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Litigation Blog

The Current State of Negligent Infliction of Emotional Distress (NIED) in Indiana

Burke Costanza & Carberry LLP

U.S. courts have developed three main common law tests to limit who can bring an action for the tort of NIED:

  1. Did the plaintiff sustain a physical injury?
  2. Was the plaintiff in the “zone of danger?”
  3. Was the plaintiff a foreseeable bystander?

Traditionally, Indiana only recognized a claim for NIED when the person claiming emotional injuries could demonstrate that the distress was accompanied by and resulted from a physical injury. However, in 1991, the Indiana Supreme Court removed the physical injury requirement in Shuamber v. Henderson

Modified Impact Rule

In Schuamber, the court first recognized the “modified impact rule” for an NIED claim:

“When…a plaintiff sustains a direct impact by the negligence of another and, by virtue of that direct involvement sustains an emotional trauma which is serious in nature and of the kind and extent normally expected to occur in a reasonable person… 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.” Shuamber v. Henderson, 579 N.E.2d 452, 456 (Ind. 1991). 

The court has subsequently interpreted this “modified impact rule” as requiring physicalimpact to sustain an NIED claim; but such impact need not result in a physical injury. Ross v. Cheema, 716 N.E.2d 435 (Ind. 1999).  The modified impact rule does not require that the tortfeasor initiate the impact; rather, the impact need only arise from the plaintiff’s direct involvement in the tortfeasor’s negligent conduct. Conder v. Wood, 716 N.E.2d 432, 435 n.3 (Ind. 1999).  Direct impact is properly understood as the requisite measure of direct involvement in the incident giving rise to the emotional trauma. Clancy v. Goad, 858 N.E.2d 653 (Ind. Ct. App. 2006).  

Examples of direct physical impact sufficient to sustain an NIED claim include:

  • A mother’s continued pregnancy and her resulting physical transformation satisfied the direct impact requirement (after a doctor failed to disclose results from testing that showed fatal birth defects of her child). Bader v. Johnson, 732 N.E.2d 1212, 1222 (Ind. 2000).

  • A restaurant patron’s ingestion of a portion of vegetables cooked with a worm was considered a direct physical impact of the restaurant’s negligent conduct. Holloway v. Bob Evans Farms, Inc., 695 N.E.2d 991 (Ind. Ct. App. 1998).

  • A hotel guest mistakenly stabbing herself in the thumb with a hypodemic needle concealed in a roll of toilet paper was sufficient physical impact to sustain a claim of emotional distress related to her fear of contracting AIDS. Dollar Inn, Inc. v. Slone, 695 N.E.2d 185 (Ind. Ct. App. 1998). 

Bystander Rule

In 2000, the Indiana Supreme Court expanded the pool of plaintiffs who could claim NIED when it recognized an exception to the physical impact requirement. Groves v. Taylor, 729 N.E.2d 569 (Ind. 2000).  In Groves, the court held:   

Where 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. Id. at 573.  

This exception became known as the “bystander rule.”  The Groves court enumerated three factors to consider when determining if a plaintiff could claim NIED under the bystander rule:    

1.      The plaintiff’s relationship to the victim  

The plaintiff’s relationship to the victim, according to the court in Groves, must be “…analogous to a spouse, parent, child, grandparent, grandchild, or sibling…” Id. at 573.  The court reasoned that “limiting recovery to those plaintiffs who have the specified relationships with the victim acknowledges the special quality of such relationships yet places a reasonable limit on the liability of the tortfeasor.” Id.  The determination of whether a plaintiff’s relationship with the victim meets the Groves requirement is a question of law. Smith v. Toney, 862 N.E.2d 656 (Ind. 2007). In Smith, the court held that a fiancé is not analogous to a spouse. So, a fiancé does not meet the Groves relationship requirement and cannot use the bystander rule to claim NIED. Id.

2.      The severity of the injury sustained by the plaintiff’s loved one  

The injury must be fatal or at least serious to the reasonable person. Groves, 729 N.E.2d at 572-73.  

3.      Whether the plaintiff witnessed the incident  

In Groves, the court explained that a plaintiff must: “witness either an incident causing the death or serious injury or the gruesome aftermath of such an event minutes after it occurs…”Id. at 573.  The determination of whether a plaintiff witnessed the incident is a question of law that refers to both time and circumstance. Smith, 862 N.E.2d at 662. A plaintiff has satisfied the temporal aspect of this third bystander requirement if he or she was at the scene when the incident occurred or arrived immediately following it. Id. at 663. The circumstantial aspect is satisfied if: the scene viewed by the plaintiff was the same as it was at the time of the incident, the victim/loved one is in the same condition as immediately following the incident, and the plaintiff was not informed of the incident before arriving.  Id.

RECAP

Today, in Indiana, to recover damages for NIED, a plaintiff must satisfy one of two tests:  

  1. The Modified Impact Rule, which requires physical impact but not injury; or  
  2. The Bystander Rule, which does not require any physical impact or injury, but does require the court to determine the relationship of the plaintiff to the injured, the severity of the injury, and the proximity (both temporal and circumstantial) of the plaintiff to the scene.  


Atlantic Coast Airlines v. Cook, 857 N.E.2d 989, 998 (Ind. 2006).