Opinion
No. 3:04-cv-0117-JDT-WGH.
November 2, 2004
This matter comes before the court on two motions filed by Defendant MAAC, INC., d/b/a McDonald's ("MAAC"): the first being a motion to dismiss Count XIV of Plaintiffs' Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), and the second being a motion to refer to Plaintiff BKL by her full name instead of only by her initials. In addition, the Plaintiffs have moved to strike MAAC's motion to refer to BKL by her full name, and have also requested that MAAC be sanctioned. The court will now consolidate and address these motions.
Count XIV consists of claims by Brad and Sandy Luttrull against MAAC for negligent infliction of emotional distress and loss of services.
I. BACKGROUND
Plaintiff BKL alleges that she was repeatedly raped and sexually harassed by forty-seven-year-old co-worker and registered sex offender Andrew Morris on the premises of MAAC, a franchisee and operator of a "McDonald's" fast-food restaurant in Evansville, Indiana. At the time such conduct purportedly occurred, BKL was sixteen years old and a sophomore in high school. Apart from assaulting, battering, and raping BKL during working hours and while other employees and managers were on MAAC's premises, Morris also repeatedly threatened BKL with violence and told her that he would kill her and her family if she ever divulged his conduct to anyone. BKL eventually informed management at MAAC about Morris' behavior. However, when management discussed the situation they concluded that BKL should be fired and Morris retained because the latter was a "better worker." (Compl. ¶ 103.) After enduring months of sexual abuse and harassment, BKL was "constructively discharged" from her employment on March 25, 2003. ( Id. ¶ 108.) MAAC continued to employ Morris and was training him to become a manager until he was arrested.
As a result of caring for BKL, their daughter, and trying to help her cope during her ordeal with Morris and MAAC, Brad and Sandy Luttrull (the "Luttrulls") allege to have suffered severe emotional trauma and mental anguish. On one occasion the Luttrulls observed BKL in a great deal of emotional distress soon after she had been battered by Morris in a parking lot. In the days and weeks following that incident, the Luttrulls became intimately involved in BKL's obtainment of a protective order against Morris and a police investigation into the matter. As more of the details surrounding their daughter's plight with Morris and MAAC came to light, the Luttrulls had the unfortunate experience of taking BKL to the hospital for the administration of a "rape kit" and other medical procedures.
The Plaintiffs brought this action in July 2004, and in their Complaint allege sexual harassment under 42 U.S.C. § 2000e, negligent hiring, negligent supervision, negligent infliction of emotional distress, and several related causes of action against MAAC and McDonald's Corp. Defendant MAAC argues that Count XIV of Plaintiffs' Complaint for negligent infliction of emotional distress should be dismissed for failure to state a claim upon which relief can be granted. In addition, MAAC moves to refer to BKL by her full name now that she has reached the age of majority during the course of this litigation.
II. DEFENDANT'S MAAC'S MOTION TO DISMISS COUNT XIV
A. Legal Standard
The purpose of a Rule 12(b)(6) motion to dismiss is to test the sufficiency of the complaint, not to resolve the case on the merits. See 5B CHARLES ALAN WRIGHT ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1356 (3d ed. 2004). When considering such motion, the court must accept as true all factual allegations in the complaint and draw all reasonable inferences in favor of the plaintiff. Hentosh v. Herman M. Finch Univ. Of Health Sciences/The Chi. Med. Sch., 167 F.3d 1170, 1173 (7th Cir. 1999). Dismissal is appropriate only if "`it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'" Ledford v. Sullivan, 105 F.3d 354, 356 (7th Cir. 1997) (quoting Hishon v. King Spalding, 467 U.S. 69, 73 (1984)).
B. Discussion
Defendant MAAC argues that the Luttrull's claim for negligent infliction of emotional distress (Count XIV) seeks to accomplish a legal impossibility and must therefore be dismissed under Rule 12(b)(6). This is so, according to MAAC, because the Luttrulls did not witness the actual events or the aftermath of the events that allegedly caused harm to their daughter. Both parties agree that Indiana state law governs this issue.
As has been true in many states, Indiana's law of negligent infliction of emotional distress has evolved over the past few decades. Beginning in 1991, the Indiana Supreme Court adopted what can best be described as the "modified impact" rule for negligent infliction of emotional distress. See Shuamber v. Henderson, 579 N.E.2d 452, 456 (Ind. 1991); Ritchhart v. Indianapolis Pub. Sch., 812 N.E.2d 189, 193 (Ind.Ct.App. 2004). Pursuant to this rule, when a person witnesses a physical injury negligently inflicted on another, he or she is entitled to recover for emotional distress under the following circumstances:
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 [the Indiana Supreme Court] 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 Indiana Supreme Court later clarified that its requirement of "direct impact" under the modified impact rule "is properly understood as the requisite measure of `direct involvement' in the incident giving rise to the trauma." Conder v. Wood, 716 N.E.2d 432, 435 (Ind. 1999). "Viewed in this context . . . it matters little how the physical impact occurs, so long as the impact arises from the plaintiff's direct involvement in the tortfeasor's negligent conduct." Id.
However, when the Indiana Supreme Court confronted a case in which the plaintiff did not suffer any form of "direct impact," the modified impact rule was relaxed in order to allow bystanders to assert claims for negligent infliction of emotional distress. Groves v. Taylor, 729 N.E.2d 569, 572 (Ind. 2000). In Groves, the plaintiff was a young girl who heard the impact of her brother being struck by a passing police car and turned to see his body as it rolled off the highway. Id. at 571. The court identified three factors that, taken together, demonstrate the legitimacy of claims for negligent infliction of emotional distress when brought by a bystander: (1) the plaintiff witnesses a fatal injury or a physical injury that would be expected to cause severe distress; (2) the plaintiff has a relationship to the victim that is "analogous to a spouse, parent, child, grandparent, grandchild, or sibling;" and (3) the plaintiff witnesses either the incident causing the death or serious injury or the "gruesome aftermath" of the incident minutes after it occurs. Id. at 572-73 (citations omitted); see Ritchhart, 812 N.E.2d at 194-95. As such, a bystander-plaintiff in Indiana may pursue one of two possible routes when seeking damages for negligent infliction of emotional distress after Groves. First, the "direct involvement" requirement of the modified impact rule can be satisfied if the bystander demonstrates that he or she suffered a direct impact. Groves, 729 N.E.2d at 573. Second, in situations where the bystander did not suffer a direct impact, the plaintiff's claim may nonetheless proceed if the three criteria set forth in Groves are satisfied. Id. For example, the bystander-plaintiff's claim in Groves was allowed to proceed because the injury suffered by her brother was fatal, the victim was her sibling, and she witnessed the "gruesome aftermath" of the incident causing her brother's death immediately after it occurred. Id.
The Luttrulls have not alleged that they suffered any direct impact as a result of MAAC's negligence, and thus must pursue their negligent infliction of emotional distress claim as bystanders. As a result, MAAC urges this court to strictly apply the three Groves factors when evaluating their claim. Specifically, MAAC argues that the Luttrulls' claim must fail because, even if all allegations in the Plaintiffs' Complaint are taken as true, they neither witnessed the alleged assaults, batteries, and rapes of BKL, nor did they witness the "gruesome aftermath" of those events, as required by the third factor listed above. The Groves court expressly stated that witnessing a shocking incident or its aftermath is "distinct from the experience of learning of a loved one's death or severe injury by indirect means." Id. (citations omitted). As such, an analysis of the Indiana Court of Appeals' recent decision in the Ritchhart case proves insightful. In that case, the mother of a disabled student became distressed after she learned that the defendant school had transported her son to the wrong address, which prevented her from knowing his whereabouts for over three hours. Ritchhart, 812 N.E.2d at 190-91. The mother's claim for negligent infliction of emotional distress that followed the incident was terminated when the trial court granted summary judgment in favor of the defendant. Id. at 190. On appeal, the court found that the mother's claim fell directly into the bystander line of cases because she did not allege any direct impact. Id. at 195. The court then upheld the grant of summary judgment after finding that the mother's claim failed the first and third factors of the Groves test: her son did not suffer a severe injury, and she did not witness any part of the incident giving rise to the complaint. Id. at 195-96.
Along similar lines, the Luttrulls face a substantial obstacle in bringing their claim for negligent infliction of emotional distress. The face of the Complaint indicates that they had no way of observing the incidents wherein BKL was injured on MAAC's premises during working hours. At most, the Luttrulls learned of the harms that befell their daughter through indirect means. In response, the Luttrulls contend that on one occasion they came upon their daughter in a parking lot and observed that she was distressed as a result of a recent battery visited upon her by Morris. However, contrary to the Luttrulls' assertion, the Groves test does set forth certain temporal limitations. A bystander must either witness the incident causing a severe injury or its gruesome aftermath in the immediate minutes after it occurred. Id. Even if the court accepts the Luttrulls' version of the parking lot incident, they still do not satisfy the immediacy requirement of the Groves' bystander test. The same is true for the Luttrulls' involvement with BKL when she sought a protective order, assisted in a police investigation, and made various trips to the hospital. While certainly upsetting, such involvement does not equate to "witnessing either an incident causing death or serious injury or the gruesome aftermath of such an event minutes after it occurs. . . ." Id.
Perhaps realizing the problems presented by the fact that they did not witness a distressing scene or its aftermath, the Luttrulls ask this court to examine recent cases where the Indiana Court of Appeals has moved away from the three specific factors listed by Groves in order to focus on the policy behind the creation of those factors. Specifically, the Luttrulls argue that the case of Blackwell v. Dykes Funeral Homes, Inc., 771 N.E.2d 692 (Ind.Ct.App. 2002), should control in the instant matter. In Blackwell, the plaintiffs were the parents of a young man who committed suicide in 1987. 771 N.E.2d at 694. The plaintiffs had their son's body cremated, and directed a funeral home to arrange for the transportation of the urn containing his ashes to a glass niche in a cemetery chapel. Id. Twelve years after it was placed in the niche, one of the plaintiffs asked the chapel to move the urn closer to the glass so that she could have a better view. Id. However, several days later the vice-president of the company that owned the chapel informed the plaintiffs that his employees had discovered that the urn was empty. Id. Following this incident, the plaintiffs brought claims for, inter alia, negligent infliction of emotional distress against both the funeral home and the cemetery. Id. In reversing the trial court's grant of summary judgment in favor of the defendants, the court classified the plaintiffs as bystanders and revived their claim despite finding that the three-factor test set forth in Groves was "inapposite." Id. at 697. According to the court:
In our view, this is the type of claim that our supreme court spoke of in Groves where the plaintiff is sufficiently and directly involved in the incident giving rise to the emotional trauma. The rationale underlying the impact rule that prevents concocted claims of mental anguish, is not implicated here. We are satisfied that the evidence designated to the trial court in this case is such that the alleged mental anguish suffered by the Blackwells is not likely speculative, exaggerated, fictitious, or unforeseeable.Id.
Seizing on this language, the Luttrulls argue that they became directly involved in the incident giving rise to BKL's trauma because they observed their daughter in an emotionally distressed condition, listened to her recount incidents of rape, were present during the administration of a rape kit, and continually share concerns for her future physical and mental health. The Luttrulls contend further that their claims cannot be considered "speculative, exaggerated, fictitious, or unforeseeable," and are sufficiently reliable so that application of the three-factor test outlined in Groves is unnecessary. The court cannot agree. Not only is Blackwell distinguishable from the instant case, it also represents too great of a shift from the Indiana Supreme Court's holding in Groves. In Blackwell, the defendants' alleged negligence consisted of a breach of duty owed directly to the plaintiffs, and the harm caused by the defendants' negligence was felt only by the plaintiffs. In other words, the plaintiffs were the individuals who had repeated contact with the parties responsible for causing the emotional trauma. Here, the incidents giving rise to the emotional trauma are the alleged rapes, batteries, and assaults that occurred on and off of MAAC's premises. The Luttrulls had no direct involvement in that trauma; rather, their involvement came in the days and weeks that followed as they sought to care for their daughter and assist in her recovery.
The Luttrulls have also cited Bader v. Johnson, 732 N.E.2d 1212 (Ind. 2000), where the parents of a terminally ill child brought an action for negligent infliction of emotional distress following the child's birth. The parents alleged that they did not discover the infant's hydrocephalus until it was too late to terminate pregnancy due to the defendant physician's negligence. Bader, 732 N.E.2d at 1215. As to her claim for emotional distress, the court found that the mother satisfied the direct impact requirement of the modified impact rule as a result of carrying the child to term. Id. at 1222. With respect to the father, the court stated that "at most [he] is a relative bystander . . . [w]hether he can prevail on his claim for emotional distress damages depends on the evidence adduced at trial." Id. The court finds that this case does not cut one way or the other with respect to the Luttrulls' claims. Depending on the trial evidence in Bader, the father may have been present in the delivery room and could thus rightfully be classified as a bystander to a trauma. But as it stands, there is simply no way to determine whether his situation is analogous to that of the Luttrulls.
Typically, when a family member suffers a severe injury her relatives will have a reaction that involves some degree of emotional distress. But the law does not provide a remedy for everyone who suffers distress. The concept of negligent infliction of emotional distress is one that extends responsibility for harm to those who have an almost-physical proximity to the incident giving rise to that harm. In shaping the contours of this tort, the Indiana Supreme Court expressly listed three factors that it deemed were sufficient to ensure the genuineness of a plaintiffs claim for negligent infliction of emotional distress in situations where bystanders did not suffer any direct physical impact. To ignore those factors — as happened in Blackwell — would require Indiana courts to engage in an ad hoc balancing test that would look to the likely degree of mental anguish suffered by a plaintiff, which in turn would be used to determine whether the plaintiff's claim was spurious. Such an approach would stand in direct contrast to Groves' holding, and moreover, it would have the potential to open a floodgate of litigation wherein every spouse, parent, child, grandparent, grandchild, or sibling of a tort victim could assert a claim for negligent infliction of emotional distress simply as a result of staying involved in the victim's recovery. For example, under the Luttrulls' theory, it would appear that the family members of a victim of an automobile accident caused by a party's negligence could bring a claim for negligent infliction of emotional distress so long as they stay involved with the victim's rehabilitation and recovery. Those family members would undoubtedly observe the cumulative result of the victim's trauma, despite not having seen the accident or its immediate aftermath. Yet, the Groves court had a reason to included the requirement that a bystander-plaintiff actually witness or have come upon the scene soon after the injury of a relative, and this court feels compelled not to ignore it when analyzing a claim for negligent infliction of emotional distress under the circumstances of this case. The court will therefore dismiss Count XIV to the extent it asserts a claim for negligent infliction of emotional distress.
III. DEFENDANT MAAC'S MOTION TO REFER TO PLAINTIFF BKL BY NAME
Because Plaintiff BKL has reached the age of majority during the course of this litigation, MAAC has requested that she now be required to proceed using her full name. In addition, MAAC asks this court to instruct the Plaintiffs to refrain from referring to BKL as "a minor." BKL, who is now eighteen years old, was sixteen when she was allegedly raped and sexually harassed on MAAC's premises. This court's Local Rule 5.2(a)(2) requires that "[i]f the involvement of a minor child must be mentioned, only the initials of that child should be used." Thus, the Plaintiffs correctly adhered to this rule when filing their Complaint, and argue that the court should continue to recognize BKL's status at the time of her injury regardless of the fact that she is no longer a minor child.
According to the Seventh Circuit, "[t]he use of fictitious names is disfavored, and the judge has an independent duty to determine whether exceptional circumstances justify such a departure from the normal method of proceeding in federal courts." Doe v. Blue Cross Blue Shield United of Wis., 112 F.3d 869, 872 (7th Cir. 1997) (citation omitted). However, the same court noted that "fictitious names are allowed when necessary to protect the privacy of children, rape victims, and other particularly vulnerable parties or witnesses." Id. Such language reflects a policy determination that in certain situations the privacy interests of individuals such as rape victims may outweigh the public's interest in open proceedings. To allow the contrary could very well serve to deter victims of sexual abuse from seeking an appropriate remedy. Furthermore, with respect to minors, the protection of their privacy will mean little if the cloak protecting that privacy disappears simply upon reaching the age of majority.
In this case, the court does not understand why MAAC is spending considerable effort in an attempt to publicly parade BKL's name, unless it is out of a hope to deter her from litigating. If MAAC's concern is a potentially sympathetic view of BKL as a minor, that concern is misplaced because by the time of trial any inappropriate references to her status as a minor may be redacted. However, at the time of the alleged incidents at the heart of this case BKL was a minor, and when speaking of those events it is appropriate to indicate her then-minor status. In addition, the court is capable of addressing any prejudice that may arise from repeated references to BKL as "a minor" as the case proceeds. But as indicated, it would be premature to address this type of concern at the present time. In sum, MAAC's motion to refer to BKL by name will be denied.
Of course, to the extent that BKL's parents, the Luttrulls, publicly disclose her name, the court might reconsider its present disposition of the issue. If BKL's name was disclosed by the Luttrulls during media interviews, for example, then such action might constitute waiver. However, MAAC has not offered any such evidence. The court will not find that disclosure of BKL's name to the police constituted waiver, since such action was required for the purposes of a criminal investigation.
IV. CONCLUSION
For the foregoing reasons, Defendant MAAC's motion to dismiss Count XIV of Plaintiff's Complaint for failure to state a claim is hereby GRANTED to the extent that Count XIV asserts a claim for negligent infliction of emotional distress.
The court notes that Count XIV of Plaintiffs' Complaint is for "negligent infliction of emotional distress" and "loss of services." Defendant MAAC's motion to dismiss does not refer to the loss of services component of that Count. As such, with no briefing done for this issue by either party, the court must presume that Count XIV will now consist solely of a claim for loss of services as a result of the ruling in this Entry.
Defendant MAAC's motion to refer to Plaintiff BKL by name is hereby DENIED.
Plaintiffs have also moved for sanctions against Defendant MAAC on the grounds that MAAC violated Local Rule 5.2(a)(3) by publishing BKL's entire date of birth in its motion to refer to her by name. Furthermore, in the same motion Plaintiffs ask this court to strike MAAC's motion to refer to BKL by name. Local Rule 5.2(a)(3) provides that if an individual's date of birth must be mentioned, only the year should be used. While the court urges counsel for MAAC to strictly adhere to this rule in the future, the court finds in the instant case that the violation was not willful nor in bad faith. As such, the court hereby DENIES Plaintiffs' motion for sanctions and to strike (dkt. no. 45).
ALL OF WHICH IS ORDERED.