49 U.S.C. § 1302(c)(3). But "in this instance the remedy sought would not aid the primary congressional goal." Cort v. Ash, 422 U.S. at 84, 95 S. Ct. at 2090. The conduct allegedly committed by Eastern in this case may constitute one or more violations of state law but "[o]nly where there is some countervailing national interest should the federal courts imply a federal private remedy when an adequate state remedy already exists," Wolf v. Trans World Airlines, 544 F.2d at 138, quoting Polansky v. Trans World Airlines, 523 F.2d at 337. Therefore, no private right of action has been alleged pursuant to 49 U.S.C. § 1373.
As the parties to this diversity action have correctly assumed, the plaintiffs' tort and contract claims are governed by Pennsylvania law. Klaxon Co. v. Stenton Electric Manufacturing Co., 313 U.S. 487, 61 S. Ct. 1020, 85 L. Ed. 1477 (1941); Griffith v. United Airlines, Inc., 416 Pa. 1, 203 A.2d 796 (1964); Melville v. American Home Assurance Co., 584 F.2d 1306 (3d Cir. 1978). These claims fall under three theories of recovery: 1) intentional infliction of emotional harm; 2) negligent infliction of emotional harm; and 3) emotional harm caused by breach of contract. The following discussion will show that Pennsylvania does not permit recovery under any of these theories on the facts alleged by the plaintiffs.
1) Intentional infliction of emotional harm
According to the Restatement (Second) of Torts § 46(1) (1965);
One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.
In Papieves v. Lawrence, 437 Pa. 373, 263 A.2d 118 (1970), where the defendants secretly buried the body of the plaintiffs' son after he had died subsequent to an auto accident, the Pennsylvania Supreme Court "indicated that when presented with the proper case it would adopt the formulation of Section 46." Jones v. Nissenbaum, Rudolph & Seidner, 244 Pa. Super. Ct. 377, 382, 368 A.2d 770, 772-73 (1976). See also Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265, 1273 (3d Cir. 1979). The elements of a cause of action under § 46(1) are that 1) the conduct of the defendant must be extreme and outrageous; 2) it must be intentional or reckless; 3) it must cause emotional distress; and 4) the emotional distress must be severe. Id. at 1273; Mazzula v. Monarch Life Insurance Co., 487 F.Supp. 1299 (E.D. Pa. 1980).
Assuming that the second, third, and fourth elements of the § 46(1) cause of action are present here, the plaintiffs cannot recover under this section nonetheless, for the first is clearly absent. According to comment d to § 46 of the Restatement:
It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by "malice," or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. In a § 46 action, "[I]t is for the court to determine, in the first instance, whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery." Restatement (Second) of Torts, § 46, comment h. See also Chuy v. Philadelphia Eagles Football Club, 595 F.2d at 1274. The Court has determined that Eastern's conduct in the present case cannot, as a matter of law, be characterized as sufficiently extreme and outrageous to meet this standard.
2) Negligent infliction of emotional harm
Until recently Pennsylvania adhered to the "impact" rule, according to which "there can be no recovery of damages for injuries resulting from fright or nervous shock or mental or emotional disturbances or distress, unless they are accompanied by physical injury or physical impact (citations omitted)." Knaub v. Gotwalt, 422 Pa. 267, 270, 220 A.2d 646, 647 (1966). The rule applied even where the plaintiff was not a bystander but the actual victim of the disturbing or frightening conduct. See Bosley v. Andrews, 393 Pa. 161, 142 A.2d 263 (1958). It also prohibited recovery where the defendant was a carrier and the victim of the distress a passenger on one of its vehicles. Morris v. Lackawanna and Wyoming Valley Railroad Co., 228 Pa. 198, 77 A.445 (1910). However, if a plaintiff sustained "physical injury or physical impact in any degree, no matter how slight, he [was] entitled to recover for fright or emotional distress." Zelinsky v. Chimics, 196 Pa. Super.Ct. 312, 317, 175 A.2d 351, 353 (1961). See also Potere v. City of Philadelphia, 380 Pa. 581, 112 A.2d 100 (1955); Hess v. Philadelphia Transportation Co., 358 Pa. 144, 56 A.2d 89 (1948); Plummer v. United States, 580 F.2d 72 (3d Cir. 1978). For examples of the operation of the "impact" rule, compare Morris v. Lackawanna and Wyoming Valley Railroad Co., supra, with Samarra v. Allegheny Valley Street Railway Co., 238 Pa. 469, 36 A.287 (1913); and Koplin v. Louis K. Liggett Co., 322 Pa. 333, 185 A.744 (1936) with Menaker v. Supplee-Wills-Jones-Milk Co., 125 Pa.Super.Ct. 76, 189 A.714 (1937).
In Niederman v. Brodsky, 436 Pa. 401, 261 A.2d 84 (1970) the Pennsylvania Supreme Court chose to abandon the "impact" rule as to "damages proximately caused by the tort in only those cases . . . 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." Id. at 413, 261 A.2d at 90. The plaintiff in Niederman was hospitalized for five weeks due to heart ailments that he sustained when the defendant's automobile skidded onto a Philadelphia sidewalk, striking the plaintiff's son but not the plaintiff himself. Thus, as the Court noted, id. at 404, 261 A.2d at 85, its holding was in harmony with the approach adopted by the Restatement, § 436(2) of which states:
If the actor's conduct is negligent as creating an unreasonable risk of causing bodily harm to another otherwise than by subjecting him to fright, shock, or other similar and immediate emotional disturbance, the fact that such harm results solely from the internal operation of fright or other emotional disturbance does not protect the actor from liability.
See also Bowman v. Sears, Roebuck & Co., 245 Pa. Super. Ct. 530, 369 A.2d 754 (1976).
However, in Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979), the Pennsylvania Supreme Court appears to have extended Niederman. The plaintiff in Sinn was standing near the front door of her home when the defendant's automobile struck and killed one of her daughters, a minor. The plaintiff had neither been in personal danger of physical impact nor had feared such impact and thus could not have recovered under Niederman. See Scarf v. Koltoff, 242 Pa. Super.Ct. 294, 363 A.2d 1276 (1976). Notwithstanding, four justices of the Court agreed that the plaintiff should be given an opportunity to prove that she was "emotionally shattered" and "sustained grievous mental pain" as a result of witnessing her daughter's death. However, only two of the justices explicitly agreed that a foreseeability standard should replace the zone of danger concept in limiting liability, 486 Pa. at 173, 404 A.2d at 686. One justice merely concurred in the result while, in Chief Justice Eagen's view, a plaintiff outside the zone of danger should not be permitted to recover unless he or she "suffers serious mental distress as a result of viewing the accident and physical injury or suffers serious mental distress and there is a severe physical manifestation of this mental distress," id. at 174, 404 A.2d at 687 (Eagen, C.J., concurring).
Sinn has been regarded as further expanding the Niederman approach. DiSalvatore v. United States, 499 F.Supp. 338, 343 n.4 (E.D. Pa. 1980). See also 25 Vill.L.Rev. 195, 211 (1979) (Sinn provides an exception to the zone of danger rule). Similarly, the Court of Appeals for this Circuit has interpreted Niederman as "supplement[ing] and broaden[ing], rather than replac[ing], the old 'impact' rule." Plummer v. United States, 580 F.2d at 76-77; Kahle v. Glosser Brothers, 462 F.2d 815 (3d Cir. 1972).
Plaintiffs have not stated a cause of action under the Pennsylvania impact rule. The rule bars recovery where there has been no physical impact or physical injury. Neither physical impact nor physical injury has been alleged by the plaintiffs. See generally, Potere v. City of Philadelphia supra ; Hess v. Philadelphia Transportation Co., supra ; Applebaum v. Philadelphia Rapid Transit Co., 244 Pa. 82, 90 A.462 (1914); Fox v. Borkey, 126 Pa. 164, 17 A.604 (1889); Zelinsky v. Chimics, supra.
Plaintiffs are also barred from recovering under Niederman. The plaintiffs have not alleged a cause of action within the so-called zone of danger rule as set forth in Niederman, which requires "damages proximately caused by the tort" where the danger of physical impact to the plaintiff is due to "the direction of a negligent force against him." Here the mental anguish suffered by the plaintiffs resulted from their decision to drive from Syracuse to Philadelphia in bad weather through the night. See Griffin v. Baltimore & Ohio Railroad Co., 67 Pa. Super. Ct. 392 (1917). There is no allegation that Eastern created any negligent force that threatened the plaintiffs with a danger of physical impact.
Finally, the plaintiffs' allegations do not support a cause of action under the Sinn foreseeability doctrine. Eastern could not have foreseen that the plaintiffs would elect to drive to Philadelphia under the circumstances rather than seek lodgings in the Syracuse area or await the next available transportation.
Consequently, the plaintiffs have failed to state a cause of action under the impact rule, the Niederman zone of danger rule, or the Sinn foreseeability doctrine.
3) Emotional harm caused by breach of contract
In order to recover under the contract theory, plaintiffs must allege physical injury or physical impact. Gefter v. Rosenthal, 384 Pa. 123, 119 A.2d 250 (1956). See also, Emerman v. Baldwin, 186 Pa. Super. Ct. 561, 142 A.2d 440 (1958); Restatement of Contracts § 341 (1932); Restatement (Second) of Contracts § 367 (Tent, Draft No. 14, March 1, 1979) (all disallowing recovery for emotional disturbance resulting from breach of contract in the absence of bodily harm caused by the breach). In short, in order to recover under this theory, a plaintiff must also allege facts sufficient to overcome the bar of the impact rule.
Plaintiffs have therefore failed to state a cause of action under any theory of recovery presently available to them under Pennsylvania law. Nor have they stated a cause of action under the Federal Aviation Act of 1958, § 403, 49 U.S.C. § 1373. It is therefore unnecessary to consider plaintiffs' claims for punitive damages. It is also unnecessary to consider defendant's contention that plaintiffs' claims do not satisfy the jurisdictional standard of 28 U.S.C. § 1332, which requires, inter alia, that the amount in controversy be more than $ 10,000. Cf. Federal Question Jurisdictional Amendments Act of 1980, Pub.L.No. 96-486, 94 Stat. 2369 (1980) (eliminating the amount in controversy requirement as to federal question jurisdiction).
Since the Court has considered matters of record outside the pleadings, and there being no genuine issues of material fact, defendant's motion for summary judgment will be granted.
AND NOW, to wit, this 20th day of May, 1981, for the reasons set forth in this Court's Memorandum dated May 20th, 1981, the defendant's motion for summary judgment is GRANTED, and judgment is hereby entered in favor of the defendant Eastern Airlines, Inc. and against the plaintiffs, Jules Kutner and Todd Berger, Andrew Berger and H. Tony Berger, minors, by Carol Berger, individually and in her own right.
© 1992-2004 VersusLaw Inc.