FOR PUBLICATION

ATTORNEY FOR APPELLANT:                  ATTORNEY FOR APPELLEES:

JOHN A. KINDLEY                          JAMES F. GROVES
Lakeville, Indiana                       Lee, Groves & Zalas
                                         South Bend, Indiana
                                                                  FILED
                                                               May 30 2012, 9:09 am

                             IN THE
                                                                         CLERK
                   COURT OF APPEALS OF INDIANA                         of the supreme court,
                                                                       court of appeals and
                                                                              tax court




DIANNE L. PERKINS,                       )
                                         )
      Appellant,                         )
                                         )
             vs.                         )     No. 71A03-1111-PL-521
                                         )
JEFFREY STESIAK, and PFEIFER, MORGAN     )
and STESIAK,                             )
                                         )
      Appellees.                         )


               APPEAL FROM THE SAINT JOSEPH SUPERIOR COURT
                    The Honorable George W. Biddlecome, Judge
                          Cause No. 71D04-1010-PL-198



                                May 30, 2012


                        OPINION - FOR PUBLICATION


FRIEDLANDER, Judge
        Dianne Perkins appeals the entry of summary judgment in favor of Jeffrey Stesiak and

Pfeiffer, Morgan & Stesiak (referred to collectively as Stesiak) in her legal malpractice action

against Stesiak. On appeal, Perkins presents the following restated issue for review: Did the

trial court err in determining that Perkins had no cognizable claim for emotional distress and,

thus, granting summary judgment on that ground?

        We affirm.

        For purposes of summary judgment, the underlying facts of this case are not in

dispute. Perkins’s thirteen-year-old, learning-disabled grandson was sexually abused by a

teacher’s assistant with the South Bend Community Schools Corporation (the School

District) in the fall of 2004. The abuse was not disclosed until early 2005. As a result of the

abuse, Perkins’s grandson “engaged in extremely negative behaviors while in [Perkins’s]

home, both during the months the sexual abuse was occurring and for years after its

discovery.” Appellant’s Supplemental Appendix at 10. On multiple occasions, the negative

behavior included direct physical confrontations between Perkins and her grandson.

        On June 8, 2005, Perkins entered into a contingent-fee agreement with Stesiak

wherein Stesiak agreed to represent Perkins and her grandson1 in all claims against the

School District arising out of the sexual abuse perpetrated against her grandson. According

to Perkins, Stesiak agreed to pursue claims for the injuries to her grandson as well as

Perkins’s own emotional distress. Perkins terminated Stesiak’s representation in 2008




1
  Perkins was appointed legal guardian of her grandson when he was twelve, and her relationship with him is
analogous to that of a parent.


                                                    2
because he had yet to file suit. Upon obtaining new legal counsel, Perkins learned that the

statute of limitations on her claim had run prior to her termination of Stesiak. Because the

grandson was a minor, however, his claim remained and was ultimately settled with the

School District. The settlement did not encompass any injuries or damages to Perkins in her

individual capacity.

       On October 1, 2010, Perkins filed the instant legal malpractice action against Stesiak.

The essence of her claim is that because Stesiak did not file a lawsuit on her behalf within the

applicable period of limitation, he deprived her of the right to file a legal action against the

School District and consequently obtain a settlement or verdict.

       Stesiak filed a motion for summary judgment on March 14, 2011, arguing that Perkins

had no viable personal claim against the School District. In response, Perkins argued that she

had a claim based upon her own emotional distress relating to the sexual abuse of her

grandson. Following a hearing, the trial court granted summary judgment in favor of Stesiak

on October 24, 2011. Perkins now appeals.

       Perkins’s challenge to the trial court’s summary judgment ruling presents only legal

issues, not factual ones. “In reviewing the grant of summary judgment, an appellate court

faces the same issues that were before the trial court.” Spangler v. Bechtel, 958 N.E.2d 458,

461 (Ind. 2011). Where the dispute is one of law rather than fact, as here, a de novo standard

of review applies. Spangler v. Bechtel, 958 N.E.2d 458. Further, the party appealing from

the grant of summary judgment has the burden of persuading us that the decision was

erroneous. Van Kirk v. Miller, 869 N.E.2d 534 (Ind. Ct. App. 2007), trans. denied.

       The parties agree that disposition of the summary judgment motion “hinges on

                                               3
whether Perkins had a cognizable claim for the emotional distress and other damages she

herself suffered as a result of the injuries done to [her grandson].”2 Appellant’s Supplemental

Appendix at 2. On appeal, Perkins claims that she had “a viable claim for negligent infliction

of emotional distress in the underlying action under both the ‘bystander’ theory of recovery

and Indiana’s ‘modified impact rule.’” Appellant’s Brief at 4. Thus, we will address the

applicability of each of these related doctrines.

        The right to seek damages for emotional distress in actions for negligence “is carefully

circumscribed under Indiana jurisprudence.” Spangler v. Bechtel, 958 N.E.2d at 466.

Despite criticism and calls for change, our Supreme Court has consistently held that in order

to recover damages for the negligent infliction of emotional distress a plaintiff must satisfy

either the modified impact rule or the bystander rule. See Spangler v. Bechtel, 958 N.E.2d

458; Atlantic Coast Airlines v. Cook, 857 N.E.2d 989 (Ind. 2006). “The elements for each

are separate and distinct.” Atlantic Coast Airlines v. Cook, 857 N.E.2d at 998.

        We turn first to the modified impact rule. This rule requires that the plaintiff sustain a

direct physical impact from the plaintiff’s “direct involvement in the tortfeasor’s negligent

conduct.” See Atlantic Coast Airlines v. Cook, 857 N.E.2d at 996. The “incident giving rise

to the emotional trauma” in this case was the sexual abuse perpetrated on Perkins’s grandson

while he was at school. Id. Contrary to Perkins’s argument on appeal, the fact that she

experienced a number of physical confrontations with her grandson at home during the


2
   “Where legal malpractice is claimed for an attorney’s failure to commence an action within the period of
limitations it is generally held that one of the necessary ultimate proofs for a recovery of damages is that a
recovery would have been had if the suit had been properly brought.” Basinger v. Sullivan, 540 N.E.2d 91,
93 (Ind. Ct. App. 1989).


                                                      4
period of sexual abuse does not establish the necessary direct physical impact required by the

rule. Rather, the rule envisions the plaintiff being present at the scene of the injury-

producing event and, as a result, being directly impacted in a physical manner. Therefore,

Perkins’s reliance on the modified impact rule fails as a matter of law.3

        Perkins’s reliance on the bystander rule is also unavailing. This rule serves as an

exception to the physical impact requirement of the modified impact rule and applies when a

close relative (such as Perkins) witnesses or comes upon the scene soon after the death or

severe injury of their loved one. See Smith v. Toney, 862 N.E.2d 656 (Ind. 2007). The

requirement of the proximity of the bystander to the scene is “both a matter of time and

circumstances.” Id. at 662. That is, the bystander must come on the scene “at or

immediately following the incident”, and the scene “must be essentially as it was at 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. at 663.

        Our Supreme Court has observed that witnessing an incident or its gruesome

aftermath immediately thereafter is distinct from learning of a victim’s death or injury

indirectly. Smith v. Toney, 862 N.E.2d 656. Further, “‘[b]ystander claims’ are not meant to

compensate every emotional trauma.” Id. at 663. “Rather they are limited to those that arise

from the shock of experiencing the traumatic event.” Id.


3
  We note that the subsequent physical impact experienced by Perkins was caused directly by her grandson
and only indirectly by (or as a collateral effect of) the sexual abuse her grandson was experiencing at school.
Further, the impact upon Perkins was removed in both time and place from the injury-producing event (the
sexual abuse).


                                                      5
        As set forth above, the sexual abuse and injuries to Perkins’s grandson occurred at

school. While she experienced subsequent acting out by her grandson, it is undisputed that

Perkins never came upon the scene during or in the immediate aftermath of the sexual abuse,

and she learned of it only months later. Under the circumstances, there is simply no basis for

application of the bystander rule in this case.4

        Finally, we address Perkins’s assertion that this situation is “analogous to that of a

mother who witnesses her son shot by a bullet negligently fired from hundreds of yards

away, or of a mother who witnesses her son injured by a bomb left in the family’s mailbox a

day earlier.” Appellant’s Reply Brief at 3. To the contrary, the examples cited by Perkins

involve instances where a mother contemporaneously observes the serious physical injury to

or death of her child as it is caused by the tortfeasor. It matters little when the negligence

was set in motion; rather, witnessing the ultimate injury-producing event (or its immediate

gruesome aftermath) is the essence of the bystander rule.

        Judgment affirmed.

MAY, J., and BARNES, J., concur.




4
  Perkins’s reliance on Indiana Patient’s Comp. Fund v. Patrick, 906 N.E.2d 194 (Ind. Ct. App. 2009) is
improper, as the Supreme Court not only granted transfer in the case but also reversed our decision. Indiana
Patient’s Comp. Fund v. Patrick, 929 N.E.2d 190 (Ind. 2010).


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