Lessard v. Tarca, 108070

• Decision Date: 06 May 1957
• Docket Number: No. 108070,108070
• Citation: 20 Conn.Supp. 295,133 A.2d 625
• Court: Connecticut Superior Court
• Parties: Mary LESSARD et al. v. Ernest J. TARCA, Jr.

Page 625

133 A.2d 625

20 Conn.Supp. 295

Mary LESSARD et al. v. Ernest J. TARCA, Jr.

No. 108070.

Superior Court of Connecticut, Hartford County.

May 6, 1957.

Sorokin & Sorokin, Hartford, for plaintiffs.

Francis J. Connolly, Jr., Hartford, for defendant.

HOUSE, Judge.

The complaint in this action states, in brief, that the named plaintiff, her husband and four young children were riding in an automobile operated by the named plaintiff when, due to the negligence of the defendant, it was struck by an automobile operated by the defendant. It is alleged that the named plaintiff, her husband and three sons were all injured in the accident, for which they seek damages. It is also alleged that the young daughter was pinned in the wreckage and burned to death. The administrator of her estate seeks damages for her death. In the actions brought by each of the five survivors it is alleged in the case of each plaintiff that that plaintiff sustained serious and severe shock, mental anguish and pain as a result of watching the young girl burn to death in the wreckage of the car.

By the present motion the defendant seeks an order that the plaintiffs be required to correct their complaint by striking or deleting therefrom these specific allegations claiming damages for mental suffering resulting from witnessing the death of their daughter and sister.

If these allegations are improper elements or grounds of damages, the proper attack is by motion and not by demurrer. Seidler v. Burns, 84 Conn. 111, 113, 79 A. 53, 33 L.R.A.,N.S., 291; Sarcia v. T. F. Byrnes, Inc., 16 Conn.Sup. 376, 377; Wooster v. Hubbard, 8 Conn.Sup. 219; see Urban v. Hartford Gas Co., 139 Conn. 301, 304, 93 A.2d 292.

The extent to which a plaintiff may recover damages for emotional disturbance has been the subject of much discussion and many decisions. Professor (now Judge) Magruder concluded his article on the subject in 49 Harvard Law Review 1033-1067, 'Mental and Emotional Disturbance in the Law of Torts,' with these words: 'If a consistent pattern cannot yet be clearly discerned in the cases, this but indicates that the law on this subject is in a process of growth.' The development of the law is well traced in his article. For other helpful discussions of the subject, see 'Developments in the Law--Damages--1935-1947,'61 Harv.L.Rev. 113, 138; Goodrich, 'Emotional Disturbance as Legal Damage,' 20 Mich.L.Rev. 497; Smith, 'Relation of Emotions to Injury and Disease: Legal Liability for Psychic Stimuli,' 30 Va.L.Rev. 193; Harper & James, Torts, § 18.4. It may be noted that the Restatement on Torts in a caveat carefully straddles the exact problem presented by this motion. Restatement, 2 Torts § 313. However, the general rule appears to be as stated in the annotation, 'Negligence: Fear of injury to another, or shock or mental anguish at witnessing such injury, as the subject of damages,' 18 A.L.R.2d 220, 234: 'The general rule that a plaintiff cannot recover damages for nervous shock or mental anguish at sight of injury to another applies even though the plaintiff also has suffered physical injuries in the same accident.' See also 38 Am.Jur. 660, § 18; 67 C.J.S. Parent and Child § 55, p. 761. While there are numerous cases from other jurisdictions, two strikingly similar to the facts in the present case may be noted; Clough v. Steen, 3 Cal.App.2d 392, 39 P.2d 889, and Maury v. United States, D.C., 139 F.Supp. 532.

Connecticut was one of the earliest jurisdictions to recognize mental suffering consequent upon a physical injury as a permissible element of damages. Seger v. Town of Barkhamsted, 22 Conn. 290, 298; see also Masters v. Town of Warren, 27 Conn. 293, 300; Maisenbacker v. Society Concordia, 71 Conn. 369, 377, 42 A. 67; Miller v. Connecticut Co., 112 Conn. 476, 478, 152 A. 879. In 1941 by its decision in the leading case of Orlo v. Connecticut Co., 128 Conn. 231, 21 A.2d 402, the Supreme Court of Errors, after reviewing and discussing the cases dealing with a recovery for injuries resulting from fright or nervous shock, repudiated the requirement that a contemporaneous injury of a traumatic nature be a condition precedent to recovery of damages for emotional shock.

In 1952 the decision in Urban v. Hartford Gas Co., 139 Conn. 301, 307, 93 A.2d 292, 295, closed 'an existing gap in our law of liability for personal injury' in indicating that a plaintiff might recover damages for emotional distress where she was the victim of a tort requiring neither physical impact nor danger therefrom. In this...