Mom who didn’t witness daughter’s sexual abuse can’t recover emotional damages, COA affirms

The mother of a child with severe mental and physical disabilities cannot recover emotional distress damages from the school where her child was sexually abused because the mother did not witness the abuse, the Indiana Court of Appeals has affirmed. However, the mother’s claim for economic damages can proceed.

Melody Ruch is the mother of K.G., who was born in 2004 with several mental and physical disabilities that limit her to nonverbal communication. K.G. was enrolled in the New Augusta North Public Academy from October 2015 to January 2016, when school employees provided the child with special assistance including changing her diapers. Morgan Smith, an instructional assistant at the school, sexually abused K.G. while changing her diaper, but Ruch did not witness the abuse or learn about it for another two years.

In August 2019, Ruch sued Smith, the academy and the Pike Township school corporation individually and on behalf of K.G., alleging negligence resulting in emotional distress, the loss of Ruch’s ability to care for K.G. and the expenses of placing K.G. in a chronic care home. Pike Township and the academy moved for summary judgment, arguing Ruch could not recover for emotional trauma, and the Marion Superior Court granted summary judgment as to all claims Ruch brought individually.

On appeal, Ruch acknowledged she was not entitled to relief under the traditional “impact rule,” the modified impact rule laid out in Shuamber v. Henderson, 569 N.E.2d 452 (Ind. 1991), or the bystander rule laid out in Groves v. Taylor, 729 N.E.2d 569 (Ind. 2000). Instead, she urged the Court of Appeals “to adopt a bright-line rule in cases ‘where the tort will never happen if there is a witness, and emotional distress is a veritable certainty even though the wrong was not witnessed[.]’”

“However, we rejected a similar claim in Perkins v. Stesiak, 968 N.E.2d 319 (Ind. Ct. App. 2012), trans. denied., where a grandmother sued her attorney for legal malpractice because he did not file suit alleging negligent infliction of emotional distress against the school district after her grandson was abused by a teacher’s assistant,” Judge Melissa May wrote in a Wednesday opinion.

“We held the attorney did not commit malpractice because, as a matter of law, the grandmother could not recover for her emotional distress under the modified impact rule or the bystander rule,” May wrote. “In accordance with Perkins, we decline to expand a tortfeasor’s liability for the intentional infliction of emotional distress beyond the traditional impact rule, the modified impact rule, and the bystander rule.”

Likewise, Ruch’s argument under Article 1, Section 12 of the Indiana Constitution failed. Citing McIntosh v. Melroe Co., a Div. of Clark Equip. Co., Inc., 729 N.E.2d 972, 979 (Ind. 2000), May wrote, “[i]f the law provides no remedy, [Article 1,] Section 12 does not require that there be one.”

However, the appellate panel partially reversed the grant of summary judgment after finding a trial court error.

“The School Defendants were entitled to summary judgment on Ruch’s claims for emotional damages, but the School Defendants did not seek summary judgment on Ruch’s claims for economic damages,” May concluded. “Therefore, we reverse that portion of the trial court’s order and remand the case for further proceedings.”

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, 20A-CT-1802.

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