No. 75 March Term, 1978, Appeal from the Order of the Superior Court of Pennsylvania at No. 403 April Term, 1977 Affirming the Order of the Court of Common Pleas, Allegheny County, Civil Division, No. GD76-11998. Before Mr. Justice NIX. Mr. Chief Justice EAGEN filed a Concurring Opinion. Mr. Justice ROBERTS filed a Dissenting Opinion in which Mr. Justice O'BRIEN joins.
Jack A. Wintner, Carson & Wintner, McKeesport, for appellant.
Mark K. McNally, Pittsburgh, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ. Eagen, C. J., filed a concurring opinion. Larsen, J., concurred in the result. Roberts, J., filed a dissenting opinion in which O'Brien, J., joined.
At issue in this appeal is the vexing and complex question of when a plaintiff should be allowed to recover damages for negligently caused mental trauma.*fn1 The specific question presented for our review is whether the trial court properly sustained appellee's demurrer to the fourth count of appellant's complaint in which she sought to recover damages for physical and mental injuries incurred when she saw her minor daughter struck and killed by an automobile, although the plaintiff herself was not within any zone of personal physical danger and had no reason to fear for her own safety. For the reasons set forth below, we believe the demurrer was improperly sustained and therefore reverse the trial court and order the parties to proceed to trial on the fourth count of the complaint.
It is axiomatic in the law of pleading that preliminary objections in the nature of a demurrer admit as true all well and clearly pleaded material, factual averments and all inferences fairly deducible therefrom. Yania v. Bigan, 397 Pa. 316, 155 A.2d 343 (1959); Byers v. Ward, 368 Pa. 416, 84 A.2d 307 (1951). Conclusions of law and unjustified inferences are not admitted by the pleading. Lerman v. Rudolph, 413 Pa. 555, 198 A.2d 532 (1964). Starting from this point of
reference the complaint must be examined to determine whether it sets forth a cause of action which, if proved, would entitle the party to the relief sought. If such is the case, the demurrer may not be sustained. On the other hand, where the complaint fails to set forth a cause of action, a preliminary objection in the nature of a demurrer is properly sustained. Finally, where the propriety of an order sustaining a demurrer is being reviewed by a court of last resort, the fact that the theory for recovery relied upon has not been previously sanctioned, is not conclusive. It must be remembered that "[e]very cause of action . . ., however, was once a novel claim, and the absence of Pennsylvania authority for appellant's proposition is not an end to the issue." Papieves v. Kelly, 437 Pa. 373, 376-77, 263 A.2d 118, 120 (1970).
The averred facts are as follows. Appellant JoAnne Marie Sinn lived with her husband and two minor children in Elizabeth Township, Allegheny County. On June 12, 1975, at approximately 5:53 p. m., the deceased, Lisa Sinn, and her sister, Deborah, were standing by the Sinn's mail box located along side the Greenock-Buena Vista Road, approximately 36 feet from the nearest intersection. An automobile operated by the appellee struck Lisa and hurled her through the air, causing injuries which resulted in her death. Deborah was not struck by the vehicle, although it narrowly missed her. Appellant witnessed the accident from a position near the front door of her home. The Sinns filed a four-count trespass complaint against appellee on June 3, 1976. The first and second counts were brought under the Wrongful Death and Survival acts, respectively. The third count was brought for Deborah for psychological damages she sustained as a result of watching her sister die.*fn2
The fourth count was brought by appellant for damages she sustained from the emotional stress of witnessing her daughter's death. It states, inter alia :
22. Plaintiff, JoANNE MARIE SINN, is the mother of LISA ANNE SINN, deceased, and resides in the Township of Elizabeth, County of Allegheny, Pennsylvania.
24. Defendant's vehicle did not strike Plaintiff.
25. At the time of the aforesaid accident, the Plaintiff was observing the deceased from a position at or near the front door of her home.
26. The Plaintiff became hysterical, unnerved, and emotionally shattered as she viewed the Defendant's automobile strike and kill her daughter, LISA ANNE SINN.
27. As a result of watching the aforementioned accident, the Plaintiff suffered a shock to her nerves and nervous system, and sustained grievous mental pain and suffering resulting in severe depression and an acute nervous condition.
28. As a result of the foregoing, Plaintiff was required to expend money for medicines and/or tranquilizers, and may be required to expend considerable sums for the treatment of her resulting injuries and mental suffering in the future.*fn3
Appellee filed preliminary objections in the nature of a demurrer to the third and fourth counts claiming that the complaint failed to aver that Deborah and appellant were in personal danger of physical impact, that they feared such physical impact, or that they suffered physical injury as a result of the emotional distress caused by the accident. The Allegheny County Court of Common Pleas Civil Division, sitting en banc, overruled the demurrer as to the third count but sustained it as to the fourth. Based on its reading of Niederman v. Brodsky, 436 Pa. 401, 261 A.2d 84 (1970), and subsequent Superior Court decisions, that court ruled that while Deborah was within the zone of danger and hence could proceed with her action, appellant was not within the zone of danger. Appellant appealed to the Superior Court which affirmed without opinion. Sinn v. Burd, 253 Pa. Super. 627, 384 A.2d 1003 (1978). We granted allocatur.
Prior to the beginning of this decade, this state was a firm adherent to the "impact rule" regulating recovery for damages
in tort. See, e. g., Knaub v. Gotwalt, 422 Pa. 267, 270, 220 A.2d 646, 647 (1966) and cases cited therein.*fn4 This rule prevented the complaining party from recovering damages for injuries resulting from fright, nervous shock, or mental or emotional disturbances, unless this distress was accompanied by physical impact -- i. e., physical injury -- upon the person of the complaining party. Our cases applied this rule with obstinate rigidity*fn5 in that recovery was denied not only when the complaining party was a nearby witness, but also to the actual victim of the tortfeasor's negligent or frightening conduct. See, e. g., Bosley v. Andrews, 393 Pa. 161, 142 A.2d 263 (1958).
In the first month of this decade, this Court joined the ranks of forward-looking jurisdictions and abandoned the impact rule in Niederman v. Brodsky, 436 Pa. 392, 261 A.2d 84 (1970) (Niederman). In Niederman, an automobile skidded onto a sidewalk, narrowly missed the plaintiff, but struck his son who was standing beside him. The plaintiff, although untouched by the automobile, suffered a heart attack which required hospitalization. The trial court dismissed plaintiff's complaint for its failure to allege any physical impact. In an opinion by Mr. Justice Roberts, this Court reversed the dismissal, abandoned the impact rule, and adopted the zone of danger theory. That is, "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," Niederman at 413, 261 A.2d at 90, he could recover for the shock, mental pain, and physical injuries attendant to the negligent incident even though he was not struck by the negligent force.
In so doing, we recognized that our decision was compelled by the "inherent humanitarianism of our judicial process." Id., 436 Pa. at 404, 261 A.2d at 85. Furthermore, the three basic arguments supporting the impact rule had been eroded away by societal and technological advancements. We consequently rejected the arguments that medical science would be unable to prove a causal nexus between the claimed damages and the alleged fright or mental distress, id., 436 Pa. at 405-08, 261 A.2d at 86-87; that the possibility of recovery in such cases would encourage fictitious injuries and fraudulent claims, id., 436 Pa. at 408-11, 261 A.2d at 87-89; and that the courts would be swamped by a virtual avalanche of cases, id., 436 Pa. at 411-13, 261 A.2d at 89.
It was not until mid-decade that the appellate courts of this state were presented with the question of whether a bystander outside the zone of physical danger could recover for physical or mental injury caused by viewing the serious injury or death of a loved one. In Scarf v. Koltoff, 242 Pa. Super. 294, 363 A.2d 1276 (1976), a husband, while crossing the street was struck and injured by a vehicle negligently driven by the defendant. The victim's wife witnessed the accident and as a result of the shock of the experience, she suffered a myocardial infarction or aggravation of a pre-existing cardiac condition, and died two months later. The man survived his injuries and brought survival and wrongful death actions based upon the death of the wife. These actions were dismissed by the trial court and the Superior Court affirmed, citing the failure of the complaint to allege that the wife was herself in danger of physical impact or that she feared such impact. The Superior Court recognized that our Niederman decision required such a possibility of fear of physical impact as a predicate to successful recovery on the part of the wife's estate. Additionally, that court found two policy reasons against extending coverage to bystanders such as the wife: the problem of unlimited and unduly burdensome liability, and the difficulty of reasonably circumscribing the area of liability. See 242 Pa. Super. at 299, 363 A.2d at 1279. In so ruling, the Superior Court
relied heavily upon the New York case of Tobin v. Gross-man, 24 N.Y.2d 609, 301 N.Y.S.2d 554, 249 N.E.2d 419 (1969).
Building upon the Scarf and Niederman decisions, the Superior Court found that the plaintiff was within the zone of danger in Bowman v. Sears, Roebuck & Co., 245 Pa. Super. 530, 369 A.2d 754 (1976). Ms. Bowman and her two adult daughters were shopping in a Sears store when Ms. Bowman saw five men employed by the store accost and forcibly remove her daughters from the shopping area. The daughters were detained for thirty minutes and upon their return, found their mother in a state of great anxiety which led to her suffering a heart attack. Ms. Bowman's complaint for damages alleged that her injury resulted not only from the mental anguish and shock of seeing the assault upon her daughters, but also from her own fear of physical attack by the same store employees. The Superior Court found that the mother had pleaded a claim within the zone of danger theory and thus presented a triable question of fact for the jury.
In Niederman we stated that:
[i]t 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 wrong-doer is responsible for the natural and proximate consequences of his misconduct.
Niederman at 403, 261 A.2d at 85.
The zone of danger concept was our attempt to provide meaningful redress for damages caused by mental distress.
Since the Niederman decision, experience has taught us that the zone of danger requirement can be unnecessarily restrictive and prevent recovery in instances where there is no sound policy basis supporting such a result.*fn6 It has unquestionably not been effective in every instance of assuring
that one may "seek redress for every substantial wrong." The restrictiveness of the zone of danger test is glaringly apparent where it is allowed to deny recovery to a parent who has suffered emotional harm from witnessing a tortious assault upon the person of his or her minor child. A majority of the commentators and a growing number of jurisdictions have considered this problem in recent years and have concluded that it is unreasonable for the zone of danger requirement to exclude recovery in such cases.*fn7
This new awareness of the unfairness of the zone of danger requirement in these cases is based upon the implicit
acceptance that the emotional impact upon a parent witnessing the killing of a minor child is at least as great and as legitimate as the apprehension that is inspired by a plaintiff being personally within the zone of danger. Dissatisfaction with the zone of danger concept was explained in this manner by one commentator:
Insofar as the "field of danger" test in third party cases was designed to serve the general policies of (1) protecting the court system against fraudulent or trivial claims by frustrating suits instituted by uninvolved bystanders who merely happen to witness an accident, and (2) protecting defendants from liability for an injury which results more from the particular emotional makeup of plaintiff than from the nature of defendant's actions, court reluctance to impose liability for emotional harm to eyewitnesses in general is understandable. In at least one instance, however, the rule fails to serve these policy objectives. A severe emotional injury to a parent who witnesses the negligent killing of his or her child is certainly foreseeable. An emotional injury claim in such an instance would hardly be frivolous or trivial, nor would it be unjust to defendant.
In cases involving peril or harm to another, the "field of danger" test is unnecessary to protect the integrity of the judicial system or to avoid burdening defendant with unforeseeable injuries in cases where plaintiff witnesses harm to an immediate family member.
Comment, 1977 Wisc.L.Rev. 1089, 1096 (1977) (footnotes omitted).
Applications of the zone of danger test to situations where the death or serious injury of a child is witnessed by a parent creates the very evil that the test was designed to eliminate, i. e., arbitrariness. It would bar recovery depending upon the position of the plaintiff at the time of the event, and ignores that the emotional impact was most probably influenced by the event witnessed -- serious injury
to or death of the child -- rather than the plaintiff's awareness of personal exposure to danger.*fn8
Our cases have recognized five policy arguments relevant to bystander recovery. They are medical science's supposed difficulty in proving causation between the claimed damages and the alleged fright, the fear of fraudulent or exaggerated claims, the concern that to allow such a recovery will precipitate a veritable flood of litigation, the problem of unlimited and unduly burdensome liability, and the difficulty of reasonably circumscribing the area of liability. We will discuss them seriatim.
Medical science is able to supply a causal link between the psychic damage suffered by the bystander and the shock or fright attendant to having witnessed the accident.
It has long been assumed that medical science is unable to establish that the alleged psychic injuries in fact resulted from seeing a gruesome accident. See, e. g., Huston v. Freemansburg Boro., 212 Pa. 548, 550, 61 A. 1022 (1905), describing a cause of action for mental disturbance as being intangible, untrustworthy, illusory, and speculative.*fn9 Advancements
in medical and psychiatric science throughout this century have discredited these hoary beliefs. Niederman, 436 Pa. at 405-08, 261 A.2d at 86-87.*fn10 One commentor concisely answered this question in 63 Geo.L.J. 1179, 1184-85 (1975):
The growing competence of medical science in the field of psychic injuries has diminished the problems of proof in mental distress cases. The development of psychiatric tests and the refinement of diagnostic techniques has led some authorities to conclude that science can establish with reasonable medical certainty the existence and severity of psychic harm. In cases involving negligently inflicted mental distress, however, changes in the law have not kept pace with the increased sophistication of psychiatry. Special rules created to deal with problems of proof that were a legitimate concern in mental distress cases 50 years ago have restricted modern courts in their handling of these claims. (footnotes omitted.)
Additionally, as we stated in the Niederman case:
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 . . . [I]n 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.
Niederman at 408, 261 A.2d at 87 (emphasis in the original).
Advancements in modern science lead us to further conclude that psychic injury is capable of being proven despite the absence of a physical manifestation of such injury. Some courts in abandoning the impact rule permit recovery for emotional distress only where the plaintiff can prove that the psychic injury caused her to suffer physical damage as well. See, e. g., Dziokonski v. Babineau, 380 N.E.2d 1295 (Mass.1978); Hughes v. Moore, 214 Va. 27, 197 S.E.2d 214 (1973). This requirement of resulting physical injury is another synthetic device to guarantee the genuineness of the claim. Leong v. Takasaki, 55 Haw. 398, ...