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JANICE A. NEFF v. WILLIAM LASSO (03/13/89)

filed: March 13, 1989.

JANICE A. NEFF, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF WILLIAM L. NEFF, APPELLANT,
v.
WILLIAM LASSO, JR. AND G. THOMAS PASQUARIELLO, T/A PASQUARIELLO'S AUTO SHOP APPELLEES



Appeal from the Order entered January 6, 1988 in the court of Common Pleas of Northampton County, Civil Division, No. 1987-C-3198.

COUNSEL

James T. Huber, Allentown, for appellant.

James D. Rawlings, II, Bethlehem, for Lasso, appellee.

William P. Exaros, Bethlehem, for Pasquariello, appellee.

Tamilia, Kelly and Hester, JJ.

Author: Kelly

[ 382 Pa. Super. Page 489]

The sole issue on appeal is whether a wife may recover against a tortfeasor for serious emotional distress caused by shock and fear for her husband who was fatally injured in an automobile accident, where the wife visually observed her husband's vehicle being followed by defendant's speeding vehicle, heard the impact between her husband's pickup and defendant's automobile and arrived on the scene immediately thereafter to find her husband lying unconscious. For the reasons which follow, we find that appellant has alleged sufficient facts to state a cause of action. Accordingly,

[ 382 Pa. Super. Page 490]

    we reverse the order of the trial court sustaining defendant's preliminary objections in the nature of a demurrer, reinstate appellant's cause of action, and remand for proceedings consistent with this opinion.

Appellant, Janice E. Neff, appeals from the order granting the preliminary objections in the nature of a demurrer made by appellees, William Lasso, Jr. and G. Thomas Pasquariello, t/a Pasquariello's Auto Shop, dismissing appellant's claim for negligent infliction of emotional distress.

I. STANDARD OF REVIEW

Our standard of review of an order granting preliminary objections in the nature of a demurrer was set forth in Vattimo v. Lower Bucks Hosp., Inc., 502 Pa. 241, 465 A.2d 1231 (1983) as follows:

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.] The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it.

502 Pa. at 244, 465 A.2d at 1232-33 (citations omitted); see also Mahoney v. Furches, 503 Pa. 60, 66, 468 A.2d 458, 461-62 (1983). In reviewing the grant of a demurrer we are not bound by the inferences drawn by the trial court nor are we bound by its conclusions of law. See Drug House Inc. v. Keystone Bank, 272 Pa. Super. 130, 132, 414 A.2d 704, 705 (1979). Moreover, the novelty of a claim or theory, alone, does not compel affirmance of a demurrer. See Sinn v. Burd, 486 Pa. 146, 150, 404 A.2d 672, 674 (1979); Papieves v. Lawrence, 437 Pa. 373, 376-77, 263 A.2d 118, 120 (1970); Woodward v. Dietrich, 378 Pa. Super. 111, 548 A.2d 301 (1988).

In light of our standard of review, the following is a summary of the relevant factual history of this case as stated in appellant's complaint. At approximately 3:55 p.m.

[ 382 Pa. Super. Page 491]

    on May 17, 1986, the decedent, William L. Neff, was driving his Chevrolet pickup truck on Allen Drive directly in front of his home. Appellee, William Lasso, Jr., traveling at an excessive rate of speed, followed decedent down Allen Drive. As decedent was attempting to make a left-hand turn into his driveway, appellee attempted to pass him on the left-hand side in a no passing zone. In doing so, appellee struck the rear left portion of decedent's pickup fatally injuring the decedent.

At the time of these events, appellant, Janice A. Neff, was standing in her home looking out her kitchen window. Appellant observed her husband arriving home and observed appellee following directly behind him at an excessive rate of speed. Appellant heard an impact between two vehicles.*fn1 Appellant arrived at the accident scene immediately thereafter and found her husband lying unconscious on their front lawn. As a result, appellant suffered severe emotional distress.

Appellant, in her capacity as executrix of her husband's estate, filed a wrongful death and survival action. She also filed a separate claim on her own behalf for negligent infliction of emotional distress based upon the injuries she incurred as a result of appellee's negligence. Appellees, William Lasso and G. Thomas Pasquariello, filed preliminary objections in the nature of a demurrer in which they argued that appellant had failed to allege a cause of action for negligent infliction of emotional distress where she did not visually observe the accident. In her response, appellant asserted that seeing the impact was unnecessary and that she need only have had a contemporaneous sensory perception of the accident. The Honorable Richard D. Grifo concluded that "contemporaneous observance" of the accident as required by our Supreme Court's decision in Sinn v. Burd, supra, implied sight only and not hearing, and therefore he sustained the preliminary objections and

[ 382 Pa. Super. Page 492]

    dismissed Mrs. Neff's separate claim for negligent infliction of emotional distress. This timely appeal followed.*fn2

II. NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

Initially, we find it appropriate to briefly review the development of the cause of action for negligent infliction of emotional distress. In doing so, we will consider the development of the cause of action generally and then its development in Pennsylvania particularly.

A. EVOLUTION OF THE TORT OF NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS: GENERALLY

[ 382 Pa. Super. Page 493]

Originally, courts allowed plaintiffs to maintain a cause of action for emotional distress only if certain limiting and qualifying factors were present. Early cases denied plaintiff's recovery unless the plaintiff had suffered a contemporaneous physical injury or impact accompanied by mental distress. A majority of courts gradually departed from the impact rule and adopted a rule allowing recovery for psychic injury where the plaintiff was in the physical zone of danger and was in fear for his own safety. This was known as the "zone of danger" rule. See W.P. Keeton, Prosser & Keeton on Torts (5th Ed.1984) at 363; Note, The Next Best Thing to Being There?: Foreseeability of Media-Assisted Bystanders, 17 S.W.U.L.Rev. 65 (1987); Bell, The Bell Tolls: Toward Full Tort Recovery for Psychic Injury, 36 U.Fla.L.R. 333 (1984); Note, Administering the Tort of Negligent Infliction of Emotional Distress, 4 Cardozo L.Rev. 487 (1983); Note, Negligent Infliction of Emotional Distress: Keeping Dillon in Bounds, 37 Wash. & Lee L.Rev. 1235 (1980); Comment, Negligently Inflicted Page 493} Mental Distress: The Case for an Independent Tort, 59 Geo.L.J. 1237 (1971).

In 1968, the California Supreme Court rendered the landmark decision of Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 (1968), which lowered the bystander barrier by permitting a mother, who was not within the zone of danger, to recover for psychic injury caused by witnessing her daughter's negligently caused death. The court adopted the position that liability for the negligent infliction of emotional distress would depend upon whether such injuries were foreseeable to the defendant at the time of the accident. The Dillon court set forth three factors -- plaintiff's proximity to the decedent, the directness of her observance of the accident, and the closeness of her relationship to the accident victim -- as guidelines for future courts to determine whether psychic injury was reasonably foreseeable. The California Supreme Court emphasized, however, that the reasonableness of imposing liability was ultimately a factual determination which is made on a case by case basis. 69 Cal.Rptr. at 80, 441 P.2d at 920. Thus, the factors were not to be applied formalistically to bar arguably valid claims. See Ochoa v. Superior Court, 39 Cal.3d 159, 216 Cal.Rptr. 661, 703 P.2d 1 (1985). A majority of courts now recognize a cause of action based upon Dillon 's three prong test, though some variety exists between courts recognizing the Dillon test with regard to the precise parameters of the cause of action. See Witnessing Injury -- Damages -- Mental Anguish, 5 A.L.R. 4th 833 (1981 & 1988 Supp.); see also Note, The Next Best Thing to Being There?: Foreseeability of Media -- Assisted Bystanders, supra.

B. EVOLUTION IN PENNSYLVANIA

In Pennsylvania, the tort of negligent infliction of emotional distress has followed a similar course of evolution. For decades, our Supreme Court uniformly applied the "impact rule," which barred recovery for fright, ...


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