APPEAL FROM THE MARION SUPERIOR COURT. The Honorable Michael D. Keele, Judge. Cause No. 49D07-1305-CT-22085.
ATTORNEY FOR APPELLANT: JAMES A. MELLOWITZ, Indianapolis, Indiana.
ATTORNEYS FOR APPELLEE: W. BRENT THRELKELD, KELLY A. ROTH, Threlkeld & Associates, Indianapolis, Indiana.
BROWN, Judge. BAILEY, J., and MAY, J., concur.
Ray Clifton appeals the trial court's order granting summary judgment in favor of defendant Ruby McCammack. Clifton raises five issues, which we consolidate and restate as whether the court erred in granting summary judgment. We reverse and remand.
FACTS AND PROCEDURAL HISTORY
In August 2012, Clifton, who was born in 1932, was living with his fifty-one year old son Darryl in Indianapolis, Indiana. Clifton and Darryl were " extremely close," and Darryl cared for Clifton after back surgery in February, 2012. Appellant's Appendix at 36. Around 11:15 a.m. on August 3, 2012, Darryl left the home on his
moped, and soon after he was involved in an accident when he collided with a vehicle driven by McCammack while she was pulling out of an intersection and turning left. Darryl was killed as a result of the accident. A report filed by Officer Jason Rakaska of the Indianapolis Metropolitan Police Department notes that the accident occurred at approximately 11:28 a.m., and Darryl's death certificate lists his time of death at 11:43 a.m. Soon after, at around noon, Clifton saw " breaking news" on his TV of " a motorbike fatality in the 3300 block of Kentucky Avenue." Id. at 32. The news report did not contain any photographs or video footage of the crash scene. Clifton " had a very bad feeling" because he " knew Darryl had just left on his motorbike" and that Kentucky Avenue was " the route he always took to go in town," and Clifton " definitely was upset." Id. Darryl had been driving into town " about every day, on some kind of scout work." Id. Following the news segment, which lasted about a minute, Clifton left " as quick as [he] could" in his car and drove to the scene of the accident. Id.
Clifton arrived at the scene about six or seven minutes after leaving the house and observed " a lot of police cars, a lot of people," and he pulled into a Speedway Gas Station. Id. After exiting the vehicle, he approached a few policemen and observed at a distance of about twenty to twenty-five feet a body covered by a white sheet with shoes " sticking out from under the blanket" and a moped, both of which he recognized as Darryl's, and Clifton " knew it had to be him." Id. at 33. McCammack's car was still situated at the scene where it had collided with Darryl. Clifton spoke with an officer and stated that he believed the decedent was his son, and the officer took him to a nearby Arby's to talk. The officer called for a chaplain on Clifton's behalf, and a woman at Arby's spoke with Clifton and said that she prayed with Darryl following the accident and that Darryl " lived about a minute." Id. at 34. Clifton kept repeating " Why? Why? Why?" Id. He observed an ambulance arrive but did not see Darryl being loaded into the ambulance. After about two hours, Clifton's minister and the minister's wife arrived at the Arby's, and they all went back to Clifton's house.
On May 28, 2013, Clifton filed a complaint for damages against McCammack alleging that she was liable for negligent infliction of emotional distress and the associated damages caused by that distress. On July 19, 2013, McCammack timely filed her answer wherein she admitted negligence causing the death of Darryl, noted that she was without sufficient information to admit or deny allegations regarding Clifton learning of the accident, and denied the allegation that she negligently inflicted emotional distress on Clifton. On September 19, 2013, McCammack served her responses to Clifton's Request for Admissions and Interrogatory in which she admitted negligence for the accident but denied that she caused Clifton emotional distress. On August 22, 2013, Clifton was deposed and testified that he believed when he came upon the scene that Darryl's moped " was right up by the front fender and front wheel, on the driver side" and was " against the car." Id. at 33.
On December 11, 2013, McCammack filed a motion for summary judgment, along with a memorandum of law in support of her motion and designation of evidence, arguing that Clifton's claim for negligent infliction of emotional distress did not meet the requirements of the bystander rule. McCammack designated as Exhibit D her affidavit in which she stated that immediately following the impact the moped remained upright and Darryl's body was leaned against the driver's side door, that shortly
thereafter certain witnesses
lifted Darryl off of the vehicle and laid him on the pavement, and that the witnesses also moved the moped away from the vehicle and laid it on the pavement a short distance away.
On January 31, 2014, Clifton timely filed his Brief in Opposition to Defendant's Motion for Summary Judgment, and his own Request for Summary Judgment. On February 28, 2014, McCammack filed her Reply to Plaintiff's Brief in Opposition to her Motion for Summary Judgment and her Response Brief to Plaintiff's Motion for Summary Judgment. She also filed a Motion to Strike Exhibit A-2 of Plaintiff's Designation of Exhibits, consisting of a hand-written vehicle crash witness statement completed by Rhonda L. Thompson. On March 20, 2014, Clifton filed his Motion for Leave to File Supplemental Affidavits, and his Objection to McCammack's Motion to Strike. The supplemental affidavits were of two crash witnesses, including Rhonda Thompson and Richard Clevenger, establishing that Darryl Clifton was alive immediately after the crash. On April 9, 2014, the trial court granted Clifton's motion allowing him to file the two supplemental affidavits and denied McCammack's Motion to Strike.
On April 14, 2014, the court heard oral argument on the motions for summary judgment. On April 15, 2014, the trial court issued its Order Granting McCammack's Motion for Summary Judgment which stated as follows:
Defendant, Ruby McCammack, by counsel, filed her Motion for Summary Judgment, and Plaintiff, Ray Clifton, by counsel, filed his Brief in Opposition thereto. The Court having conducted a hearing and being duly advised in the premises, now finds that there is no genuine issue as to any material fact, and that the Defendant is entitled to summary judgment as a matter of law. The Court finds that the undisputed facts establish that Plaintiff fails to meet the temporal and circumstantial requirements to permit recovery for negligent infliction of emotion [sic] distress as set forth in Smith v. Toney, 862 N.E.2d 656 (Ind. 2007). The Court further expressly finds that there is no just reason for delay for the entry of final judgment.
IT IS THEREFORE, ORDERED, ADJUDGED AND DECREED that judgment is entered in favor of the Defendant, Ruby McCammack, and against the Plaintiff, Ray Clifton, and that final judgment is entered pursuant to Rule 54(B) of the Indiana Rules of Trial Procedure.
Id. at 163.
ISSUE / STANDARD OF REVIEW
The issue is whether the court erred in granting summary judgment in favor of McCammack. We review a trial court's order granting summary judgment de novo. Alldredge v. Good Samaritan Home, Inc., 9 N.E.3d 1257, 1259 (Ind. 2014). We apply the same standard as the trial court: summary judgment is appropriate only where the moving party demonstrates there is no genuine issue of material fact and he is entitled to judgment as a matter of law. Id.; see also Ind. Trial Rule 56(C). If the moving party carries his burden, the non-moving party must then demonstrate the existence of a genuine issue of material fact in order to survive summary judgment. Id. Just as the trial court does, we resolve all questions and view all evidence in the light most favorable to the non-moving party, so as to not improperly deny him his day in court. Id. Our review of a summary judgment motion is limited to those materials designated to the trial court. Mangold ex rel. Mangold v. Ind. Dep't of Natural Res., 756 N.E.2d 970, 973 (Ind. 2001). In reviewing
a trial court's ruling on a motion for summary judgment, we may affirm on any grounds supported by the Indiana Trial Rule 56 materials. Catt v. Bd. of Comm'rs of Knox Cnty., 779 N.E.2d 1, 3 (Ind. 2002). To the extent that the parties filed cross-motions for summary judgment, this fact does not alter our standard of review and instead we must consider each motion separately to determine whether the moving party is entitled to judgment as a matter of ...