COA reverses judgment for driver in fatality, rules for moped rider’s dad

The Indiana Court of Appeals Friday turned upside down a trial court’s judgment in favor of a driver who collided with a moped rider who died at the scene of the Indianapolis crash in August 2012.

The appeals panel granted summary judgment to the father of Darryl Clifton. The decision reversed a grant of summary judgment in favor of the motorist ordered by Marion Superior Judge Michael Keele in Ray Clifton v. Ruby McCammack, 49A02-1404-CT-276.

The COA remanded the case for a trial on damages on Ray Clifton’s claim for negligent infliction of emotional distress. Clifton, 82, relied on his son, Darryl, for care after back surgery and saw a TV breaking news report about a moped fatality near his home. Fearing it was his son who had left on his mo-ped a short time earlier, Clifton drove to the scene and his fear was realized shortly after he arrived. His son had died minutes earlier.

The panel cited the modified impact rule established in Shuamber v. Henderson, 579 N.E.2d 452, 454 (Ind. 1991), which extends torts for negligent infliction of emotional distress to instances where the distress is a result of a physical injury negligently inflicted on another. The rule applies because Ruby McCammack had admitted negligence in the crash.

Clifton also met the temporal and circumstantial requirements to satisfy the bystander rule allowing emotional distress claims established in Smith v. Toney, 862 N.E.2d 656 (Ind. 2007), the panel held.

“We therefore conclude that the trial court erred in granting McCammack’s motion for summary judgment and denying Clifton’s motion because Clifton’s claim satisfies the bystander rule and because he has alleged serious emotional trauma that is of a kind and extent normally expected to occur in a reasonable person under similar circumstances,” Judge Elaine Brown wrote for the panel.