Question: Can parents recover monetary damages if they saw their child severely injured due to the negligent act of another person?
Answer: The right to seek damages for emotional distress in actions for negligence often referred to as actions for negligent infliction of emotional distress, is carefully controlled under Indiana law. Actions seeking damages for emotional distress resulting from the negligence of another are permitted in 2 situations: where the plaintiff has (1) witnessed or come to the scene soon thereafter the death or severe injury of certain classes of relatives (the bystander rule) or (2) suffered a direct impact (the modified impact rule).
Under the bystander rule, the death/severe injury must have been proximately caused by the defendant’s breach of some cognizable legal duty owed by the defendant to the relative at issue. The modified impact rule is similar, though it arises in two different situations. In the first scenario, the plaintiff is the person to whom the defendant owes a legal duty. In that case, the direct impact must have been proximately caused by the defendant’s breach of a legal duty to the plaintiff. In the second scenario, the defendant owes a legal duty to a third-party. In that case, direct impact (to plaintiff) must have been proximately caused by the defendant’s breach of a legal duty to the third-party. Thus, under any of the 3 scenarios, the defendant’s negligence in breaching a legal duty is a required predicate.