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decided: October 16, 1986.


Appeal from the Order of the Superior Court entered at No. 02294 Philadelphia, 1983, dated February 21, 1985, affirming the Order of the Court of Common Pleas of Montgomery County entered at No. 81-2547, dated August 10, 1983, 341 Pa. Super. 626, 491 A.2d 925 (1985).


Charles J. Weiss, Ambler, for appellants.

William H. Pugh, IV, Norristown, for Ricky Allen Everingham, a minor, et al.

M. Cathlene Driscoll, Marjorie Lawrence, Fred J. Silverman, Willow Grove, for Robert & Edna Harris.

Mark Schultz, Norristown, for Whitpan Tp.

Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Flaherty, J., joins in this opinion and files a concurring opinion. Hutchinson, J., files a concurring opinion. Larsen, J., files a dissenting opinion in which Papadakos, J., joins. Papadakos, J., files a dissenting opinion in which Larsen, J., joins.

Author: Nix

[ 512 Pa. Page 268]


In the instant matter we are called upon to revisit Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979), and to review its parameters for pleading the negligent infliction of emotional

[ 512 Pa. Page 269]

    distress. Specifically, appellants ask us to recognize a cause of action for the negligent infliction of emotional distress in instances where the close relative does not observe the accident itself, but instead arrives at the scene of the accident and observes the victim a few minutes afterwards. We granted allocatur to clarify our position on this point.


This case arose on August 12, 1980, when fourteen-year-old Mumtaz Mazzagatti was struck and fatally injured by a car operated by appellee Ricky Allen Everingham ("Everingham") as she rode her bike in the residential area near her home in Whitpain Township. At the time of the accident Mumtaz's mother, Jane Mazzagatti ("Mazzagatti"), was at work, approximately one mile away. She received a telephone call immediately after the collision informing her that her daughter had been involved in an automobile accident. Mazzagatti arrived at the scene of the accident a few minutes afterwards. On February 12, 1981, appellants filed a three count complaint in trespass based upon Everingham's allegedly negligent conduct, the second of which is the subject of this appeal.*fn1 In the second count Mazzagatti pled an action for the negligent infliction of emotional distress. That count stated in part:

26. Within moments after the aforesaid accident, plaintiff Jane Mazzagatti was called and came to the scene and there observed her daughter Mumtaz Mazzagatti lying in Union Meeting Road.

27. Plaintiff Jane Mazzagatti became hysterical, unnerved and emotionally shattered as she viewed her daughter Mumtaz Mazzagatti so injured by defendants.

28. As a result of the aforementioned observation, which, in turn, resulted from a collision caused by defendants'

[ 512 Pa. Page 270]

    negligence, plaintiff Jane Mazzagatti suffered shock to her nerves and nervous system, sustained grievous mental pain and suffering resulting in severe depression and an acute nervous condition.

29. As a further result of the aforementioned observations and of defendants' aforementioned negligence, plaintiff Jane Mazzagatti is further tortured by flashbacks and nightmares of that observation and suffers from a general inability to sleep peacefully through the night. The residual results of the foregoing may be of a permanent nature and significance.

R. 9a-10a.

Additionally, Mazzagatti alleged that her acute nervous condition and mental distress prevented her from attending to the duties of her employment at the Sperry Corporation and might, in the future, require her to expend considerable sums for medical treatment. Id.

Thereafter, appellees filed a motion for summary judgment in the nature of a demurrer*fn2 to dismiss Mazzagatti's claim for the negligent infliction of emotional distress. Appellee's motion stated that since Mazzagatti did not view the fatal accident, she had failed to state a cause of action pursuant to Sinn v. Burd, supra.

[ 512 Pa. Page 271]

The Court of Common Pleas of Montgomery County granted appellees' motion for summary judgment on August 10, 1983. In the written opinion which followed,*fn3 the court held that under the parameters enunciated in our Sinn decision, where, as here, the close relative is not an eyewitness and did not have a contemporaneous perception of the tortious conduct, she has failed to state an actionable claim for emotional distress. Appellants appealed this determination to the Superior Court arguing that consideration be given to Dziokonski v. Babineau, 375 Mass. 555, 380 N.E.2d 1295 (1978), which allowed recovery where the parent arrived at the scene of the accident while the injured child was still there. The Superior Court found Dziokonski unpersuasive since this Court was cognizant of Dziokonski at the time of the Sinn decision and nonetheless limited our holding to those instances where the plaintiff actually witnessed the negligent act. The Superior Court thereupon affirmed the Court of Common Pleas in its order dated February 21, 1985, 341 Pa. Super. 626, 491 A.2d 925. We granted allowance of appeal on September 12, 1985, pursuant to Pa. R.A.P. 1112(a).


Summary judgment can be sustained only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Pocono International Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 83 n. 4, 468 A.2d 468, 470 n. 4 (1983); Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 204, 412 A.2d 466, 468 (1979); Commonwealth v. Transamerica Insurance Co., 462 Pa. 268, 273, 341 A.2d 74, 76 (1975); Linwood Harvestore, Inc. v. Cannon, 427 Pa. 434, 436, 235 A.2d 377, 379 (1967); Pa.R.C.P. 1035(b). In the case sub judice the facts are undisputed and the remaining legal

[ 512 Pa. Page 272]

    question for our consideration is whether the courts below erred in granting appellees' motion for summary judgment in the nature of a demurrer. It is axiomatic that a demurrer may only be sustained where the complaint, on its face, fails to establish a legal right to relief. County of Allegheny v. Commonwealth, 507 Pa. 360, 372, 490 A.2d 402, 408 (1985); Cianfrani v. Commonwealth, State Employee's Retirement Board; 505 Pa. 294, 297, 479 A.2d 468, 469 (1984); Sinn v. Burd, supra 486 Pa. at 150, 404 A.2d at 674; Firing v. Kephart, 466 Pa. 560, 563, 353 A.2d 833, 834 (1976); Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 504, 267 A.2d 867, 868 (1970).

For the purpose of testing the legal sufficiency of the complaint, a motion for summary judgment in the nature of a demurrer admits as true all well-pleaded, material, relevant facts. See County of Allegheny v. Commonwealth, supra 507 Pa. at 372, 490 A.2d at 408; Klein v. Raysinger, 504 Pa. 141, 144, 470 A.2d 507, 508 (1983); Sinn v. Burd, supra 486 Pa. at 149, 404 A.2d at 674; Savitz v. Weinstein, 395 Pa. 173, 174, 149 A.2d 110, 111 (1959); Byers v. Ward, 368 Pa. 416, 420, 84 A.2d 307, 309 (1951). If the facts as pleaded state a claim for which relief may be granted under any theory of law, then a demurrer must be denied. County of Allegheny v. Commonwealth, supra 507 Pa. at 372, 490 A.2d at 408; Cianfrani v. Commonwealth, State Employee's Retirement Board, supra 505 Pa. at 297, 479 A.2d at 469; Mahoney v. Furches, 503 Pa. 60, 66, 468 A.2d 458, 461-62 (1983); Vattimo v. Lower Bucks Hospital, Inc., 502 Pa. 241, 244, 465 A.2d 1231, 1232-33 (1983); Sinn v. Burd, supra 486 Pa. at 150, 404 A.2d at 674; Packler v. State Employment Retirement Board, 470 Pa. 368, 371, 368 A.2d 673, 675 (1977); Schott v. Westinghouse Electric Corporation, 436 Pa. 279, 291, 259 A.2d 443, 449 (1969); Birl v. Philadelphia Electric Co., 402 Pa. 297, 302, 167 A.2d 472, 475 (1960); Savitz v. Weinstein, supra 395 Pa. at 174, 149 A.2d at 111; Waldman v. Shoemaker, 367 Pa. 587, 589, 80 A.2d 776, 777 (1951). It is

[ 512 Pa. Page 273]

    under the above standard of review that we analyze the facts of the instant case.


Appellants contend that the grant of demurrer was improper in this case because Mazzagatti is entitled to recover under the flexible reasonable foreseeability test adopted by this Court in Sinn v. Burd, supra. Appellants allege that Mazzagatti's emotional distress resulting from having promptly witnessed the entire accident scene moments after Everingham's automobile struck her child was reasonably foreseeable under the circumstances, and was neither remote nor unexpected. We believe, however, that appellants' expansive interpretation of the Sinn foreseeability test ignores several basic principles of tort liability. These principles, which require that the defendant's breach of a duty of care proximately cause plaintiff's injury, have established the jurisprudential concept that at some point along the causal chain, the passage of time and the span of distance mandate a cut-off point for liability. See generally, Wright, Causation in Tort Law, 73 Calif.L.Rev. 1735 (1985); Brennwald, Proving Causation in "Loss of a Chance" Cases: A Proportional Approach, 35 Cath.U.L.Rev. 757 (1985); Lopatka, State Action and Municipal Antitrust Immunity: An Economic Approach, 53 Fordham L.Rev. 23 (1984); Note: Manufacturers' Liability to Victims of Handgun Crime: A Common-Law Approach, 51 Fordham L.Rev. 771 (1988); Silverstein, Seller Liability Under Section 12(2) of the Securities Act of 1933: A Proximate Cause-Substantial Factor Approach Limited by a Duty of Inquiry, 36 Vand.L.Rev. 361 (1983); Proximate Cause in California, 38 Calif.L.Rev. 369 (1950). The term proximate cause or legal cause is applied by courts to those more or less undefined considerations which limit liability even where the fact of causation can be demonstrated. See W.P. Keeton, Prosser and Keeton on Torts (5th ed. 1984) (hereinafter " Prosser and Keeton ") at 273.

[ 512 Pa. Page 274]

In Niederman v. Brodsky, 436 Pa. 401, 261 A.2d 84 (1970), we posited, "[t]he best statement of the rule is that a wrong-doer is responsible for the natural and proximate consequences of his misconduct." Id., 436 Pa. at 403, 261 A.2d at 85. As we quoted in Sinn v. Burd, supra, Justice Andrews in his famous dissent in Palsgraf v. Long Island R.R., 248 N.Y. 339, 162 N.E. 99 (1928) wrote:

What we do mean by the word 'proximate' is that, because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point. This is not logic. It is practical politics. Sinn, supra 486 Pa. at 166, 404 A.2d at 682, quoting Palsgraf v. Long Island R.R., supra 248 N.Y. at 352, 162 N.E. at 103 (Andrews, J., dissenting).

We are thus charged with determining whether the policy of law in this Commonwealth holds Everingham legally responsible for the emotional injury to Mazzagatti. As the following excerpt from Prosser and Keeton, supra, illustrates, this determination is one fraught with circumlocution:

It is quite possible to state every question which arises in connection with "proximate cause" in the form of a single question: was the defendant under a duty to protect the plaintiff against the event which did in fact occur? Such a form of statement does not, of course, provide any answer to the question, or solve anything whatever; but it may be helpful since "duty" -- also a legal conclusion -- is perhaps less likely than "proximate cause" to be interpreted as if it were a policy-free fact-finding. Thus, "duty" may serve to direct attention to the policy issues which determine the extent of the original obligation and of its continuance, rather than to the mechanical sequence of events which goes to make up causation in fact. The question ...

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