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ISADORE SCARF v. GAIL S. KOLTOFF (09/27/76)

decided: September 27, 1976.

ISADORE SCARF, ADMINISTRATOR OF THE ESTATE OF TILLIE SCARF AND ISADORE SCARF IN HIS OWN RIGHT, APPELLEE,
v.
GAIL S. KOLTOFF, APPELLANT



COUNSEL

Jonathan Wheeler, Philadelphia, for appellant.

William Steerman, P. Flexion, Philadelphia, for appellee.

Watkins, Presiding Judge and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.

Author: Spaeth

[ 242 Pa. Super. Page 295]

This appeal presents the question whether a bystander may recover for mental disturbance and consequent physical injury caused by distress at seeing harm done to another person, when the bystander does not meet the requirements of Niederman v. Brodsky, 436 Pa. 401, 261 A.2d 84 (1970), i. e., when the bystander was not in personal danger of physical impact and did not fear such impact. The lower court held that such a bystander could recover. We reverse.

Since the question is raised by demurrer, we take as true all well-pleaded facts. Bach Estate, 426 Pa. 350, 231 A.2d 125 (1967); Stahl v. First Pennsylvania Bank & Trust Co., 411 Pa. 121, 191 A.2d 386 (1963). Appellant, driving negligently, struck and injured appellee as he crossed the street. Appellee's wife was in the immediate vicinity and saw the accident, which so shocked

[ 242 Pa. Super. Page 296]

    her nerves that she suffered a myocardial infarction or aggravation of a pre-existing cardiac condition, and as a result died two months later. It is not alleged that appellee's wife was herself in danger of physical impact, or that she feared such impact.

Appellee sued appellant on three counts: first, for the wrongful death of his wife; second, a survival action on behalf of his wife; and third, for his own injuries. The trial court denied appellant's preliminary objections in the nature of a demurrer to the first and second counts and certified the question involved for an interlocutory appeal to this court. Appellate Court Jurisdiction Act, Act of July 31, 1970, P.L. 673, No. 223, art. V, § 501(b), 17 P.S. § 211.501(b).

Until 1970 our cases retained the "impact rule," which required that in order to recover for injuries caused by mental trauma, the plaintiff must show that some physical impact, however slight, had resulted from the defendant's negligence. Knaub v. Gotwald, 422 Pa. 267, 220 A.2d 646 (1966); Bosley v. Andrews, 393 Pa. 161, 142 A.2d 263 (1958). In Niederman v. Brodsky, supra, our Supreme Court discarded this rule for what is sometimes called the "zone-of-danger rule." In Niederman, the defendant drove his automobile recklessly and negligently, skidded onto the sidewalk, narrowly missed the plaintiff, and struck the plaintiff's son. The plaintiff, out of fear for his own safety, suffered a variety of heart troubles and sought recovery. The Supreme Court reviewed and found wanting the three arguments that had in the past barred such recovery: difficulty of proof of causation; fear of fraudulent or exaggerated claims; and concern over a possible flood of litigation. The Court therefore stated:

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

[ 242 Pa. Super. Page 297]

    danger of physical impact because of the direction of a negligent force against him and where plaintiff ...


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