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NIEDERMAN v. BRODSKY (01/09/70)

decided: January 9, 1970.

NIEDERMAN, APPELLANT,
v.
BRODSKY



Appeal from order of Court of Common Pleas No. 5 of Philadelphia County, Sept. T., 1964, No. 1955, in case of Henry Niederman v. Gerald Brodsky.

COUNSEL

Jerrold V. Moss, for appellant.

Harry W. Kurtzman, with him Carl K. Zucker, for appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Roberts. Dissenting Opinion by Mr. Chief Justice Bell.

Author: Roberts

[ 436 Pa. Page 402]

Appellant, Harry Niederman, alleges that on November 4, 1962 he was walking with his son at the corner of 15th and Market Streets in Philadelphia. At that time, appellant's complaint asserts, appellee was driving a motor vehicle in a reckless and negligent manner as a result of which the automobile skidded onto the sidewalk and destroyed or struck down a fire hydrant, a litter pole and basket, a newsstand and appellant's son, who at that time was standing next to appellant. Almost immediately after this destructive path was cut by appellee's car, appellant claims that he suffered severe chest pain and that upon examination in the hospital, where he was confined for five

[ 436 Pa. Page 403]

    weeks, appellant was diagnosed to have sustained acute coronary insufficiency, coronary failure, angina pectoris, and possible myocardial infarction. Consequently, appellant sought recovery from appellee for both these severe disabilities and the accompanying shock and mental pain.

Appellant's complaint was reluctantly dismissed on preliminary objections for failing to state a cause of action under the "impact rule" which provides that there can be no recovery for the consequences of fright and shock negligently inflicted in the absence of contemporaneous impact. Appellant admitted that the careering automobile had never struck his person. The judge noted "The impact rule will, no doubt, eventually be rejected as was the formerly well-entrenched rule of charitable immunities. It is regrettable that Harry Niederman, the plaintiff in this action, may not be afforded the opportunity to prove that his injuries are just as real, just as painful, just as disabling as if he had been struck physically by defendant's motor vehicle. . . . However, we are bound by the law as set forth by the Supreme Court."

Today the cows come home. We decide that on the record before us, appellant may go to trial and if he proves his allegations, recovery may be had from a negligent defendant, despite the fact that appellant's injuries arose in the absence of actual impact. "It is fundamental to our common law system that one may seek redress for every substantial wrong. 'The best statement of the rule is that a wrongdoer is responsible for the natural and proximate consequences of his misconduct . . . .'" Battalla v. State, 10 N.Y. 2d 237, 240, 219 N.Y.S. 2d 34, 36, 176 N.E. 2d 729, 730 (1961). By our holding today Pennsylvania proceeds along the path recently followed by our neighboring jurisdictions,*fn1 see

[ 436 Pa. Page 404]

    with medical science's difficulty in proving causation between the claimed damages and the alleged fright. The second involves the fear of fraudulent or exaggerated claims. Finally, there is the concern that such a rule will precipitate a veritable flood of litigation. See, e.g., Knaub v. Gotwalt, 422 Pa. 267, 220 A.2d 646 (1966) (not the view of a majority of the court); Bosley v. Andrews, 393 Pa. 161, 142 A.2d 263 (1958); Huston v. Freemansburg Borough, 212 Pa. 548, 61 Atl. 1022 (1905); Ewing v. Pittsburgh Railway Co., 147 Pa. 40, 23 Atl. 340 (1892).

The first objection has been variously stated but the quotation set out below is representative of some earlier judicial sentiments. "In most cases, it would be impossible for medical science to prove that these subjective symptoms could not possibly have resulted from or been aggravated or precipitated by fright or nervous tension or nervous shock or emotional disturbance or distress . . . . Medical science, we repeat, could not prove that these could not have been caused or precipitated, or aggravated by defendant's alleged negligent act." Bosley v. Andrews, 393 Pa. at 168-69, 142 A.2d at 267. (Emphasis supplied.) While we agree that this might have been an appropriate conclusion because of the lack of sophistication in the medical field when the impact doctrine was first announced in 1888,*fn2 it would presently be inappropriate for us to ignore all of the phenomenal advances medical science has achieved in the last eighty years. Today diseases of

[ 436 Pa. Page 406]

    the heart, for example, are comprehended much more fully (to the extent that open heart surgery is almost an everyday occurrence), and the effects of hyperemotional states of the human body no longer are shrouded in mystery or myth.

New equipment and research, improved education and diagnostic techniques, and an increased professional understanding of disease in general require us now to give greater credit to medical evidence. Other jurisdictions have also recognized that this advancement in the medical arts should and could be legitimately reflected in changes in the legal field. See, e.g., Battalla v. State, 10 N.Y. 2d 237, 219 N.Y.S. 2d 34, 176 N.E. 2d 729 (1961) ("we must . . . rely to an extent on the contemporary sophistication of the medical profession"); Robb v. Pennsylvania Railroad Company, 210 A.2d 709, 712 (Del. 1965) ("the early difficulty in tracing a resulting injury back through fright or nervous shock has been minimized by the advance of medical science"). Finally, The American Law Institute through a deletion of a caveat from one of its comments,*fn3 has expressed a similar view.

The logical invalidity of this objection to medical proof can be demonstrated further by noting that the rule has only been applied where there is absolutely no impact whatsoever. Once there is even the slightest

[ 436 Pa. Page 407]

    impact, it has been held that the plaintiff can recover for any damages which resulted from the accompanying fright, even though the impact had no causal connection with the fright-induced injuries. The rule has been stated: "However, where, as here, a plaintiff sustains bodily injuries, even though trivial or minor in character, which are accompanied by fright or mental suffering 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. Philadelphia, 380 Pa. 581, 589, 112 A.2d 100, 104 (1955).

It appears completely inconsistent to argue that the medical profession is absolutely unable to establish a causal connection in the case where there is no impact at all, but that the slightest impact (e.g., a bruised elbow and sprained ankle in Potere)*fn4 suddenly bestows upon our medical colleagues the knowledge and facility to diagnose the causal connection between emotional states and physical injuries. It can easily be urged that recent advances in medical science have bestowed this ability upon physicians; but it is illogical to argue that the presence of some slight injury has accomplished the same effect! As the Supreme Court of our neighboring state of Delaware recently said: ". . . the line of cases permitting recovery for serious injuries resulting from fright, where there has been but a trivial impact in itself causing little or no injury, demonstrates that there is no insuperable difficulty in

[ 436 Pa. Page 408]

    tracing causal connection between the wrongdoing and the injury via the fright." Robb v. Pennsylvania Railroad Company, 210 A.2d at 712.

Finally, even if we assume arguendo that a great deal of difficulty still remains in establishing the causal connection, this still does not represent sufficient reason to deny appellant an opportunity to prove his case to a jury. There is no reason to believe that the causal connection involved here is any more difficult for lawyers to prove or for judges and jurors to comprehend than many others which occur elsewhere in the law. "We realize that there may be difficulties in determining the existence of a causal connection between fright and subsequent physical injury and in measuring the extent of such injury. However, the problem of tracing a causal connection from negligence to injury is not peculiar to cases without impact and occurs in all types of litigation . . . in any event, difficulty of proof should not bar the plaintiff from the opportunity of attempting to convince the trier of fact of the truth of her claim." Falzone v. Busch, 45 N.J. 559, 566, 214 A.2d 12, 15-16 (1965). We recognize the recent view of the New Jersey Supreme Court as representative of current jurisprudence.

The second major objection includes the fear of fictitious injuries and fraudulent claims. It has been expressed with varying degrees of politeness: first, in Huston v. Freemansburg Borough, 212 Pa. 548, 550-51, 61 Atl. 1022, 1023 (1905), the Court indicated its lack of respect for claims like this by observing: "In the last half century, the ingenuity of counsel, stimulated by the cupidity of clients and encouraged by the prejudices of juries, has expanded the action for negligence. . . . It requires but a brief judicial experience to be convinced of the large proportion of exaggeration and even of actual fraud in the ordinary action for physical injuries from negligence, and if we opened the door

[ 436 Pa. Page 409]

    to this new invention the result would be great danger, if not disaster to the cause of justice." In recent cases, that concern has been expressed in a more charitable manner but the same denial of recovery for severe injuries has been the result. "For every wholly genuine and deserving claim, there would likely be a tremendous number of ...


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