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Drawing the line regarding bystanders

July 1, 2015

A case argued recently before the Indiana Supreme Court could determine if someone who learns of the death of a relative at the scene but wasn’t present when the fatal event happened has a claim for negligent infliction of emotional distress.

Ray Clifton, 82, saw a TV news report about a fatal moped crash and feared the victim might be his son Darryl. He had left the home where he cared for his father to run an errand. Clifton arrived on the scene where he learned of his son’s death.

“This is more than bad news, when you show up at the crash scene and it’s your son dead in the road and that’s how you learn, that’s how you confirm that he’s dead,” argued attorney James Mellowitz, who represents Clifton. “That’s what makes the tort, the tort.”

Mellowitz answered justices’ questions about where the line should be drawn on the bystander rule by arguing that learning of a loved one’s death at the scene of the death should be the benchmark.

But attorney Benjamin Stevenson, who represented motorist Ruby McCammack, said Clifton had not met the test requirements for the bystander rule enumerated in Groves v. Taylor, 729 N.E.2d 569, 571 (Ind. 2000). That case distinguished witnessing an incident causing death or the gruesome aftermath minutes later from learning of it through indirect means.

“When you’re going to the scene to confirm your fears, it’s the expected result. There’s not a shock; there’s a confirmation,” Stevenson argued. “That’s where this case falls.”

A Marion Superior trial court granted summary judgment in favor of McCammack, but the Court of Appeals reversed, granting summary judgment for Clifton and remanding the case for a trial on damages.

The justices struggled with a case they said was about drawing lines. Justice Brent Dickson wondered what might happen if someone, for instance, received a social media post alerting them to the possibility a loved one had been in an accident. “Should this be a factor the court should grapple with?” he asked Mellowitz.

“It still comes down to whether Mr. Clifton knew his son was involved,” Mellowitz said. … The case would be different if the TV news broadcast had given more detail about the victim. … Had he heard his son’s name on the news, he would have been less traumatized when he arrived on the scene.

“Mr. Clifton didn’t suffer the shock and horror of learning of his son’s death from that news broadcast,” he said.

Stevenson acknowledged that the loss of a child would be a traumatic event for any parent, but he also argued that Clifton had not witnessed the gruesome aftermath of the crash scene because his son’s body had been covered when Clifton arrived.

Justice Mark Massa said cases such as this are vexing, musing, “Where does this tort end?” But he also pressed Stevenson. “This case falls somewhere in the middle, and why shouldn’t that be left to a jury to determine?”

“We do need some more bright-line rules,” Stevenson replied. “It would be nice if we can get some direction from this court to the lower courts to establish that you do require that level of fortuity … you need to be able to stumble upon the scene, not choose to expose yourself to it,” which he said was the case here.

Stevenson would draw the line in a case such as this at the indirect means by which someone learned of a possible accident. Upon hearing the news report, Clifton “pretty much knew, and then he voluntarily went to the scene, and in essence chose to experience this trauma,” he said.

Dickson noted that since its inception, “that bystander aura gets bigger and bigger,” and wondered if a line could be drawn differently. “I would say abject surprise is an element,” he said.

Stevenson said the possibility of a relative seeing an image on Facebook or Twitter and then witnessing the scene of an accident involving negligence “opens it up to unlimited liability.”

Justice Robert Rucker acknowledged a need to address speculative, exaggerated or fictitious claims, but he wondered if line drawing in tough cases like this should be left to a jury. Stevenson replied that if judges can’t make such decisions on the law, “We’re kind of misplaced in asking lay-person jurors to decide this issue for us.”

Mellowitz, though, refuted Stevenson’s claims about Clifton’s foreknowledge. “I can’t believe what I’m hearing,” Mellowitz said. “That it should be suggested Mr. Clifton did not experience the shock of learning of his son’s death when he went to the scene. The evidence in this case is absolutely clear.”

But Justice Steven David noted, “The reason he’s there is he has some thought process it could be his son.”

Mellowitz said that if Clifton had known for certain that his son had died before he went to the scene, he would be barred from recovering under the bystander rule.

If the court is going to draw a bright line with the Clifton case, he said the line should be drawn at prior knowledge of an incident involving a loved one. “To draw that line anywhere else,” he said, “is to cut off deserving claims such as his, which deserve to be compensated because these people have suffered very real harm.”

Mellowitz also rejected defense projections of unlimited liability if the COA decision is allowed to stand. “It’s not going to lead to an avalanche of claims as the defense insists,” he said. “This is a narrow case on narrow facts that deserves to move forward.”

The case is Ray Clifton v. Ruby McCammack, 20 N.E.3d 589 (Ind. Ct. App. 2014), vacated.•

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