7th Circuit Court of Appeals
Criminal – Drug and Firearm Possession/Evidentiary Evidence
United States of America v. Michael Perryman
An Indianapolis man convicted of multiple drug and firearm felonies failed to convince the 7th Circuit Court of Appeals that there were evidentiary or constitutional errors in his case that warranted a reversal.
Defendant-appellant Michael Perryman was arrested in the spring of 2018 after a search warrant executed at his home revealed fentanyl, baggies, a digital scale and a loaded AR-15 rifle. After being read his Miranda rights, Perryman admitted the drugs were his and provided the name of his supplier, though he said the gun “belonged to a girlfriend” Maurita Thomas.
During a post-arrest conversation, Perryman asked Thomas to lie about the gun, with whom he used to live and had bought the weapon with at a gun show. Thomas initially agreed but later admitted she had lied to protect Perryman.
Perryman was indicted on three counts related to the drugs and firearm. Prior to trial, the government moved to exclude questioning about the disciplinary record of Sgt. Clifton Jones, an Indianapolis police officer who participated in the search of Perryman’s home. The discipline case, which stemmed from an unrelated investigation, resulted in a written reprimand, which Perryman wanted to use to impeach Jones’ credibility.
But the U.S. District Court for the Southern District of Indiana declined to allow that line of questioning, finding any probative value was outweighed by the danger of unfair prejudice, misleading the jury and confusing the issues.
Thus, when Perryman tried to impeach Jones with his disciplinary record at trial, the government objected and the district court sustained the objection.
A jury convicted Perryman on all counts, and he was sentenced to 19 years in prison followed by five years of supervised release.
On appeal, Perryman challenged both the sufficiency of the evidence and the exclusion of Jones’ disciplinary record from questioning. But the 7th Circuit affirmed in full in United States of America v. Michael Perryman, 20-1453.
Turning first to the sufficiency of the evidence, the appellate court rejected Perryman’s argument that he did not “possess” the fentanyl found in his home.
“Here, a reasonable jury could easily conclude that Perryman constructively possessed the fentanyl by his exclusive control over the drugs,” Judge Amy St. Eve wrote. “Perryman confessed that the drugs were his, telling the agents immediately that the drugs belonged to him and even providing them with the name of his drug supplier.
“Perryman claims that his confession was false,” St. Eve wrote. “But the government offered uncontroverted testimony about its veracity from the task force officer who interviewed Perryman after the search and heard his confession. The jury was entitled to credit that testimony in arriving at its verdict.”
Perryman also argued the rifle was not used “in furtherance” of any drug crime, as he was charged. But noting the gun was kept just steps away from the drugs and was accessible only by going through the “drug-filled master bathroom,” among other circumstances, the 7th Circuit said the evidence “supports the jury’s verdict.”
Perryman’s final evidentiary challenge argued that the government failed to show he knowingly possessed a firearm to prove that he was a felon in possession of a firearm, as charged.
But as with the other evidentiary challenges, “(h)ere, the evidence permitted a rational jury to find that Perryman constructively possessed the weapon discovered in his closet,” St. Eve wrote. Perryman lived in the home where the weapon was found, the judge noted, and no one else lived there, meaning “a jury can reasonably assume that he controls the weapons present there.”
On the issue of the disciplinary case against Jones, Perryman argued that the exclusion of that evidence violated his rights under the Confrontation Clause. In rejecting that argument, the appellate court noted the line of questioning was related to a disciplinary action that had nothing to do with Perryman’s case.
“Contrary to Perryman’s many assertions, Officer Jones’s reprimand did not involve tampering with evidence,” St. Eve wrote. “Rather, Officer Jones’s participation in a police investigation fifteen years ago was questioned, which the Disciplinary Board decided warranted only a written warning. Perryman has not shown, nor could he, that this irrelevant and dated offense relates to his case.
“… Given that a core confrontational value was not implicated, the district court properly exercised its ‘wide latitude’ under the Confrontation Clause … .”
In a footnote, St. Eve added that Perryman had filed a pro se brief raising additional concerns about his sentence. But the appellate court chose to exercise its discretion to “reject a pro se brief without considering the issues argued when a defendant is represented by counsel.”
Civil Plenary – Multidistrict Litigation/Product Liability
Victoria Looper v. Cook Incorporated, et al.; Sammie Lamber v. Cook Incorporated, et al.
After Cook, Inc., had a pair of complaints dismissed from a multidistrict litigation by arguing the opposite of what it had asserted against other complaints filed in the same MDL, the 7th Circuit Court of Appeals reinstated the two lawsuits, finding the switcheroo was not fair to the plaintiffs.
Victoria Looper and Sammie Lambert are among the plaintiffs in the thousands of medical product-liability suits filed against Cook and related entities, alleging that the company’s inferior vena cava (IVC) filters were defective.
All the cases were placed in a multi-district litigation and assigned to the U.S. District Court for the Southern District of Indiana. As part of the case management plan drafted by the parties and approved by the court, the plaintiffs could use a short form complaint and file directly to the federal court in Indianapolis rather than filing in their home districts and waiting for the cases to be tagged and transferred.
The 7th Circuit noted the choice of law in MDL cases can be affected by whether the complaint is filed directly or waits for a transfer.
Filing directly in a multi-district litigation means the district court should apply the choice-of-laws rule of its own state since that is where the case was actually filed.
However, the 7th Circuit explained, district courts have taken a different approach by treating a direct-filed case as if it had been filed in the plaintiff’s original state and applying that state’s choice-of-law rules.
The latter approach has been endorsed by the 7th Circuit and was the approach first advocated by Cook.
Cook argued for choice of law rules from the originating jurisdictions in a set of six cases known as the Sales-Orr cases. The medical device manufacturer took the same approach in the Valerie Graham case where it filed a motion to dismiss on statue-of-limitations grounds. Cook argued for the district court to adopt the rule from In re Yasmin & Yaz (Drospirenone) Marketing, Sales Practices & Products Liability Litigation, 2011 WL 1375011 (S.D. Ill. April12, 2011) that was later ratified by Dobbs v. DePuy Orthopedics, Inc., 842 F.3d 1045 (7th Cir. 2016).
Citing Yasmin, Cook argued, “courts have found that the ‘better approach is to treat foreign direct file cases as if they were transferred from a judicial district sitting in the state where the case originated.’”
However, when Looper and Lambert filed their lawsuits directly, Cook changed its position. The manufacturer moved to have the cases dismissed because they were filed after the Hoosier state’s two-year statute of limitations on personal injury actions had already expired.
The district court agreed and tossed the two complaints.
A unanimous 7th Circuit panel reversed in the consolidated appeals, Victoria Looper v. Cook Incorporated, et al., 20-3103, and Sammie Lambert v. Cook Incorporated, et al., 20-3104.
The appellate court found that under the approach Cook had agreed to, Looper’s and Lambert’s complaints were timely filed because their home states of South Carolina and Mississippi, respectively, have three-year statutes of limitations.
“A plaintiff may tailor her litigation strategy to the current state of play in the MDL and should not have a trap sprung on her based on a retroactive change of the ground rules,” Judge David Hamilton wrote for the court. “Even if the district court was or remains inclined to allow Cook to revoke its implicit consent and to change its position on the choice-of-law question for directly filed cases, such a change should not be applied retroactively to cases where corrective action was no longer possible in response to Cook’s and the district court’s change in position.”
Criminal – Fraud and Bribery/Sentencing
United States of America v. John Buncich
A former Lake County sheriff convicted of wire fraud and bribery will not have his 12-plus-year federal prison sentence reduced after the 7th Circuit Court of Appeals rejected his appeal.
The 7th Circuit affirmed John Buncich’s sentence, finding the U.S. District Court for the Northern District of Indiana, Hammond Division, didn’t err when it ordered the ex-sheriff to serve 151 months behind bars.
Buncich served as sheriff from 1995 to 2002 and was elected to a third, four-year term beginning in 2011, then another beginning in 2015. Before taking office again, Buncich put together a list of around 12 towing companies and assigned them to defined geographic territories, some of which were more lucrative than others.
Throughout Buncich’s time in office, towing companies paid him to ensure that they remained on the tow list. Many of those payments were made through Chief of Police Timothy Downs, who reported to Buncich, using campaign fundraiser tickets to facilitate the scheme. Downs delivered fundraiser tickets to towing company owners, who paid for them by check or cash.
Other towing company owners purchased tickets from different police officers or dealt with Buncich directly, while some towing company owners who failed to purchase their full allotments of tickets found that their assigned territories had been reduced.
Buncich was convicted of five counts of wire fraud and one count of bribery in 2017. In January 2018, a federal judge handed down a 15-year sentence.
In 2019, the 7th Circuit overturned Buncich’s convictions for the first three wire fraud counts due to insufficient evidence but affirmed the other convictions and remanded for resentencing.
Before resentencing in 2020, a probation officer filed an addendum to a presentence report asserting the reversal on the first three counts had no effect on the original guideline calculation, so 151 to 188 months remained the correct range. In response, Buncich submitted another sentencing memorandum arguing he should be sentenced to time served followed by home detention due to his age, poor health, and vulnerability to COVID-19.
Buncich also argued the government’s proposed sentence would be disparately severe as compared to those imposed on other bribery and public corruption defendants both nationally and in the circuit. Finally, he restated his view that the guideline calculation was improper because the government had failed to show any actual benefit to William Szarmach of CSA Towing and Scott Jurgensen of Samson Relocation & Towing.
The district court rejected Buncich’s arguments and again adopted the position of the probation officer and the factual content of the presentence report. Reiterating that it had considered the mitigation arguments and all the other factors mentioned during the first sentencing hearing, the court imposed a new sentence of 151 months.
In his most recent appeal, Buncich argued that the district court erred in its sentencing guideline calculation, that the court failed to explain its guideline findings sufficiently and made other procedural errors, and that his sentence was substantively unreasonable.
In the opinion, the 7th Circuit rejected all three arguments in United States of America v. John Buncich, 20-2569.
Buncich first argued the district court miscalculated the benefit received by the towing companies, resulting in an incorrect guideline range. On review, the 7th Circuit found the district court agreed with the probation officer’s estimate, finding no reversible error.
Buncich then argued the district court erred because CSA Towing and Samson Relocation & Towing received no benefits for the bribes they paid him. He pointed out the two companies had fewer total tows in 2016 — when the scheme ended — than they had in 2012. He further argued the district court’s calculation was incorrect because it included tows dating back to 2011, while Jurgensen did not make his first corrupt payment until April 2014 and Szarmach’s did not come until October 2014.
The 7th Circuit was not persuaded.
“The combination of the presentence report, the exploration of the benefit-received issue at the two sentencing hearings, and the district court’s resolution in favor of the presentence report’s view is sufficient for us to understand both the issue and the district court’s resolution of it and to permit meaningful review,” Circuit Court Judge David Hamilton wrote.
The ex-sheriff’s second challenge was that the district court committed procedural errors by improperly presuming a guideline sentence was reasonable and by failing to address his sentencing disparity evidence.
But “the district court calculated a proper guideline range, as it was required to do, and it considered the advice from the Sentencing Commission reflected in that calculated range, as it was also required to do,” Hamilton wrote. “The judge fully understood, though, that he could not deflect responsibility for the sentencing decision to the Commission. He acknowledged that he had the discretion to impose a different sentence and that he was responsible for the ultimate sentence.
“Taking into account the many inputs relevant to the decision, Judge (James) Moody accepted the guidance from the calculated range and said he was not convinced there were persuasive reasons to go outside that range. That was entirely appropriate, not a procedural error.”
Additionally, the 7th Circuit wrote the disparity challenge failed for two reasons.
First, it found that a sentence within a guideline range necessarily complies with 18 U.S.C. § 3553(a)(6). Second, the appellate court recognized that a district court may pass over in silence a defendant’s argument that the court failed to consider disparities when imposing a guideline-range sentence, and because the guideline calculation in this case was not erroneous, the district court was not required to address Buncich’s argument any more specifically than it did.
In conclusion, the 7th Circuit found the sentencing not unreasonable.
“The court acknowledged that there were mitigating factors, such as Buncich’s community involvement and lack of a criminal record,” Hamilton wrote. “But the court understandably placed greater weight on the aggravating factors in these bribery convictions of the highest-ranking law enforcement officer in the county.
“… Judge Moody knows Lake County as well as anyone,” Hamilton continued. “He was entitled to make that judgment focusing primarily on the seriousness of Buncich’s offenses and the need for general deterrence in the larger community.”
Circuit Judge Amy St. Eve concurred in part and dissented in part, “largely” agreeing with the majority.
St. Eve opined that the district court did not improperly presume that a guideline sentence was reasonable, did not fail to address a nonfrivolous disparity argument and did not impose a substantively unreasonable sentence. She parted ways only on the question of whether the district court, based on the record before it, appropriately calculated the “benefit received” by the tow companies.
“On the number of tows, merely giving some benefit to the two companies, even in exchange for bribes, does not signify that every tow resulted from the illegal payments,” St. Eve wrote. “I do not dispute that Szarmach’s towing company was awarded more tows and that Jurgensen’s towing company maintained its position as other companies lost out. But the benefit calculation relied on by the district court presupposes that both companies would have lost all their territory without paying the bribe money.
“That goes too far on this record alone,” she continued. “As the government acknowledges, no company was ever removed from the towing list. Companies that did not pay, indeed, saw their territory shrink. No attempt, however, is made to quantify the loss that a non-bribing company experienced. Causation can be loose, just not so attenuated that it lacks factual support.”
St. Eve continued, “The calculation ultimately adopted by the district court included tows from alleged bribery beginning in 2011 without any supporting factual findings going back that far in time.
“Given the lack of factual findings to support the ‘benefit received’ by the bribers, I would respectfully remand for resentencing,” she concluded.
Indiana Supreme Court
Civil Tort – Negligence Claim/ Indiana Tort Claims Act
Clarence Lowe v. Northern Indiana Commuter Transportation District
Indiana Supreme Court justices have affirmed judgment for a commuter transportation district that operates a government-owned railroad against a man who was allegedly injured while working on the tracks, concluding his lawsuit was untimely since the district is a “political subdivision” under the Indiana Tort Claims Act.
In Clarence Lowe v. Northern Indiana Commuter Transportation District, 20A-CT-1584, the Court of Appeals of Indiana affirmed summary judgment granted to Northern Indiana Commuter Transportation District — which operates the South Shore Line between Chicago and South Bend— on a negligence claim brought by Clarence Lowe after he was allegedly injured because of negligence while working as a railroad employee.
Lowe sent a notice of tort claim to the Indiana Attorney General, who received the notice 263 days after Lowe sustained the injury. The district argued, among other things, that for purposes of the Indiana Tort Claims Act, it is a political subdivision, not a state agency, and because Lowe failed to serve it with a notice of tort claim within 180 days after his injury, the act bars his Federal Employers’ Liability Act claim. The Porter Superior Court granted summary judgment to the District and against Lowe.
Appellate judges in a memorandum decision similarly found that Lowe’s FELA claim was subject to the Indiana Tort Claims Act and that he failed to comply with the ITCA’s requirement that the governing body of a political subdivision be provided notice within 180 days of a loss.
Upon granting transfer in the case, the Indiana Supreme Court was left to determine an “important question of first impression” of whether the district is a “state agency” or “political subdivision” under the Indiana Tort Claims Act. If a state agency, the act requires that pre-suit notice be served within 270 days of the injury. But if a political subdivision, pre-suit notice must be served within 180 days.
“We hold that the District is a political subdivision under the Act. Thus, it was entitled to notice within 180 days of Lowe’s alleged injury,” Justice Geoffrey Slaughter wrote for the high court. “Because Lowe did not provide notice until 263 days after his injury, his notice was untimely, and his suit is time-barred.”
As to Lowe’s argument he is not subject to the 180-day requirement despite the act’s plain terms, he argued that he substantially complied with the act by filing to the attorney general within 270 days and that he is entitled to relief under the 11th Amendment.
“In other words, he noticed the wrong actor and observed the wrong timeframe. Yet on appeal, Lowe argues that providing notice to the attorney general fewer than 270 days after his accident substantially complied with the Act. But our substantial compliance doctrine is clear: substantial compliance is a question of content not timing,” Slaughter wrote.
The high court found Lowe’s arguments regarding sovereign immunity unavailing.
“Here, Lowe sued the District in an Indiana court,” Slaughter continued. “Yet his sovereign immunity arguments tend to ignore state-law concepts of sovereign immunity and would require our courts to apply federal Eleventh Amendment immunity instead. But we are not a federal court. And Lowe fails to argue, let alone persuade us, that an Indiana court is beholden to police its exercise of jurisdiction against its sovereign state in the same way that a federal (or a sister state court) must.”
Even had he raised his sovereign immunity arguments, the high court concluded that it would be “hard-pressed to find that the primary concern permeating Eleventh Amendment immunity—protecting states as sovereigns in the federal system — justifies a federal mandate that state courts adjudicating private suits against their respective states must apply federal sovereign-immunity principles in lieu of their state’s own protections.”
“Under the Act, the District is a political subdivision, and any claim against it is barred unless a claimant provides notice within 180 days of the injury. Lowe’s arguments neither legally nor factually excuse his failing to provide timely notice,” the opinion concluded. “Thus, we affirm the trial court’s grant of summary judgment for the District and against Lowe.”
Life Without Parole – Murder/Admission of Evidence
Johnetta Ruth Hall v. State of Indiana
Indiana Supreme Court justices have affirmed a woman’s life sentence for her role in the murder of a family member, finding sufficient evidence to support her sentences and convictions.
In Johnetta Ruth Hall v. State of Indiana, 20S-LW-00660, Johnetta Hall was found guilty of murder and conspiracy to commit the murder of Bill Reynolds, who was married to her mother, Dalene Cates. The couple lived in Scott County, where Reynolds housed a substantial collection of NASCAR memorabilia.
Reynolds filed for divorce from Cates in June 2015 and was awarded temporary possession of their residence. Meanwhile, Cates was ordered to vacate the premises and both parties were ordered not to transfer or dispose of marital property while the divorce was pending.
Following the divorce order, Hall, Cates, Hall’s daughter, Amaris Bunyard, and family friend Kerry Heald began moving some of Reynolds’ NASCAR memorabilia to a storage facility. It was then when Hall made comments to Heald that it would easier if Reynolds was dead and that she would pay Heald to kill Reynolds.
Specifically, Hall offered that in exchange for Reynolds’ murder, she could give Heald between $50,000 and $100,000 worth of NASCAR memorabilia, a third of Reynolds’ $300,000 life insurance policy and Hall’s Nissan 300Z. When Heald later expressed hesitancy about murdering Reynolds, Hall told him that Reynolds had allegedly been physically abusive and had raped Bunyard.
On the day of the murder, Heald went to Reynolds’ home and shot him in the head with a gun that Hall had given him. The women, meanwhile, gathered up the NASCAR memorabilia. When Heald was later given his portion, Heald put the murder weapon in the car Hall was driving per her instruction.
Hall was ultimately charged with murder, conspiracy to commit murder, and obstruction of justice for Reynolds’ death. A mistrial was declared in the first trial during voir dire, and a change of venue from Scott County to Jennings County for the second trial was granted. At the second trial, Heald refused to testify and was held in contempt, prompting the trial court to order that his prior deposition be read into evidence, over Hall’s objection.
It also declined Hall’s request to admit a copy of an interview Heald conducted with police on Sep. 29, 2015, seeking to impeach Heald by prior inconsistent statements under Evidence Rule 613(B).
A jury found Hall guilty of murder and conspiracy to commit murder and found a murder-for-hire aggravating circumstance. Hall was sentenced by a special judge in the Jennings Circuit Court to life in prison without parole for murder and a concurrent 35-year sentence for conspiracy.
The Indiana Supreme Court affirmed, finding that sufficient evidence supported her convictions and the murder-for-hire aggravating circumstance. As for the murder conviction, the justices concluded that Hall’s attempt to distinguish direct versus circumstantial evidence was misplaced and that the circumstances and Hall’s involvement in the events leading up to the murder could help a jury to reasonably infer that Hall sought to aid, induce, or cause Heald to shoot and kill Reynolds.
It concluded similarly as to the conspiracy count, finding that reasonable inferences drawn from the evidence demonstrated that Hall agreed with Heald for Heald to murder Reynolds in exchange for compensation in the form of NASCAR memorabilia, life insurance proceeds and the Nissan vehicle.
Justices also found no abuse of discretion in the admittance of Heald’s 2017 depositions and exclusion of his September 2015 statement to police.
“Even assuming that there was an error relating to the admission or exclusion of evidence, any error would be harmless,” Justice Steven David wrote for the high court.
It also concluded that Hall’s sentence for conspiracy does not warrant a 7(B) revision.
“We find that Hall’s thirty-five-year sentence is not inappropriate given the nature of the offense and her character. The nature of Hall’s offense weighs heavily against a sentence revision,” David wrote. “…Given the level of Hall’s preparation and her persistence to see her plan come true, the nature of the offense weighs against 7(B) revision.”
As to her character, it found nothing that would warrant the 7(B) provision, noting that Hall did not have any criminal history, had a college diploma, and had regularly been employed during her adult life.
“These would tend to reflect favorably on Hall under the character of the offender analysis. However, the trial court considered these as mitigating factors, but it ultimately found that the aggravating circumstances ‘somewhat outweigh’ the mitigating factors, justifying the slightly aggravated sentence for the conspiracy charge. These aggravating circumstances included violating a protective order, that the victim was sixty-nine years old, and that Hall had significant time to withdraw from her plan,” it wrote. “Accordingly, Hall’s conspiracy sentence is not an outlier appropriate for 7(B) revision.”
Civil Tort-Proximity Requirement/Sexual Abuse
K.G., by her Parent and Next Friend, Melody Ruch, and Melody Ruch, Individually v. Morgan Smith, New Augusta North Public Academy, and Metropolitan School District of Pike Township
A mother who brought claims for emotional distress after learning that her disabled daughter had been sexually abused can once again proceed with her case after a majority of the Indiana Supreme Court created a new rule eliminating the proximity requirement for emotional distress recovery.
A dissenting justice, however, warned that the “watershed” ruling could have a wider-ranging impact than anticipated.
Melody Ruch is the mother of 17-year-old K.G., who is blind, nonverbal, has limited mobility and is unable to communicate reciprocally. K.G. suffers from various congenital disorders, including cerebral palsy, quadriplegia, epilepsy and microcephaly.
Because of her disabilities, K.G. was enrolled in the New Augusta North Public Academy in Pike Township, where she received instructional and special needs services. Those services included regular diaper changes by an instructional assistant named Morgan Smith.
In late 2015 or early 2016, Smith sexually abused K.G. while changing her diaper. K.G. subsequently began suffering from sleeplessness and night terrors, and she became combative toward her caregivers.
Ruch noticed these changes in her daughter’s behavior, but she didn’t learn of the sexual abuse until April 2018, when Smith confessed. Smith later pleaded guilty to Level 3 felony child molesting and was sentenced to 13 years, all suspended to probation.
In August 2019, Ruch sued Smith, the academy and the Metropolitan School District of Pike Township both individually and in her capacity as K.G.’s parent and next friend. In her individual capacity, Ruch alleged she had suffered emotional distress that compromised her ability to care for K.G. at home, leading to her incurring expenses for K.G.’s placement in a chronic care facility.
The school moved for summary judgment, arguing Ruch did not satisfy either the modified-impact rule or the bystander rule for recovering under an emotional distress claim, and the Marion Superior Court agreed, dismissing the individual-capacity claims.
The Court of Appeals of Indiana partially affirmed, declining to “expand a tortfeasor’s liability for the [negligent] infliction of emotional distress beyond the traditional impact rule, the modified impact rule, and the bystander rule.”
But the Indiana Supreme Court majority did impose a “narrow expansion of our common law,” creating a new test for emotional distress claims and ruling that summary judgment for the school was improper.
Writing for the majority, Justice Christopher Goff began by noting that “common-law rules governing claims for the negligent infliction of emotional distress reflect a jurisprudence of incremental change.” He pointed to the adoption of the impact rule in 1897 in Kalen v. Terre Haute & Indianapolis Railroad Co., the 1991 cases of Cullison v. Medley and Shuamber v. Henderson regarding the modified-impact rule, and the 2000 adoption of the bystander rule in Groves v. Taylor, among other cases.
“Each of the cases discussed … share a common factual trait: the commission of a violent tort in open view, directly observable by the plaintiff (whether the victim or the bystander) either when it occurs or soon after,” Goff wrote. “By contrast, the type of injury inflicted here — the sexual molestation of a child — typically occurs under a shroud of secrecy.
“… Considering the ‘extraordinary circumstances surrounding the plaintiff’s discovery of the injury,’ and considering the remedial limitations imposed by our existing legal framework, justice compels us to fashion a rule permitting a claim for damages limited to circumstances like those presented here,” he continued. “Under that rule, when a caretaker assumes a responsibility for a child, and when that caretaker owes a duty of care to the child’s parent or guardian, a claim against the caretaker for the negligent infliction of emotional distress may proceed when the parent or guardian later discovers, with irrefutable certainty, that the caretaker sexually abused that child and when that abuse severely impacts the parent or guardian’s emotional health.”
The new “carve-out rule” provides sufficient protection against spurious claims and open-ended liability by limiting the class of potential plaintiffs and requiring “irrefutable certainty,” the majority held. The court also pointed to the rule’s requirement for evidence of a severe impact on a parent or guardian’s mental health, which could include mental health treatment or “dramatic changes” in a parent’s demeanor, among other evidence.
“Indiana isn’t the first state to eliminate the proximity requirement in emotional-distress claims,” Goff wrote, pointing to decisions from Alaska, Louisiana and Hawaii. Even so, he acknowledged that most states have not disposed of that requirement.
“But, while Indiana often assumes a ‘cautiously progressive’ approach to its law, ‘more than one the state has taken a road less traveled.’”
Applying the new test to Ruch, the majority justices concluded the case met each of the test’s four elements: the school, as the tortfeasor, had a duty of care to Ruch; there is irrefutable certainty that the tortious act, sexual abuse, was committed; the tortious act is one that is rarely, if ever, witnessed by a parent or guardian; and the abuse severely impacted Ruch’s emotional health.
Specifically as to Ruch’s mental health, the majority wrote that after learning of K.G.’s abuse, Ruch “became angry and would lash out at her children and husband. And even after completing her counseling, Ruch testified, she still struggled to control these emotions.”
Thus, summary judgment for the school was inappropriate, and the trial court improperly dismissed Ruch’s individual claim for economic damages, the court concluded, noting the summary judgment motion only addressed the emotional distress claim. The case was remanded for further proceedings.
Chief Justice Loretta Rush and Justice Steven David concurred with Goff’s majority opinion, but Justice Mark Massa dissented in a separate opinion joined by Justice Geoffrey Slaughter.
“This heart-rending case illustrates the adage that hard cases make bad law,” Massa wrote. He noted the proximity requirement had “remained unchanged” for 125 years until the majority’s Dec. 22 opinion.
“Only time will tell whether today’s watershed rule is so narrow and fact-specific that it proves to be a one-way ticket for this ride only — or whether, as I suspect, it is the proverbial camel’s nose under the tent, with the rest of the camel soon to follow,” he wrote.
“The fine-tuning we announced today is more a legislative than a judicial function,” the dissent continued. “The legislature is better suited to weigh the competing value judgments that suffuse today’s opinion on when claimants can recover inherently subjective emotional-distress damages.
“If the Court is right that today’s rule reflects ‘the reasonable expectations of the millions of Hoosiers governed by our legal system,’” he concluded, “then their elected representatives in our legislature should be the ones to say so.”
The case is K.G., by her Parent and Next Friend, Melody Ruch, and Melody Ruch, Individually v. Morgan Smith, New Augusta North Public Academy, and Metropolitan School District of Pike Township, 21S-CT-561.•