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Woman's claim fails under modified impact and bystander rules

May 30, 2012

The woman who sued a northern Indiana lawyer and his law firm for not filing her lawsuit against a school district following the discovery that her grandson was sexually abused by a teacher’s assistant lost her appeal.

Dianne Perkins, who had legal custody of her teenaged, learning-disabled grandson, hired Jeffrey Stesiak of Pfeiffer Morgan & Stesiak to represent her and her grandson in all claims against the school district arising out of the sexual abuse. Perkins wanted Stesiak to also file a claim on her behalf for emotional distress. She terminated his representation three years after hiring him because he never filed a lawsuit against the school. With new legal counsel, she was able to settle her grandson’s claims against the school but the statute of limitations had run on her claim prior to her firing of Stesiak.

In 2010, she sued Stesiak and the firm for legal malpractice because he didn’t file the lawsuit on her behalf within the statute of limitations. The trial court granted summary judgment in favor of Stesiak.

In Dianne L. Perkins v. Jeffrey Stesiak, and Pfeifer, Morgan and Stesiak, No. 71A03-1111-PL-521, Perkins argued that she had a claim based on her own emotional distress relating to the sexual abuse of her grandson based on the bystander theory of recovery and Indiana’s modified impact rule. The Court of Appeals found her arguments under either rule failed.

The fact that Perkins experienced a number of physical confrontations with her grandson at home during the period of sexual abuse doesn’t establish the necessary direct physical impact required under the modified impact rule, wrote Judge Ezra Friedlander. The bystander rule applies when a close relative witnesses or comes upon the scene soon after the death or severe injury of a loved one. Perkins never came upon the scene during or in the immediate aftermath of the sexual abuse, and she learned of it months later.

 

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