                IN THE SUPREME COURT OF IOWA
                               No. 08–0414

                            Filed March 6, 2009


CAROLE N. MOORE, SHAWN T.
MOORE, Individually (as Parents and
Next Friends) and as Administrators
of the Estate of ANTHONY C. MOORE,
Deceased,

       Appellees,

vs.

GREGORY ECKMAN, MOLLY ECKMAN,
NICOLE ECKMAN, and PEKIN INSURANCE
COMPANY,

       Appellants.



       Appeal from the Iowa District Court for Iowa County, Amanda P.

Potterfield, Judge.



       Pekin Insurance Company appeals in advance of judgment the

district court’s ruling denying its motion for partial summary judgment

on    Carole   Moore’s   bystander   liability   claim.   REVERSED   AND

REMANDED.



       John M. Bickel and Sarah W. Anderson of Shuttleworth &

Ingersoll, P.L.C., Cedar Rapids, for appellants.



       Larry D. Helvey, Cedar Rapids, and James P. Craig and

Samantha C. Norris of Lederer Weston Craig, PLC, Cedar Rapids, for

appellees.
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BAKER, Justice.

      Defendant Pekin Insurance Company appeals in advance of

judgment the district court’s ruling denying its motion for partial

summary judgment. Pekin claims that the district court erred in denying

it summary judgment on Carole Moore’s bystander liability claim

because under Iowa law, a bystander must have had a sensory and

contemporaneous observance of the injury-causing accident to recover
for negligent infliction of emotional distress. Pekin argues that Plaintiff

Carole Moore did not actually witness her son’s accident which resulted

in his death, but arrived immediately afterwards and, therefore, does not

meet the standard. We hold that the contemporaneous observance of the

accident is a requirement under Iowa case law. Because the undisputed

facts show that Carole Moore did not observe the accident, partial

summary judgment should have been granted, dismissing her bystander

liability claim.

      I. Background Facts and Proceedings.

      On the evening of May 13, 2005, Anthony Moore was sitting on the

trunk of the car that Nicole Eckman was driving. Eckman drove her car

forward with Anthony Moore still on the back. He fell off the back of the
car resulting in a head injury and ultimately his death.        His mother,

Carole Moore, was not at the scene and did not see her son fall off the

car and hit the pavement.      Rather, Carole Moore arrived at the scene

immediately after the accident occurred.      She found him lying in the

street, unattended and seriously injured.      She was the first person to

arrive at his side and the first person to render aid after the accident.

      On May 7, 2007, plaintiffs Carole and Shawn Moore filed a petition

at law against Nicole Eckman, her parents Gregory and Molly Eckman,

and Pekin Insurance Company (“Pekin”), claiming that defendant Nicole
                                      3

Eckman was negligent in the operation of her vehicle and, as a result of

her negligence, Anthony Moore sustained a head injury which resulted in

his death.     Plaintiffs stated claims for negligence, loss of consortium,

underinsured motorist coverage, and a bystander claim by Carole Moore

for negligent infliction of emotional distress. Pekin was the underinsured

motorist carrier.

      Pekin filed a motion for partial summary judgment requesting
dismissal of Carole Moore’s bystander claim. Pekin argued that because

Carole Moore did not witness the accident itself, under Iowa law her

claim fails because a “sensory and contemporaneous observation” of the

accident itself is required to support a bystander claim.

      The district court issued a ruling denying Pekin’s motion.        The

district court found that there were factual issues precluding summary

judgment that should be resolved by a trier of fact.        Pekin filed an

application for grant of appeal in advance of final judgment and stay of

proceedings pending appeal with this court. This court granted Pekin’s

application.

      II. Scope of Review.

      On appeal, the district court’s grant or denial of a motion for
summary judgment is reviewed for correction of errors at law. Iowa R.

App. P. 6.4; Clark v. Estate of Rice ex rel. Rice, 653 N.W.2d 166, 169

(Iowa 2002). Summary judgment is appropriate only when the record,

viewed in the light most favorable to the non-moving party, shows that

there are no genuine issues of material fact, and the moving party is

entitled to judgment as a matter of law. Parish v. Jumpking, Inc., 719

N.W.2d 540, 542–43 (Iowa 2006).           To determine whether there is a

genuine issue of material fact, the court examines the pleadings,

depositions, answers to interrogatories, admissions on file, and affidavits.
                                      4

Iowa R. Civ. P. 237(c). Summary judgment is inappropriate if reasonable

minds would differ on how the factual issue should be resolved.

Dickerson v. Mertz, 547 N.W.2d 208, 212 (Iowa 1996).

         III. Discussion and Analysis.

         This case reaches us on Pekin’s appeal in advance of judgment

from the district court’s denial of its motion for partial summary

judgment.       The district court found that “reasonable minds could
conclude that Carole Moore was located near the accident since she was

arriving at the scene to pick up Anthony Moore from work, and was the

first person to arrive at his side and render aid to him.” It is undisputed,

however, that Carole Moore did not see him fall from the car.

         In Barnhill v. Davis, 300 N.W.2d 104, 106 (Iowa 1981), the Iowa

Supreme Court first recognized the claim of bystander liability.

Bystander liability allows a claim for emotional distress as a result of an

injury to another. In Barnhill, we set out the elements of a bystander

claim:

               (1)   The bystander was located near the scene of the
         accident.

               (2)   The emotional distress resulted from a direct
         emotional impact from the sensory and contemporaneous
         observance of the accident, as contrasted with learning of
         the accident from others after its occurrence.

                (3)   The bystander and the victim were husband and
         wife or related within the second degree of consanguinity or
         affinity.

                (4)   A reasonable person in the position of the
         bystander would believe, and the bystander did believe, that
         the direct victim of the accident would be seriously injured
         or killed.

               (5)   The emotional distress to the bystander must be
         serious.
                                     5

Id. at 108; accord Pekin Ins. Co. v. Hugh, 501 N.W.2d 508, 511 (Iowa

1993).   In creating this test, we relied heavily upon the holding and

rationale of Dillon v. Legg, 441 P.2d 912, 920 (Cal. 1968) (holding that

the plaintiff could maintain a bystander claim for emotional distress even

though he was not himself at risk of being harmed).

      In articulating the elements of the bystander test, we defined the

limits of liability to bystanders. Barnhill, 300 N.W.2d at 106. We noted
that under tort law, “[a] defendant who acts negligently is only liable for

injuries to others that are reasonably foreseeable.” Id. (citing Palsgraf v.

Long Island R.R., 162 N.E. 99, 100 (N.Y. 1928)).

      In this case, we are only asked to determine the scope of recovery

under Barnhill. The only element at issue in Pekin’s motion for summary

judgment is whether Carole Moore’s “emotional distress resulted from a

direct emotional impact from the sensory and contemporaneous

observance of the accident, as contrasted with learning of the accident

from others after its occurrence.” Id. at 108. Pekin argues that one who

comes upon an injured family member but who did not witness the

injury-producing event does not meet this element of the test.       Carole

Moore asserts that Barnhill separates emotionally distressed bystanders
into two camps:    those who learn of an accident from others after its

occurrence and those who do not learn of the accident from others after

its occurrence.

      We addressed this issue in Oberreuter v. Orion Industries, Inc., 342

N.W.2d 492, 494 (Iowa 1984) and again in Fineran v. Pickett, 465 N.W.2d

662, 663 (Iowa 1991).       In Fineran, the victim was struck by an

automobile while riding her bicycle. 465 N.W.2d at 663. Her father and

sister were riding their bicycles some distance behind and arrived at the

injury scene approximately two minutes after the collision. Id. They first
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learned of the accident when they observed the victim lying in the

roadway being attended to by another person, unconscious and

appearing to be having a seizure. Id. The victim’s mother and another

sister arrived approximately five minutes later after being told of the

accident. Id.

      In Fineran, we stated:

             The criteria laid down in Barnhill make it clear that
      bystander recovery for emotional distress is strictly limited to
      situations which involve “witnessing peril to a victim,” and
      which have produced emotional distress from “sensory and
      contemporaneous observance of the accident as contrasted
      with learning of the accident . . . after its occurrence.”
      Unless we are to substantially depart from that requirement,
      the judgment of the trial court was clearly correct. As we
      recognized in Roberts v. Bruns, 387 N.W.2d 140 (Iowa 1986),
      the issue presented in situations of this kind “is one of legal
      causation, i.e., whether the policy of the law will extend
      responsibility to those consequences which have in fact been
      produced by a particular event.”

             Prior to our Barnhill decision, this court had not
      recognized a right to recover emotional distress damages
      under any circumstances in the absence of physical injury.
      We do not now dispute, and plaintiffs’ arguments
      satisfactorily demonstrate, that emotional distress, often
      severe, will frequently befall members of the family of a
      severely injured person who do not meet the Barnhill
      requirements. We were not oblivious to this possibility in
      deciding that case.       The requirement of “sensory and
      contemporaneous observance of the accident” was purposely
      adopted so as to not extend liability for emotional distress to
      all situations in which such damages are foreseeable. We
      opt to hold the line on this limitation.

Id. at 664.
      We recognize that some courts allow recovery for bystander claims
where the plaintiff does not actually witness the accident itself, but
comes upon the scene soon afterwards, and witnesses the aftermath.
See, e.g., Gabaldon v. Jay-Bi Prop. Mgmt., Inc., 925 P.2d 510, 513 (N.M.
1996); Bowen v. Lumbermens Mut. Cas. Co., 517 N.W.2d 432, 445 (Wis.
1994). We also recognize that Barnhill can be read to use the elements
                                     7

set out in that case as mere guidelines to determine whether emotional
distress is foreseeable. It is clear from Fineran, however, that this court
has adopted a bright-line rule that family members who did not actually
witness the accident are not entitled to emotional distress damages. See,
e.g., Thing v. La Chusa, 771 P.2d 814, 827 (Cal. 1989) (“A ‘bright line in
this area of the law is essential.’ ”) (quoting Elden v. Sheldon, 758 P.2d
582, 588 (Cal. 1988)).
       Further, despite Moore’s assertion to the contrary, we have made
no distinction between those who just came upon the scene of the
accident and those who learned of the accident from others after its
occurrence, as we have barred claims from both. Fineran, 465 N.W.2d at
664.    The operative language is “the sensory and contemporaneous
observance of the accident.” The language “as contrasted with learning
of the accident from others after its occurrence” does not create a
separate class; it merely describes those who observed the accident.
       The undisputed facts in this case show that Carole Moore did not
observe the accident. Although we recognize that her grief may be as
great or greater than one who observes the accident, the issue is whether
this is a requirement under our case law.      We find that it is.   Partial
summary judgment on Carole Moore’s bystander liability claim should
have been granted.
       IV. Disposition.
       The district court erred in denying partial summary judgment to
Pekin on Carole Moore’s bystander claim for negligent infliction of
emotional distress.   We reverse the district court’s summary judgment
ruling and remand this case to the district court for entry of summary
judgment in favor of Pekin on Carole Moore’s claim.
       REVERSED AND REMANDED.
       All justices concur except Wiggins, J., who concurs specially.
                                    8

                                              08–0414, Moore v. Eckman
WIGGINS, Justice (concurring specially).

      I specially concur in the result, because Carole Moore only argues

that Barnhill v. Davis, 300 N.W.2d 104 (Iowa 1981), and Fineran v.

Pickett, 465 N.W.2d 662 (Iowa 1991), permitted her bystander claim,

rather than urge we extend our holding in bystander liability cases to

include persons who come on the scene of impact after the impact

occurred and before the injured party is removed.      See Dale Joseph

Gilsinger, Annotation, Immediacy of Observation of Injury as Affecting

Right to Recover Damages for Shock or Mental Anguish from Witnessing

Injury to Another, 99 A.L.R.5th 301, 342–53 (2002) (citing decisions from

other jurisdictions extending bystander liability to situations where the

plaintiff arrives at the impact site after impact occurred and before the

injured party is removed from the scene).
