Yandrich v. Radic
| Decision Date | 10 August 1981 |
| Citation | 433 A.2d 459,495 Pa. 243 |
| Parties | David Paul YANDRICH, Administrator of the Estate of George Yandrich, Deceased, Appellant, v. Martin J. RADIC, Appellee. |
| Court | Pennsylvania Supreme Court |
Richard C. Angino, Harrisburg, for appellant.
Richard H. Wix, Harrisburg, for appellee.
Before ROBERTS, NIX, LARSEN, FLAHERTY, KAUFFMAN and WILKINSON, JJ.
The Court, being equally divided, the order of the Superior Court is affirmed.
NIX, J., filed an opinion in support of affirmance.
WILKINSON, J., filed an opinion in support of affirmance in which ROBERTS, J., joins.
FLAHERTY, J., filed an opinion in support of reversal in which LARSEN and KAUFFMAN, JJ., join.
O'BRIEN, C.J., did not participate in the consideration or decision of this case.
This is an appeal from an order of the Superior Court, --- Pa.Super. ---, 427 A.2d 247, affirming the order of the trial court sustaining appellee's preliminary objection in the nature of a demurrer and dismissing appellant's complaint for failure to state a cause of action in trespass.
The specific question presented for our review is whether a cause of action for negligent infliction of emotional distress exists on behalf of a father whose son was fatally injured after being struck by an automobile where the father was neither a witness to the accident nor in the immediate vicinity thereof, but arrived at the accident scene after the injured son had already been taken to the hospital.
The instant complaint transcends established foreseeable limits of liability in third party emotional distress cases and advocates establishment of an open-ended standard which will result in the imposition of greatly expanded liability. We find that the demurrer was properly sustained and therefore affirm the order of the Superior Court.
Since this appeal is from the sustaining of a preliminary objection in the nature of a demurrer, we accept as true all well pleaded material facts set forth in the complaint and every reasonable inference deducible therefrom. Papieves v. Kelly, 437 Pa. 373, 263 A.2d 118 (1970).
The pertinent facts are as follows. On Sunday, June 26, 1977, George N. Yandrich, nineteen year old son of George Yandrich, was severely injured when his bicycle was struck by an automobile operated by appellee. The father did not witness his son's accident, nor was the father in the immediate vicinity of the accident scene. After being informed of the accident, the father hurried to the scene only to learn that his son had already been taken to the hospital. The father then proceeded to the hospital and remained there until the boy died five days later. After the death of his son, the father began to drink heavily, became despondent, lost all regard for personal hygiene, cried continuously and remarked that he had no desire to continue living. Some three months later, October 4, 1977, he committed suicide by a self-inflicted gunshot wound.
Appellant, surviving son and administrator of his father's estate filed this action in trespass under the Wrongful Death and Survival Acts seeking damages for the emotional trauma and subsequent suicide of his father. 1 The complaint avers that appellee's negligence in driving over the boy's bicycle and causing his death was the precipitating cause of the father's depression and resultant suicide.
Appellee demurred to the complaint contending that no recovery could be granted because the father did not sustain physical impact, was not within the "zone of danger," and neither witnessed nor was in close proximity to the accident in which his son sustained fatal injuries. The trial court sustained the demurrer relying on our decision in Niederman v. Brodsky, 436 Pa. 401, 261 A.2d 84 (1970), which prohibits recovery for negligently inflicted emotional distress where the individual is not within the "zone of danger." 2 The Superior Court affirmed on the basis of the trial court's opinion and this appeal followed.
As properly noted by the parties on appeal, a plurality of the Court recently modified the "zone of danger" rule and allowed recovery for emotional distress where the complaining party, although outside the area of danger, actually witnessed the negligent act which killed a close family member. Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979). 3
In Sinn, Mr. Justice Nix examined the traditional tort concept of foreseeability and extended recovery beyond the traditional "zone of danger" without creating a standard which would subject tortfeasors to unlimited liability. In formulating this standard of foreseeability the opinion placed great weight on three factors set out by the California Supreme Court in Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 (1968) as determinative of whether third party emotional distress injuries were foreseeable. The factors are as follows:
(1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it. (2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence. (3) Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.
Sinn v. Burd, 486 Pa. at 170, 404 A.2d at 685 (quoting Dillon v. Legg, 69 Cal.Rptr. at 80, 441 P.2d at 920). In applying the above standard of foreseeability to the facts before it, the plurality in Sinn concluded that
(i)t is clear that appellant's injuries were of a nature reasonably foreseeable under the circumstances alleged. Where the bystander is a mother who witnessed the violent death of her small child and the emotional shock emanated directly from personal observation of the event, we hold as a matter of law that the mental distress and its effects is a foreseeable injury.
Id. at 173, 404 A.2d at 686 (footnote omitted).
Since the first and second factors of the three pronged foreseeability test set forth in Sinn are totally lacking here, appellant's prayer for relief cannot be granted on the basis of that case. 4
Appellant argues that the emotional trauma suffered by a parent upon learning of the negligent injury of a loved one is no less foreseeable than the trauma suffered by a parent who actually witnesses the tragic event. It is suggested that requiring contemporaneous observation of the accident represents an artificial attempt to limit liability which will ultimately result in arbitrary, piecemeal determinations. Quite the contrary, appellant's logic may be irrefutable but, as pointed out by Justice Holmes, "the life of the law has not been logic: it has been experience." 5 We are unwilling to abandon the concept of "zone of danger" in toto and enter a realm of uncertainty with no workable guidelines for recovery.
Therefore, I would affirm the order of the Superior Court.
O'BRIEN, C.J., did not participate in the consideration or decision of this case.
The issue in this appeal is whether the trial court properly dismissed appellant's complaint which sought to recover for emotional distress suffered by a father whose son died from injuries after being struck by an automobile driven by appellee, although the father did not witness the accident and arrived on the scene after its occurrence. The injured son had been taken to the hospital when the father arrived. 1
I agree that the trial court properly found that a cause of action had not been stated in the complaint filed.
For years this jurisdiction followed the "impact rule" which prevented the complaining party from recovering damages for negligently inflicted mental distress unless the distress was accompanied by a physical impact upon the person of the complaining party. Bosley v. Andrews, 393 Pa. 161, 142 A.2d 263 (1958); Potere v. Philadelphia, 380 Pa. 581, 589, 112 A.2d 100, 104 (1955); Huston v. Freemansburg Borough, 212 Pa. 548, 61 A. 1022 (1905); Ewing v. Pittsburgh Railway Co., 147 Pa. 40, 23 A. 340 (1892). See also Battalla v. State, 10 N.Y.2d 237, 240, 219 N.Y.S.2d 34, 36, 176 N.E.2d 729, 730 (1961); Jones v. Brooklyn Heights R.R. Co., 23 App.Div. 141, 48 N.Y.S. 914 (1897). This Court departed from the strict "impact rule" in our decision in Niederman v. Brodsky, 436 Pa. 401, 261 A.2d 84 (1970).
In Niederman we adopted what became known as the zone of danger theory. This theory provided that where a plaintiff is in personal danger of physical impact because of the direction of a negligent force against him and where plaintiff actually fears the physical impact, he can recover for the shock, mental pain, and physical injuries attendant to the negligent incident even though the plaintiff was not physically touched by the negligent force.
More recently in Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979), it was recognized that the Niederman zone of danger test was too restrictive in a situation where the plaintiff actually witnessed the accident which caused serious injury to one having close relationship with the plaintiff and, as a result of the impact of the event, sustained emotional shock resulting in mental as well as physical injuries to the witnessing plaintiff.
Thus the law developed from an initial requirement that the critical traumatic event must be a physical impact upon the plaintiff to the intermediate step where the impact was the plaintiff's personal exposure to the negligent force and finally in Sinn to the exposure of the emotional shock emanating directly from the personal observation of the event. The decision in Sinn expressly left for another day the question of liability when the plaintiff is notified of the accident by another. 404 A.2d at 686...
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