STATEMENT OF THE CASE
Terry L. Groves and Elizabeth Groves, parents of Terry L. Groves, II, and MaryBeth Ellen Groves, by her next friend Terry L. Groves, (collectively "MaryBeth") appeal the trial court's grant of partial summary judgment in favor of Jacqueline Taylor, Indiana State Police, and the State of Indiana (the "State") on MaryBeth's claim for negligent infliction of emotional distress. MaryBeth was a bystander when a police vehicle driven by Indiana State Police Officer Jacqueline Taylor struck and killed MaryBeth's six-year-old brother. We affirm.
The sole issue presented for our review is whether the trial court erred when it granted partial summary judgment in favor of the State.
FACTS AND PROCEDURAL HISTORY
On August 29, 1994, eight-year-old MaryBeth and her six-year-old brother, Terry, walked down their driveway to check the mailbox which was across from their home on State Road 58. MaryBeth watched as her brother crossed the highway to the mailbox. As Terry reached his hand to the mailbox, MaryBeth turned and began walking back toward the house. Suddenly, MaryBeth heard the impact of a police vehicle driven by Trooper Jacqueline Taylor as it struck Terry. MaryBeth turned to see what had happened and saw her brother's body as it rolled off of the highway. After striking Terry, Trooper Taylor turned around and went back to the accident scene. MaryBeth was frightened as the police vehicle sped toward her and she turned and ran to get her mother.
Terry L. Groves and Elizabeth Groves, as parents of Terry L. Groves, II, deceased, and MaryBeth, by her next friend Terry L. Groves, filed a personal injury/wrongful death action against the State. Mr. and Mrs. Groves alleged that Trooper Taylor negligently caused the death of their son. MaryBeth alleged that she suffered emotional distress as a result of witnessing the negligent accident which caused her brother's death. The State filed a motion for partial summary judgment seeking judgment as a matter of law on MaryBeth's claim for negligent infliction of emotional distress. In its motion, the State alleged that the undisputed facts showed that MaryBeth did not suffer "direct physical impact" as a result of the accident and, thus, partial summary judgment was appropriate. Following a hearing, the trial court entered partial summary judgment in favor of the State.
DISCUSSION AND DECISION
Standard of Review
Our summary judgment standard of review is well settled. Upon review of the grant or denial of a motion for summary judgment, we apply the same legal standard
Modified Impact Rule
MaryBeth contends that as a sister/pedestrian-bystander who witnessed her brother's death, she is entitled to pursue a claim for negligent infliction of emotional distress under Indiana's "modified impact rule" despite the fact that she suffered no direct physical impact as a result of the accident. In the alternative, MaryBeth urges this court to extend, clarify, or modify Indiana law to permit her recovery. We address each of MaryBeth's assertions in turn.
Under Indiana's traditional impact rule, no recovery for emotional damages was available unless the emotional trauma or distress was accompanied by and resulted from a physical injury caused by an impact to the plaintiff. Shuamber v. Henderson, 579 N.E.2d 452, 454 (Ind.1991). However, in Shuamber, our supreme court modified our traditional impact rule and held:
Id. at 456.
Despite our oft disagreement as to what constitutes "direct impact" and whether that impact need be initiated by the tortfeasor, this court has consistently stated that the modified impact rule maintains the requirement that the plaintiff demonstrate that she suffered some direct physical impact. See Holloway v. Bob Evans Farms, Inc., 695 N.E.2d 991, 996 (Ind.Ct.App.1998). The undisputed facts establish that MaryBeth did not suffer a direct physical impact as a result of the accident which killed her brother. MaryBeth had turned and was walking up her driveway toward her house when her brother was struck and killed by the police vehicle driven by Taylor. MaryBeth was not in physical contact with her brother or with Taylor's vehicle when the accident occurred. Instead she was merely a bystander who heard the impact and turned in time to observe the violent accident which caused her brother's death.
MaryBeth contends that due to her status as a sister/pedestrian-bystander and her proximity to the scene, she was "directly involved" in the accident and, thus, should be
MaryBeth urges this court to modify Indiana law to permit her pursuit of emotional distress damages under the facts presented. It is not the province of this court to ignore or abolish the modified impact rule as declared by our supreme court in Shuamber. See Etienne v. Caputi, 679 N.E.2d 922, 926 (Ind.Ct.App.1997); Miller v. May, 656 N.E.2d 1198, 1200 (Ind.Ct.App.1995), trans. denied; Gorman v. I & M Elec. Co., 641 N.E.2d 1288, 1291 (Ind.Ct.App.1994), trans. denied. It is our supreme court's prerogative to decide whether our current law needs clarification, modification, or should be extended to include a larger class of plaintiffs. We are bound to follow the precedent set by Indiana's highest court. The trial court properly entered partial summary judgment in favor of the State.
NAJAM, J. concurs.
KIRSCH, J. concurs and files separate opinion.
KIRSCH, Judge, concurring.
I fully concur in the majority decision which is mandated by Shuamber v. Henderson, 579 N.E.2d 452 (Ind.1991). I write separately only to note that traumatic events can have severe, debilitating and foreseeable emotional effects even if not accompanied by physical injury, a direct impact or a direct involvement. In Shuamber, our supreme court took an important step toward eliminating the harsh consequences of the impact rule by re-examining and eliminating the physical injury requirement. This case presents the opportunity to take another such step.