404 A.2d 672 (Pa. 1979), Sinn v. Burd

Citation404 A.2d 672, 486 Pa. 146
Opinion JudgeAuthor: Nix
Party NameRobert G. SINN and JoAnne Marie Sinn, Administrators of the Estate of Lisa Anne Sinn, Deceased, Deborah Frances Sinn, a Minor, by Robert G. Sinn, Her Natural Guardian, and JoAnne Marie Sinn v. Brad Lee BURD. Appeal of JoAnne Marie SINN.
Case DateJuly 11, 1979
CourtSupreme Court of Pennsylvania

Page 672

404 A.2d 672 (Pa. 1979)

486 Pa. 146

Robert G. SINN and JoAnne Marie Sinn, Administrators of the

Estate of Lisa Anne Sinn, Deceased, Deborah

Frances Sinn, a Minor, by Robert G.

Sinn, Her Natural Guardian,

and JoAnne Marie Sinn


Brad Lee BURD.

Appeal of JoAnne Marie SINN.

Supreme Court of Pennsylvania.

July 11, 1979.

Reargument Denied Aug. 22, 1979.

Page 673

[486 Pa. 148] Jack A. Wintner, Carson & Wintner, McKeesport, for appellant.

Mark K. McNally, Pittsburgh, for appellee.

[486 Pa. 149] Before EAGEN, C. J., and O'BRIEN, ROBERTS, NIX, MANDERINO and LARSEN, JJ.


NIX, Justice.

At issue in this appeal is the vexing and complex question of when a plaintiff should be allowed to recover damages for negligently caused mental trauma. 1 The specific question presented for our review is whether the trial court properly sustained appellee's demurrer to the fourth count of appellant's complaint in which she sought to recover damages for physical and mental injuries incurred when she saw her minor daughter struck and killed by an automobile, although the plaintiff herself was not within any zone of personal physical danger and had no reason to fear for her own safety. For the reasons set forth below, we believe the demurrer was improperly sustained and therefore reverse the trial court and order the parties to proceed to trial on the fourth count of the complaint.

It is axiomatic in the law of pleading that preliminary objections in the nature

Page 674

of a demurrer admit as true all well and clearly pleaded material, factual averments and all inferences fairly deducible therefrom. Yania v. Bigan, 397 Pa. 316, 155 A.2d 343 (1959); Byers v. Ward, 368 Pa. 416, 84 A.2d 307 (1951). Conclusions of law and unjustified inferences are not admitted by the pleading. Lerman v. Rudolph, 413 Pa. 555, 198 A.2d 532 (1964). Starting from this point of [486 Pa. 150] reference the complaint must be examined to determine whether it sets forth a cause of action which, if proved, would entitle the party to the relief sought. If such is the case, the demurrer may not be sustained. On the other hand, where the complaint fails to set forth a cause of action, a preliminary objection in the nature of a demurrer is properly sustained. Finally, where the propriety of an order sustaining a demurrer is being reviewed by a court of last resort, the fact that the theory for recovery relied upon has not been previously sanctioned, is not conclusive. It must be remembered that "(e)very cause of action . . ., however, was once a novel claim, and the absence of Pennsylvania authority for appellant's proposition is not an end to the issue." Papieves v. Kelly, 437 Pa. 373, 376-77, 263 A.2d 118, 120 (1970).

The averred facts are as follows. Appellant JoAnne Marie Sinn lived with her husband and two minor children in Elizabeth Township, Allegheny County. On June 12, 1975, at approximately 5:53 p. m., the deceased, Lisa Sinn, and her sister, Deborah, were standing by the Sinn's mail box located along side the Greenock-Buena Vista Road, approximately 36 feet from the nearest intersection. An automobile operated by the appellee struck Lisa and hurled her through the air, causing injuries which resulted in her death. Deborah was not struck by the vehicle, although it narrowly missed her. Appellant witnessed the accident from a position near the front door of her home. The Sinns filed a four-count trespass complaint against appellee on June 3, 1976. The first and second counts were brought under the Wrongful Death and Survival acts, respectively. The third count was brought for Deborah for psychological damages she sustained as a result of watching her sister die. 2 [486 Pa. 151] The fourth count was brought by appellant for damages she sustained from the emotional stress of witnessing her daughter's death. It states, Inter alia :

22. Plaintiff, JoANNE MARIE SINN, is the mother of LISA ANNE SINN, deceased, and resides in the Township of Elizabeth, County of Allegheny, Pennsylvania.

24. Defendant's vehicle did not strike Plaintiff.

25. At the time of the aforesaid accident, the Plaintiff was observing the deceased from a position at or near the front door of her home.

26. The Plaintiff became hysterical, unnerved, and emotionally shattered as she viewed the Defendant's automobile strike and kill her daughter, LISA ANNE SINN.

27. As a result of watching the aforementioned accident, the Plaintiff suffered a shock to her nerves and nervous system, and sustained grievous mental pain and suffering resulting in severe depression and an acute nervous condition.

Page 675

28. As a result of the foregoing, Plaintiff was required to expend money for medicines and/or tranquilizers, and may be required to expend considerable sums for the treatment of her resulting injuries and mental suffering in the future. 3

[486 Pa. 152] Appellee filed preliminary objections in the nature of a demurrer to the third and fourth counts claiming that the complaint failed to aver that Deborah and appellant were in personal danger of physical impact, that they feared such physical impact, or that they suffered physical injury as a result of the emotional distress caused by the accident. The Allegheny County Court of Common Pleas Civil Division, sitting En banc, overruled the demurrer as to the third count but sustained it as to the fourth. Based on its reading of Niederman v. Brodsky, 436 Pa. 401, 261 A.2d 84 (1970), and subsequent Superior Court decisions, that court ruled that while Deborah was within the zone of danger and hence could proceed with her action, appellant was not within the zone of danger. Appellant appealed to the Superior Court which affirmed without opinion. Sinn v. Burd, 253 Pa.Super. 627, 384 A.2d 1003 (1978). We granted allocatur.


Prior to the beginning of this decade, this state was a firm adherent to the "impact rule" regulating recovery for damages[486 Pa. 153] in tort. See, e. g., Knaub v. Gotwalt, 422 Pa. 267, 270, 220 A.2d 646, 647 (1966) and cases cited therein. 4 This rule prevented the complaining party from recovering damages for injuries resulting from fright, nervous shock, or mental or emotional disturbances, unless this distress was accompanied by physical impact I. e., physical injury upon the person of the complaining party. Our cases applied this rule with obstinate rigidity 5 in that recovery was denied not only when the complaining party was a nearby witness, but also to the actual victim of the tortfeasor's negligent or frightening conduct. See, e. g., Bosley v. Andrews, 393 Pa. 161, 142 A.2d 263 (1958).

Page 676

In the first month of this decade, this Court joined the ranks of forward-looking jurisdictions and abandoned the impact rule in Niederman v. Brodsky, 436 Pa. 392, 261 A.2d 84 (1970) (Niederman ). In Niederman, an automobile skidded onto a sidewalk, narrowly missed the plaintiff, but struck his son who was standing beside him. The plaintiff, although untouched by the automobile, suffered a heart attack which required hospitalization. The trial court dismissed plaintiff's complaint for its failure to allege any physical impact. In an opinion by Mr. Justice Roberts, this Court reversed the dismissal, abandoned the impact rule, and adopted the zone of danger theory. That is, "where the plaintiff was in personal danger of physical impact because of the direction of a negligent force against him and where plaintiff actually did fear the physical impact," Niederman at 413, 261 A.2d at 90, he could recover for the shock, mental pain, and physical injuries attendant to the negligent incident even though he was not struck by the negligent force.

[486 Pa. 154] In so doing, we recognized that our decision was compelled by the "inherent humanitarianism of our judicial process." Id. at 404, 261 A.2d at 85. Furthermore, the three basic arguments supporting the impact rule had been eroded away by societal and technological advancements. We consequently rejected the arguments that medical science would be unable to prove a causal nexus between the claimed damages and the alleged fright or mental distress, Id., at 405-08, 261 A.2d at 86-87; that the possibility of recovery in such cases would encourage fictitious injuries and fraudulent claims, Id., at 408-11, 261 A.2d at 87-89; and that the courts would be swamped by a virtual avalanche of cases, Id., at 411-13, 261 A.2d at 89.

It was not until mid-decade that the appellate courts of this state were presented with the question of whether a bystander outside the zone of physical danger could recover for physical or mental injury caused by viewing the serious injury or death of a loved one. In Scarf v. Koltoff, 242 Pa.Super. 294, 363 A.2d 1276 (1976), a husband, while crossing the street was struck and injured by a vehicle negligently driven by the defendant. The victim's wife witnessed the accident and as a result of the shock of the experience, she suffered a myocardial infarction or aggravation of a pre-existing cardiac condition, and died two months later. The man survived his injuries and brought survival and wrongful death actions based upon the death of the wife. These actions were dismissed by the trial court and the Superior Court affirmed, citing the failure of the complaint to allege that the wife was herself in danger of physical impact or that she feared such impact. The Superior Court recognized that our Niederman decision required such a possibility of fear of physical impact as a predicate to successful recovery on the part of the wife's estate. Additionally, that court found two policy reasons against extending coverage to bystanders such as the wife: the problem of unlimited and unduly burdensome liability, and the difficulty of reasonably...

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378 practice notes
  • 499 F.Supp. 338 (E.D.Pa. 1980), Civ. A. 76-1794, DiSalvatore v. United States
    • United States
    • Federal Cases United States District Courts 3th Circuit Eastern District of Pennsylvania
    • September 29, 1980
    ...[3] Provided of course decedent was not guilty of contributory negligence, discussed infra. [4] Further expanded by Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979) holding that plaintiff's presence within the zone of danger is not a prerequisite to recovery. See also Bliss v. The Allentown P......
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    • Alaska Supreme Court of Alaska
    • October 31, 1986
    ...521 (1980); Ramirez v. Armstrong, 100 N.M. 538, 673 P.2d 822 (1983); Paugh v. Hanks, 6 Ohio St.3d 72, 451 N.E.2d 759 (1983); Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979); D'Ambra v. United States, 114 R.I. 643, 338 A.2d 524 (1975). [3] In Ochoa, parents witnessed the neglect of the medica......
  • 572 A.2d 1062 (D.C. 1990), 84-1508, Williams v. Baker
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • April 9, 1990
    ...N.E. 869 (1930) (inhalation of smoke). [15] Niederman 's holding adopting the zone of danger approach was later displaced by Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979), which adopted the foreseeability test over Justice Roberts' strong [16] Limiting to immediate family members the class......
  • 420 So.2d 348 (Fla.App. 5 Dist. 1982), 81-1309, Champion v. Gray
    • United States
    • Florida Florida Court of Appeals Fifth District
    • October 6, 1982
    ...was allowed recovery for mental and emotional distress even though she had not been subjected to any risk of physical harm); Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979) (mother saw her daughter, from doorway of her home, struck and killed by an automobile); Corso v. Merrill, 119 N.H. 647......
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376 cases
  • 572 F.Supp. 1201 (D.S.D. 1983), Civ. 81-3067, Gnirk v. Ford Motor Co.
    • United States
    • Federal Cases United States District Courts 8th Circuit District of South Dakota
    • October 14, 1983
    ...561 (Iowa 1982); Portee v. Jaffee, 84 N.J. 88, 417 A.2d 521 (1980); Corso v. Merrill, 119 N.H. 647, 406 A.2d 300 (1979); Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979); Dziokonski v. Babineau, 375 Mass. 555, 380 N.E.2d 1295 (1978); D'Ambra v. United States, 114 R.I. 643, 338 A.2d 524 (1975)......
  • 599 F.Supp. 207 (E.D.Pa. 1984), Civ. A. 82-3080, Pearsall v. Emhart Industries, Inc.
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    • Federal Cases United States District Courts 3th Circuit Eastern District of Pennsylvania
    • December 7, 1984
    ...action for the wrongful death of a minor child compensation for services and support only up until the age of majority. See Sinn v. Burd, 486 Pa. 146, 151-152 n. 3, 404 A.2d 672 n. 3 (1979); Gaydos v. Domabyl, 301 Pa. 523, 152 A. 549 (1930). The Court's charge in this case was that only sup......
  • 342 N.W.2d 492 (Iowa 1984), 69198, Oberreuter v. Orion Industries, Inc.
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    • Iowa Supreme Court of Iowa
    • January 18, 1984
    ...Corso v. Merrill, 119 N.H. 647, 656, 406 A.2d 300, 306 (1979); Portee v. Jaffee, 84 N.J. 88, 99, 417 A.2d 521, 527 (1980); Sinn v. Burd, 486 Pa. 146, 173, 404 A.2d 672, 686 (1979); Shelton v. Russell Pipe and Foundry Co., 570 S.W.2d 861, 866 (Tenn.1981). Plaintiff in the case before us reli......
  • 180 P.3d 610 (Kan.App. 2008), 98,236, Ware ex rel. Ware v. ANW Special Educ. Co-op. No. 603
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    • Kansas Court of Appeals of Kansas
    • April 11, 2008
    ...have created exceptions to the rule. Indeed, some courts have recognized a limited exception in bystander cases. See Sinn v. Burd, 486 Pa. 146, 404 A.2d 672, 685 (1979) (adopting foreseeability test in case where plaintiff saw her child being struck by automobile and killed). Further, a min......
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2 books & journal articles
  • The moral of MacPherson.
    • United States
    • University of Pennsylvania Law Review Vol. 146 Nbr. 6, August 1998
    • August 1, 1998
    ...516, 519 (Okla. 1990); Fazzolari ex rel. Fazzolari v. Portland Sch. Dist. No. 1J, 734 P.2d 1326, 1331 (Or. 1987) (in banc); Sinn v. Burd, 404 A.2d 672, 682 (Pa. 1979); Marchetti v. Parsons, 638 A.2d 1047, 1050 (R.I. 1994); McClung v. Delta Square Ltd. Partnership, 937 S.W.2d 891, 894-95 (Te......
  • The Status of Bystander Damage Claims in Louisiana: A Less-Than-Perfect Fit in the Tort Puzzle
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    • Louisiana Law Review Nbr. 66-1, October 2005
    • October 1, 2005
    ...(2000). [50] See La. Civ. Code art. 2315.1; Maraist & Galligan, supra note 2, § 18-6, at 423-24. [51] Id. [52] Id. [53] Sinn v. Burd, 404 A.2d 672, 675 n.3 (Pa. 1979). [54] See Lejeune v. Rayne Branch Hospital, 556 So. 2d 559, 567 (citing Louisiana appellate cases recognizing an "i......