The Indiana Court of Appeals recently affirmed a trial court’s grant of partial summary judgment in favor of a fireworks company and against a homeowner whose house was set on fire by a firework shell mortar. In Hunter v. J & M Displays, Inc., J & M Displays, Inc. (J & M) performed a fireworks display on Lamb Lake in Johnson County, Indiana on July 5, 2019. Faye Hunter (Faye) was asleep in her bed when J & M commenced the fireworks display. While Faye was sleeping, a firework shell mortar launched by J & M crashed into Faye’s home and started a fire in her home. When the shell mortar hit, Faye’s bed shook, and she heard dishes rattling in her home. A man came to her door pounding on her door and escorted her out of her home. Faye did not sustain any physical injuries as a result of the incident.
Faye and James Hunter (the Hunters) sued J & M for the property damage to their home and for the personal injury of negligent infliction of emotional distress to Faye. J & M thereafter filed a motion for partial summary judgment in the trial court arguing that Faye could not recover emotional distress damages under Indiana law. The trial court held a hearing and, agreeing with J & M, entered partial summary judgment in favor of J & M on Faye’s negligent infliction of emotional distress claim.
Over the years Indiana law has changed with regards to the recovery of damages for negligent infliction of emotional distress. Currently, Indiana law allows for the recovery of such damages under four circumstances. First, under the impact rule, a plaintiff can recover emotional distress damages if he or she suffers a direct physical impact resulting in physical injury with emotional trauma resulting from the injury. Second, under the modified-impact rule, a plaintiff can recover when, without any physical injury, he or she sustains a direct physical impact and the defendant’s negligence caused an injury or death to a third party, so long as the emotional trauma is serious enough to affect a reasonable person and resulted from the plaintiff’s direct involvement. Third, under the bystander rule, a plaintiff can recover when, without any direct impact, he or she witnesses a relative’s severe injury or death or viewed the immediate aftermath of the incident. Fourth, a parent or guardian of a sexually abused child can recover for negligent infliction of emotional distress when the wrongdoer has a duty of care to the parent or guardian, there is irrefutable certainty of the act’s commission, the act is one that rarely, if ever, is witnessed by parents or guardians, and the abuse severely impacts the emotional health of the parent or guardian.
In this case, the Hunters argued there existed a genuine issue of material fact as to whether Faye sustained a direct physical impact under Indiana’s modified-impact rule, thereby precluding partial summary judgment on Faye’s negligent infliction of emotional distress claim. The Hunters pointed to designated evidence that Faye was shaken awake in her bed by the fireworks shell mortar. However, the Indiana Court of Appeals concluded that Faye did not sustain a direct physical impact under the modified-impact rule, reasoning that her “bed merely shook and she was awakened from her sound sleep.” In so holding, the Court referenced one of its prior decisions finding no direct physical impact in the case of a woman awakened from her sleep due to a fire which she had to flee. The Court also noted two of its prior decisions where the loss suffered was purely economic. Ultimately, the Court of Appeals found no error in the trial court’s entry of partial summary judgment in favor of J & M and affirmed the trial court’s judgment.
You can read the full opinion here.