Tobin v. Grossman

• Decision Date: 27 November 1967
• Citation: 284 N.Y.S.2d 997,55 Misc. 2d 304
• Parties: Philomena TOBIN, as Natural Parent and Guardian of Gregory Tobin, an infant, and Philomena Tobin, Plaintiffs, v. Stuart GROSSMAN, Defendant.
• Court: New York Supreme Court

Page 997

284 N.Y.S.2d 997

55 Misc.2d 304

Philomena TOBIN, as Natural Parent and Guardian of Gregory Tobin, an infant, and Philomena Tobin, Plaintiffs, v.Stuart GROSSMAN, Defendant.

Supreme Court, Special Term, Albany County.

Nov. 27, 1967.

Sanford Rosenblum, Albany, for plaintiffs(Eugene R. Spada, Albany, of counsel).

Donohue, Bohl, Clayton & Komar, Albany, for defendant.

LOUIS G. BRUHN, Justice.

This is a motion on behalf of the defendant'for an Order dismissing the third cause of action contained in the plaintiff's complaint on the ground that said third cause of action fails to state a legal cause of action.'

The allegations germane to a determination of the instant motion are contained in paragraphs 'THIRTEENTH' and 'FOURTEENTH' of the complaint and are as follows:

'THIRTEENTH: That at the time and place of said accident wherein her said infant son was struck down, the plaintiff, Philomena Tobin, was present near the said public sidewalk and in close proximity to where her infant child was then walking; that it was under such circumstances that the defendant, Stuart Grossman, did then and there, in full view and presence of the plaintiff, strike and injure her infant child.

'FOURTEENTH: That as a result of said accident occurring in the presence and in close proximity to plaintiffPhilomena Tobin, she was rendered and continues to be sick, sore, lame and disabled; that she sustained a severe shock to her nervous and physical systems; that she has become and now is mentally ill and disturbed and has undergone emotional and personality changes and a psychotic depressive reaction; that she has required and will be compelled to undergo medical, psychiatric, and hospital care and treatment in an endeavor to be cured of her said injuries * * *.'

A proper disposition of the instant motion requires an appraisal of the history of litigation of this character.

Such appraisal of necessity requires a beginning with the celebrated case of Mitchell v. Rochester Railway Co., 151 N.Y. 107, 45 N.E. 354.

In that casethe plaintiff'testified that from fright and excitement caused by the approach and Proximity of the team she became unconscious, and also that the result was a miscarriage, and consequent illness.'(pp. 108, 109, 45 N.E. p. 354.)(Emphasis supplied.)

For a long time the bar generally understood that recovery was denied in the Mitchell case and would be continued to be denied solely because the Courts would not permit recovery in noncontact fright or emotional disturbance cases.

Such misconception has been dispelled by 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, where we find that public policy alone apparently has been the stumbling block.

The soundness of such conclusion is borne out on page 240, 219 N.Y.S.2d on page 36, 176 N.E.2d on page 730, of such case when the Court, referring to Mitchell stated:

'The court indicated essentially three reasons for dismissing the complaint.It stated first that, since plaintiff could not recover for mere fright, there could be no recovery for injuries resulting therefrom.It was assumed, in addition, that the miscarriage was not the proximate result of defendant's negligence, but rather was due to an accidental or unusual combination of circumstances.Finally, the court reasoned that a recovery would be contrary to public policy because that type of injury could be feigned without detection and it would result in a flood of litigation where damages must rest on speculation.'

Surprisingly enough the Court, on the same page, continued with this language:

'With the possible exception of the last, it seems '(a)ll these objections have been demolished many times, and it is threshing old straw to deal with them.'(Prosser, Torts (2d ed.), § 37, pp. 176--177.)Moreover, we have stated that the conclusions of the Mitchellcase (supra)'cannot be tested by pure logic'Comstock v. Wilson, 1931, 257 N.Y. 231, 234, 177 N.E. 431, 76 A.L.R. 676.Although...