Ross v. Cheema , 696 N.E.2d 437 ( 1998 )

OPINION

KIRSCH, Judge.

Joyce S. Ross appeals the grant of summary judgment in favor of Raminder Chee-ma and Pillow Express Delivery Service, Inc. in her action for negligent infliction of emotional distress and raises the following issue: Whether repeated, loud pounding upon the door to plaintiffs home can constitute a sufficient impact to give rise to a claim for negligent infliction of emotional distress under the standard set out by our Supreme Court in Shuamber v. Henderson.¹

We reverse.

FACTS AND PROCEDURAL HISTORY

On the evening of December 6, 1995, Ross was in her living room when the doorbell rang. Ross was recuperating from shoulder surgery and had a “cooling unit” attached to her shoulder. Before she could answer the door, there was a “tremendous pounding” on the door. Record at 44. She heard the locked screen door pop open, then the door knob on the inner door began to twist back and forth, then by more pounding on the door.

Ross went to a window and saw a car which she did not recognize. Fearful of an intruder, Ross placed a steak knife in her pants for protection before returning to the' door. Ross opened the'front door and a man reached in and put a clipboard in front of her face and told her to “sign.” Record at 45. When she asked why she was to- sign, the man said, “I have a letter for you. Sign here.” Record at 45. Ross signed and then saw that her screen door lock was broken and the main door knob was very loose, hanging by only two screws. Record at 45.

Ross claimed that as a result of the incident she suffered mental injury which required medical treatment. She brought an action' against the deliveryman, Cheema, and his employer, Pillow Express for negligent infliction of emotional distress. Pillow Express and Cheema moved for summary judgment claiming that the Indiana impact rule barred Ross’s recovery. The trial court granted the motion, and this appeal ensued.

DISCUSSION AND DECISION

When reviewing a decision on a summary judgment motion, this court applies the same standard as the trial court. Wickey v. Sparks, 642 N.E.2d 262, 265 (Ind.Ct.App.1994), trans. denied (1995). Summary judgment shall be granted if the designated evi-dentiary matter demonstrates 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); Wickey, 642 N.E.2d at 265. All facts and reasonable inferences must be construed against the moving party. Sizemore v. Arnold, 647 N.E.2d 697, 699 (Ind.Ct.App.1995). We will affirm a summary judgment ruling on any legal theory which is consistent with the. designated evidence in the record. Crist v. K-Mart Corp., 653 N.E.2d 140, 142 (Ind.Ct.App.1995), trans. denied (1996).

Ross contends that she should be allowed to' maintain her action for negligent infliction of emotional distress² without regard to whether the emotional trauma was accompanied by any physical injury, because the emotional distress was a “foreseéable consequence” of Cheema’s actions. • In response, the defendants contend that Ross does not meet the requirements of the modified impact rulé under Shuamber v. Henderson and that Ross’ alleged distress is not reasonable and does not satisfy the reasonableness test in Shuamber.

Before Shuamber, the Indiana impact rule provided that the only emotional trauma compensable under a negligence theory was that arising out of a plaintiffs own injuries. Boston v. Chesapeake, 223 Ind. 425, 428-9, 61 N.E.2d 326, 327 (Ind.1945). In Shuamber, the plaintiff was a mother, driving in her car with two of her children when it was hit by the defendant. She watched as her son died in front of her. The court modified the impact rule, reasoning that, in such circumstances where the plaintiff has been directly impacted, she need not also suffer physical injuries to recover. The Supreme Court removed contemporaneous physical injury accompanying the impact as a requirement to sustain an action for negligent infliction of emotional distress, stating:

“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.”

Shuamber, 579 N.E.2d at 456.

The court reviewed and rejected the traditional reasons for requiring a' physical injury to plaintiff before recovery was allowed: (1) fear that a flood of litigation will result if claims of this nature are allowed; (2) concern that fraudulent claims will be made; and (3) difficulties in proving a causal connection between the negligent conduct and the emotional distress. The court found that the plaintiff was in close proximity to the event giving rise to her emotional trauma and extremely close proximity to the defendant. She and her daughter who was also in the car were the only two persons in a position to recover. Finally, there was little difficulty in determining that the plaintiffs emotional trauma occurred as a result of seeing her son die within arm’s reach. Thus, none of the traditional concerns underlying the impact rule were applicable to the case. In regard to the requisite impact, the court found that “Gail Schuamber was directly involved in the impact because she was inside the vehicle when it was struck by Henderson’s automobile. Thus, she sustained an impact.” 579 N.E.2d at 456.³

Shuamber requires “direct impact” and “direct involvement.” Ross satisfies both conditions. She was in her home, sitting in her living room when Cheema broke her screen door and began pounding on the main door, twisting the handle so vigorously that it was left hanging by two screws. We see no meaningful distinction between a violent impact with an automobile in which one is riding and one with the home in which one is sitting. In both instances, resulting emotional trauma should be readily foreseen.

In addition to the “direct impact” and “direct involvement,” Shuamber -imposes'a reasonableness requirement. Cheema contends that Ross cannot satisfy this requirement because it was unreasonable for Ross to suffer emotional trauma based on his actions. However, reasonableness is a question of fact for the jury. It is uncontested that Cheema was so vigorous in his attempt to deliver the letter that he: (1) broke Ross’s screen door; (2) left the main door knob hanging by two screws; and (3) continually and powerfully pounded on her door. From such facts, a jury could conclude that Ross, fearful that her home was being broken into, could reasonably experience emotional trauma and that Cheema should have foreseen such trauma.

We conclude that there are genuine issues of material fact about whether the circumstances of this case constitute a direct impact within the Indiana impact rule and whether Ross’s emotional trauma was the reasonable result of such impact. These are both questions of fact to be determined by a jury, not by courts as a matters of law.

We express no opinion as-to whether Ross will be successful in proving the elements of her ease, but, as in Shuamber, we simply hold that a jury should be allowed to make a determination as to whether her evidence is substantial enough to prove her claim. In this case, that means allowing her the chance to prove that her mental trauma is a result of defendant’s attempts to gain entry into her home. A-jury will be capable of evaluating whether Ross has proved the elements of her claim for emotional damages. “[T]he experience in this state is that juries are equally qualified to judge someone’s emotional injury as they are to judge someone’s pain and suffering, and the presence or absence of some physical injury does nothing to alleviate the jury’s burden in deciding whether the elements of mental suffering are present.” Id. at 455.

Reversed.

SULLIVAN, J., concurs with separate opinion. FRIEDLANDER, J., dissents with separate opinion.

1 . 579 N.E.2d 452 (Ind.1991).

2 . Since the motion for summary judgment was directed only to Ross's claim for negligent infliction of emotional distress, we do not reach any claims by Ross regarding intentional infliction of emotional distress.

3 . At the time Shuamber was decided only two states other than Indiana required that a plaintiffs emotional trauma arise out of her physical injury, and that only three stales required any impact at all. Shuamber, 579 N.E.2d at 455, n. 1. The majority of states have switched from an impact rule to a "zone of danger” test, finding that the determination is, for the most part, a matter of degree and that the requirement of an impact can be artificial and capricious. See, e.g., Williams v. Baker, 572 A.2d 1062 (D.C.1990), where the court stated:

"We are fortified in our decision to forego-the requirement of an impact by the conviction that the connection between mere physical imT pact and mental injury is tenuous. While the theory behind the impact rule is that the oecur-rence of a contemporaneous physical impact guarantees the genuineness of the mental distress, a number of jurisdictions have allowed recovery for mental injury as long as there was any physical impact, no matter how insignificant. As Justice Roberts of Pennsylvania stated in Niederman v. Brodsky, It appears completely inconsistent to argue that the medical profession is absolutely unable to establish a causal connection in the case where there is no impact at all, but that the slightest impact.... suddenly bestows upon our medical colleagues the knowledge and facility to diagnose the causal connection between emotional states and physical injuries.' "

572 A.2d at 1067 (quoting Niederman v. Brodsky, 436 Pa. 401, 261 A.2d 84, 87 (1970)).