Armstrong v. Paoli Memorial Hosp.

• Citation: 430 Pa.Super. 36,633 A.2d 605
• Parties: Dawn ARMSTRONG and Thomas J. Armstrong, h/w v. PAOLI MEMORIAL HOSPITAL, Appellant.
• Decision Date: 22 December 1993
• Court: Superior Court of Pennsylvania

Page 605

633 A.2d 605

430 Pa.Super. 36

Dawn ARMSTRONG and Thomas J. Armstrong, h/w v. PAOLI MEMORIAL HOSPITAL, Appellant.

Superior Court of Pennsylvania.

Argued May 19, 1993.

Filed Sept. 20, 1993.

Reargument Denied Dec. 22, 1993.

R. Bruce Morrison, Philadelphia, for appellant.

Eric Zajak, Philadelphia, for appellees.

Before WIEAND, CIRILLO and CERCONE, JJ.

CIRILLO, Judge.

In this appeal we are asked to consider whether the trial court erred when it ruled that a jury award of $1,000 on a claim of negligent infliction of emotional distress warranted a new trial on the damages question alone and whether the trial court erred when it refused to enter a judgment non obstante veredicto (j.n.o.v.). On both questions, we reverse.

As she was dressing her young son for a birthday party one morning, Dawn Armstrong received a telephone call from Paoli Memorial Hospital, Paoli, informing her that her husband had been in an accident and asking her to come to the hospital.

The hospital had summoned Mrs. Armstrong because a critically injured accident victim named Thomas Armstrong had been brought in unconscious by ambulance. Following a hospital policy to notify the next-of-kin as quickly as possible, an emergency room employee asked information for a telephone number of Thomas Armstrong in Chester. Based on that information, she called Dawn Armstrong.

Once at the hospital, Dawn Armstrong met with a neurosurgeon and examined X-rays of a man with a crushed cranium. She was not allowed to see the patient. Only after she had been at the hospital for more than an hour did her sister see the accident victim's driver's license. Then, it was clear the accident victim was not Dawn Armstrong's husband, Thomas J. Armstrong, but Thomas H. Armstrong, also of Chester. Dawn Armstrong testified that when she heard the injured man was not her husband, "I just lost it. I urinated, defecated, and I just lost it completely."

As a result of the misidentification, Dawn Armstrong testified she suffers from depression, nightmares, insomnia and unreasonable fears about the safety and whereabouts of her husband and son for which she has undergone psychological counseling.

The Armstrongs filed suit against Paoli Memorial Hospital, alleging negligent infliction of emotional distress, intentional infliction of emotional distress and asking for compensatory and punitive damages. The count of intentional infliction of emotional distress and the request for punitive damages were dismissed by the trial judge at the close of testimony. Only the question of negligent infliction of emotional distress went to the jury. The claims for intentional infliction of emotional distress and punitive damages were not revived in post-trial motions. In response to post-trial motions the trial court entered a single order granting a new trial as to damages, calling a verdict of $1,000 "inadequate, indeed supremely embarrassing," and denying the hospital a j.n.o.v.

In this appeal, Paoli Memorial Hospital asks us to consider whether:

1) The trial court erred when it denied the hospital's motion for judgment n.o.v.;

2) The trial court erred when it admitted evidence of subsequent remedial measures;

3) The trial court abused its discretion when it ordered a new trial on damages only.

Because of our disposition of the first issue, we need not reach the second or third question and so shall not, except to note that Pennsylvania has recognized a rule against the admission of evidence of subsequent repairs since 1902 because admitting such evidence "punishes a prudent and well-meaning defendant who guards against the recurrence of an accident he had no reason to anticipate ..." Baron v. Reading Iron Co., 202 Pa. 274, 284, 51 A. 979, 980 (1902). However, two Pennsylvania cases have admitted evidence of subsequent repairs in cases in which the feasibility of avoiding an inherent danger was not in issue. See Incollingo v. Ewing, 444 Pa. 263, 282 A.2d 206 (1971) (warning label with antibiotic strengthened after child's death); Hyndman v. Pennsylvania R.R. Co., 396 Pa. 190, 152 A.2d 251 (1959) (warning sign erected after child died of burns after touching transformer).

In this case, the trial court admitted evidence of the hospital's policy for notifying next-of-kin, a policy which was adopted after Dawn Armstrong was mistakenly summoned to the hospital. The trial judge permitted questioning of a defense witness regarding deviation from the conduct outlined in the hospital's subsequent policy. Thus, the record reveals that the policy was used not to demonstrate the feasibility of avoiding error, but to define a standard of care from which the jury might infer negligence. When a trial court allows evidence of subsequent remedial measures to be introduced to demonstrate prior negligence, as it did here, it abuses its discretion. Baron, supra.

Our standard of review of an order denying j.n.o.v. is whether there was sufficient competent evidence to sustain the verdict. Wenrick v. Schloemann-Siemag Aktiengesellschaft, et al., 523 Pa. 1, 4, 564 A.2d 1244, 1246 89149752 (1989). The standard of review for an appellate court is the same as that for a trial court: j.n.o.v. will be entered only in a clear case where the facts are such that no two reasonable minds could fail to agree that the verdict was improper. Pirozzi v. Penske-Olds-Cadillac-GMC, 413 Pa.Super. 308, 312, 605 A.2d 373, appeal denied, 532 Pa. 665, 616 A.2d 985 (1992). An appellate court will reverse a trial court ruling only if it finds there was not sufficient competent evidence to sustain the verdict, granting the verdict winner the benefit of every favorable inference reasonably drawn from the evidence. McDevitt v. Terminal Warehouse Co., 304 Pa.Super. 438, 442, 450 A.2d 991, 993 (1982).

When we review an order granting a new trial, we must consider whether the trial court clearly and palpably abused its discretion or committed an error of law which controlled the outcome of the case. Stevenson v. General Motors Corp., 513 Pa. 411, 425, 521 A.2d 413, 420-21 (1987). We presume the trial court was justified in granting a new trial even if the stated reason is insufficient. Commonwealth ex rel. Meyers v. Stern, 509 Pa. 260, 264, 501 A.2d 1380, 1382 (1985). When the trial court, as here, enumerates reasons for its decision to grant a new trial, appellate review is focused upon the legal adequacy of the reasons given for the new trial. Coker v. S.M. Flickinger Co., Inc., 533 Pa. 441, 445, 625 A.2d 1181, 1187 (1993); see also, Westinghouse Elevator Co. v. Herron, 514 Pa. 252, 255, 523 A.2d 723, 725 (1987).

Not every wrong constitutes a legally cognizable cause of action. Lubowitz v. Albert Einstein Med. Center, 424 Pa.Super. 468, 472, 623 A.2d 3, 5, (1993) (false report of exposure to AIDS is not a legally cognizable injury). The law cannot be expected to compensate for every minor psychic shock incurred in the course of everyday living. D'Ambra v. United States, 114 R.I. 643, 653, 338 A.2d 524, 529 (1976), cited with approval in Sinn v. Burd, 486 Pa. 146, 168, 404 A.2d 672, 683 (1979). Not every loss constitutes a legal injury for which compensation is available. Prosser on Torts, 4th ed. § 1 (1971).

The fundamental question underlying this appeal is whether Pennsylvania recognizes an independent tort of negligent infliction of emotional distress.

When we consider the alleged cause of action in this case we must first consider what it is not. This is not a case of intentional infliction of emotional distress, the tort of outrage, in which the test for recovery is the outrageousness of the conduct and the degree to which the emotional distress has created medically-documented physical symptoms. That count was properly dismissed at the close of testimony when the trial judge found that there was no evidence to support the level of outrage and intent or recklessness required to support a cause of action for intentional infliction of emotional distress. Kazatsky v. King David Memorial Park, Inc., 515 Pa. 183, 527 A.2d 988 (1987). ¹

This case is, however, one of negligence, negligently inflicted emotional distress for which the test as outlined in the Restatement (Second) of Torts § 313 is one of reasonable foreseeability. ² Is the injury a reasonably foreseeable result of the defendant's negligence? ³

The tort of negligent infliction of emotional distress has evolved almost exclusively in the context of those who observe injury to close family members and are as a consequence of the shock emotionally distressed. To state a cause of action for negligent infliction of emotional distress the plaintiff must demonstrate that she is a foreseeable plaintiff and that she suffered a physical injury as a result of the defendant's negligence. Restatement (Second) of Torts, §§ 313, 436A, supra.

Physical injury must be averred to sustain a cause of action for negligent infliction of emotional distress. See Covello v. Weis Markets, Inc., 415 Pa.Super. 610, 610 A.2d 50 (1992), appeal denied, 533 Pa. 644, 622 A.2d 1376 (1993), (policeman who was unable to extricate a child from a trash compactor failed to allege physical harm to himself); Abadie v. Riddle Memorial Hospital, 404 Pa.Super. 8, 589 A.2d 1143 (1991) (demurrer sustained for failure to state a cause of action when plaintiff failed to allege physical harm from a raucous hospital staff birthday celebration while she was being treated); Wall by Lalli v. Fisher, 388 Pa.Super. 305, 565 A.2d 498, allocatur denied, 526 Pa. 636, 584 A.2d 319 (1989) (mother who witnessed a dog bite her child failed to aver physical injury to herself); Banyas v. Lower Bucks Hospital, 293 Pa.Super. 122, 437 A.2d 1236 (1981) (plaintiff who was charged with murder after hospital records were altered to blame him for a death and to conceal malpractice failed to aver physical harm and, thus, stated no cause of action for negligent infliction of emotional distress).

The requirement that...