*1 pertaining competing verdicts claims Agreement

under the Purchase and Dr. Toepp’s Employment Agreement. See 15(N);

Ind.Appellate Rule Ind.Trial Rule 13(C) (M); Moridge Manufacturing & Com Butler, (Ind. pany v. 681-82 (the Ct.App.1983) plaintiffs judgment is re duced the amount found on due the coun terclaim). Furthermore, we remand with in

structions that the trial court hearing hold a attorney’s determine a reasonable fee to Dr. awarded Salcedo in litigating the com peting claims under the Agreement Purchase

as well as a attorney’s reasonable fee to be Toepp

awarded Dr. successfully for defend ing against Dr. Salcedo’s claim under the Agreement.

Lease respects, all other we affirm. GARRARD, JJ.,

STATON concur. Jr., Buck, Berry,

Gil I. Berry, Landau &

Breunig, Indianapolis, Appellant-Plain- tiff. Pappas,

Nicholas Boyd C. Sandra Williams, Locke, Reynolds, Weisell, Boyd & Joyce ROSS, Appellant-Plaintiff, S. Indianapolis, Appellees-Defendants. v. OPINION Express

Raminder CHEEMA and Pillow Delivery Service, Inc., Appellees- KIRSCH, Judge. Defendants. Joyce appeals grant S. Ross of sum No. 49A04-9707-CV-302. mary judgment in favor of Raminder Chee- Express Service, ma Delivery and Pillow Inc. Appeals

Court of of Indiana. in her action for infliction of emo June 1998. tional distress and raises the following issue: repeated, Whether pounding upon loud door to home can constitute suffi give cient rise to a negli claim for gent infliction of emotional distress under the Supreme

standard set out our Court in Shuamber Henderson.1 We reverse. AND

FACTS PROCEDURAL HISTORY 6, 1995, evening On the of December Ross living was in her room when the doorbell rang. recuperating Ross was from shoulder 1. 579 N.E.2d 452

438 in the record. Crist designated evidence the. unit” attached to “cooling a surgery and had (Ind.Ct.App.1995), 140, 142 Corp., N.E.2d 653 v. K-Mart could answer the Before she her shoulder. (1996). denied on s. door, pounding” a “tremendous there was tran heard the at 44. She Record the door. be allowed that she should Ross contends open, then the door pop screen door locked negligent infliction for maintain her action to' began to twist back inner door knob on the regard to without distress2 of emotional forth, pounding on by more then accompa- emotional trauma whether the door. injury, the emo- any physical because nied saw a car a window and went to Ross conse- a “foreseéable tional distress (cid:127) recognize. Fearful she did not which response, actions. quence” of Cheema’s intruder, knife in her placed a steak Ross that Ross does contend the defendants returning the' protection before pants for im- the modified requirements of meet the and a man opened the'front door Ross door. v. Henderson pact rulé under Shuamber clipboard in front of her put a reached in and is not reasonable alleged distress that Ross’ at 45. “sign.” Record told her to face and satisfy test the reasonableness and does sign, the why was to- asked she When she in Shuamber. said, you. Sign a letter for “I have man Shuamber, Indiana Before signed and then at 45. Ross here.” Record trauma only emotional provided that lock was broken that her screen door saw theory was negligence compensable under loose, very knob was and the main door injuries. own arising out of a Record at 45. by only two screws. hanging 425, 428-9, 61 Chesapeake, 223 Ind. Boston inci- a result of the claimed that as Ross 326, 327 N.E.2d injury re- which suffered mental dent she mother, driving in her car was a brought an She quired medical treatment. when it was hit of her children with two Cheema, and deliveryman, against action' watched as her son died defendant. She Express negligent employer, Pillow his The court modified in front of her. Ex- distress. Pillow infliction of emotional that, rule, reasoning in such circum- summary judg- moved for press and Cheema directly plaintiff has been stances where impact rule claiming that the Indiana ment not also suffer impacted, she need recovery. trial court The barred Ross’s Supreme Court re- injuries to recover. The motion, appeal and this ensued. granted the ac- contemporaneous moved as a companying the AND DECISION DISCUSSION negligent infliction sustain an action summary reviewing a decision on When distress, stating: emotional motion, applies same this court judgment a direct “when a sustains Wickey v. the trial court. standard as and, by virtue negligence of another by the (Ind.Ct.App. Sparks, 642 N.E.2d an emo- involvement sustains of that direct (1995). 1994), Summary judg in nature trauma which is serious tional granted designated if the evi- ment shall be normally expected of a kind and extent that there is dentiary matter demonstrates person, in a we hold to occur reasonable any material fact and genuine no issue as to maintain is entitled that such judgment moving party is entitled to that the that emotional to recover for an action 56(C); law. Ind.Trial Rule as a matter of to whether regard trauma. without All facts and Wickey, 642 N.E.2d at 265. accompa- trauma arises out of or must be construed reasonable inferences plaintiff.” any physical nies Ar moving party. Sizemore v. against N.E.2d at 456. nold, (Ind.Ct.App.1995). rejected the tradi- ruling The court reviewed and summary judgment We will affirm a physical injury requiring a' tional reasons for any theory which is consistent legal on regarding infliction of summary judgment Ross intentional claims the motion for 2. Since inflic- claim for directed to Ross's emotional distress. distress, any we do not reach tion of emotional recovery requirement. plaintiff before allowed: sonableness Cheema contends satisfy litigation will result if that Ross cannot fear that a flood of allowed; of this concern because it was for Ross to suf- claims nature are unreasonable made; fer emotional fraudulent claims will be trauma based on his actions. proving connection be- is a difficulties a causal reasonableness of fact *3 jury. tween the conduct and the emo- the It is uncontested that Cheema vigorous attempt found was so tional distress. The court the in his to deliver the door; in to letter proximity close event that he: broke Ross’s screen the giving rise to her trauma ex- left the main knob hanging by emotional and door two screws; tremely continually close to the proximity powerfully defendant. and and pounded daughter facts, her in She and who also the on her From such door. a Ross, only persons position jury were in a car the two to could conclude that fearful that into, Finally, difficulty little her being recover. there was in home was broken could rea- determining sonably experience the emotional trauma and seeing of trauma occurred as a result her son Cheema should have foreseen such trau- Thus, within of ma. die arm’s reach. none the underlying impact traditional concerns genuine We are conclude that there issues applicable regard were case. rule of material whether fact about the circum- requisite impact, the court to found that stances of a impact this case constitute direct directly in “Gail Schuamber was involved impact within the Indiana rule and whether impact because she was inside the vehicle Ross’s emotional trauma the reasonable

when it was struck Henderson’s automo- impact. ques- result of such These are both Thus, impact.” she an bile. sustained by jury, tions of fact to be determined a not at 456.3 law. courts as a matters of Shuamber impact” requires “direct express opinion We no as-to whether Ross Ross satisfies involvement.” both will proving be successful in the elements of home, sitting in her conditions. She was ease, but, simply her as in we living her room when Cheema broke her jury hold a should allowed to make a began pounding screen door and on the main determination as to whether her evidence is door, twisting vigorously so the handle that it prove substantial her claim. to hanging by left screws. two We see no case, allowing that means her the chance meaningful distinction a violent im- between prove to that her mental trauma is a result of pact with an which one automobile attempts gain entry into her defendant’s riding and with home in which one is A-jury capable evaluating home. will be of instances, sitting. resulting In both emotion- proved whether Ross has the elements of her readily al trauma foreseen. should be damages. claim experi- for emotional “[T]he juries equally ence in addition to the “direct and “di- this state is that are involvement,” qualified Shuamber -imposes'a judge injury rect rea- someone’s emotional only physical contemporaneous impact At the time was decided rence 3. Shuamber two of required plain- guarantees genuineness states other than Indiana that a of the mental dis tress, physical tiffs emotional out of her jurisdictions trauma arise a number of have allowed injury, required any injury and that three stales recovery long as as there was mental 455, impact at all. 579 N.E.2d at n. any physical impact, insignifi no matter how majority 1. The have of states switched from an Pennsylvania cant. As Justice of stat Roberts test, impact danger” finding rule to a "zone of Brodsky, appears ed in It com Niederman v. is, part, for the most determination pletely argue that the inconsistent to medical requirement degree matter and that the of an profession absolutely unable to establish a See, capricious. e.g., can be artificial and causal connection in the case where there is no Baker, (D.C.1990), Williams v. 572 A.2d all, slightest impact.... at but that the where the court stated: suddenly colleagues our bestows medical knowledge facility diagnose forego-the "We are fortified in our decision to causal between emotional states connection conviction " physical injuries.' that the connection between mere imT pact (quoting Brodsky, A.2d Niederman v. and mental is tenuous. While the at 1067 84, (1970)). theory behind the rule is that the oecur- 436 Pa. 261 A.2d (recov- judge they pain App., as are someone’s presence ery-for -emotional because suffering, and the or absence distress denied not suffer when she nothing to alleviate did an some does deciding escaped negligently-caused fire to her jury’s burden in whether house, suffering present.” are suffered mis- elements of mental but emotional distress takenly thinking her was still Id. at 455. child house.) Reversed.

Although' the has been SULLIVAN, J., separate extinction, concurs with into been “modified” the contin- opinion. presence impact”/“direct of the “direct ued involvement” makes it neces- FRIEDLANDER, J., dissents sary, involving in future eases a claim for *4 separate opinion. by physical accompanied distress, SULLIVAN, into the Judge, square-peg to force facts concurring. impact physical round-hole test. view, my underlying In facts of Shu Henderson, (1991) Ind., acknowledge impact I a “modified” amber way justified recovery may for emo test as a to retain a would have viewed upon degree specula- restraint or pre-existing physi tional distress under the remote and stress I cal rule without tive emotional claims. modifying that.ease, validity In collision to the wisdom and of the test. the automobile subscribe major- in approach reflected of the constituted a sufficient footnote 3 injuries ity opinion in in plaintiffs light light own addi herein. this cause test, by in tion to the emotional distress occasioned of the “modified” I therefore concur summary only judgment in I can of the which was her son’s death the crash. reversal therefore, in favor of the presume, that it was the intention entered defendants. “modify”

of the court to the rule for fixture sense, “[w]hen, FRIEDLANDER, stating In this in Judge, dissenting. cases. plaintiff im as here” the sustains a “direct summary judgment appropri- I believe was (579 at pact”/“direct involvement” N.E.2d respectfully ate therefore dissent. 456), merely restating pre court ‘ parties agree The that the existing impact, rule as to in but dictum this case turns suf- which is whether Ross pronounced that in future the emotional meaning of fered a “direct within the by physical accompanied distress need not be impact rule, modified forth in Indiana’s as set case, plaintiff. subse I'find no Henderson, Shuamber v. 579 N.E.2d 452 Shuamber, quent supra, has allowed' which summary judg- The reversal of recovery for emotional distress' without a jury ment in instant case that the means pre-Shuamber physical impact or an accom touching to decide that the of a entitled Holloway panying physical injury. Compare person in which a house is located is a direct (1998) Farms, Inc., Ind.App., v. Bob Evans Shuamber, impact within the meaning of (eating 695 N.E.2d 991 one-half of a meal person touching, if the even does not feel the containing clearly worma direct merely majority sees and it. The but hears “wormy food” although with the worm itself today decides the law would counte- consumed), Inn, Slone, was not Inc. v. Dollar I nance such a result. believe this decision (1998) Ind.App., (plaintiff 695 N.E.2d 185 expansion effects an of the unwarranted by hypodermic in thumb con stabbed needle impact in modified announced Shuam- paper cealed in center tube of roll of toilet ber. clearly impact), J.L. v. direct Shuamber, Ind.App., recognized Mortell Prior to N.E.2d Indiana law rule, vaginal massage (inappropriate person under which a could therapist by physical causing damages emotional dis recover emotional distress clearly emotional,distress impact) tress was direct if me of a physi- Gor arose out Co., injury. I M supreme man v. & Electric Inc. Ind. cal court person that a modified-that rule to the effect survived unaltered the modification of the recover for emotional even if could distress rule. I Id. As read the both before cases physical injury, long he did not suffer a so as including and after Shuam the emotional distress was suffered as a re- ber, be, it is to me clear that the must impact. sult of direct The court concluded in plaintiff, relation to the both direct and plaintiff in that case that the was entitled to See, physical. e.g., I Gorman v. & M Elec. plaintiff recover because the car Co., Inc., 641 N.E.2d 1288. driving was struck vehicle. The another regard,'I supreme note that plaintiffs with the ear was severe court held that Schuamber satisfied the first son, to have killed the who element because the there sustained passenger was a in the ear. It is in the (em- impact”, a “physical at interpret context of those facts that we are phasis supplied). Surely, “physical impact” meaning impact”. interpreted this context cannot be so Dictionary Third International Webster’s broadly within meaning as include its defines as “direct” “effected touching building of a in which the subject or substance contact with an- situated, any when neither the nor insulating obstructing other with no or ele- person any physical other feels effects as a key concept ment between”. The char- Rather, the touching. result of there must acterizes “direct” this context is embodied *5 be a direct nexus between the defendant’s act phrase in the “in contact with”. The Shuam- plaintiffs body goes beyond and the that the ber contact with the ear which plaintiff merely seeing hearing or an struck the defendant’s vehicle. physically that is otherwise unconnected to Therefore, impact in the Shuamber was “di- view, plaintiff. my impact” the the “direct physically jostled rect” to have required the modified rule must be plaintiff, Indeed, very may at the least. produce upon such as to an plain- effect imagine well that the effect of body tiffs capable that of upon question body was consid- detecting through other than the senses of erably jostling. more than a vision, hearing smelling. or Contrast this effect of the offend- ing plaintiffs body conduct in the summary, I knocking, how- believe instant ease. Ross heard and observed the loudly, upon house.occupied ever door of a conduct, offending but could not feel it. She by person who cannot feel the blows is not not in contact with the door when it was impact” meaning within of justify imposition struck. To of the rule majori- Indiana’s modified rule. The saying that she was in contact with the ty’s holding is an extension of the modified by standing on its floor —is to stretch house — announced Shuamber point too far. The blows to the door and supported, suggested, by or even the text door handle did not reverberate to or visit opinion. I grant would affirm the physical consequences upon body Ross’s summary judgment. becomes, she could feel. The thus hearing observing, feeling, does but not

an act constitute a “direct within the view, meaning my of Shuamber? it does not. “impact”

Shuamber did alter com ponent of the rule. See Gorman I Co., Inc., (Ind.Ct.

& M Elec. 641 N.E.2d 1288 Rather, App.1994), trans. denied. it abol ished the the source of compensable emotional distress must be a physical injury plaintiff. impact upon