A few days ago, the TortProf Blog reported that "[t]he Indiana Supreme Court has extended negligent infliction of emotional distress." In K.G. v. Smith, 2021 WL 6063878, at **1, 8, 2021 Ind. LEXIS 775, at *2, 23-24 (Ind. 2021), the court apparently recognizes a cause of action for the parents of a child who claim emotional distress from learning that a caretaker for their child sexually abused the child. However, the opinion is very awkwardly worded. It states that
"[W]hen a caretaker assumes responsibility for a child, and when that caretaker owes a duty of care to the child's parent or guardian, a claim against the caretaker for the negligent infliction of emotional distress may proceed when the parent or guardian later discovers, with irrefutable certainty, that the caretaker sexually abused that child and when that abuse severely impacted the parent or guardian's emotional health.”; “To satisfy this rule, the parent or guardian must show (A) that the tortfeasor had a duty of care to the parent or guardian; (B) that there is irrefutable certainty of the act's commission; (C) that the tortious act is one rarely, if ever, witnessed by the parent or guardian; and (D) that the abuse severely impacted the parent or guardian's emotional health."
Here is my problem with this. Notice how the court does not say that the caretaker owes a duty to the parents. It says that IF the caretaker owes a duty to the parent. This means that to support a prima facie case, the parents will have to convince the court that the caretaker owes them a duty. And, the parents will have to do this in addition to meeting all the other elements of the cause of action.
In other words, the key here is that the parents have to show that the caretaker owed them a duty, but the court does not say how a parent can satisfy the element of duty in such a case. Unless I am missing something, this adds nothing to what we already knew. To have a cause of action, the plaintiff always has to show the element of duty.
My guess is that the parents will have to find a way to convince the courts to adopt the view of the Restatement 3d §47(b) which recognizes a possible claim for negligent infliction of emotional distress based on the relationship between the parties.
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