Ketchmark v. NORTHERN IND. PUBLIC SERVICE CO., 64A05-0402-CV-66.

• Decision Date: 01 December 2004
• Docket Number: No. 64A05-0402-CV-66.,64A05-0402-CV-66.
• Citation: 818 N.E.2d 522
• Parties: Joan KETCHMARK and Paul Ketchmark, Appellants-Plaintiffs, v. NORTHERN INDIANA PUBLIC SERVICE COMPANY, Appellee-Defendant.
• Court: Indiana Appellate Court

818 N.E.2d 522

Joan KETCHMARK and Paul Ketchmark, Appellants-Plaintiffs, v.NORTHERN INDIANA PUBLIC SERVICE COMPANY, Appellee-Defendant.

No. 64A05-0402-CV-66.

Court of Appeals of Indiana.

December 1, 2004.

Richard M. Davis, Kevin G. Kerr, Valparaiso, IN, Attorneys for Appellants.

Paul A. Rake, Greg A. Crisman, Mattew S. Ver Steeg, Eichhorn & Eichhorn, Hammond, IN, Attorneys for Appellee.

OPINION

VAIDIK, Judge.

Case Summary

In this interlocutory appeal, Paul and Joan Ketchmark appeal the grant of summary judgment to Northern Indiana Public Service Company("NIPSCO") on the Ketchmarks' claim of negligent infliction of emotional distress arising from a gas explosion at the Ketchmarks' home shortly after NIPSCO employees serviced the home's gas meter and pipes.Because Indiana does not allow recovery for negligent infliction of emotional distress arising from only the damage or loss of property, we affirm.

Facts and Procedural History

In early November 2000, NIPSCO employees went to the Ketchmarks' home of forty-five years to repair the residence's gas meter and pipes.The employees shut off the gas supply in two locations — at the home's meter and at a valve away from the home by the curb — and proceeded to fix some of the Ketchmarks' pipes.As the workers were performing the repairs, the Ketchmarks noticed a strong odor of gas and complained to a NIPSCO employee present at the house.That employee informed the Ketchmarks that the purging of the gas lines probably created the odor and advised the Ketchmarks to open their windows to ventilate the house.A second NIPSCO employee, Martin Packham, arrived to relight the Ketchmarks' range and water heater.Packham detected the presence of gas in the basement of the home, which he attributed to some of the gas odor from the outside leaking into the basement.Because the outside pipes had been replaced and had been in poor condition, Packham theorized that the pipe inside the basement might also need replacement.Apparently, Packham was unable or unwilling to replace the basement pipe, but Packham gave Paul an appropriate pipe so that Paul, who had many years of experience in home repairs, could replace the pipe himself.Shortly after Paul replaced the pipe, the Ketchmarks left their home to go out to dinner with some friends.While they were at dinner a natural gas explosion destroyed their house and all its contents.

As the Ketchmarks were driving back to their home after dinner, they noticed that their street was barricaded by emergency vehicles.They exited their car and were approached by a neighbor who informed them of the incident.Joan became distraught and had to rest in a passerby's vehicle.

The Ketchmarks filed a multi-count complaint against NIPSCO alleging, among other things, negligent infliction of emotional distress.NIPSCO filed a motion for summary judgment on this count, which the trial court granted.The Ketchmarks moved the trial court to certify this issue for interlocutory appeal.The trial court certified the issue, and this Court accepted jurisdiction.

Discussion and Decision

The sole issue on appeal is whether the trial court erred in granting summary judgment to NIPSCO on the Ketchmarks' claim of negligent infliction of emotional distress for loss or damage to their property.Both parties agree that there was no impact to the plaintiffs' persons, that the plaintiffs were not the bystanders of an accident with impact on the person of another, and that there was no threat of injury to either of the plaintiffs' persons.Rather, it is undisputed that the only impact was to property.Before resolving this issue, we briefly review the history of the tort of negligent infliction of emotional distress in Indiana.

Indiana has allowed recovery for negligent infliction of emotional distress in those circumstances involving an impact to the plaintiff's person under what has been named the "direct impact" rule or its progeny, the "modified impact" rule.The "direct impact" rule has three elements "(1) an impact on the plaintiff; (2) that causes physical injury to the plaintiff; (3) that in turn causes the emotional distress."Alexander v. Scheid,726 N.E.2d 272, 283(Ind.2000).The "direct impact" rule "precluded recovery for the case in which a plaintiff experienced real mental stress in the absence of a physical injury."Id.In 1991, the Indiana Supreme Court expanded the "direct impact" rule, thus creating what has been known as the "modified impact" rule, in Shuamber v. Henderson,579 N.E.2d 452(Ind.1991), and in so doing held:

When ... a plaintiff sustains a direct impact by the negligence of another and, by virtue of that direct involvement sustains an emotional trauma which is serious in nature and of a kind and extent normally expected to occur in a reasonable person, we hold that such 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.

Id. at 456.The "modified impact" rule has been applied in several recent cases.See, e.g., Bader v. Johnson,732 N.E.2d 1212(Ind.2000)(plaintiff's pregnancy and resulting physical changes);Alexander,726 N.E.2d 272(destruction of plaintiff's healthy tissue by a cancerous tumor);Conder v. Wood,716 N.E.2d 432(Ind.1999)(plaintiff's pounding on side of truck found to be sufficient "impact" as truck was running over friend);Shuamber,579 N.E.2d 452(plaintiffs involved in a car accident in which their son/brother was killed);Dollar Inn, Inc. v. Slone,695 N.E.2d 185(Ind.Ct.App.1998)(plaintiff stuck by hypodermic needle embedded in roll of toilet paper), trans. denied.

Indiana has also allowed for damages for negligent infliction of emotional distress when a plaintiff witnesses an injury to the person of a close relative without any physical impact on the plaintiff — the "bystander direct involvement test."In Groves v. Taylor,729 N.E.2d 569(Ind.2000), the plaintiff witnessed her brother being hit by a car.The court held:

[W]here the direct impact test is not met, a bystander may nevertheless establish "direct involvement" by proving that the plaintiff actually witnessed or came on the scene soon after the death or severe injury of a loved one with a relationship to the plaintiff analogous to a spouse, parent, child, grandparent, grandchild, or sibling caused by the defendant's negligent or otherwise tortuous conduct.

Id. at 573.

Recently, Indiana has further expanded the negligent infliction of emotional distress jurisprudence by allowing recovery or by refusing to dismiss the claim for failure to state a claim under the "direct involvement" rationale in three cases — where human remains were lost, seeBlackwell v. Dykes Funeral Homes, Inc.,771 N.E.2d 692(Ind.Ct.App.2002), trans. denied; where an individual was mistakenly diagnosed with Hepatitis C, seeKeim v. Potter,783 N.E.2d 731, 735(Ind.Ct.App.2003)("We hold that where, as here, a patient claims emotional damages as a result of alleged medical malpractice, he is sufficiently `directly involved' to satisfy the modified impact rule."); and where in the aftermath of the attacks on the World Trade Center a couple was directly involved and suffered a serious emotional trauma when the aircraft they were on had an unruly male passenger who was disruptive and shouting threats such as "September 11th" and "World Trade Center" during the flight and the airline had notice before he boarded that he was, at a minimum, unstable.SeeDelta Airlines v. Cook,816 N.E.2d 448(Ind.Ct.App.2004), reh'g pending.

Each of the rules of recovery for negligent infliction of emotional distress requires impact upon or the threat of injury to a person — either the plaintiff herself or her loved one.¹The Ketchmarks construe the negligent infliction of emotional distress precedent cases to require only "direct involvement" without the requirement of impact upon or the threat of injury to a person.This argument misses the mark.

We have generally refused to allow these damages where there has been only an economic loss.In Comfax Corp. v. North American Van Lines, Inc.,587 N.E.2d 118, 127(Ind.Ct.App.1992), we concluded that an economic loss and its resulting emotional trauma is not "sufficiently serious" to warrant the imposition of liability.While we recognized that an economic loss may cause emotional distress, the loss of a loved one cannot be compared to the loss of an investment.Even if a person is directly involved in a property loss, we decline to extend liability for negligent infliction of emotional distress to those cases involving purely property loss and the concomitant emotional distress caused by that loss.

We are not alone in generally refusing to allow recovery for negligent infliction of emotional distress arising out of property loss.Several cases from other jurisdictions establish that there is no recovery for negligent infliction of emotional distress arising from only the damage or loss of property.²SeeRoman v. Carroll,127 Ariz. 398, 621 P.2d 307, 308(Ct.App.1980)("Damages are not recoverable for negligent infliction of emotional distress from witnessing injury to property.");Sher v. Leiderman,181 Cal.App.3d 867, 226 Cal.Rptr. 698, 707(1986)("No California case has allowed recovery for emotional distress arising solely out of property damage, absent a threshold showing of some preexisting relationship or intentional tort.");Gen. Accident Ins. Co. v. Black & Decker (U.S.), Inc.,266 A.D.2d 918, 697 N.Y.S.2d 420, 420(N.Y.App.Div.1999)("[Plaintiffs'] children watched the fire from across the street and were never in any physical danger.There is no cause of action for `emotional distress caused by the destruction of one's property [ ... ] nor for emotional distress caused by the observation of damage to one's property.'");Pacher v. Invisible Fence of Dayton,154 Ohio...