Ritchhart v. Indianapolis Public Schools

• Decision Date: 23 July 2004
• Docket Number: No. 49A02-0307-CV-579.,49A02-0307-CV-579.
• Citation: 812 N.E.2d 189
• Parties: Sheila RITCHHART, Appellant-Plaintiff, v. INDIANAPOLIS PUBLIC SCHOOLS, Appellee-Defendant.
• Court: Indiana Appellate Court

812 N.E.2d 189

Sheila RITCHHART, Appellant-Plaintiff, v. INDIANAPOLIS PUBLIC SCHOOLS, Appellee-Defendant.

No. 49A02-0307-CV-579.

Court of Appeals of Indiana.

July 23, 2004.

W. Scott Montross, John F. Townsend, III, Townsend & Montross, Indianapolis, IN, Attorneys for Appellant.

Caren L. Pollack, Mandel Pollack & Horn, P.C., Indianapolis, IN, Attorney for Appellee.

OPINION

KIRSCH, Chief Judge.

Sheila Ritchhart appeals the trial court's entry of summary judgment in her action against Indianapolis Public Schools ("IPS") seeking damages for the negligent infliction of emotional distress and presents two issues for our review. We find the following restated issue dispositive:

Do the designated materials establish that Ritchhart may not maintain an action for the negligent infliction of emotional distress where the undisputed facts show that IPS, which transported her young child to and from school, delivered the child to the wrong address, causing her not to know of his whereabouts for three hours?

We affirm.

FACTS AND PROCEDURAL HISTORY

Ritchhart is the mother of Joshua Ritchhart who was three years old at the time of the incident giving rise to this action. Joshua suffers from Marfan's Syndrome, a genetic disorder that renders him legally blind, autistic, and vulnerable to a variety of connective tissue disorders and grand mal seizures. Although Joshua can hear and is aware of what is going on around him, he is non-verbal and unable to respond to questions or engage in reciprocal communication.

In the fall of 2000, Joshua began attending the Indiana School for the Blind in Indianapolis. IPS provided bus service for Joshua between school and home. On December 18, 2000, IPS employees could not locate Joshua's identification card. They misidentified Joshua as "Josh Pierce" and drove Joshua to the Pierces' residence. There, in response to the bus sounding its horn, a man came out to the bus, looked at Joshua and informed the bus driver that Joshua was not his child. The bus driver contacted the dispatch by radio and explained the situation whereupon another bus driver advised by radio of the address to which the child should have been delivered. The driver then drove Joshua to the specified address, knocked on the door and determined that no one was at home. A neighbor from across the street, Karen Massey, came over and told the driver that there had been a death in the family at that address and that she would keep Joshua and had done so before. The bus attendant, Elizabeth McChristian, obtained certain information from Massey and left Joshua with her.

In the meantime, Ritchhart was waiting outside her residence for the bus to bring Joshua home. Because the bus normally arrived between 3:45 and 4:15 p.m., she became concerned when the bus had not arrived by 4:15 p.m. By 4:45 p.m., she was in tears and called the School for the Blind to find out what had happened. She also called the IPS police, the Indianapolis Police Department, and television stations in her attempt to find out what had happened. Around 6:30 p.m., the IPS police found Joshua, and the school called Ritchhart and told her that Joshua was with Karen Massey. Ritchhart did not know anyone named Karen Massey, had not authorized Joshua to be released to Massey, and continued to worry. IPS police returned Joshua to his home at 7:30 p.m.

Ritchhart took Joshua to Riley Hospital to be examined. The examination determined that Joshua was physically unharmed. Ritchhart has received psychological counseling over the incident.

She filed suit against IPS for negligent infliction of emotional distress. IPS moved for summary judgment contending that Ritchhart was contributorily negligent as a matter of law because she failed to ensure that Joshua could be readily identified and that because there was no direct impact or involvement by Ritchhart in the incident giving rise to this action, she did not have a claim for negligent infliction of emotional distress. Without specifying the basis for its ruling or designating the issue upon which it determined there was no genuine issue as to any material fact, the trial court entered summary judgment. Ritchhart now appeals.

DISCUSSION AND DECISION

In reviewing the grant of a motion for summary judgment, this court stands in the shoes of the trial court, applying the same standards in deciding whether to affirm or reverse summary judgment. Wilson v. Lincoln Fed. Sav. Bank, 790 N.E.2d 1042, 1046 (Ind.Ct.App.2003); Ross v. Indiana State Bd. of Nursing, 790 N.E.2d 110, 115-16 (Ind.Ct.App.2003). We do not weigh evidence, but will liberally construe the facts in the light most favorable to the nonmoving party. Wilson, 790 N.E.2d at 1046; Ross, 790 N.E.2d at 116. Summary judgment should be granted only when the designated evidence shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Poznanski ex rel. Poznanski v. Horvath, 788 N.E.2d 1255, 1258 (Ind.2003); Reeder v. Harper, 788 N.E.2d 1236, 1240 (Ind.2003). Accordingly, on appeal, we must determine whether there is a genuine issue of material fact and whether the trial court has correctly applied the law. Wilson, 790 N.E.2d at 1046. The party appealing the grant of summary judgment has the burden of persuading this court on appeal that the trial court's ruling was improper. Id.; Ross, 790 N.E.2d at 116

.

Relying on specifically designated evidence, the moving party bears the burden of making a prima facie showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Ross, 790 N.E.2d at 115. If the moving party meets these two requirements, the burden shifts to the nonmovant to set forth specifically designated facts showing that there is a genuine issue for trial. Id. A genuine issue of material fact exists where facts concerning an issue that would dispose of the litigation are in dispute or where the undisputed material facts are capable of supporting conflicting inferences on such an issue. Poznanski, 788 N.E.2d at 1258; Ross, 790 N.E.2d at 115. To be considered genuine for summary judgment purposes, a material issue of fact must be established by sufficient evidence in support of the claimed factual dispute to require a jury or judge to resolve the parties' differing versions of the truth at trial. Street v. Shoe Carnival, Inc., 660 N.E.2d 1054, 1056-57 (Ind.Ct.App.1996).

A fact is material when its existence facilitates resolution of any of the issues involved. Rose & Walker v. Swaffar, 721 N.E.2d 899, 901 (Ind.Ct.App.2000), trans. denied. Notwithstanding a conflict in the facts on some elements of a claim, summary judgment is appropriate when there is no dispute with regard to facts that are dispositive of the litigation. Id. However, even if the facts are undisputed, summary judgment is inappropriate where the record reveals an incorrect application of the law to the facts. Ross, 790 N.E.2d at 115.

This court may not search the entire record but may only consider the evidence that has been specifically designated. Goodrich v. Indiana Michigan Power Co., 783 N.E.2d 793, 795 (Ind.Ct.App.2003), trans. denied. All pleadings, affidavits, and testimony are construed liberally and in the light most favorable to the nonmoving party. Id.; May v. Frauhiger, 716 N.E.2d 591, 594 (Ind.Ct.App.1999).

IPS argues that Ritchhart failed to establish a direct impact from the alleged negligent conduct of IPS and, therefore, cannot maintain an action for negligent infliction of emotional distress. Ritchhart responds that a direct impact is no longer required under Indiana law, that direct involvement is the standard, and that she clearly satisfies that standard.

Nationally, claims of negligent infliction of emotional distress have proved daunting to appellate courts. Fearing that allowing recovery for the negligent infliction of emotional distress will open the floodgates to spurious claims, courts have adopted a number of approaches: the impact rule; the modified impact rule; the direct involvement rule with conditions; the foreseeability rule; the zone of danger rule; and various bright line rules. See, e.g., Rowell v. Holt, 850 So.2d 474 (Fla.2003)

(reaffirming vitality of impact rule); Cohen v. McDonnell Douglas Corp., 389 Mass. 327, 450 N.E.2d 581 (1983) (applying a "direct observer" rule); Butler v. The Burlington Northern, 119 S.W.3d 620 (Mo.App. W.D.2003) (applying zone of danger test); Andersen v. Baccus, 335 N.C. 526, 439 S.E.2d 136 (1994) (applying foreseeability test). Some ten years ago, the United States Supreme Court summarized the state of the law nationally regarding negligent infliction of emotional distress at that time as follows:

Three major limiting tests for evaluating claims alleging negligent infliction of emotional distress have developed in the common law. The first of these has come to be known as the physical impact test. It originated a century ago in some of the first cases recognizing recovery for negligently inflicted emotional distress. At the time Congress enacted FELA in 1908, most of the major industrial States had embraced this test. Under the physical impact test, a plaintiff seeking damages for emotional injury stemming from a negligent act must have contemporaneously sustained a physical impact (no matter how slight) or injury due to the defendants conduct. Most jurisdictions have abandoned this test, but at least five States continue to adhere to it.

The second test has come to be referred to as the zone of danger test. It came into use at roughly the same time as the physical impact test, and had been adopted by several jurisdictions at the time FELA was enacted. Perhaps based on the realization that a near miss may be as frightening as a direct hit, the zone of danger test limits recovery for emotional injury to those plaintiffs who sustain a physical impact as a result of a

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