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 a 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 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.