Haight v. McEwen

• Decision Date: 10 July 1964
• Citation: 251 N.Y.S.2d 839,43 Misc.2d 582
• Parties: Robert Dale HAIGHT, Sr., and Patricia Haight, Plaintiffs, v. Marjorie McEWEN and Robert McEwen, Defendants.
• Court: New York Supreme Court

Page 839

251 N.Y.S.2d 839

43 Misc.2d 582

Robert Dale HAIGHT, Sr., and Patricia Haight, Plaintiffs, v. Marjorie McEWEN and Robert McEwen, Defendants.

Supreme Court, Motion Term, Oneida County.

July 10, 1964.

Lockwood & Vaughan, Merritt E. Vaughan, Utica, of counsel, for defendants.

Joe Schapiro, Hamilton, for plaintiffs.

EUGENE F. SULLIVAN, Justice.

This is a motion to dismiss the complaint on the ground that it fails to state a cause of action.

The plaintiffs are husband and wife. His cause of action is derivative.

The complaint alleges that the defendant, Marjorie McEwen, was operating an automobile owned by the other defendant, Robert McEwen, on a public highway in the Hamlet of Deansboro, Oneida County, and that, at the said time and place, Robert Dale Haight, Jr., son of these plaintiffs, was crossing the highway when the defendant, Marjorie McEwen, so carelessly and negligently operated the automobile that it struck the son of the plaintiffs, thereby causing his death instantly and that, at the said time and place when the plaintiffs' son was killed, the plaintiff, Patricia Haight, was present and watching her son cross the highway and that she observed and witnessed the killing of her son and that, as a result of the foregoing, she 'became mentally ill and was caused to suffer severe emotional and neurological disturbances with residual physicial manifestations and was hospitalized for a long period of time and still is mentally ill and continues to suffer from such disturbances and manifestations and has been and will be for sometime required to obtain medical help and psychiatric treatments in order to be cured of her said ailments.' (Par. '5' of complaint).

The precise question presented by the instant case appears to be one of first impression in New York. However, the tendency of the law today is in the direction of allowing recovery both for mental injury and harm to a third person,--at least one intimately connected with the event as is the case here. (See: 25 Brooklyn Law Review 264 (1959); 49 Harvard Law Review 1033 (1936); 20 Michigan Law Review 497 (1921-1922)).

'Freedom from mental disturbance is now a protected interest in this State.' Ferrara v. Galluchio, 5 N.Y.2d 16, at 21, 176 N.Y.S.2d 996, at 999, 152 N.E.2d 249, at 252, 71 A.L.R.2d 331.

'The question 'whether the intentional infliction of serious mental distress without physical impact can constitute an independent tort which is actionable per se' was 'answered in the affirmative' ([Halio v. Lurie, 15 A.D.2d 62] p. 65, 222 N.Y.S.2d p. 762 [supplied]). In the course of its well reasoned opinion, the court pointed out that in the recent case of Battalla v . State of New York, 10 N.Y.2d 237, 219 N.Y.S.2d 34, 176 N.E.2d 729, the prior requirement of physical contact or direct physical injuries in actions to recover for personal injuries resulting from negligence was abandoned. In the Battalla case, a plaintiff was held to have a good cause of action for mental distress resulting from a negligent act of defendant, although no physical contact was involved. * * *' Scheman v. Schlein, 35 Misc.2d 581, at 583, 231 N.Y.S.2d 548, at 551.

It is the contention of the defendants that, in the cases which present exceptions to Mitchell v. Rochester Ry. Co., 151 N.Y. 107, 45 N.E. 354, 34 L.R.A. 781 and the case which overruled it (Battallo v. State, supra) each plaintiff, who sought recovery, was the person whose safety had been threatened, viz: the threat of cancer in Ferrara v. Galluchio, supra, and the unclosed safety bar in Battalla, supra.

'The fact that the pleading here under attack does not fall plainly within the rule announced in some decided case does not require the dismissal of the complaint. The law should never suffer an injury and damage without a remedy (Kujek v. Goldman, 150 N.Y. 176, 44 N.E. 773, 34 L.R.A. 11 . Piper v. Hoard, 107 N.Y. 73, 76, 13 N.E. 626, 628). * * *' Halio v. Lurie, 15 A.D.2d 62, at 67, 222 N.Y.S.2d 759, at 764.

What is more, as the Court of Appeals wrote in Battalla, supra, 10 N.Y.2d at page 239, 219 N.Y.S.2d at page 35, 176 N.E.2d at page 730:

'* * *. On the other hand, resort to the somewhat inconsistent exceptions would merely add further confusion to a legal situation which presently lacks that coherence which precedent should possess. 'We act in the finest common-law tradition when we adopt and alter decisional law to produce common-sense justice. * * * Legislative action there could, of course, be, but we abdicate our own function, in a field peculiarly nonstatutory, when we refuse to reconsider an old and unsatisfactory court made rule.' (Woods v. Lancet, 303 N.Y. 349, 355, 102 N.E.2d 691, 694, 27 A.L.R.2d 1250.)'

In Amaya v. Home Ice, Fuel & Supply Co., Cal.App. 23 Cal.Rptr. 131 (1962), the plaintiff, a mother, had seen her infant son injured by the negligence of the defendant in the operation of his truck. She brought an action to recover for the shock and ensuing physical illness which she suffered as a result thereof. The Court, in allowing recovery, held that a parent who witnesses the exposure of his child to danger caused by defendant's negligence is included within the class of persons to whom the defendant owes a duty.

In Hambrook v. Stokes Bros. (1925) 1 K.B. 141, 94 L.J.K.B. 435, cited in Amaya v. Home Ice, Fuel & Supply Co., supra, and in Volume 30 of the Virginia Law Review at page 236, the defendant left a lorry insecurely parked at the top of a hill commanding a neighborhood street frequented by children on the way to school. The vehicle ran away, careening downward until it came to a stop by running into a store. Plaintiff's intestate had gone part way to school with her two small children and she had left them a few moments before to continue their course up the narrow roadway down which the runaway truck came immediately afterward. The mother was in no personal danger and experienced no fear for her own safety, but was much frightened by the surmise that one of her children may have been struck and injured. Some one in the assembled crowd said that a little girl with glasses had been hurt by the lorry, and indeed, when the plaintiff went to the hospital, her fears were confirmed by finding her child in bed. It was alleged that the defendant's negligence caused the plaintiff's intestate to suffer nervous shock and consequent illness which lead to her death. The court decided that a mother injured through reasonable fears for safety of her children may hold a culpable defendant liable in damages. The important facts to note are that the mother's fright was reasonable, that she was personally present in an area where defendant could anticipate her presence, and that injury by fright to a person of her class was a foreseeable consequence of defendant's negligence.

In the instant case, the plaintiff-mother was actually present and witnessed the killing of her son, her shock or fright was reasonable and whether or not the defendant should have anticipated the mother's presence and whether or not her fright was a foreseeable consequence of the defendant's negligence may or could be revealed by the proof at the trial.

'However, for the purpose of pleading, an allegation of the infliction of severe mental distress is sufficient. If there is a failure of proof of this allegation at the trial the cause will be defeated. The capability of the medical profession in the psychiatric field to determine if severe mental distress has been inflicted is today recognized. No longer are claims based upon such testimony deemed 'fictitious and speculative' (See, Mitchell v. Rochester Ry. [Co.], 151 N.Y. 107, 110, 45 N.E. 354, 34 L.R.A. 781 [1896], overruled, Battalla v. State [of New York], 10 N.Y.2d 237, 219 N.Y.S.2d 34, 176 N.E.2d 729 [1961], supra).' Scheman v. Schlein, supra, 35 Misc.2d 581, at page 584, 231 N.Y.S.2d 548, at page 552.

'* * *. It is alleged that the mental suffering caused by the defendant's conduct was genuine and extreme and that the results which followed were severe. It will be for the trier of the facts to determine whether such injuries were actually suffered, and whether the conduct of the defendant was such that it may be said that it went beyond all reasonable bounds of decency (see, Restatement of the Law, 1948 Supplement, Torts § 46; Prosser on Torts [2d ed.], p. 38 et seq.).' Halio v. Lurie, supra, 15 A.D.2d 62, 67, 222 N.Y.S.2d 759, 764; Prosser, Torts, (2d ed.) p. 180.

'* * *. It is entirely possible to allow recovery only upon satisfactory evidence and deny it when there is nothing to corroborate the claim, or to look for some guarantee of genuineness in the circumstances of the case. The problem is one of adequate proof.' Ferrara v. Galluchio, supra, 5 N.Y.2d 16, 21, 176 N.Y.S.2d 996, 999, 152 N.E.2d 249, 252.

'As Chief Judge Conway said in Ferrara v. Galluchio, supra, 5 N.Y .2d 16, 22, 176 N.Y.S.2d 996, 1000, quoting from Bird v. St. Paul Fire and Marine Ins. Co., 224 N.Y. 47, 52, 53, 120 N.E. 86, 87, 88, 13 A.L.R. 875: 'Each negligence case must * * * be solved 'pragmatically." It follows, therefore, that in order to properly pass on defendant's contention a complete analysis of the evidence adduced at the trial is essential.'...