Justices decline to extend ‘bystander rule’

Dave Stafford for www.theindianalawyer.com

The father of a moped driver killed in a collision with a car may not recover on a claim of negligent infliction of emotional distress, the Indiana Supreme Court ruled Monday, declining to extend the bystander rule in such cases.

The unanimous decision in Ray Clifton v. Ruby McCammack, 49S02-1504-CT-228, reinstates summary judgment the trial court granted in favor of motorist Ruby McCammack in the death of senior citizen Ray Clifton’s son, Darryl, who provided for his father’s care. Ray Clifton saw a TV news report about a moped crash near his home and he feared it might involve his son. He raced to the scene and his fear was confirmed.

Justices reinstated judgment for the motorist after the Court of Appeals reversed the trial court and ordered judgment in favor of Clifton.

“The undisputed facts demonstrate that Clifton did not meet the circumstantial factors under the bystander test — both the scene and victim were significantly changed before he arrived at the accident, and he had also been informed of the incident indirectly before coming upon it,” Chief Justice Loretta Rush wrote for the court. “Accordingly, as a matter of law, Clifton is unable to recover emotional distress damages, and McCammack is entitled to summary judgment.”

Those circumstantial factors were enshrined as a matter of law in Smith v. Toney, 862 N.E.2d 656 (Ind. 2007). The court chose not to extend the bystander rule to situations such as those in this case while noting there undoubtedly was shock and grief in Clifton’s case.

“(W)e must stress that major public policy concerns dictate that we draw bright lines, especially in terms of this particular tort,” Rush wrote. “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.”