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decided: September 28, 1983.


No. 81-3-437 Petition for Review of the Order dated the 24th Day, April, 1981 by the Commonwealth Court of Pennsylvania at No. 42, T.D. 1979. Petition for Allowance of Appeal Granted July 20, 1981 at No. 272 E.D. Misc. Docket 1981, 59 Pa. Comwlth. 1, Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Hutchinson, J., joins and files a concurring opinion. Roberts, C.j., files a concurring opinion. Nix, J., files a concurring and dissenting opinion in which McDermott, J., joins. Larsen and Zappala, JJ., file concurring and dissenting opinions.

Author: Flaherty

[ 502 Pa. Page 243]


On August 14, 1976 James Vattimo was admitted to the Lower Bucks Hospital in Bucks County, Pennsylvania because he exhibited bizarre behavior and an abnormal fascination with fire. He was transported to the hospital by his parents and the Bristol Township Police. At the hospital he was diagnosed as paranoid-schizophrenic and was placed in a semi-private room under sedation but without supervision. A few hours after his parents left the hospital, James allegedly set a fire in the room, causing or contributing to the death of the other occupant of the room.

As a result of this incident James was charged with first degree murder and arson and was prosecuted in a criminal action; he was also joined as an additional defendant in a civil suit brought by the representative of the deceased patient against the hospital.

[ 502 Pa. Page 244]

In the present action James' parents on their own behalf, and his mother as guardian ad litem for James, assert that the hospital was negligent in its care and treatment of James. The action was brought pursuant to the Health Care Services Malpractice Act of 1975, 40 P.S. § 1301.101 et Page 244} seq. for various damages to both parents and son. The hospital filed preliminary objections in the nature of a demurrer to the complaint, and the Administrator, Arbitration Panels for Health Care sustained the preliminary objections by order of April 17, 1979. Plaintiffs appealed to Commonwealth Court, 59 Pa. Commw. 1, 428 A.2d 765, which reversed the administrator's order on April 24, 1981, and the hospital petitioned for allowance of appeal to this Court. The petition was granted.

The case comes before this Court for review of whether preliminary objections in the nature of a demurrer should be sustained, and in that context the hospital raises three arguments: (1) the hospital has no duty to protect a mental patient from damages suffered as a result of court proceedings brought by the Commonwealth; (2) the injury to James was not proximately or legally caused by the hospital's negligence; (3) there is no cause of action for counsel fees in the circumstances of this case, as claimed in the complaint.

The Commonwealth Court correctly stated the scope of the review of an appellate court when there is a challenge to the sustaining of preliminary objections in the nature of a demurrer:

All material facts set forth in the complaint as well as all inferences reasonably deducible therefrom are admitted as true for [the purpose of this review.] Clevenstein v. Rizzuto, 439 Pa. 397, 266 A.2d 623 (1970). The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 267 A.2d 867 (1970). Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it. Birl v. Philadelphia Electric Co., 402 Pa. 297, 167 A.2d 472 (1960).

[ 502 Pa. Page 245]

Turning to the complaint, as a general matter, in order to recover the plaintiffs must allege and prove that the hospital owed a duty to James, that the hospital breached its duty, and that this breach was the legal cause of the injuries of which James and his parents now complain. Brannan v. Page 245} Lankenau Hospital, 490 Pa. 588, 417 A.2d 196 (1980). On a demurrer, the hospital may not challenge the material facts or inferences therefrom which are pleaded in the complaint, but may challenge the existence of a legal duty or that its negligence, if such existed, was the legal cause (i.e., the proximate cause) of plaintiffs' injuries. As mentioned earlier, the hospital asserts that its conduct was not a legal cause of plaintiffs' injuries and it claims as well that it had no duty of care to protect a mental patient from damages caused by a criminal prosecution.

The damages in the complaint allegedly caused by the hospital's negligence are treated in two counts. In the first, James' parents seek recovery for (1) amounts expended and to be expended for medical and psychiatric care and treatment; (2) amounts expended to defend James in civil and criminal actions brought as a result of the fire; (3) emotional distress, humiliation, embarrassment and anxiety. In the second count, James' guardian ad litem seeks recovery for (1) James' mental, emotional, and physical pain and anguish; (2) James' loss of his employment; (3) James' public humiliation, embarrassment, anxiety, and mental and emotional distress.

At its root, the concept of legal cause (the traditional "proximate cause") is an articulation of policy related to social and economic considerations. Dean Prosser has described proximate or legal causation as follows:

[ 502 Pa. Page 246]

Once it is established that the defendant's conduct has in fact been one of the causes of the plaintiff's injury, there remains the question whether the defendant should be legally responsible for what he has caused. Unlike the fact of causation, with which it is often hopelessly confused, this is essentially a problem of law. It is sometimes said to be a question of whether the conduct has been so significant and important a cause that the defendant should be legally responsible. But both significance and importance turn upon conclusions in terms of legal policy, so that this becomes essentially a question of whether the Page 246} policy of the law will extend the responsibility for the conduct to the consequences which have in fact occurred.

Prosser, Law of Torts § 42 (4th Ed.) (Emphasis added). This Court, in accord with Prosser, has stated: "the concept [of proximate cause], like that of negligence itself, was designed not only to permit recovery for a wrong but to place such limits upon liability as are deemed socially or economically desirable from time to time." Grainy v. Campbell, 493 Pa. 88, 94, 425 A.2d 379, 382 (1981), citing Whitner v. Lojeski, 437 Pa. 448, 455, 263 A.2d 889, 893 (1970).

As a general rule, however, in the absence of policy considerations which would limit liability, if an actor's negligence is the legal cause of damages sustained by another, the actor is liable for those damages. See Grainy v. Campbell, 493 Pa. 88, 95, 425 A.2d 379, 383 (1981) (Concurring Opinion of Mr. Justice Nix). Under the analysis of "legal cause" set forth in the Restatement of Torts, Second and adopted by this Court, Ford v. Jeffries, 474 Pa. 588, 594, 379 A.2d 111, 114 (1977), the question is whether the defendant's conduct was a "substantial factor" in producing the injury. Restatement of Torts, Second § 431 (1965). Section 433 of the Restatement sets forth a method of determining whether negligent conduct is a substantial factor in producing the injury:

§ 433. Considerations Important in Determining Whether Negligent Conduct is Substantial Factor in Producing Harm

The following considerations are in themselves or in combination with one another important in determining whether the actor's conduct is a substantial factor in bringing about harm to another:

(a) the number of other factors which contribute in producing the harm and the extent of the effect which they have in producing it;

(b) whether the actor's conduct has created a force or series of forces which are in continuous and active operation up to the time of the harm, or has created a situation

[ 502 Pa. Page 247]

    harmless unless acted upon by other forces for which the actor is not responsible;

(c) lapse of time.

As this Court observed in Ford v. Jeffries, supra, ordinarily the determination of whether the defendant's conduct was a substantial cause of the injuries complained of should not be taken from the jury if the jury may reasonably differ as to whether the conduct of the defendant has been a substantial factor in causing the harm. See also Restatement of Torts, Second § 434. If issues are raised on which a jury may not reasonably differ, it is proper for the trial court to decide them. If, on the other hand, a jury may reasonably differ on whether the defendant's conduct was a substantial factor in causing the injury, generally, the case must go to the jury on those issues.*fn1

With respect to the claims for damages related to defending the criminal and civil actions, the hospital asserts that it had no duty to protect against harm related to the Commonwealth's decision to bring a criminal action, and that there is no authority for awarding damages for the defense of a civil action in the circumstances of this case.

The plaintiffs' view of these damages is that they are merely the normal foreseeable consequences of the defendant's tortious conduct. Such damages are, in essence, a demand for indemnification, recovery for which may lie,

[ 502 Pa. Page 248]

    according to Prosser, even when the indemnitee is not free from active fault.*fn2

[ 502 Pa. Page 249]

In the present case, plaintiffs' claim for legal process damages rests in large part on the theory that even though James is a joint active tortfeasor (and thus is also "at fault"), he should not be precluded from indemnification for legal process damages since he was entrusted to the care and supervision of the hospital and was helpless in fact if not in law to prevent the injury which occurred. Under this view, justice requires recovery for all damages, including the legal process damages, because the hospital undertook to prevent injury of the very sort that occurred. Recovery for legal process damages flowing from such a breach of duty is recognized, moreover, by the Restatement of Torts, Second § 914(2) (1979):

(2) One who through the tort of another has been required to act in the protection of his interests by bringing or defending an action against a third person is entitled to recover reasonable compensation for the loss of time, attorney fees and other expenditures thereby suffered or incurred in the earlier action.

A reason that is sometimes advanced for such imposition of liability is drawn from the master-servant cases, where some commentators have felt it advisable, as a matter of policy, to assign liability vicariously to employers in order to promote safety and avoid accidents.*fn3 This reasoning, by

[ 502 Pa. Page 250]

    analogy, would seem to apply to the present case, where the hospital, arguably, is in the shoes of an employer who has assumed control, and therefore, should and could have prevented the fire and resulting injury.

These arguments notwithstanding, the decided case law of Pennsylvania provides no authority for indemnity recovery in the circumstances of this case. In Builders Supply v. McCabe, which involved a claim for indemnity, or in the alternative, contribution, this Court distinguished the two types of claims as follows:

[ 502 Pa. Page 251]

There is . . . a fundamental difference between indemnity and contribution. The right of indemnity rests upon a difference between the primary and the secondary liability of two persons each of whom is made responsible by the law to an injured party. It is a right which enures to a person who, without active fault on his own part, has been compelled, by reason of some legal obligation, to pay Page 251} damages occasioned by the initial negligence of another, and for which he himself is only secondarily liable. The difference between primary and secondary liability is not based on a difference in degrees of negligence or on any doctrine of comparative negligence . . . . It depends on a difference in the character or kind of the wrongs which cause the injury and in the nature of the legal obligation owed by each of the wrongdoers to the injured person. Secondary liability exists, for example, where there is a relation of employer and employee, or principal and agent . . . . Without multiplying instances . . . the important point to be noted in all the cases is that secondary as distinguished from primary liability rests upon a fault that is imputed or constructive only, being based on some legal relation between the parties, or arising from some positive rule of common or statutory law or because of a failure to discover or correct a defect or remedy a dangerous condition caused by the act of the one primarily responsible. In the case of concurrent or joint tortfeasors, having no legal relation to one another, each of them owing the same duty to the injured party, and involved in an accident in which the injury occurs, there is complete unanimity among the authorities everywhere that no right of indemnity exists on behalf of either against the other; in such a case, there is only a common liability and not a secondary one, even though one may have been very much more negligent than the other.

366 Pa. 322, 325-328, 77 A.2d 368, 370-371 (1951) (Emphasis supplied in the clauses).

The holding in McCabe was that plaintiff was not able to recover indemnity because his own active negligence was established as a contributing factor by the record in the case. 366 Pa. at 335, 77 A.2d at 374. Thus, the rule is that where one's active negligence has been established in a prior action, and the record of that litigation is introduced in the present action for indemnity, indemnity is not available if the claimant's active fault has been established in the prior action. In the present case James' own complaint admits his

[ 502 Pa. Page 252]

    injuries are the hospital's conduct and various Commonwealth acts, and thus, I would not hold as a matter of law that the hospital's conduct, as alleged, was not a substantial factor. With regard to the second consideration, the hospital's conduct arguably created forces that were in continuous and active operation up to the time of injury, and thus, again, I would not say as a matter of law that the hospital's conduct was not a legal cause of the injuries asserted. Finally, the last consideration, the lapse of time between the hospital's conduct and the injury, arguably, was negligible or irrelevant. Since these considerations suggest that a jury might differ on whether the hospital's conduct was a "substantial factor" in producing the plaintiffs' remaining damages, ordinarily, in the absence of policy reasons to the contrary or the presence of a superseding cause, the question whether the hospital's conduct was the legal cause of plaintiffs' remaining damages is one for the jury to determine.

Concerning the possibility that James' acts were a superseding*fn4 cause of the injuries he and his parents suffered, we note at the outset our agreement with the Commonwealth Court's analysis of superseding cause in this case:

[E]ven where an intervening act is wrongful it does not become a superseding cause unless, looking retrospectively from the harm through the sequence of events by which it was produced, it is so extraordinary as not to have been reasonably foreseeable.

Cf. Restatement of Torts, Second §§ 435, 447; Ross v. Vereb, 481 Pa. 446, 392 A.2d 1376 (1978); Bleman v. Gold, 431 Pa. 348, 246 A.2d 376 (1968). It can hardly be thought

[ 502 Pa. Page 254]

    extraordinary that a person who is admitted to a hospital because of paranoid-schizophrenic behavior, and particularly an abnormal fascination with fire, when he is left unsupervised in the hospital, sets a fire. As this Court stated in Thornton v. Weaber:

The law is not so unaware of reality that it will permit a tortfeasor to turn his wrongful act into an immunity by asserting that the eventual damage resulted from a more immediate cause when it is clear that this immediate cause was put into operation by his own tortious conduct.

380 Pa. 590, 595, 112 A.2d 344, 347 (1955). Therefore, the act of James in setting the fire was not a superseding cause of the injuries complained of.

Thus, viewing all material facts pleaded in the complaint as true, and asking whether as a matter of law the injuries remaining at issue may not be recovered in this action, or whether the jury could differ as to whether the hospital's conduct was a "substantial" cause of the above injuries, I conclude, in light of the considerations set forth in Restatement § 433, discussed earlier, and in the absence of policy considerations which might preclude recovery, that the jury might differ as to whether the hospital's conduct was a substantial cause of the remaining injuries, and thus that the case must go to the jury on all the remaining issues of damages.

Affirmed in part and reversed in part, and remanded for trial.

[ 502 Pa. Page 255]

HUTCHINSON, Justice, concurring.

I join Mr. Justice Flaherty's opinion announcing the judgment of the Court in holding there can be no recovery, as a matter of policy, for these plaintiffs' litigation related costs. Moreover, I also concur in his reversal of the grant of defendant's demurrer to those portions of the complaint arguably seeking non-litigation related damages. If plaintiffs in fact seek, and can prove, aggravation of the incompetent plaintiff's illness by virtue of the hospital's negligence in not preventing him from setting the fire, recovery is available under well-settled principles, recognized by Mr. Justice Flaherty. However, if it is later determined, as suggested by Mr. Justice Nix in his concurring and dissenting opinion, that the only damages plaintiffs suffered as a result of the hospital's negligence were related to the civil and criminal actions brought against their ward, I would deny recovery as a matter of law. I believe this is implied by the majority. On demurrer, however, I am unwilling to read the complaint as limited solely to damages flowing from the litigation.

ROBERTS, Chief Justice, concurring.

I agree with the determination that neither James Vattimo nor his parents may seek recovery against appellant, Lower Bucks Hospital, Inc., for the cost of defending either the criminal prosecution brought against James Vattimo or the civil suit instituted against appellant by the deceased patient's estate, in which James Vattimo was named as an additional defendant. Nor may appellees recover for any consequences of the criminal prosecution, including incarceration and involuntary commitment. On this record, recovery may be sought only for any of the remaining damages alleged to have been caused by appellant's failure to provide James Vattimo with proper supervision upon his admission to appellant's emergency psychiatric care unit.

NIX, Justice, concurring and dissenting.

This appeal further illustrates the difficulties encountered when we attempt to define the extent of negligence

[ 502 Pa. Page 256]

    liability in terms of causation.*fn1 The real issue is how far as a matter of law should the hospital be held monetarily responsible for the claimed consequences of its alleged breach of duty. To become engrossed in a factual assessment of causes and effects obscures the policy considerations that should control the determination. A metaphysical analysis of causes and effects ignores the fault predicate of common law negligence and frequently produces responsibility far out of proportion to the conduct of the wrongdoer.*fn2

The same evil is present when attempts are made to use foreseeability as a panacea. While foreseeability of the injury is clearly a factor in defining duty, if it is accepted as the sole criteria we could not logically confine the extension of liability within reasonable limits. Even a limited imagination can create innumerable hypotheses, accompanied by staggering implications, by using foreseeability as the sole basis for defining the extent of liability. Foreseeability is best utilized as a basis to limit liability for consequences which are not foreseen, rather than as the basis for an extension of liability to that which can be theoretically foreseen.

This appeal presents the question of the parameters of liability of an alleged tortfeasor for the actions of one who was entrusted to its care and supervision and who negligently

[ 502 Pa. Page 257]

    discharged that responsibility. My initial disagreement is with the suggestion by Mr. Justice Flaherty that any portion of this inquiry is properly assigned to the factfinder for resolution. Questions such as when the duty arises, what would constitute a breach of that duty, and the consequences for which the tortfeasor may be held legitimately responsible are questions of law requiring judicial determination. Only after these guideposts are clearly articulated can the factfinder proceed to determine whether the case in question supports the requested relief.

The duty alleged here is predicated upon James Vattimo's mental illness (schizophrenic, paranoid-type) with an irresistible fascination for fire. It is alleged that as a result of accepting Vattimo in this condition as a patient, the hospital undertook to provide a standard of supervision and surveillance over the patient that would have prevented him from setting the fire and causing the resultant harm.*fn3 Accepting these allegations in this procedural posture,*fn4 it nevertheless must be emphasized that the hospital's actions did not set the fire. The dereliction assigned to the hospital was its failure to prevent the occurrence. The undisputed genesis of the fire and the resultant damage was the underlying mental illness of Vattimo. Thus placed in proper perspective, we must decide what the hospital can be fairly held accountable for as a result of its failure to prevent the occurrence. In making such a judgment, it should be our

[ 502 Pa. Page 258]

    objective to reasonably and fairly compensate for the cognizable loss but not to provide a windfall.*fn5

Under well established precedent, if plaintiff produces sufficient evidence to demonstrate the mental condition of James warranted the duty asserted,*fn6 the hospital would clearly be responsible for injury to the person or property of third parties where such injury resulted from a hospital's negligent failure to meet its responsibility. See, e.g., Rhines v. Herzel, 481 Pa. 165, 392 A.2d 298 (1978); Semler v. Psychiatric Institute of Washington, D.C., 538 F.2d 121 (4th Cir.), cert. denied, 429 U.S. 827, 97 S.Ct. 83, 50 L.Ed.2d 90 (1976); Rum River Lumber Co. v. State, 282 N.W.2d 882 (Minn.1979); Doctors Hospital, Inc. v. Kovats, 16 Ariz.App. 489, 494 P.2d 389 (1972); Annot., 48 A.L.R.3d 1288 (1973); Restatement (Second) of Torts § 319 & comment (a), illus. (2) (1965); cf. Annot., 38 A.L.R.3d 699 (1971). The hospital is also unquestionably liable for actual physical harm to the person and property of its mentally disturbed patient resulting from its failure to use due care in the supervision of that patient. See, e.g., Bell v. New York City Health and Hospitals, 90 A.D.2d 270, 456 N.Y.S.2d 787 (1982); Payne v. Milwaukee Sanitorium Foundation, Inc., 81 Wis.2d 264, 260 N.W.2d 386 (1977); Meier v. Ross General Hospital, 69 Cal.2d 420, 71 Cal.Rptr. 903, 445 P.2d 519 (1968); Vistica v. Presbyterian Hospital, 67 Cal.2d 465, 62 Cal.Rptr. 577, 432 P.2d 193 (1967); Annot., 19 A.L.R. 4th 7 (1983); Annot., 17 A.L.R. 4th 1128 (1982); Annot., 70 A.L.R.2d 347 (1960); W. Prosser, Law of Torts § 33, at 172 (4th ed. 1971).*fn7

[ 502 Pa. Page 259]

I am convinced that a reasonable reading of the instant complaint indicates that the damages sought here are beyond those areas where the right to recovery has been previously recognized. I am also of the belief that the presently recognized limits of liability are fair and adequate to compensate for injuries from negligent acts of this nature and that the extensions instantly requested are not warranted. I, therefore, agree with Mr. Justice Flaherty's conclusion sustaining the preliminary objections to the Appellee's claim for damages related to defending the criminal and civil actions.

I am equally convinced that the remaining claims should also be dismissed and would affirm in entirety the April 17, 1977 order of the Administrator of Arbitration Panels for Health Care. The damage claims remaining on behalf of the parents were expenditures for medical and psychiatric care.*fn8 The damages asserted on James' behalf were for mental anguish, loss of employment and public humiliation. From the complaint it is clear that these damages are alleged to have resulted from the emotional distress resulting from his involuntary commitment to another hospital and the experience of being charged with murder in the first degree and arson.

The basis for the rejection of these claims are obvious. First, the relationship between the alleged negligent conduct and the asserted harm is tenuous at best. When the complained of incident occurred, James was at that time involuntarily

[ 502 Pa. Page 260]

    committed because of his mental difficulties. There is no indication in the complaint that his subsequent continued involuntary confinement resulted from any reasons other than the underlying mental condition that caused him to be placed involuntarily in the care of appellant. Thus there is no nexus between the appellant's alleged negligence and the complained of involuntary confinement to justify compensation for that experience by appellant.

Equally as tenuous is any argument attempting to hold appellant responsible for the decision to bring prosecution. Appellees are urging that the hospital be held responsible for the independent judgment of a branch of government to commence prosecution. It is the prosecution for the act, rather than the occurrence of the act, which is alleged to be the basis of this claim. Wherein it is reasonable to hold the hospital for the direct consequences of its act, it is not reasonable to extend the liability to the consequences of governmental responses to the conduct in question over which the hospital had no control. Nor can legitimacy be given to such a position by a strained causation analysis or by the fact that the result may conceivably have been foreseeable.

Second, the award of compensation for the decision to bring criminal prosecution would offend the cardinal premise justifying the award of damages in negligence cases. Damages are awarded to compensate for an injury or harm. The institution of criminal process is designed to serve a societal purpose and cannot be properly classified as a harm or an injury. To conclude otherwise would result in the anomaly of charging one with fault for the occurrence of a societal good. We should not recognize individual distress or displeasure that may flow from the proper functioning of government deemed to be in the best interest of society as a whole.

Even those who would insist upon interpreting the complaint as alleging that the emotional distress of James flowed from the occurrence of the fire itself must confront the question that the allowance of recovery here would

[ 502 Pa. Page 261]

    require a far greater erosion of the traditional doctrine requiring physical injury or impact than has ever been suggested before. Prior to our decision in Niederman v. Brodsky, 436 Pa. 401, 261 A.2d 84 (1970), no recovery could be had for emotional distress negligently inflicted unless it was accompanied by physical injury or physical impact. See, Bosley v. Andrews, 393 Pa. 161, 142 A.2d 263 (1958); Gefter v. Rosenthal, 384 Pa. 123, 119 A.2d 250 (1956); Potere v. Philadelphia, 380 Pa. 581, 112 A.2d 100 (1955); Hess v. Philadelphia Transportation Co., 358 Pa. 144, 56 A.2d 89 (1948); Huston v. Freemansburg Borough, 212 Pa. 548, 61 A. 1022 (1905); Ewing v. Pittsburgh Railway Co., 147 Pa. 40, 23 A. 340 (1892); Fox v. Borkey, 126 Pa. 164, 17 A. 604 (1889). In Niederman, we discarded the "impact rule" with the language:

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.

436 Pa. at 413, 261 A.2d at 90.

The test espoused in Niederman became known as the zone of danger theory.

In 1979, in the case of Sinn v. Burd, 486 Pa. 146, 404 A.2d 672, it was found that the "zone of danger" test was too restrictive when the plaintiff actually witnessed the accident which caused serious injury to one having a close relationship with the plaintiff and, as a result of the impact of the event, sustained emotional shock resulting in mental as well as physical injuries to the witnessing plaintiff.

However, in the case of Yandrich v. Radic, 495 Pa. 243, 433 A.2d 459 (1981), this court was evenly divided as to the recognition of a claim for damages for infliction of emotional distress upon a father whose son was fatally injured after being struck by an automobile but the father was neither a witness to the incident nor in the immediate vicinity. Those

[ 502 Pa. Page 262]

    members of the court in favor of recognizing a cause of action there were willing to expand the rule of Sinn to include recovery for emotional injury to a parent who does not witness, but is told of, physical injury to his child. Up to this time the expanded view of Sinn has yet to be adopted by a majority of this Court. Moreover, the requested recovery here far exceeds even that urged in Yandrich.

The justification for the exception in Sinn to the physical injury or physical impact rule of Bosley v. Andrews, supra, or the zone of danger theory of Niederman v. Brodsky, supra, was:

Where a parent or close blood relative actually witnesses a traumatic serious injury to a loved one, we expressed in Sinn that the emotional impact reverberating from that event was at least as potent as that which flowed from the personal exposure to danger under the zone of danger theory articulated in Niederman.

The common theme between the three theories is that in each instance the negligence of the actor results in a sensory experience that causes the resulting mental distress.

Yandrich v. Radic, supra, 495 Pa. at 250-251, 433 A.2d at 462, 463, (Opinion in Support of Affirmance, Nix, J.)

As noted in Yandrich all of the accepted theories supporting recovery are premised upon the negligence of an actor which results in a sensory experience causing the alleged resulting mental distress. Under the old rule it was of course a traumatic encounter with the tortfeasor which caused the injury or harm from which the emotional distress followed. Under the "zone of danger" theory it was the eminent exposure to immediate physical harm emanating from the actions of the tortfeasor placing the plaintiff in fear of injury or harm. In Sinn it was the witnessing of the traumatic, negligent act of the tortfeasor causing serious injury or death to a child. Even in Yandrich, where recovery was not allowed, there was a traumatic event in which

[ 502 Pa. Page 263]

    the child of the plaintiff was killed as a result of the tortfeasor's negligence. The disagreement as to whether recovery should be allowed centered upon the fact that the event was not witnessed by the plaintiff.

The instant factual setting is distinguishable because the traumatic event was physically set in motion by the plaintiff. As has been previously stressed, the alleged negligence of the hospital was passive. Thus the allowance of this claim is tantamount not only to a complete abrogation of all former restrictions upon recovery for emotional distress claim, it also permits the non-action of the defendant to be the predicate of liability against it for consequences directly resulting from the overt act of the plaintiff himself. Such a grotesque distortion of traditional law and a normal understanding of fault must be condemned.

LARSEN, Justice, concurring and dissenting.

I join in Mr. Justice Flaherty's affirmance of the Commonwealth Court's opinion, but I dissent from Mr. Justice Flaherty's reversal of that opinion.

I disagree with Mr. Justice Flaherty's treatment of the Vattimos' claim for reimbursement of attorneys' fees expended in defending James in civil and criminal proceedings arising out of the incidents in this case.

First, I believe that the hospital had a duty to protect against this type of harm. Not only was the initiation of criminal proceedings against James the factual consequence of the hospital's alleged failure to properly supervise and care for James, but it was also a foreseeable consequence of such conduct on the part of the hospital. See Lerro v. Thomas Wynne, Inc., 451 Pa. 37, 41, 301 A.2d 705, 708 (1973) ("Conduct is negligent if the harmful consequences could reasonably have been foreseen and prevented by the exercise of reasonable care.").

[ 502 Pa. Page 264]

Nevertheless, the hospital argues that the criminal proceedings initiated against James were the consequence of the prosecutor's decision-making process, rather than the "normal, natural or probable consequences of medical malpractice."*fn1a This argument has no merit. Even though criminal proceedings were the result of a decision made by the prosecutor, it was still eminently foreseeable that an individual with a propensity for starting fires would be subject to criminal prosecution if the hospital failed to properly discharge its duty to supervise that individual.

In addition, I do not agree that James' conduct acts as a bar to the recovery of legal fees.

Mr. Justice Flaherty relies upon an admission in the complaint that James played an " active part in the events which resulted in injury" to support its conclusion that James was an " active tortfeasor" and thus ineligible to receive indemnification. Mr. Justice Flaherty's Opinion, slip op. at 14. However, a review of the case law supports the proposition that James is not an active tortfeasor, despite the facts that he admittedly started the fire and that he may be held civilly liable for the death of his roommate.*fn2a Long ago, this Court held that

"A person with a mental deficiency is civilly liable for his torts; he is liable to bear the consequences of his infirmity as he is liable to bear his misfortunes, on the principle that where a loss must be borne by one of two innocent persons, it shall be borne by him who occasioned it.": Lancaster County National Bank v. Moore, 78 Pa. 407, 21 AR 24 (1875); Wolf's case, 195 Pa. 438, 46 Atl. 72 (1900).

Priese v. Clement, 70 D. & C.2d 47, 63 (1974) (emphasis added). These cases reveal that the mentally deficient defendant is considered an innocent and not responsible for his

[ 502 Pa. Page 265]

    actions, and that he may be held legally liable not because he was negligent, but based upon the policy consideration that someone must bear the expenses of an innocent plaintiff's injury and that it is more just to impose those expenses upon the person who, although without fault, caused the injury than upon the innocent plaintiff. In view of this policy, it would be a harsh result to regard James as an active tortfeasor for purposes of indemnity.

In addition, according to those authorities cited by the majority, the purpose of indemnity is

     to prevent a result which is regarded as unjust or unsatisfactory . . . .

Thus it is generally agreed that there may be indemnity in favor of one who is held responsible solely by imputation of law because of his relation to the actual wrongdoer

It has been said that it is permitted only where the indemnitor has owed a duty of his own to the indemnitee; that it is based on a "great difference" in the gravity of the fault of the two tortfeasors; or that it rests upon a disproportion or difference in character of the duties owed by the two to the injured plaintiff . . . . Indemnity is a shifting of responsibility from the shoulders of one person to another; and the duty to indemnify will be recognized in cases where community opinion would consider that in justice the responsibility should rest upon one rather than the other. This may be because of the relation of the parties to one another, and the consequent duty owed; or it may be because of a significant difference in the kind or quality of their conduct.

Prosser, The Law of Torts § 51 (4th ed.), quoted from Mr. Justice Flaherty's Opinion, slip op. at 8-9 fn. 2. See also Builders Supply v. McCabe, 366 Pa. 322, 325-6, 328, 77 A.2d 368, 370, 371 (1951), quoted from Mr. Justice Flaherty's Opinion, slip op. at 13:

[ 502 Pa. Page 266]

The difference between primary and secondary liability . . . depends on a difference in the character or kind of the wrongs which cause the injury and in the nature of the legal obligation owed by each of the wrongdoers to the injured person . . . . [T]he important point to be noted in all the cases is that secondary as distinguished from primary liability rests upon a fault that is imputed or constructive only . . . .

All of the considerations mentioned in these authorities favor the allowance of indemnity in this case. James was not held criminally liable for his acts, and if he is held civilly liable it will be for policy reasons, not because he was at fault; any liability on the part of James will be imputed or constructive. The hospital clearly owed a duty to James to prevent him from carrying out precisely that action which he accomplished. In addition, there is a great difference in the degrees of fault of the hospital and James; the hospital was at fault to the extent it breached its duty to care for James, while James' mental condition precludes him from being at fault at all. Finally, two basic tort policies -- punishment and deterrence -- will be well served if the hospital is held responsible for the foreseeable consequences of its actions; these policies will not be served at all if the responsibility is left with James' parents, who did everything they could when they took James to the hospital before he had hurt anyone. In a case such as this, justice requires the shifting of responsibility from one tortfeasor to another.

I would hold that legal fees are recoverable in this case once liability and damages have been proven at trial, and thus I would affirm the order of the Commonwealth Court in its entirety.

ZAPPALA, Justice, concurring in part with and dissenting in part from the judgment of the court.

I concur with the result announced today by Justice Flaherty in his Opinion Announcing the Judgment of the Court, permitting the Appellees' case to proceed to the jury

[ 502 Pa. Page 267]

    on the issue of the hospital's negligence resulting in damage claims for medical and psychiatric care, mental anguish, loss of employment and public humiliation. It is clear, as Justice Flaherty has stated, that in order to recover, the Appellees must prove that the hospital owed a duty to James, the hospital breached its duty, and that the breach of that duty is the legal cause of the injuries suffered by James and his parents. Dismissing the Appellees' claims at this stage is premature, as reasonable men may differ as to whether the hospital owed a duty to James, and that the failure to honor such duty caused the Appellees' injuries. Therefore, the Appellees must be given the opportunity to present whatever evidence they have to sustain their claims.

For the same reasons, I must respectfully dissent from Justice Flaherty's Opinion in sustaining the preliminary objections to the Appellees' claims for damages related to defending the criminal and civil actions. I disagree with Justice Flaherty's characterization of this claim of the Appellees as a demand for indemnification, as I fail to see any difference between this claim and the remaining claims the majority is permitting to go to trial.

James was admitted by the hospital with the full knowledge of his propensity for setting fires. By admitting James with the knowledge of his condition, the hospital agreed to provide the necessary medical and psychiatric treatments. Furthermore, James was placed in the hospital because of his parents' fear of potential harm to James or others as the result of his mental condition. It is not unreasonable or against public policy to impose upon the hospital the duty to supervise James so as to prevent harm either to himself or others. This the hospital failed to do, resulting in harm to both James and the patient sharing his room. Therefore, a jury could reasonably impose a duty upon the hospital which the hospital unreasonably breached.

The only remaining issue is whether the hospital's negligence can be determined to be the legal cause of the Appellees' injuries. As Justice Flaherty correctly states, the issue is whether the Appellant's conduct is a substantial factor in causing the Appellees' injuries. Hamil v. Bashline,

[ 502 Pa. Page 268481]

Pa. 256, 392 A.2d 1280 (1978); See also, Justice Pomeroy's opinion in Whitner v. Lojeski, 437 Pa. 448, 263 A.2d 889 (1970). Section 433 of the Restatement of Torts 2d sets forth factors to be considered in determining whether a defendant's condition is a substantial factor in producing the complained of injuries. One relevant consideration is the extent other factors have contributed to the defendant's injuries. If the Appellees would have suffered their injuries notwithstanding the negligent conduct of the hospital, then the conduct of the hospital cannot be determined to have been a substantial factor in causing the said injuries. The hospital seems to argue that the Commonwealth or the decedent's family, not the hospital, initiated proceedings against James for his actions. Therefore, either individually or together, the action of the Commonwealth and the decedent's family was the substantial factor in causing the Appellees' injuries. This position is untenable in that the actions of both the Commonwealth and the decedent's family were the result of the initial tortious conduct of the hospital, and not a cause of the Appellees' injuries. Without the hospital's lack of supervision, James would not have killed his hospital roommate. Therefore, both civil and criminal proceedings would have been unnecessary.

Accordingly, I would affirm the decision of the Commonwealth Court.

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