Robb, J.
Case Summary and Issues
Ceres Solutions Cooperative, Inc. (“Ceres”) refilled the propane tank at Kenneth Bradley’s house but failed to check for leaks. Kathy Bradley and Eric Bradley, Bradley’s wife and son, lived with Bradley and were inside the home when an explosion and resulting house fire occurred injuring Eric and killing Kathy. Bradley sued Ceres claiming, in relevant part, negligent infliction of emotional distress. Ceres filed a Motion for Partial Summary Judgment on Bradley’s request for emotional distress damages as to both Eric and Kathy. The trial court granted Ceres’ motion regarding Eric but denied the motion as it related to Kathy. Ceres now appeals, raising multiple issues for our review which we consolidate and restate as whether the trial court erred in denying in part Ceres’ motion for summary judgment. Bradley cross appeals, raising one issue which we restate as whether the trial court erred by granting in part Ceres’ motion for summary judgment.
Concluding that the trial court did not err by denying Ceres’ motion in regard to Kathy but did err by granting Ceres’ motion in regard to Eric, we affirm in part and reverse in part and remand.
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Generally, to recover for negligent infliction of emotional distress, a plaintiff must “sustain[] a direct impact by the negligence of another and, by virtue of that involvement sustain[] an emotional trauma which is serious in nature and of a kind and extent normally expected to occur in a reasonable person[.]”…
However, the Bystander Rule is an exception to Indiana’s Modified Impact Rule. Id. at 997-98. To recover under the rule, a bystander must establish “direct involvement” with the incident..
Here, the only factor at issue is the circumstances surrounding Bradley discovering Eric’s and Kathy’s injuries. We have stated that the requirement regarding the bystander’s proximity to the scene is both a matter of time and circumstances. Perkins v. Stesiak, 968 N.E.2d 319, 322 (Ind. Ct. App. 2012), trans. denied. Therefore, to satisfy the “circumstances surrounding the plaintiff’s discovery of the victim’s injury” factor of the Bystander Rule: (A) the bystander must come on the scene at or immediately following the incident; (B) the claimant must not have been informed of the incident before coming upon the scene; and (C) the scene and victim must be in essentially the same condition as immediately following the incident. Smith, 862 N.E.2d at 663.
A. Bystander Must Come on the Scene At or Immediately Following the Incident
We begin by examining whether Bradley came to the scene at or immediately following the incident…
There is no dispute that the explosion occurred at approximately 2:30 a.m. and that Bradley did not arrive at the home until 5:24 a.m…
Ceres contends that the injury-producing event was the 2:30 a.m. explosion alone and not the house fire; however, Eric testified that at the time of the explosion he was surrounded by “a ball of fire” and when he came to and exited the home, he could see multiple small fires in multiple rooms of the home. Appellant’s App., Vol. 3 at 84. Therefore, we conclude that the explosion and the fire are a single injury-producing event. However, we must still determine whether Bradley’s arrival satisfies the Bystander Rule.
Our current Bystander Rule precedent is devoid of any cases, such as this one, where the injury-producing event could be considered on-going, let alone specifically an on-going house fire…
Here, Bradley arrived well after the explosion; however, when he arrived, the flames were “big and steady[,]” and his son had yet to be removed from the scene. Appellant’s App., Vol. 2 at 79-80. Further, his wife Kathy had yet to be located and although firefighters were attempting to search for Kathy when Bradley arrived, “[t]he flames started getting bigger every time they dug, so they basically just had to wait until they could get to where they thought she was.” Id. at 80 (deposition page 68). Bradley was on the scene for approximately two hours before firefighters were able to get to Kathy’s body inside the home.
We conclude that the explosion and fire are not separate injury-producing events, and that the injury-producing event was on-going when Bradley arrived. Therefore, Bradley satisfies the temporal factor of the Bystander Rule.
B. Claimant Must Not Have Been Informed of the Incident Before Coming Upon the Scene
To recover for bystander emotional distress, “the claimant must not have been informed of the incident before coming upon the scene.” Smith, 862 N.E.2d at 663. This requirement necessarily precludes recovery for emotional trauma that arises when a claimant learns of such an incident “through indirect means.” Id. at 662-63. Further, we have held that plaintiffs cannot voluntarily expose themselves to the incident. See Johnson v. Marion Cnty. Coroner’s Off., 971 N.E.2d 151, 162 (Ind. Ct. App. 2012), trans. denied. A bystander must arrive to an incident unwittingly and claims where bystanders knowingly and willingly expose themselves to the scene of an accident are barred. Clifton, 43 N.E.3d at 222.
Ceres argues that Bradley was informed of the incident prior to arriving at the scene because of his conversation with Tina at the roadblock…
Here, Bradley was driving home from work when he came upon Tina’s roadblock located approximately three-quarters of a mile from his home. Appellant’s App., Vol. 2 at 78. From the roadblock, Bradley could see the flames and could tell they were coming from his home. However, the record is clear that Bradley received no specific details from Tina. Bradley asked Tina if she knew what was going on and whether his wife had made it out of the house. Tina responded “I have no idea. I don’t know, I’m sorry.” Id. at 211. Further, Tina “did not have access to a fire radio to know what was occurring at the incident . . . and no one had provided any additional information” to her. Id.
Because Bradley could see the fire from the roadblock, he was not “indirectly informed.” [Footnote omitted.]…
C. Victim/Scene Must be in Essentially the Same Condition as Immediately Following the Incident
A claimant satisfies the third prong of the Bystander Rule when they witness a portion of the injury-producing event…
“Gruesome aftermath” refers to the “uninterrupted flow of events following closely on the heels of the accident.” Id. When a bystander witnesses this “uninterrupted flow of events,” he or she is essentially subjected to a “sudden sensory observation” of the incident itself. Id. Without this type of observation claimants cannot establish the “direct involvement” necessary to recover for bystander emotional trauma, and “direct involvement” is the key principle that has guided the evolution of the Bystander Rule from the outset. See id.; Groves, 729 N.E.2d at 573.
1. Eric
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Ceres highlights that Eric exited the basement of the collapsed home after the explosion, attempted to get help, was wrapped in a blanket by first responders, and was being prepped to be flown out by a helicopter when Bradley arrived…
However, the facts differentiate this case from Clifton. Here, Eric’s injuries were visible to Bradley. Based on the video from an officer’s body camera, a blanket was placed over Eric; however, his face and torso were not covered so burns on his face were visible. Exhibits, Volume 3 at 4. Bradley testified that Eric’s face was “all blistered and peeled.” See Appellant’s App., Vol. at 2 at 79 (deposition page 64). It is not necessary for Bradley to have been able to see all of Eric’s burns. [Footnote omitted.] Further, when Bradley arrived, the flames were “big and steady[,]” id. at 80 (deposition page 67), and although first responders had already arrived, they had not removed Eric from the scene. Therefore, because Bradley witnessed his son with visible burns in front of his burning home, we conclude that Bradley did experience the “gruesome aftermath” of the accident. Clifton, 43 N.E.3d at 222.
Because we have found that all the requirements regarding Bradley’s discovery of Eric’s injury are satisfied, we conclude the trial court was wrong in granting summary judgment to Ceres.
2. Kathy
Ceres argues that because Bradley never viewed Kathy’s body, he cannot recover because of the Bystander Rule’s requirement “that the claimant actually see the victim in essentially the same condition as he or she was in immediately following the incident.” Br. of Appellant at 19 (citing Smith, 862 N.E.2d at 663).
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After locating Kathy, firefighters removed Bradley from the scene and refused to allow him to watch the removal of her burnt body from the flame engulfed home. This act – of officials preventing the viewing of a body by a loved one – implied that Kathy’s remains were in such a disturbing condition that Bradley should not be subjected to the traumatizing visual. Even though Bradley was prevented from seeing his wife’s charred remains, the fact that he had to be removed to prevent this trauma would have triggered the type of horrible mental images one forms upon understanding the reality of a loved one’s gruesome death. We agree with the Stump court’s reasoning and conclude that the “sudden sensory observation” necessary to establish direct involvement under Clifton does not preclude recovery for bystanders who do not actually view the body of the victim in cases involving fires.
Ceres argues that even among jurisdictions that have adopted a non-visual sensory perception rule, the bystander claimant is required to “have a reasonable certainty of injury to the loved one.” Reply and Cross-Appellee’s Br. of Appellant at 33-34. Ceres contends that Bradley “did not know that [Kathy] was trapped inside the burning house until she was found. He worried that she might be inside the burning home but he did not know with any degree of certainty.” Id. at 35. However, we believe that Bradley possessed a reasonable degree of certainty that Kathy was inside the home.
Bradley testified that he expected Kathy and Eric to be home… We conclude that Kathy was in essentially the same condition immediately following the incident as when Bradley arrived. Bradley reasonably believed Kathy was in the home, and Bradley was not required to view Kathy’s body. We limit our holding to cases involving serious injury or death as the result of fire.
Because we have found that all the requirements regarding Bradley’s discovery of Kathy’s death are satisfied, we conclude the trial court was correct in denying summary judgment to Ceres.
Conclusion
We conclude that the trial court did not err by denying Ceres’ motion for summary judgment in regard to Kathy but did err by granting Ceres’ motion for summary judgment in regard to Eric. Accordingly, we affirm in part, reverse in part and remand for further proceedings consistent with this opinion.
Affirmed in part, reversed in part, and remanded.
Weissmann, J., and Kirsch, Sr. J., concur.