reasoning that, given the advanced state of medical science, it is “unwise and unnecessary to permit recovery to be predicated on an inference based on the defendant's ‘outrageousness’ without expert medical confirmation that the plaintiff actually suffered the claimed distress.”
How later courts described this case
- reasoning that, given the advanced state of medical science, it is “unwise and unnecessary to permit recovery to be predicated on an inference based on the defendant's ‘outrageousness’ without expert medical confirmation that the plaintiff actually suffered the claimed distress.”
- stating that “it is unwise and unnecessary to permit recovery to be predicated on an inference based on the defendant’s ‘outra-geousness’ without expert medical confirma tion that the plaintiff actually suffered the claimed distress”
- concluding absence of expert medical testimony that plaintiff suffers from emotional distress precludes plaintiff from recovering on intentional infliction of emotional distress theory
- noting that “[t]he principle adopted in [Papieves] was derived from Restatement (First) of Torts § 868 (1939), which provides for liability to a decedent’s family member for the wanton mistreatment or intentional withholding of that decedent’s corpse.”
Written by the judges who cited it.
The opinion
CONCURRING OPINION
LARSEN, Justice,
concurring.
To paraphrase Shakespeare — the majority doth protest too much, methinks. To measure appellants’ cause of action according to the standards set forth in section 46 of the Restatement (Second) of Torts and to purport to establish what evidence is required to prove an injury pursuant to section 46 is to adopt section 46 in this jurisdiction, in spite of what the majority states to the contrary.
I join the concurring opinion of Mr. Justice Papadakos to the extent that I would also expressly adopt section 46 today, but I write separately because I believe that the majority has by implication adopted section 46 in this case. The elements of this tort are difficult to define, and appellate courts delineate their parameters on a case-by-case basis as the majority has done in the instant case. See Annot., Modern Status of Intentional Infliction of Mental Distress as Independent Tort; “Outrage”, 38 A.L.R.4th 998 (1985). Additionally, although I agree that the Kazatskys, appellants herein, did not prove an essential element of their case, i.e., severe emotional distress, I object to the majority’s adoption of a per se rule requiring “competent medical evidence” to prove severe emotional distress in all cases.
The respective functions of court and jury on the issue of “outrageous conduct” are as follows:
It 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, or whethér it is necessarily so. Where reasonable *199 men may differ, it is for the jury, subject to the control of the court, to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability.
Restatement (Second) of Torts § 46 comment h (emphasis added).
In Forster v. Manchester, 410 Pa. 192, 200 , 189 A.2d 147, 152 (1963), this Court described outrageous conduct as being comprised of “acts of an especially flagrant character.” Similarly, comment 2 to § 46 of the Restatement (Second) of Torts states that:
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.
The standard is high to prevent recourse to the courts in instances of mere bad manners, “insult, indignity, annoyance or even threats where the case is lacking in other circumstances of aggravation.” Prosser, Law of Torts, § 12 Infliction of Mental Distress at 54 (4th Ed.1971).
Emotional distress is described as “fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry and nausea.” Restatement (Second) of Torts § 46, comment j. Such emotional responses predate the advent of psychiatry and can readily be established without the testimony of one learned in that area of medical science. In spite of the wide acceptance of psychiatry today as a method of “curing” psychic ills, not every individual who is inflicted with such injury will turn to a psychiatrist or other doctor for treatment. To force such individuals to do so for purposes of proving distress, may be, in some instances, to compound their distress. I would also note that when distress is “parasitic” to physical injuries in negligence cases, medical evidence is rarely adduced at trial to prove that distress.
In using Givelber’s commentary concerning the “blurring of the distinction between plaintiffs injury and defendant’s *200 behavior”, maj. op. at 197, to support a medical evidence standard, the majority loses sight of the difference between negligently inflicted injury and intentionally caused harm. An intentional act, as opposed to a negligent act, gives the injured party’s claim an added element of reliability in that extreme and outrageous conduct ordinarily produces stress in normally constituted persons, and such conduct is intended to produce stress. Although a plaintiff must prove both outrageous conduct and severe emotional distress under section 46 to recover damages for injuries, it is obvious that the level of proof required with respect to distress will vary in individual cases as the degree of outrageousness of the tortious conduct varies.
Conduct that deserves the label “outrageous” is outrageous precisely because it tends to produce distress in normally constituted persons. The greater the outrage, the less proof will be required of a plaintiff to establish severe distress in that the distress can be inferred from the nature of the outrageous conduct. If A tortures and murders B’s child in B’s presence, the testimony of B as to his or her distress would suffice as proof of severe distress. 1 For this Court to require medical evidence, whenever a tortfeasor has produced such distress, is shortsighted.
. Dean Prosser noted that section 46 of the Restatement of Torts was amended to reject any absolute necessity for physical results, and, commenting upon the relationship between the conduct and the distress, he stated:
Probably the conclusion to be reached is that where physical harm is lacking the courts will properly tend to look for more in the way of extreme outrage as an assurance that the mental disturbance claimed is not fictitious; but that if the enormity of the outrage itself carries conviction that there has in fact been severe and serious mental distress, which is neither feigned nor trivial, bodily harm is not required.
Prosser, Law of Torts § 12 Infliction of Mental Distress at 60 (4th Ed.1971).