Berg v. Baum
| Citation | 224 N.Y.S.2d 974 |
| Parties | Fannie BERG, as Guardian ad Litem of Jack Berg, Fannie Berg, and Robert Berg, Plaintiffs, v. Nathan BAUM, and Friendly Textile Corporation, Defendants. |
| Decision Date | 21 February 1962 |
| Court | United States State Supreme Court (New York) |
John E. Morris, New York City, for the motion.
Jerome B. Tobias, Nanuet, opposed.
Defendants move for summary judgment pursuant to rule 113 Rules of Civil Practice as against plaintiff Fannie Berg and plaintiff Robert Berg with respect to the latter plaintiff's second cause of action.
The plaintiffs named are the parents of the infant plaintiff, Jack Berg, who, according to the averments of the first cause of action alleged in the complaint, sustained severe personal injuries when struck down in a street by a vehicle respectively operated and owned by the two defendants.
The second cause of action alleged is an attempt to plead a claim on behalf of Fannie Berg for loss of services occasioned by the injuries to the infant plaintiff. This cause of action duplicates the fourth cause of action on behalf of Robert Berg and plaintiffs' counsel concedes the insufficiency of the second cause of action as a matter of law.
The third cause of action alleges that plaintiff, Fannie Berg, was present and witnessed the incident wherein the defendants' vehicle injured the infant plaintiff and that as a result of the defendants' negligence the plaintiff Fannie Berg went into shock, became hysterical, fainted, collapsed and sustained mental and physical injuries.
The fifth cause of action on behalf of Robert Berg seeks to recover damages for medical expenses and for loss of services sustained as a result of the injuries to Fannie Berg.
The plaintiffs thus seek to recover for fright and ensuing mental and physical suffering and loss of services allegedly occasioned by defendants' negligence, but absent impact.
Prior to the recent decision of the Court of Appeals in Battalla v. State of New York, 10 N.Y.2d 237, 219 N.Y.S.2d 34, 176 N.E.2d 729 reversing 11 A.D.2d 613, 200 N.Y.S.2d 852, the rule followed by the courts of this State was that no recovery could be had for injuries resulting from fright occasioned by the mere negligence of another where there was no immediate personal injury. Mitchell v. Rochester Railway Co. 151 N.Y. 107, 45 N.E. 354, 34 L.R.A. 781, See, New York Law of Damages, vol. 2, Sec. 588, p. 1020.
In the Battalla decision the rule of the Mitchell case was expressly overruled by a majority of the Court of Appeals in allowing a recovery for emotional and neurological disturbances caused by fright suffered by an infant where an attendant failed to secure and lock a safety belt on a ski tow chairlift maintained by the State.
However, it has been held that the determination in the Battalla case does not impair the vigor of the Mitchell rule...
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