Stoddard v. Davidson
| Decision Date | 25 July 1986 |
| Citation | 355 Pa.Super. 262,513 A.2d 419 |
| Parties | George Thomas STODDARD, Appellant v. Robert J. DAVIDSON. |
| Court | Pennsylvania Superior Court |
Edward E. Kopko, Asst. Dist. Atty., Pottsville, for appellant.
John B. Lieberman, III, Mahanoy City, for appellee.
Before BROSKY, JOHNSON and LIPEZ, JJ.
This appeal is from an order sustaining preliminary objections in the nature of a demurrer and dismissing appellant's complaint. The causes of action thus dismissed were for intentional and negligent infliction of emotional distress. We hold that the dismissal of the negligent infliction claim was in error and, accordingly, reverse as to that portion of the order and affirm as to the dismissal of the intentional infliction claim.
From the complaint it appears that on January 15, 1984 at approximately 2:30 a.m. appellant was driving in a rural area when his automobile rode over the corpse of Sharon Wascavage which was lying in the middle of his lane of the highway. Appellant was detained at the scene by the police for approximately three and one half hours.
Appellant avers that appellee had struck Sharon Wascavage with his vehicle while she was walking on the highway, route 209. Appellant further avers that after appellee had hit Ms. Wascavage, appellee intentionally left the scene of the accident, not making any attempt to remove the body from the road. As a result, appellant later ran over the corpse and was detained by the police. Appellant claims that as a result he suffered severe emotional distress, which is the basis of his complaint. Appellant contends that the preliminary objections in the nature of a demurrer should not have been sustained by the trial court.
A claim for infliction of emotional distress can be made in two ways. One method is showing that the defendant, through his negligence, was the proximate cause of the emotional injury to the plaintiff. The second method is by showing that the defendant acted intentionally or recklessly to cause the emotional injury to the plaintiff.
Appellee argues that appellant is unable to maintain a cause of action based upon a theory of negligent infliction of emotional distress. He relies on Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979) in which relief was allowed for a person "outside the zone of danger." In that particular case the plaintiff was (1) a close family member, (2) located near the scene of the accident, and (3) the shock resulted from direct emotional impact from observing the accident. We agree with appellee's observation but not his conclusion. Appellant's case does not fit within the narrow confines of Sinn; however, we do not conclude that as a consequence of this that appellant is foreclosed from pursuing at trial an action for negligent infliction of emotional distress.
Sinn v. Burd involved a situation where the plaintiff was not within the zone of danger. In that case a mother sued on the basis of emotional distress that resulted from witnessing her daughter being run down by the defendant's vehicle. Subject to the three above-mentioned elements being satisfied, the Supreme Court allowed recovery.
Sinn was an exception to the rule laid down in Niederman v. Brodsky, 436 Pa. 401, 261 A.2d 84 (1970). Originally, a party had to allege a physical impact in order to properly aver a claim for negligent infliction. The Niederman Supreme Court said:
We today choose to abandon the requirement of a physical impact as a precondition to recovery for damages proximately caused by the tort in only those cases like the one before us where the plaintiff was in personal danger of physical impact because of the direction of a negligent force against him and where plaintiff actually did fear the physical impact. Since appellant's complaint alleges facts which if proven will establish that the negligent force was aimed at him and put him in personal danger of physical impact, and that he actually did fear the force, this case must proceed to trial.
Niederman, supra, at 413, 261 A.2d at 90.
It is this evolution of the law of which appellee has lost sight. To summarize, a cause of action for negligent infliction of emotional distress initially required a physical impact. That element was declared not essential in Niederman if the plaintiff was in the zone of danger. Finally, the plaintiffs presence within that zone was held to be not necessary subject to the presence of Sinn's three elements. Niederman and Sinn are, thus, two alternate methods to establish a case for negligent infliction in the absence of physical impact. However, impact remains the basic means to plead the cause of action. Potere v. City of Philadelphia, 380 Pa. 581, 589, 112 A.2d 100, 104 (1955). If impact is averred, the requirements of either Niederman or Sinn simply are not necessary.
In the case before us there was a physical impact. Appellant's automobile impacted with the corpse of Sharon Wascavage. Although it is a gruesome thought, an automobile running over a corpse would cause the automobile to lurch and jostle or jar its occupants. This Court has held that the jostling and jarring of an automobile's occupants is enough physical impact to meet the physical impact element of a negligent infliction cause of action. Zelinsky v. Chimics, 196 Pa.Super. 312, 175 A.2d 351 (1961). It is this impact which takes the instant case out of the requirements of Sinn or Niederman. Therefore, plaintiff need not rely upon the doctrine laid down in Sinn or upon the rule in Niederman, nor need he meet the elements of Sinn or Niederman.
In Zelinsky two vehicles--plaintiff's and defendant's--struck each other and thus the physical impact was substantially contemporaneous with the defendant's negligent act and resulted in the defendant striking the plaintiff. This will be the usual fact pattern; it is not, however, the only possible scenario. It is also possible that defendant's negligence will proximately cause an impact to occur at a later time and that the impact will not be with the defendant himself. Under traditional rules of negligence law this would also support a cause of action in negligence. This result is not changed by the fact that the particular claim is for infliction of emotional distress through negligence, rather than another type of negligence claim.
In Potere, supra, the city negligently maintained a water line which leaked water into an underground tunnel dug by a contractor which caused subsidence and a cave-in of the road while plaintiff was driving a truck on it. One of plaintiff's claims was for negligent infliction of emotional distress. In Potere as here, the impact was not directly with the defendant, nor did it occur simultaneously with the negligent act. However, as long as the plaintiff's suffering or mental fright is "directly traceable to the peril in which the defendant's negligence placed the plaintiff, then mental suffering is a legitimate element of damages." Potere v. City of Philadelphia, supra, 380 Pa. at 589, 112 A.2d at 104.
The order dismissing the negligent infliction of emotional distress complaint is, accordingly, reversed.
Appellee contends that appellant's intentional infliction complaint was properly dismissed because appellee's "extreme and outrageous conduct was not directed toward George Thomas Stoddard [appellant] but rather to the now deceased pedestrian, Sharon Wascavage." While that assertion is true, it would not, of itself, result in appellee prevailing. The pertinent law is Section 46(2) of the Restatement (Second of Torts). 1 § 46. Outrageous Conduct Causing Severe Emotional Distress.
(2) Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress
(a) to a member of such person's immediate family who is present at the time, whether or not such distress results in bodily harm, or
(b) to any other person who is present at the time, if such distress results in bodily harm.
Appellant is not a member of Sharon Wascavage's family, as compliance with (2)(a) would require; nor was appellant "present at the time" when appellee's vehicle struck her down and she was left on the road, as compliance with (2)(b) would require. The facts of this case cannot, therefore, be the basis for relief under Restatement § 46. That being so, the trial court correctly dismissed appellant's complaint for intentional infliction of emotional distress.
The order dismissing the negligent infliction of emotional distress complaint is reversed. The order dismissing the intentional infliction of emotional distress complaint is affirmed. The case is remanded for proceedings consistent with this opinion. Jurisdiction is relinquished.
Since I believe that the complaint under review on this appeal fails to set forth a viable cause of action in either intentional or negligent infliction of emotional distress, I must dissent.
The material paragraphs of plaintiff's single-count complaint set forth the following:
3. On or about January 15, 1984, at approximately 2:30 a.m., the Plaintiff was proceeding from Hazelton, Luzerne County, Pennsylvania, to Minersville, Schuylkill County, Pennsylvania, on Pennsylvania Route 209 and was proceeding in a southerly direction approximately one mile north of Tuscarora, Schuylkill County, Pennsylvania.
4. At the aforesaid time, Plaintiff was driving a Monte Carlo motor vehicle of which his parents are the owners and Plaintiff was proceeding at a reasonable rate of speed and had his headlights on.
5. At the aforesaid date and time, the Plaintiff suddenly, and without warning, came upon the corpse of Sharon Wascavage, which corpse was situate in the middle of the south bound lane of the aforesaid Route 209.
6. At the...
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