Appeal from the Order of the Court of Common Pleas, Schuylkill County, Civil Division, at No. S-787-1985.
Edward E. Kopko, Assistant District Attorney, Pottsville, for appellant.
John B. Lieberman, III, Mahanoy City, for appellee.
Brosky, Johnson and Lipez, JJ. Lipez, J., concurs in the result. Johnson, J., files a dissenting opinion.
[ 355 Pa. Super. Page 264]
This appeal is from an order sustaining preliminary objections in the nature of a demurrer and dismissing appellant's complaint. The causes of action thus dismissed were for intentional and negligent infliction of emotional distress. We hold that the dismissal of the negligent infliction claim was in error and, accordingly, reverse as to that portion of the order and affirm as to the dismissal of the intentional infliction claim.
From the complaint it appears that on January 15, 1984 at approximately 2:30 a.m. appellant was driving in a rural area when his automobile rode over the corpse of Sharon Wascavage which was lying in the middle of his lane of the highway. Appellant was detained at the scene by the police for approximately three and one half hours.
Appellant avers that appellee had struck Sharon Wascavage with his vehicle while she was walking on the highway, route 209. Appellant further avers that after appellee had hit Ms. Wascavage, appellee intentionally left the scene of the accident, not making any attempt to remove the body from the road. As a result, appellant later ran over the corpse and was detained by the police. Appellant claims that as a result he suffered severe emotional distress, which is the basis of his complaint. Appellant contends that the preliminary objections in the nature of a demurrer should not have been sustained by the trial court.
[ 355 Pa. Super. Page 265]
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.
Niederman, supra, 436 Pa. at 413, 261 A.2d at 90.
It is this evolution of the law of which appellee has lost sight. To summarize, a cause of action for negligent infliction of emotional distress initially required a physical impact. That element was declared not essential in Niederman if the plaintiff was in the zone of danger. Finally, the plaintiffs presence within that zone was held to be not necessary subject to the presence of Sinn's three elements. Niederman and Sinn are, thus, two alternate methods to establish a case for negligent infliction in the absence of physical impact. However, impact remains the basic means to plead the cause of action. Potere v. City of Philadelphia, 380 Pa. 581, 589, 112 A.2d 100, 104 (1955). If impact is averred, the requirements of either Niederman or Sinn simply are not necessary.
In the case before us there was a physical impact. Appellant's automobile impacted with the corpse of Sharon Wascavage. Although it is a gruesome thought, an automobile running over a corpse would cause the automobile to lurch and jostle or jar its occupants. This Court has held that the jostling and jarring of an automobile's occupants is enough physical impact to meet the physical impact element of a negligent infliction cause of action. Zelinsky v. Chimics, 196 Pa. Super. 312, 175 A.2d 351 (1961). It is this impact which takes the instant case out of the requirements of Sinn or Niederman. Therefore, plaintiff need not rely upon the doctrine laid down in Sinn or upon the rule in Niederman, nor need he meet the elements of Sinn or Niederman.
In Zelinsky two vehicles -- plaintiff's and defendant's -- struck each other and thus the physical impact was substantially contemporaneous with the defendant's negligent act
[ 355 Pa. Super. Page 267]
and resulted in the defendant striking the plaintiff. This will be the usual fact pattern; it is not, however, the only possible scenario. It is also possible that defendant's negligence will proximately cause an impact to occur at a later time and that the impact will not be with the defendant himself. Under traditional rules of negligence law this would also support a cause of action in negligence. This result is not changed by the fact that the particular claim is for infliction of emotional distress through negligence, rather than another type of negligence claim.
In Potere, supra, the city negligently maintained a water line which leaked water into an underground tunnel dug by a contractor which caused subsidence and a cave-in of the road while plaintiff was driving a truck on it. One of plaintiff's claims was for negligent infliction of emotional distress. In Potere as here, the impact was not directly with the defendant, nor did it occur simultaneously with the negligent act. However, as long as the plaintiff's suffering or mental fright is "directly traceable to the peril in which the defendant's negligence placed the plaintiff, then mental suffering is a legitimate element of damages." Potere v. City of Philadelphia, supra, 380 Pa. at 589, 112 A.2d at 104.
The order dismissing the negligent infliction of emotional distress complaint is, accordingly, reversed.
Appellee contends that appellant's intentional infliction complaint was properly dismissed because appellee's "extreme and outrageous conduct was not directed toward George Thomas Stoddard [appellant] but rather to the now deceased pedestrian, Sharon Wascavage." While that assertion is true, it would not, of itself, result in appellee prevailing. The pertinent law is Section 46(2) of the Restatement (Second of Torts).*fn1
[ 355 Pa. Super. Page 268]
§ 46. Outrageous Conduct Causing Severe Emotional Distress.
(2) Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly ...