Opinion
No. 3:04-cv-0117-JDT-WGH.
January 13, 2005
ENTRY ON PLAINTIFFS' MOTION TO ALTER OR AMEND JUDGMENT OR, IN THE ALTERNATIVE, MOTION FOR CERTIFICATION OF STATE LAW QUESTION (DOCKET NO. 61)
This Entry is a matter of public record and may be made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
The court, on November 2, 2004, dismissed Count XIV of Plaintiffs' complaint for failure to state a claim upon which relief could be granted (Docket No. 56). That count asserted a claim by Plaintiffs Brad and Sandy Luttrull against Defendant MAAC, Inc., d/b/a McDonald's ("MAAC") for negligent infliction of emotional distress. Plaintiffs now petition the court to alter or amend that order of dismissal, or, in the alternative, ask the court to certify a question of law to the Indiana Supreme Court. Defendant MAAC opposes both requests. An argument was held in this matter on December 13, 2004, and the court now finds as follows:
Presumably, pursuant to Fed.R.Civ.P. 59(e).
I. MOTION TO ALTER OR AMEND JUDGMENT
In order to prevail on a motion to alter or amend judgment, Plaintiffs must "clearly establish a manifest error of law or an intervening change in the controlling law or present newly discovered evidence." Romo v. Gulf Stream Coach, Inc., 250 F.3d 1119, 1121 n. 3 (7th Cir. 2001). The motion must do more than merely reargue the merits of the case. See Neal v. Newspaper Holdings, Inc., 349 F.3d 363, 368 (7th Cir. 2003). According to the Seventh Circuit, "[a] `manifest error' is not demonstrated by the disappointment of the losing party. It is the `wholesale disregard, misapplication, or failure to recognize controlling precedent.'" Oto v. Metro. Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000) (citation omitted). With that standard in mind, and as explained below, the court denies Plaintiffs' motion to alter or amend judgment.
First, Plaintiffs allege that the court misapplied Indiana law on negligent infliction of emotional distress by distinguishing the case of Blackwell v. Dykes Funeral Home, Inc., 771 N.E.2d 692 (Ind.Ct.App. 2002), from the Indiana Supreme Court's decision in Groves v. Taylor, 729 N.E.2d 569 (Ind. 2000). The Groves 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. Groves, 729 N.E.2d at 572-73 (citations omitted). In Blackwell, the Indiana Court of Appeals faced a factual situation where 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. 771 N.E.2d at 694. 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 a claim for 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.
Plaintiffs contend that in cases where close temporal proximity is not essential for the alleged harm to be reasonable, Blackwell directs courts to take one step further to determine whether a claim is exaggerated or concocted. By contrast, this court, in dismissing the instant Plaintiffs' claim for negligent infliction of emotional distress, found the Groves test (announced by the Indiana Supreme Court), and not the Blackwell approach, to be controlling. As a result, the court found that Plaintiffs did not state a claim for negligent infliction of emotional distress because, inter alia, they did not witness "either an incident causing death or serious injury or the gruesome aftermath of such an event minutes after it occurs . . . Groves, 729 N.E.2d at 573 (citation omitted). Furthermore, the court distinguished the instant case from Blackwell by finding that the Luttrulls were not as directly involved in the trauma giving rise to the claim as were the plaintiffs in that case.
Yet, Plaintiffs contend that Blackwell is a an extension of Groves, to be followed in this action because it was more recently decided and the Indiana Supreme Court denied transfer of the case. The court disagrees. Plaintiffs have cited no cases for the proposition that denial of transfer by the Indiana Supreme Court elevates a decision of the Indiana Court of Appeals to controlling precedent. According to the Seventh Circuit, federal courts "look first to Indiana Supreme Court precedent," and only if there are no cases on point should the courts consider the "persuasive" authority of lower appellate courts. Allstate Ins. Co. v. Tozer, No. 04-1220, 2004 WL 2985254 (7th Cir. Dec. 28, 2004) (citation omitted). In this case, the Indiana Supreme Court has clearly spoken on the issue of negligent infliction of emotional distress — in Groves. Therefore, the court finds that it did not commit manifest error by relying on Indiana Supreme Court precedent that speaks directly to the issue at hand.
Plaintiffs next contend that the court failed to accurately consider the facts of their case. Specifically, in distinguishing their case from the facts in Blackwell, Plaintiffs argue that the court failed to appreciate the uniqueness of a situation involving sexual trauma visited upon a minor. The court agrees that sexual assaults can result in lingering psychological distress, but maintains the position that Plaintiffs cannot state a claim for negligent infliction of emotional distress. Simply because a case involves the rape of a young girl (or, say, a badly burnt or injured girl), that factor alone does not allow recovery under a theory of negligent infliction of emotional distress when Indiana law does not allow it. The Groves court has ruled that the experience of learning of a loved one's injury by indirect means, whether that injury is physical or psychological, is not recoverable under the theory of negligent infliction of emotional distress.
For the first time, Plaintiffs have cited several somewhat ancient cases for their claim that injuries to children present a unique legal and factual situation. These cases bear no relation to the instant action and are merely superfluous. For one thing, these cases appear to be statutory causes of action, premised on intentional conduct.
Finally, Plaintiffs argue that the court incorrectly distinguished the case of Bader v. Johnson, 732 N.E.2d 1212 (Ind. 2000). Bader involved a claim for negligent infliction of emotional distress brought by the parents of a terminally ill child shortly after the child's birth. 732 N.E.2d at 1214-15. The parents alleged that they did not discover the infant's birth defects until it was too late to terminate the pregnancy due to the defendant-physician's negligence. Id. at 1215. With respect to the father's negligent infliction claim, 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. at 1222. However, the court did not provide a framework for deciding whether the father's claim could or could not proceed, and this court will not be the first to address such speculation. Bader does not represent an extension or elaboration of Groves. The Bader court simply states that Indiana law recognizes a "bystander" theory of recovery for negligent infliction of emotional distress premised on a certain proximity to an accident or trauma. In the manner that the Luttrulls have chosen to plead their case, they do not satisfy that test for close proximity.
At the oral argument on this matter, Plaintiffs' counsel made reference to other counts in the complaint involving liability premised on a theory of respondeat superior. Plaintiffs' counsel appears to be arguing that the facts will reveal Morris, the alleged perpetrator of the sexual assaults, to be the Defendants' agent. That theory is separate and distinct from the allegation of negligent infliction of emotional distress, because even if Morris is an agent, nothing he did to BKL in her parents' presence would lead to a legally sufficient negligent infliction claim. In sum, the respondeat superior theory of liability does not help Plaintiffs' present motion to alter or amend judgment.
Plaintiffs also cite to Aetna Life Ins. Co. v. Burton, 12 N.E.2d 360 (Ind.Ct.App. 1938). That case is not on point, however, because it most accurately appears to involve a claim for intentional infliction of emotional distress.
II. MOTION TO CERTIFY QUESTION OF LAW TO INDIANA SUPREME COURT
In the alternative to amending or altering judgment, Plaintiffs ask the court to certify the following question to the Indiana Supreme Court:
Whether a parents' claim for the emotional impact of their sixteen-year old daughter's rape can survive a Motion to Dismiss on a claim for negligent infliction of emotional distress when they have been intimately involved in her post-rape care?
(Pls.' Mot. at 8.) Plaintiffs cite to the Indiana Rules of Appellate Procedure, which allow a federal court to "certify a question of Indiana law to the Supreme Court when it appears to the federal court that a proceeding presents an issue of state law that is determinative of the case and on which there is no clear controlling Indiana precedent." Ind. R. App. P. 64(A).
The decision to grant or deny a motion for certification is discretionary. Brown v. Argosy Gaming Co., L.P., 384 F.3d 413, 417 (7th Cir. 2004). Providing first that certification must be approached "with circumspection," the Seventh Circuit has set forth a number of factors to guide federal courts in deciding whether to refer an issue to a state's highest court:
(1) The degree of uncertainty that exists on the state law issue;
(2) Whether the issue presents a matter of public concern;
(3) Whether the issue is likely to recur;
(4) Whether the issue is outcome determinative;
(5) Whether the state's highest court has had an opportunity to address the issue in other cases;
(6) Whether the state's highest court would consider the issue an important one in the growth of the state's jurisprudence and whether resolution of the issue will benefit future litigants or will almost exclusively affect the citizens of the state; and,
(7) Whether the intermediate courts of the state are in disagreement on the issue or the issue is one of first impression for the state's highest court.Brown, 384 F.3d at 416 (citing Allstate Ins. Co. v. Menards, Inc., 285 F.3d 630 (7th Cir. 2002)).
After analyzing the above-cited factors, and in consideration of principles of federalism, the court finds that Plaintiffs' question should not be certified to the Indiana Supreme Court. This court has been shown "a clear path on the issue" by the Indiana Supreme Court through its three-factor test for negligent infliction of emotional distress announced in the Groves decision. Id. Furthermore, Plaintiffs have asked the court to certify a highly fact-specific question: one that address the rape of a child and the role of parents in post-rape care. Id. ("a case is not a good candidate for certification where the case is fact-specific"). Finally, though not determinative on its own, the court notes that Plaintiffs chose to file this action in federal court, despite the fact that the case could be have been pursued at the state level. Id. at 417. In sum, Plaintiffs have not offered any reasons that overcome the court's initial hesitancy toward certification.
III. CONCLUSION
For the foregoing reasons, Plaintiffs' motion to alter or amend judgment (docket no. 61) is DENIED. Plaintiffs' alternative motion for certification of state law question is also DENIED (docket no. 61). By separate order, the court will DISMISS without prejudice Count XIV of Plaintiffs' complaint to the extent such count asserts a claim for negligent infliction of emotional distress.
This order of dismissal is without prejudice. A final order will be issued after the disposition of Plaintiffs' remaining claims. The court notes, however, that Plaintiffs Brad and Sandy Luttrull will most likely be unable to re-plead their negligent infliction of emotional distress claim because Indiana law does not recognize such a claim for parent-provided post-rape care and involvement. In addition, the court observes that Plaintiffs have filed a Motion for Leave to File Amended Complaint. Nothing in the amended complaint puts Plaintiffs Brad and Sandy Luttrull within the ambit of this court's interpretation of Groves, and thus they are still unable to state a claim for negligent infliction of emotional distress.
ALL OF WHICH IS ORDERED.