260.423.9551Call
215 East Berry Street
Fort Wayne, IN 46802

Legal Malpractice

Perkins v. Stesiak (Ind. Ct. App. May 30, 2012)

In this case, the Court of Appeals affirmed a trial court’s grant of summary judgment on the grounds that the plaintiff had no cognizable claim for emotional distress. After the Plaintiff’s grandson was sexually abused by a teacher’s assistant, the Plaintiff retained the defendant attorney on a contingency fee basis to represent the Plaintiff and her grandson in a suit against the school system. The attorney did not file suit within the statute of limitations for the Plaintiff’s claim (the grandson’s claim was not barred because he was a minor). The Plaintiff sued the attorney and his firm for legal malpractice on the grounds that Plaintiff lost her right to sue the school directly, arguing she had a claim based upon her own emotional distress. The Court of Appeals found the Plaintiff had no claim for negligent infliction of emotional distress under either the modified impact rule or the bystander rule.

This decision presents an important limitation on a parent or guardian’s ability to collect damages for injuries to his or her child. The Plaintiff suffered physical impact at the hands of her grandson following the sexual abuse. The Court of Appeals held that the impact suffered by the grandparent must be a direct result of the injury-producing event, here the sexual abuse committed by the teacher’s assistant. The Court of Appeals concluded the impact suffered by the grandparent was an indirect result of the sexual abuse. This holding appears to be in line with the Supreme Court’s explanation of the modified impact rule:

  • When ... a plaintiff sustains a direct impact by the negligence of another and, by virtue of that direct involvement sustains 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 v. Henderson 579 N.E.2d 452, 456 (Ind.1991)

  • The modified impact rule maintains the requirement of a direct physical impact. However, the impact need not cause a physical injury to the plaintiff and the emotional trauma suffered by the plaintiff need not result from a physical injury caused by the impact.

Conder v. Wood, 716 N.E.2d 432, 434 (Ind. 1999)

The Court of Appeals’ decision makes clear that this direct physical impact element requires not merely “but for” causation and arguably not merely proximate causation, but instead requires an actual direct involvement with the tortfeasor’s conduct. This case is important for any practitioner dealing with a case brought under the modified impact rule, especially defense counsel.

Finally, in footnote 4 of its decision, the Court noted that a party cited a Court of Appeals case that had been vacated and reversed by the Supreme Court. The Court’s footnote was brief and unremarkable. However, other panels of the Court of Appeals have harshly chastised parties for citing decisions in which transfer has been granted or which have been superseded. Practitioners should take care to cite-check briefs before filing to make sure a decision is still good law. Citing to a vacated decision not only violates Indiana appellate rules, but also can affect that party’s credibility before the Court of Appeals.

Legal Disclaimer

The information contained in the Barrett McNagny LLP website is for informational purposes only and should not be considered legal advice on any subject matter. Furthermore, the information contained on our website may not reflect the most current legal developments. You should not act upon this information without consulting legal counsel.

Your transmission and receipt of information on the Barrett McNagny LLP website, or sending an e-mail to one of our attorneys or staff, will not create an attorney-client relationship between you and Barrett McNagny LLP. If you need legal advice and want to establish an attorney-client relationship with Barrett McNagny LLP, please contact one of our attorneys by telephone, email, or other means of communication, and allow the attorney to confirm that the firm does not represent other persons or entities involved in the matter and that the firm is willing to accept representation. Until such confirmation is provided by one of our attorneys, you should not transmit information to us that you consider confidential. If you do provide information to us, and no attorney-client relationship is established, the information will not be considered confidential or privileged, and our receipt of such information will not preclude us from representing another client in a matter adverse to you.

Any links to other websites are not intended to be referrals or endorsements of those sites.

An attorney-client relationship will NOT be formed merely by sending an email to Barrett McNagny, LLP or to any of its attorneys. Please do not send any information specific to your legal needs until you obtain approval from a Barrett McNagny, LLP attorney, as the content of such email will not be considered confidential or privileged. By sending us an email, you confirm your understanding of this notification. If you agree, you may use the e-mail links on this page to contact an attorney.
YesNo