D'Ambra v. United States, Civ. A. No. 4619.

• Decision Date: 16 February 1973
• Docket Number: Civ. A. No. 4619.
• Citation: 354 F. Supp. 810
• Parties: Joseph A. D'AMBRA and Constance C. D'Ambra v. UNITED STATES of America.
• Court: U.S. District Court — District of Rhode Island

354 F. Supp. 810

Joseph A. D'AMBRA and Constance C. D'Ambra v. UNITED STATES of America.

Civ. A. No. 4619.

United States District Court, D. Rhode Island.

February 16, 1973.

COPYRIGHT MATERIAL OMITTED

Girard R. Visconti, Providence, R. I., for plaintiffs.

Lincoln C. Almond, U. S. Atty., Providence, R. I., for defendant.

OPINION

PETTINE, Chief Judge.

This is an action brought under the Federal Tort Claims Act, 28 U.S.C. § 1346(b) by Constance C. D'Ambra and her husband Joseph A. D'Ambra for injuries sustained by plaintiff wife and losses incurred by plaintiff husband as a result of the shock and physical manifestations thereof suffered by Constance D'Ambra from witnessing her infant son of four years, Gregory Allen D'Ambra, being struck and killed by a United States mail truck.

Jurisdiction of this Court is predicated on 28 U.S.C. §§ 1346(b), 1402(b). The plaintiffs reside and all the operative facts occurred in the state of Rhode Island. Therefore, Rhode Island law must be applied in order to determine the substantive rights of the parties. 28 U.S.C. § 1346(b); Landon v. United States, 197 F.2d 128 (2nd Cir. 1952); Jones v. United States, 265 F. Supp. 858 (S.D.N.Y.1967); Mormino v. United States, 249 F.Supp. 981 (D.Mo. 1966); Reuter v. United States, 110 F. Supp. 366 (D.Pa.1953).

The defendant has moved to dismiss this case pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a cause of action. The facts in the instant case, stipulated to by the parties, are the findings of fact made by this Court in Joseph A. D'Ambra v. United States of America, C.A. No. 4545 (March 17, 1972). That case determined that the mail truck driver was guilty of negligence and both Gregory and his mother were free of contributory negligence. This finding of liability was affirmed by the First Circuit Court of Appeals in D'Ambra v. United States, No. 72-1205 (October 24, 1972).

The facts follow: Mr. Gaston Payette, the driver of the United States mail truck, struck Gregory D'Ambra on Hawthorne Street, a wide-paved road in an average urban residential neighborhood. Both sides of this street are lined by one-family houses.

Just previous to the accident, Mrs. D'Ambra and her children were visiting her next door neighbor at No. 20 Hawthorne Street. The two mothers and their six children went to the front of the house to check the lawn mower which would not operate. While on the front lawn, they saw the mail truck at No. 1 Hawthorne Street, and when it reached No. 5 five of the youngsters, including Gregory, ran to it. Gregory returned, however, and started playing in the driveway between No. 20 and No. 22. Therefore, when Mr. Payette reached address No. 5, four children, ranging in age from four to eight years, came to the right side of his truck and asked for mail.

While the truck was stopped at No. 7, Gregory ran to the street entrance of the driveway between No. 20 and No. 22, and ran out at or about the time Mr. Payette started to drive the truck from No. 7. The left front of the truck struck Gregory.

The line of vision between Mr. Payette and the driveway where Gregory was playing was at all times clear and unobstructed.

Although Mr. Payette denied seeing the two mothers, the two mothers and their six children on the lawn of No. 20 were almost in his direct line of vision. And when he was parked at No. 7, the two mothers were in talking distance.

Mrs. D'Ambra testified, and I so find, that she heard a thump and saw Gregory go under the front wheel of the mail truck. She screamed, but the truck did not stop, and she witnessed the rear wheel of the truck also pass over her son.¹

The question of recovery by a bystander mother for the negligent infliction of mental harm is of first impression in this jurisdiction. On the basis of a close examination of Rhode Island precedent, I do not find that such an action is precluded. Rather, in order to determine whether there is such a cause of action, I find that a policy analysis is demanded by the Rhode Island opinions.

The seminal Rhode Island case, Simone v. Rhode Island Co., 28 R.I. 186, 66 A. 202 (1907) rejected the impact rule, which was then the law of the overwhelming majority of jurisdictions.² The court held that when a person was physically endangered by the acts of a defendant, even though no physical impact resulted, that person could recover for the fright experienced from the defendant's negligence, when that fright is followed by physical ills or gives rise to nervous disturbances which in turn lead to physical ills.

In reaching its conclusion, the court soundly refuted the "impossibility of administration" policy arguments of Spade v. Lynn & Boston R. Co., 168 Mass. 285, 47 N.E. 88 (1897), the leading case adopting the impact rule. The Simone court, with insight, wrote:

"It is always a question, frequently of much difficulty, to be decided in the particular case, whether the injury for which damages are sought is the proximate result of the act or acts complained of. But when it is admitted, as it is in Spade v. Lynn & Boston R. Co., supra, that in a large class of cases there may be injuries of the most serious character directly resulting from the negligence of the defendant, as a proximate cause, for which the law will afford no remedy because of some probable difficulty or occasional injustice in the administration of a more liberal rule, it appears to us that the conclusion is quite illogical and is a pitiful confession of incompetence on the part of courts of justice." Simone v. Rhode Island Co., supra, 66 A. at 206.

The Simone court, considering in a practical common sense way the inextricable intertwining of mental and physical processes, also anticipated the recognition of modern medicine that all emotional disturbances have physical ramifications. See Comment: Negligently inflicted Mental Distress: The Case for an Independent Tort, 59 Geo.L. J. 1237, 1259 (1971). The court thus quoted with approval such statements as the following:

"`The mind and body operate reciprocally on each other. Physical injury or illness sometimes causes mental disease. A mental shock or disturbance sometimes causes injury or illness of body, especially of the nervous system. Now, if the fright was the natural consequence of . . . the circumstances of peril and alarm in which defendant's negligence place plaintiff, and the fright caused the nervous shock and convulsions and consequent illness, the negligence was the proximate cause of those injuries. Purcell v. St. Paul City Ry. Co., 48 Minn. 134, 138, 50 N.W. 1034.'" Simone v. Rhode Island Co., supra, 66 A. at 207.

Simone therefore established the negligent infliction of mental distress as an independent cause of action. Its rejection of the impact rule does not imply, however, an automatic extension of the protection of tort law to bystander mothers who are not themselves physically imperilled. See Barber v. Pollock, 104 N.H. 379, 187 A.2d 788 (1963) refusing to so extend Chiuchiolo v. New England Wholesale Tailors, 84 N.H. 329, 150 A. 540 (1930); Tobin v. Grossman, 24 N.Y.2d 609, 301 N.Y.S.2d 554, 249 N.E.2d 419 (1969) refusing to extend Battalla v. State, 10 N.Y.2d 237, 219 N. Y.S.2d 34, 176 N.E.2d 729 (1961).

To the contrary, there is one Rhode Island case which must be fully discussed before this Court can finally conclude that Rhode Island law does not preclude the action before it.

Bedard v. Notre Dame Hospital, 89 R.I. 195, 151 A.2d 690 (1959) held that the custody of a minor child is a legally protected interest, that recovery can be had for mental anguish caused by the wrongful detention of a two year old child by the defendant, but reaffirming Simone v. Rhode Island Co., supra, found that recovery for such mental anguish is only allowed when there is concomitant or subsequent physical manifestations of the psychic injury. What must be determined is the effect on the instant case, of the following cursory dicta of Bedard:

"It is generally held that a parent is not entitled to recover for mental distress and anxiety on account of an injury to his child unless the injury is a willful or malicious one. 39 Am.Jur., Parent and Child § 80, p. 726. In McGarr v. National & Providence Worsted Mills, 24 R.I. 447, 53 A. 320, 60 L.R.A. 122, the court in effect stated that the jury was not at liberty to consider the fact that the plaintiff had been deprived of the comfort and society of the child and that the jury could not consider any physical or mental suffering or pain which may have been sustained by the parent by reason of the injury to the child. That case involved an action of trespass on the case for negligence and therefore differs materially from the instant case which alleges a willful invasion of plaintiff's legally protected interest of custody." Id. at 692.

I cannot consider the above dicta as controlling in this case. The citation of the "black letter law" rule which usually denies recovery for mental distress suffered by a parent because of injuries to the child unless such injuries are intentionally caused is merely a statement of the weight of authority, referred to only in passing by a court concerned with an intentional tort. This casual statement cannot be extrapolated into a bar under Rhode Island law against all recovery by parents for mental distress on behalf of their child in all conceivable circumstances.

Furthermore, the citation of McGarr v. National & Providence Worsted Mills, supra, by the Bedard court was made only to distinguish McGarr from the case before it. The Bedard court was not engaged in an evaluation of the precedential weight of McGarr, since noting the disparities between the two cases was sufficient support for the conclusion that the older case was not controlling. The Bedard court thus failed to recognize that the subsequent Simone case vitiated the authority of McGarr.

I therefore conclude that recovery by a bystander parent for the...