Ceres Solutions Cooperative, Inc. v. Estate of Kathryn Bradley, et al. (January 12, 2022)

Ceres Solutions Cooperative, Inc. refilled the propane tank at Kenneth Bradley’s house, but failed to check for leaks. Kathy Bradley, Kenneth’s wife, and Eric Bradley, Kenneth’s son, lived with Kenneth in the home. An explosion occurred in the home that killed Kathy and severely injured Eric. Kenneth was not home at the time of the explosion. Bradley sued Ceres for emotional distress damages, among other damages. Ceres filed a motion for partial summary judgment on Bradley’s request for emotional distress damages as to both Eric and Kathy. The trial court granted Ceres’ motion regarding Eric but denied the motion as to Kathy. Ceres appealed.

Generally to recover for negligent infliction of emotional distress, a plaintiff must sustain a direct impact by the negligence of another and, by virtue of that involvement sustain an emotional trauma which is serious in nature and of a kind and extent normally expected to occur in a reasonable person. However, the bystander rule is an exception to Indiana’s Modified Impact Rule. To recover under the rule, a bystander must establish direct involvement with the incident. There are three factors to consider: (1) the severity of the victim’s injury; (2) the relationship of the plaintiff to the victim; and (3) the circumstances surrounding the plaintiff’s discovery of the victim’s injury. Smith v. Toney, 862 N.E.2d 656 (Ind. 2007)

In this case, the only issue was the circumstances surrounding the plaintiff’s discovery of the victim’s injury. Indiana courts have held that the requirement regarding the bystander’s proximity to the scene is both a matter of time and circumstance. To satisfy the “circumstances surrounding the plaintiff’s discovery of the victim’s injury” factor of the Bystander Rule, (1) the bystander must come on the scene at or immediately following the incident; (2) the claimant must not have been informed of the incident before coming upon the scene; and (3) the scene and victim must be in essentially the same condition as immediately following the incident. Smith v. Toney, 862 N.E.2d 656 (Ind. 2007)

The Court of Appeals first examined the first prong of the test. A plaintiff must have actually witnessed a portion of the injury producing event or come on the scene soon after the death or severe injury of a loved one. The explosion occurred at 2:30 a.m. and Kenneth Bradley arrived home around 5:24 a.m. Ceres argued that because Bradley arrived on the scene almost three hours after the explosion, he did not satisfy this prong. Bradley argued that the incident was ongoing when he arrived because fires were still aflame. Ceres argued that the explosion was the injury producing event, not the fire. But Eric Bradley testified that when the explosion occurred, he was surrounded by a ball of fire and when he came to and exited the home, he could see multiple fires in multiple rooms of the home. The Court held that the explosion and fire was a single injury producing event.

Next, the Court noted that Bradley arrived well after the explosion, but when he arrived, the flames were big and steady. His son had yet to be removed from the scene and his wife had yet to be located. The firefighters were searching for Kathy, but every time they dug, the flames got bigger. They had to wait until they could get to where they thought she was located. Bradley was on the scene for about two hours before they were able to get to Kathy’s body inside the home. The Court held that the injury producing event was ongoing when Bradley arrived, so he satisfied the temporal factor of the bystander rule.

On the second prong, the claimant must have not been informed of the incident before coming upon the scene. Ceres argued that Bradley was informed of the incident prior to arriving at the scene because of his conversation with Tina Pesaresi, who was assisting with setting up a roadblock around the scene. Bradley was driving home from work when he came upon Tina’s roadblock approximately three quarters of the mile from his home. He could see the flames and could tell they were coming from his home. However, he did not receive any specific details from Tina. She had not received any information regarding the explosion and fire. Because Bradley could see the fire from the roadblock, he was not “indirectly informed.” The Court held that Bradley was not informed of the incident before coming upon the scene.

Third, the victim/scene must be in essentially the same condition as immediately following the incident. A claimant must view a scene that is essentially as it was at the time of the incident, with the victim in essentially the same condition as immediately following the incident. Unless these factors are satisfied, a claimant will not have witnessed the “gruesome aftermath.” “Gruesome aftermath” refers to the uninterrupted flow of events following closely on the heels of the accident. When a bystander witnesses this “uninterrupted flow of events,” he or she is essentially subjected to a “sudden sensory observation” of the incident itself. Without this type of observation, a claimant cannot establish the “direct involvement” necessary to recover for bystander emotional trauma, and direct involvement is the key principle that has guided the evolution of the Bystander Rule from the start. See Groves.

Ceres argued that Eric’s body was not in essentially the same condition immediately following the explosion as when Bradley arrived. Eric had exited the home, attempted to get help, was wrapped in a blanket by first responders, and was being prepped to be flown out by a helicopter when Bradley arrived. The Court noted that Eric’s injuries were visible to Bradley as his face and torso were not covered, showing those burns. The Court held that since Bradley witnessed Eric’s burn injuries while Eric was still at the scene as the fire was still burning, Bradley did experience the “gruesome aftermath” of the accident. Because the Court of Appeals found that all elements regarding Bradley’s discovery of Eric’s injury were satisfied, the trial court erred in granting partial summary judgment to Ceres.

As to Kathy, Ceres argued that because Bradley did not actually see Kathy’s body, he cannot recover because of the Bystander Rule’s requirement that the claimant actually see the victim in essentially the same condition as he or she was in immediately following the incident. However, in Smith v. Toney, the Indiana Supreme Court stated that scene viewed must be essentially as it was at the time of the incident. Smith did not state that the body of the victim must be viewed in essentially the same condition. After locating Kathy, firefighters removed Bradley from the scene and refused to allow him to watch the removal of her burnt body from the flame engulfed home. This implies that Kathy’s remains were in such a disturbing condition that Bradley should not be subject to viewing it. Ceres argued that a claimant is required to have a reasonable certainty of injury to the loved one. It argued that because Bradley did not know that Kathy was trapped inside the burning house until she was found. However, the Court held that Bradley possessed a reasonable degree of certainty that Kathy was inside the home. Because it found that all the requirements regarding Bradley’s discovery of Kathy’s death were satisfied, it held that the trial court was correct in denying summary judgment to Ceres.

Lake County, Indiana, et al. v. John Klisurich, et al. (January 20, 2022)

In this discretionary interlocutory appeal, Lawrence Obregon, Lake County Sheriff’s Department, and Lake County, Indiana appealed the trial court’s denial of their motion to dismiss the Amended Complaint filed by the plaintiffs, by which the plaintiffs added LCSD and Lake County as defendants and asserted federal claims against Obregon for the first time nearly four years after their original complaint was filed.

On December 27, 2014, John Klisurich was stopped by two security officers while driving home within the subdivision where he lived. The security officers summoned help after John fled the scene and returned to his home. Obregon, a deputy with LCSD, and Brandon Henderson, an officer with the Indiana State Police, arrived and assisted with the apprehension of John in his home. The Klisurich’s brought claims against the officers alleging they invaded their home without a warrant and assaulted and used firearms to intimidate them. They also claimed that Obregon administered corporal punishment by intentionally and maliciously tasering John after he was handcuffed.

On December 5, 2016, the Plaintiffs filed their lawsuit. In June 2020, after getting new counsel, the Plaintiffs, with leave of court, filed an amended complaint in which they identified Obregon as a law enforcement officer with LCSD and alleged he was acting in the course and scope of his employment at the time of the incident. The Plaintiffs named LCSD and Lake County as defendants and asserted claims for negligence, battery, intentional infliction of emotional distress, negligent infliction of emotional distress, and trespass against them. As against Obregon, the Plaintiffs asserted claims for violations of the Fourth Amendment and 42 U.S.C. 1983.

Obregon filed a motion to dismiss the amended complaint arguing that the new federal claims were untimely. He also argued that the claims against LCSD and Lake County were barred by the statute of limitations. The trial court denied the motion to dismiss.

On appeal, the issue was whether the amended complaint related back under Trial Rule 15(C). Indiana Trial Rule 15(C) has three requirements for an amended complaint to relate back to the original complaint. First, the claim asserted in the amended complaint must arise out of the conduct, transaction, or occurrence set forth” in the original complaint. Where a complaint changes a party against whom a claim is asserted, the rule further requires that: within 120 days of the commencement of the action, the party to be brought in by amendment: (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits; and (2) knew or should have known that but for a mistake concerning the identity of the proper party, the action would have been brought against him.

LCSD and Lake County did not dispute that the claims against them arose out of the conduct, transaction, or occurrence set forth in the original complaint. They argue they did not have notice of the original action. Notice of the pending claim must be such that the added party received either actual or constructive notice of the legal action within the allotted time period. Constructive notice may be inferred based on either the identity of interest between the old and new parties or the fact that they share attorneys. The purpose of the notice requirement is to ensure that the defendant will not be prejudiced in maintaining its defense on the merits.

The Court of Appeals found this case to be similar to that in Porter County Sheriff’s Department v. Guzorek, 857 N.E.2d 363 (Ind. 2006) In Guzorek, the plaintiff was struck by a vehicle driven by a sheriff’s deputy. The plaintiff filed suit against the officer only. The officer’s answer stated that he was in the course and scope of his employment and asserted an affirmative defense that he could not be held personally liable under the Indiana Tort Claims Act. The county sought summary judgment and while it was pending, the plaintiff amended the complaint to add the sheriff’s department as a defendant. The Court held that the sheriff’s department had the requisite notice because it was obligated to provide counsel to the officer.

The Court of Appeals found the same facts here. It held that for the same reasons as in Guzorek, there was no prejudice to the Lake County Sheriff’s Department or Lake County.

Having found that LCSD and Lake County had notice and were not prejudiced, the Court of Appeals next looked at the mistake requirement. LCSD and Lake County claimed that the plaintiffs did not make a mistake in omitting them from the original complaint. In support, they pointed out that the original complaint did not name Obregon as a police officer nor did it state he was acting within the scope of his employment. Plaintiffs’ allegations state Obregon’s conduct was malicious and requested punitive damages, both claims for actions outside the Indiana Tort Claims Act. They argued that a reasonable interpretation of the original complaint is that the Plaintiffs made a conscious choice to sue Obregon in his individual capacity so they could seek punitive damages.

The Court of Appeals did feel that the Plaintiffs took every effort to take the action out of the Act in its original complaint. Where there is a basis for the plaintiff to assert liability against the party named in the complaint, and there is no reason for another party to believe that the plaintiff did anything other than make a deliberate choice between potential defendants, the mistake requirement is not met. See Guzorek. Considering the original complaint in its entirety and the circumstances giving rise to the action, it was not unreasonable to conclude that the Plaintiffs, in their original complaint, sought to impose liability on Obregon personally and avoid application of the Act. The Court of Appeals held that the Plaintiffs did not meet their burden of demonstrating that the failure to name LCSD and Lake County in the original complaint was a mistake. It reversed and remanded with instructions for the trial court to dismiss LCSD and Lake County as named defendants.

As to the federal claims against Obregon, he claimed that he was not on notice of potential federal claims of constitutional violations under Section 1983. The Court held that Obregon was on notice of potential federal claims because his answer claimed he was a law enforcement officer acting within the course and scope of his employment with the sheriff’s department. The Court of Appeals held that the trial court properly concluded that the constitutional claims in the amended complaint related back to the original complaint.  

It is well established that with respect to negligence, a public elementary school has only one duty at common law—the duty to exercise ordinary and reasonable care. LaPorte Cmty. Sch. Corp. v. Rosales, 963 N.E.2d 520, 524 (Ind. 2012). The School contends that the implementation and regulation of its students’ dismissal at the end of each school day is necessary in the conduct of its affairs, and therefore the adoption of general written procedures, or in this case what could be more accurately referred to as simply an internal document created by the School that prescribes the manner for doing so, would be included in the legislature's use of the term “policy” when discussing public schools’ immunity under the ITCA. The Court of Appeals, assuming without deciding that the School's general dismissal procedures would satisfy the meaning of a policy as contemplated by Indiana Code Section 34-13-3-3(8)(B), decided it could not agree with the School that the Parents’ negligence claim is predicated upon the School's failure to “enforce” those dismissal procedures against DeShawn.

Both the Parents and the amicus curiae appearing on their behalf, the Indiana Trial Lawyers Association (ITLA), direct us to Moore v. Hamilton Southeastern School District, No. 1:11-CV-01548-SEB, 2013 WL 4607228 (S.D. Ind. Aug. 29, 2013), as persuasive support for their claim that subsection 3(8)(B) is inapplicable to the School's failure to properly follow its own dismissal procedures, even assuming that those procedures can be considered a school policy.

Enforcement means “compelling or attempting to compel the obedience of another to laws, rules, or regulations, and the sanctioning or attempt to sanction a violation thereof.” Moore v. Hamilton Se. Sch. Dist., 2013 WL 4607228, at *21 (S.D. Ind. Aug. 29, 2013). Thus, a school district would be justified in claiming immunity under the ITCA for its decisions to suspend, expel, or otherwise impose discipline on students. A school may not claim immunity, however, when sued regarding its compliance, or failure to comply, with laws and regulations. The Court of Appeals found that this reasoning applied and that a school may not claim immunity when sued regarding its own compliance, or failure to comply, with laws and regulations or a school policy. Parents do not allege that the School harmed DeShawn by failing to compel his obedience to its dismissal procedures, but rather that the School itself failed to properly follow the procedures that were meant to provide for their son's safety and well-being. The Court of Appeals concluded that “enforcement” immunity did not protect the School's actions and that the trial court erred in entering summary judgment for the School on that basis.

The law is well settled that, in a dog bite case, the duty of reasonable care imposed upon a landowner who did not own the dog is measured by the landowner’s control or possession of the property and the landowner’s actual knowledge that the dog had dangerous propensities. Because Lott conceded that there was a question of fact regarding his knowledge of Boy’s dangerous propensities, the sole issue for review was whether Marchino’s designated materials showed a genuine issue of material fact regarding Lott’s control over the duplex. “‘As a general rule, in the absence of statute, covenant, fraud or concealment, a landlord who gives a tenant full control and possession of the leased property will not be liable for personal injuries sustained by the tenant or other persons lawfully upon the leased property.’” Olds, 857 N.E.2d at 1044 (quoting Pitcock v. Worldwide Recycling, Inc., 582 N.E.2d 412, 414 (Ind. Ct. App. 1991)). 

Marchino contends that there is a question of fact regarding Lott’s control of the duplex because Lott retained control over the presence of pets in his rental unit with a Lease clause which says: “No pets unless stated and approved by Lessor.” However, as acknowledged by Marchino, we rejected a similar argument in Morehead, 932 N.E.2d at 1276. Marchino also argues that the right of inspection provision that allowed Lott to enter the duplex at reasonable times to inspect the premises establishes a genuine issue of material fact regarding Lott’s control of the duplex. However, as again acknowledged by Marchino, we rejected this argument in Olds, 857 N.E.2d at 1041. Indeed, we specifically explained in Olds that “such a provision is common in most every lease” and is not the equivalent to substantial control and possession of the premises. Id. Lastly, Marchino contends that there is a genuine issue of fact as to whether Lott or an ill Stines, regardless of physical possession of the premises and Boy, was in the best position to protect the next-door neighbor child, Marcellus, from Boy’s admittedly well-known vicious properties. However, in Olds, 857 N.E.2d at 1046-47, the Court of Appeals explained that the question of duty turns not on the characteristics of the tenant but on the characteristics of the rented premises. The Court of Appeals further explained that to the extent that a landlord has transferred control and possession of the premises to a tenant, the tenant is liable, and the injured party has a cause of action against the tenant.