setting out straightforward limits for recovery under this tort.

Accordingly, future claims for bystander recovery under a theory of negligent infliction of emotional distress in Indiana will be subject to a strict application of the factors set forth by the Indiana Supreme Court.   

If you have any questions regarding the Clifton v. McCammack decision, would like a complete copy of the opinion, or have any questions with respect to the effects of this decision, please contact a member of our General Casualty/Excess and Surplus Lines Practice Group.

This has been prepared for informational purposes only. It does not contain legal advice or legal opinion and should not be relied upon for individual situations. Nothing herein creates an attorney-client relationship between the Reader and Reminger. The information in this document is subject to change and the Reader should not rely on the statements in this document without first consulting legal counsel.

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