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CONWAY v. SPITZ

November 20, 1975

BRIAN CONWAY, a Minor by his Natural Guardians, FRANCIS CONWAY and MARILYN CONWAY
v.
EUGENE B. SPITZ



The opinion of the court was delivered by: NEWCOMER

 NEWCOMER, District Judge.

 Plaintiffs Francis Conway and Marilyn Conway have petitioned this Court to amend their complaint. We deny the petition for the reasons set forth below.

 This is a medical malpractice action. It is alleged that the defendant negligently treated the minor, Brian Conway, and as a result of this negligence it became necessary to amputate Brian's right foot. Brian's parents instituted suit in his behalf, as guardians, and they included a claim in their own right. The instant petition pertains only to the latter claim. Plaintiffs Francis and Marilyn Conway (hereinafter, plaintiffs) would add a second count to their complaint, in which they demand damages compensating them for

 
"great and substantial emotional distress and psychic pain as a result of the severe and disfiguring injuries suffered by minor plaintiff Brian Conway as a result of defendant's negligence."

 This is a diversity case in which Pennsylvania law governs. It is admitted that there is no Pennsylvania authority squarely holding that the theory of liability of the proposed amendment states a cause of action. It is argued, however, that recent decisions of the Pennsylvania Supreme Court, in which it has departed from and expressly overruled the so-called impact rule, fairly imply that the parents have a claim under current Pennsylvania law. Although the petitioners have carefully evaluated the underlying rationale of the recent state court decisions, we cannot agree with their conclusion as to the breadth of the holdings.

 In Niederman v. Brodsky, 436 Pa. 401, 261 A.2d 84 (1970), the Pennsylvania Supreme Court, per Justice Roberts, overruled the impact rule. Under that rule, one who was put in danger by the negligent acts of another party, and whose distress at this occurrence resulted in physical disabilities, could recover from the negligent party if -- and only if -- there was impact against the plaintiff by the forces set in motion by the defendant. Justice Roberts noted that virtually every jurisdiction which reviewed the impact rule in the last several decades had abandoned it. It was also said that advancements in medical science made it incumbent upon the court to give the plaintiff in that case the opportunity to show that he had indeed suffered emotional stress and that there was a casual connection between this stress and his physical injuries. Notwithstanding its wide-ranging policy discussion, the Court, in its conclusion, carefully stated the limits to its reformation of the law:

 
"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." 436 Pa. at 413.

 The facts of the instant case fall outside this limiting language in Niederman in two important respects. First, our petitioners were not in personal danger of physical impact. Second, they did not actually fear a physical impact. *fn1" We cannot say that granting the instant petition would be merely an intelligent application of the Niederman principle to a slightly altered set of facts. Rather, we would be creating a new class of potential plaintiffs persons whose mental pain and suffering was caused by the emotional demands of caring for and sharing the life of a person who was directly injured by the defendant's negligence.

 It is also significant that the plaintiff in Niederman was standing next to his son when his son was hit by an automobile. The plaintiff further alleged that he suffered chest pains almost immediately thereafter; that he was subsequently examined in a hospital, confined for five weeks, and diagnosed as having severe coronary problems. Thus, the Court's discussion of the bearing of advances in medical science on the scope of the cause of action for mental suffering must be read in the context of a case where the plaintiff alleged a specific and severe physical manifestation of the shock which he experienced, and in which his further claims for shock and mental pain were parasitic to this claim of a severe physical disability. In the instant case, there is no allegation of a physical illness resulting from the mental distress. *fn2"

 We are also referred to Papieves et al. v. Kelly, 437 Pa. 373, 263 A.2d 118 (1970). It was there held that the plaintiffs stated a cause of action by alleging that they suffered shock and mental suffering as a consequence of the defendant's intentional mishandling of the body of a deceased relative. In Papieves, as in the instant case, there was no allegation of a severe physical disability (of a kind fairly well understood by medical science). Another similarity is that the plaintiffs' allegations in each case contains indicia of reliability. Just as the vast majority of people would be distressed to see the body of a deceased relative being mishandled, any but the most hard-hearted parent would empathize with the plight of his mutilated child, and would suffer emotional stress daily in the process of helping the child cope with his handicap. The crucial difference, however, is that the Conways do not allege that the injury to Brian Conway was caused by intentional, outrageous, or wanton conduct by the defendant. The law of torts does not compensate for all injuries caused by breaches of legal duties. All other things being equal, the scope of liability for intentionally inflicted injuries frequently is broader than the scope of liability for negligently inflicted injuries. Thus, Papieves is not authority for granting the petition.

 In Bernhardt v. Polygraphic Co. of America, 350 U.S. 198, 100 L. Ed. 199, 76 S. Ct. 273 (1956), it was held that a 1910 Vermont Supreme Court decision represented the state law applicable in a 1956 diversity case in federal court. The Supreme Court noted that there was

 
"no confusion in the Vermont decisions, no developing line of authorities that casts a shadow over the established ones, no dicta, doubts or ambiguities in the opinions of Vermont judges on the question, no legislative development that promises to undermine the judicial rule." 350 U.S. at 205.

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