      MEMORANDUM DECISION
                                                                           Jul 08 2015, 8:19 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEYS FOR APPELLANTS                                   ATTORNEY FOR APPELLEE
      David A. Wilson                                            Richard R. Skiles
      Walter J. Alvarez, P.C.                                    Skiles DeTrude
      Crown Point, Indiana                                       Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Cindy Brothers, As Personal                               July 8, 2015
      Representative of the Estate of                           Court of Appeals Case No.
      Kristopher Stately, Deceased,                             37A03-1410-CT-347
      Alicia Arnold and Tiffany                                 Appeal from the Jasper Circuit
      Arnold,                                                   Court.
                                                                The Honorable John D. Potter,
      Appellants-Plaintiffs,                                    Judge.
                                                                Cause Nos. 37C01-1109-CT-757,
              v.                                                37C01-1308-CT-583


      Lake Holiday Enterprises, Inc.,
      Appellee-Defendant.




      Barteau, Senior Judge

[1]   Lake Holiday has filed a petition for rehearing from this Court’s memorandum

      decision reversing the trial court’s grant of summary judgment in its favor as to

      all claims filed against it. We grant Lake Holiday’s petition for the sole purpose

      Court of Appeals of Indiana | Memorandum Decision On Rehearing 37A03-1410-CT-347 July 8, 2015 Page 1 of 6
      of addressing the issue of summary judgment with respect to Alicia and Tiffany

      Arnold’s bystander claims of negligent infliction of emotional distress. We

      decline to revisit our reversal of summary judgment as to the other claims in our

      opinion.


[2]   Alicia and Tiffany filed bystander claims for negligent infliction of emotional

      distress resulting from their brother’s drowning. The designated materials

      established that Alicia, who was visiting someone in Hammond, Indiana,

      received a call from her mother, Cindy Brothers. Brothers told Alicia that

      Kristopher had been swimming, went underwater, and had not resurfaced. The

      two talked for approximately two to three minutes. Alicia then drove to

      Brothers’ house in Hammond. The trip took approximately five minutes. The

      two waited for Kristopher’s father, Alvin Stately, to arrive at the house.

      Twenty minutes later after he arrived, Alvin, Alicia, and Brothers drove to Lake

      Holiday Campground in DeMotte, Indiana. It was raining heavily during the

      trip there, which took approximately thirty to forty minutes.


[3]   Tiffany, her uncle, and her uncle’s children were at a grocery store in Lafayette,

      Indiana when Tiffany’s uncle received a phone call. After he passed the

      telephone to Tiffany, she went outside the store. Tiffany’s grandmother told

      her that Kristopher had gone under the water at Lake Holiday and had not

      resurfaced. Tiffany, who was crying, sat on her uncle’s car awaiting her uncle

      and his children’s return from the store to the car. The trip to his house from

      the store took approximately ten to fifteen minutes. They waited approximately

      five to ten minutes for Tiffany’s aunt to return home from work. After she

      Court of Appeals of Indiana | Memorandum Decision On Rehearing 37A03-1410-CT-347 July 8, 2015 Page 2 of 6
      arrived, they drove to the campground, taking approximately thirty to forty

      minutes to get there.


[4]   After Tiffany arrived at the lake and waited, she observed divers bringing

      Kristopher’s body out of the water in a body bag. She observed Kristopher’s

      feet and what she described as a bunch of kelp. After Alicia arrived at the lake

      she waited for approximately twenty minutes before Kristopher’s body was

      pulled out of the water by divers. Alicia’s boyfriend then turned her around,

      presumably to prevent her from seeing Kristopher’s body. She did, however,

      observe responding personnel unsuccessfully attempting to revive her brother.


[5]   The trial court granted summary judgment in favor of Lake Holiday as to those

      claims.


[6]   In Spangler v. Bechtel, 958 N.E.2d 458, 466 (Ind. 2011), the Supreme Court

      emphasized that while Indiana does not recognize an action seeking damages

      for emotional distress predicated upon a breach of an alleged duty not to inflict

      emotional injury on another, actions seeking damages for emotional distress

      resulting from the negligence are permitted where (1) the plaintiff has witnessed

      or come to the scene soon thereafter the death or severe injury of a certain class

      of relatives, or (2) the plaintiff has suffered a direct impact. Here, the bystander

      rule applies. Under the bystander rule, “the death/severe injury must have

      been proximately caused by the defendant’s breach of some cognizable legal

      duty owed by the defendant to the relative at issue.” Id. (citing Groves v. Taylor,

      729 N.E.2d 569, 573 (Ind. 2000)) (emphasis in original).


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[7]   We determined that genuine issues of material fact pertaining to Kristopher’s

      status on the Lake Holiday property precluded summary judgment on his

      estate’s claims, therefore, it seemed to follow that summary judgment was

      premature with respect to his sisters’ claims because the existence of a duty to

      Kristopher, if any, was not yet determined. However, we conclude that the

      proximity requirement for bystander recovery is dispositive of the sisters’ claims

      and find that the entry of summary judgment in Lake Holiday’s favor was

      appropriate and is affirmed.


[8]   In Groves, the Supreme Court discussed the line of cases establishing in what

      situations a plaintiff could recover for emotional trauma. For example, in

      Shuamber v. Henderson, 579 N.E.2d 452, 456 (Ind. 1991), the Supreme Court

      concluded that “a plaintiff is entitled to maintain an action to recover for that

      emotional trauma without regard to whether the emotional trauma arises out of

      or accompanies any physical injury to the plaintiff.” Later, in Conder v. Wood,

      716 N.E.2d 432, 435 (Ind. 1999), the Supreme Court applied the Shuamber rule,

      stating that in Shuamber the Court had “recognized the diminished significance

      of contemporaneous physical injuries in identifying legitimate claims of

      emotional trauma from the mere spurious.” “Rather, ‘direct impact’ is properly

      understood as the requisite measure of ‘direct involvement’ in the incident

      giving rise to the emotional trauma.” Id. The Court in Groves concluded that

      “[g]iven that the prevention of merely spurious claims is the rationale for the

      Shuamber rule, logic dictates that there may well be circumstances where, while

      the plaintiff does not sustain a direct impact, the plaintiff is sufficiently directly


      Court of Appeals of Indiana | Memorandum Decision On Rehearing 37A03-1410-CT-347 July 8, 2015 Page 4 of 6
       involved in the incident giving rise to the emotional trauma that we are able to

       distinguish legitimate claims from the mere spurious.” Groves, 729 N.E.2d at

       572.


[9]    In Smith v. Toney, 862 N.E.2d 656, 659 (Ind. 2007), the Court observed that the

       Groves decision, allowing bystander recovery of damages for negligent infliction

       of emotional distress, had followed the reasoning applied in Bowen v.

       Lumbermens Mutual Casualty Co., 183 Wis. 2d 627, 517 N.W.2d 432 (1994) by

       the Wisconsin Supreme Court. Our Supreme Court reaffirmed its agreement

       with the approach taken in Bowen to the concerns present in bystander claims

       seeking recovery for negligent infliction of emotional distress, and set forth the

       three factors outlined in Bowen to be used in determining on the basis of public

       policy whether liability for bystander recovery for negligent infliction of

       emotional distress should be precluded. Those factors include 1) the severity of

       the victim’s injury, 2) the relationship of the plaintiff to the victim, and 3) the

       circumstances surrounding the plaintiff’s discovery of the victim’s injury. 862

       N.E.2d at 660. The Court further held that those were issues of law to be

       resolved by the trial court. Id.


[10]   Among other issues decided in Smith, the issue of “whether the proximity

       determination from Groves—whether a plaintiff ‘came on the scene soon after

       the death of a loved one’—is a matter of time alone or also of circumstances”

       was resolved. Id. at 662. The Court held that the determination is “both

       temporal—at or immediately following the incident—and also circumstantial.”

       Id. at 663. “The scene viewed by the claimant must be essentially as it was at

       Court of Appeals of Indiana | Memorandum Decision On Rehearing 37A03-1410-CT-347 July 8, 2015 Page 5 of 6
       the time of the incident, the victim must be in essentially the same condition as

       immediately following the incident, and the claimant must not have been

       informed of the incident before coming upon the scene.” Id.


[11]   Here, the record reflects that both Alicia and Tiffany were notified separately by

       telephone that their brother had gone underwater and had not resurfaced.

       When Tiffany and Alicia arrived at the lake, Kristopher had been under water

       for what Kristopher’s brother, Richard, estimated to be an hour or an hour and

       a half. One sister arrived approximately forty minutes after learning of the

       incident, and the other arrived approximately an hour after learning of the

       incident by telephone. The proximity requirement was a matter of law for the

       trial court to resolve and the requirement precludes Tiffany and Alicia’s

       bystander recovery.


[12]   We conclude that the trial court correctly granted summary judgment in favor

       of Lake Holiday on Alicia and Tiffany’s claims, but find that our reversal of

       summary judgment on the remaining claims remains appropriate.


[13]   Affirmed in part, reversed in part and remanded.


       Najam, J., concurs. Robb, J., concurs in result.




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