Niederman v. Brodsky

Dissenting Opinion by

Mr. Chief Justice Bell:

The Majority too often forget that an emotionally appealing or heart-rending claim often produces bad law * and sets a dangerous precedent.

*414 Pandora’s Box

The majority Opinion commits three tremendous and grievous errors in overruling Pennsylvania’s “impact rule.” The first regrettable and disastrous error is that they open Pandora’s famous Box, out of which will flow a multiplicity of trespass suits for personal injuries and/or diseases. These will include the most fictitious or false or exaggerated claims that the imagination can conceive—based upon (as the Majority assert) the direction of a negligent force so near a plaintiff that he feared a dangerous physical impact.

A Guessing Game

The second major error of the Majority is that they not only substitute a “medical guessing game” for Pennsylvania’s clear and definite and well-established “impact rule,” but add a “Judicial guessing game.” Few writers * and few States can agree on a clear and definite formula for recovery, and the Majority itself cannot formulate a clear, specific, definite and boundarized rule or standard for recovery in this so-called “impact” field, which the Majority now abolish. It is difficult to imagine stronger reasons for not abandoning Pennsylvania’s clear and well-established impact rule than the jumble of diverse, indefinite and farfetched views set forth in the majority Opinion.

*415 Stare Decisis

The third major error of the Majority is that they deal another fatal or near-fatal blow to stare decisis. Once again a majority of the present Supreme Court has cavalierly buried or ignored the basic principle and the fundamental precept upon which the House of Law was built and maintained. Upon this Rock of Gibraltar, all Judges and all public officials, as well as all the people of Pennsylvania, can see and know and rely on their respective rights, their powers, their duties, their obligations and limitations. It is regrettable to be compelled to say that a decision of the present Court of Pennsylvania is good “for this day and this train only.” What a catastrophe, and what a mockery of Law and of Justice!

What this Court said was well-established and sound law as recently as 1966 has today been rendered by the Majority obsolete and worthless by “all of the phenomenal advances medical science has achieved in the last 80 years.” Can anything be more ridiculous than the argument that because of the phenomenal advances of medical science in the last 80 years something has miraculously come to light in this particular medical field in the last three years?

In Knaub v. Gotwalt, 422 Pa. 267 , 220 A. 2d 646 (1966), we said (page 270) : “‘The rule is long and well established in Pennsylvania that there can be no recovery of damages for injuries resulting from fright or nervous shock or mental or emotional disturbances or distress, unless they are accompanied by physical injury or physical impact: Koplin v. Louis K. Liggett Co., 322 Pa. 333 , 185 A. 744 ; Ewing v. Pittsburgh C. & St. L. Ry. Co., 147 Pa. 40 , 23 A. 340 ; Fox v. Borkey, 126 Pa. 164 ; Huston v. Freemansburg Borough, 212 Pa. 548 , 61 A. 1022 ; Morris v. Lackawanna and Wyoming Valley Railroad Co., 228 Pa. 198 , 77 A. 445 ; *416 Howarth v. Adams Express Company, 269 Pa. 280 , 112 Atl. 536 ; Hess v. Philadelphia Transportation Co., 358 Pa. 144 , 56 A. 2d 89 ; Potere v. Philadelphia, 380 Pa. 581 , 112 A. 2d 100 ; Gefter v. Rosenthal, 384 Pa. 123 , 119 A. 2d 250 .’ Bosley v. Andrews, 393 Pa. 161, 164 , 142 A. 2d 263 . * This rule was reaffirmed as recently as Cucinotti v. Ortmann, 399 Pa. 26 , 159 A. 2d 216 [1960].”

In Cucinotti v. Ortmann, 399 Pa., supra, Justice Cohen, speaking for all the members of this Court except Justice Musmanno, said (page 29) : “It is the well-settled rule in Pennsylvania that there can be no recovery of damages for unintentional injuries resulting from fright or nervous shock or mental or emotional disturbances or distress, unless they are accompanied by physical injury or physical impact: Bosley v. Andrews, 393 Pa. 161 , 142 A. 2d 263 (1958); Koplin v. Louis K. Liggett Co., 322 Pa. 333 , 185 Atl. 744 (1936); Ewing v. Pittsburgh C. & St. L. Ry. Co., 147 Pa. 40 , 23 Atl. 340 (1892).”

Mr. Justice Oliver Wendell Holmes repeatedly and eloquently emphasized that “the life of the law has not been logic; it has been [human] experience.” Holmes, The Common Law. In Homans v. Boston El. Ry. Co., 180 Mass. 456 , 62 N.E. 737 , that Court, speaking through Justice Holmes, reaffirmed the so-called “impact rule,” and aptly said “that [it] prevents a recovery for visible illness resulting from nervous shock alone.”

In Huston v. Freemansburg Borough, 212 Pa. 548 , 61 Atl. 1022 , Chief Justice Mitchell, speaking for a unanimous Court, stated there can be no recovery of damages for fright or other mental suffering unconnected with physical injury, and said: “It requires but *417 a brief judicial experience to be convinced of the large proportion of exaggeration and even of actual fraud in the ordinary action for physical injuries from negligence, and if we opened the door to this new invention the result would be great danger, if not disaster to the cause of practical justice: * Spade v. Lynn & Boston R. R. Co., 168 Mass. 285 ; Mitchell v. Rochester Ry. Co., 151 N.Y. 107 . If, therefore, the question were new, we should see no reason to reach a different conclusion. But it is settled for this State, and is no longer open to discussion. . . .”

This Court has iterated and reiterated this well-established rule or principle of Stare Decisis based on Judicial experience numerous times before and since Huston, 212 Pa. (1905), ** supra.

In Burtt Will, 353 Pa. 217 , 44 A. 2d 670 , the Court said (pages 231, 232) : “The doctrine of stare decisis still prevails in Pennsylvania. . . . This Court has always rigidly adhered to the rule of stare decisis. . . . All of the cases reciting our policy to adhere strictly to the rule of stare decisis need not be collected and reviewed. What was said by us in a few of the latest cases will suffice: Mr. Chief Justice Maxey said in Monongahela St. Ry. v. Phila. Co. et al., 350 Pa. 603, 616 , 39 A. 2d 909 , ‘The doctrine of stare decisis is recognized and applied by the courts of this Commonwealth . . and in Davis v. Pennsylvania Co., etc., 337 Pa. 456, at 464 , 12 A. 2d 66 : ‘An interpretation of law consistently followed by an appellate court over so long a period that it has become fundamentally imbedded *418 in the common law of the Commonwealth should not be changed except through legislative enactment, which is a remedy always available and the proper one under our scheme of government. Otherwise the law would become the mere football of the successively changing personnel of the court, and “the knowne certaintie of the law”, which Lord Coke so wisely said “is the safe-tie of all”, would be utterly destroyed.’ ” (Italics in Burtt Will Opinion.)

In Bosley v. Andrews, 393 Pa. 161 , 142 A. 2d 263 , this Court (in a decision with only two dissents) said (pages 168-169) : “To allow recovery for fright, fear, nervous shock, humiliation, mental or emotional distress—with all the disturbances and illnesses which accompany or result therefrom—where there has been no physical injury or impact, would open a Pandora’s box. . . . For every wholly genuine and deserving claim, there would likely be a tremendous number of illusory or imaginative or Talced’ ones.”

By permitting recovery in cases such as this—for alleged mental, emotional, psychic or physical injuries, without physical impact, the Majority will, we repeat, open wide the doors to an avalanche of fraudulent or emotional or imaginary illness claims which will unfairly delay thousands of meritorious claims, and will swamp our already tremendously overburdened Courts and make a joke out of Justice.

One enormously important problem which the Majority blithely ignore is that while medical science has made tremendous progress in this century, it has not yet reached a stage of knowledge where it can prove with any certainty—or without a tremendous diversity of sincere opinion which would therefore amount to nothing but a guess—both medical and legal causation, especially in the emotional disturbance and heart disease fields.

I will give a few of the very many examples that will occur to everyone: A plaintiff might be-driving *419 her car alertly or with her mind preoccupied, when a sudden or unexpected or exceptionally loud noise of hn automobile horn behind or parallel with her car, or a nearby sudden loud and unexpected fire engine bell or siren, or a nearby sudden unexpected frightening buzz-saw noise, or a nearby unexpected explosion from blasting or dynamiting, or a nearby unexpected nerve-wracking noise produced by riveting on a street, or the shrill and unexpected blast of a train at a spot at a nearby crossing, or the witnessing of a nearby horrifying accident, or the approach of a car near or over the middle line, even though it is driven to its own side in ample time to avoid an accident, or any one of a dozen other everyday nearby events—each of these can cause or aggravate fright or nervous shock or emotional distress or nervous tension or mental disturbance and physical ills. If any one of these and other events are compensable, without physical impact, it may cause normal people, as well as nervous persons and persons who are mentally disturbed or mentally ill, to honestly believe that the sudden and unexpected event nearby and believed by them to be threatening, caused them fright or nervous shock or nervous tension with subsequent emotional distress or suffering or pain or heart attack or miscarriage, or some kind of disease or physical injury. In most cases, it would be impossible for medical science to prove that these subjective symptoms could or could not possibly have resulted from or been aggravated or precipitated by fright or nervous shock or nervous tension or emotional disturbance or distress, each of which can in turn produce an ulcer or headaches or fainting spells or, under some circumstances, a heart attack, or a serious disease or other injurious results. Medical science, I repeat, could not prove but could only guess whether these could or could not have been caused or precipitated or aggravated by defendant’s alleged negligent act.

*420 Here the plaintiff alleges that he suffered a variety of heart attacks immediately after defendant’s car skidded onto the sidewalk and struck down a fire hydrant, a litter pole and basket, a newsstand, and injured plaintiff’s son who was standing next to the plaintiff when the accident occurred. While the chain of events may have contributed to or caused Mr. Niederman’s heart attacks, there are innumerable other possible situations which could have contributed to plaintiff’s alleged heart attacks but in which no legal causation could be established. * Equally important, it is a matter of universal medical knowledge that numerous people walk the streets and countrysides engaged in their normal daily pursuits who have had heart disease for months or for several years without its having manifested itself.

Should we say to Stare Decisis, Quo Vadis? Or is Stare Decisis like Antaeus, who was lifted from but returned to the earth, or like Mohammed’s coffin, which is suspended between Heaven and earth, with no one knowing when or which way it will rise or fall? Or is it like Nineveh and Tyre, which were destroyed, but every now and then are restored to temporary glory? *421 Today, no one knows from week to week or from Court session to Court session what the law is today or yesterday (retroactive decisions) or what it will be tomorrow. How can anyone know today what the law will be tomorrow, or what anyone’s rights, privileges, powers, duties, responsibilities, limitations and liabilities are, or will be?

The basic principle of Stare Decisis which is the bedrock for all our Law is not as immutable as the law of the Medes and the Persians. It may be changed by the Legislature and, under some circumstances, it may be changed by the Courts. I would hold that the principle of Stare Decisis should always be applied, irrespective of the changing personnel of this (or any Supreme) Court, except (1) where the Supreme Court of Pennsylvania is convinced that prior decisions of the Court are irreconcilable; or (2) the application of a rule or principle has undoubtedly created great confusion; or (3) a rule of law has been only fluctuatingly applied; or (4) to correct a misconception in an occasional decision; or (5) in those rare cases where the Supreme Court is convinced that the reason for the law undoubtedly no longer exists, and modern circumstances and Justice combine to require or justify a change, and no one’s present personal rights or vested property interests will be injured by the change. Change of circumstances or modern circumstances does not mean, nor has it ever heretofore been considered as the equivalent of change of personnel in the Court, or the substitution of the social or political philosophy of a Judge for the language of the Constitution or of a written instrument, or for well-settled principles of law.

Mr. Justice Owen J. Roberts, Pennsylvania’s most illustrious member of the Supreme Court of the United States, in a dissenting Opinion in Smith v. Allwright, 321 U.S. 649, 669 , thus aptly and strikingly expressed his views concerning the erosion or abolition of the *422 principle of Stare Decisis: “The reason for my concern is that the instant decision, overruling that announced about nine years ago, tends to bring adjudications of this tribunal into the same class as a restricted railroad ticket, good for this day and train only. I have no assurance, in view of current decisions, that the opinion announced today may not shortly be repudiated and overruled by justices who deem they have new light on the subject.”

Mr. Justice Frankfurter, in his concurring Opinion in Green v. United States, 356 U.S. 165, 192 , said: “To say that everybody on the Court has been wrong for 150 years and that that which has been deemed part of the bone and sinew of the law should now be extirpated is quite another thing. . . . The admonition of Mr. Justice Brandéis that we are not a third branch of the Legislature should never be disregarded.”

Mr. Justice Douglas, who is generally regarded as the leading opponent of Stare Decisis, in an article written for the Columbia Law Review of June 1949, Yol. 49, p. 735, said: “Uniformity and continuity in law are necessary to many activities. If they are not present, the integrity of contracts, wills, conveyances and securities is impaired. And there will be no equal justice under law if a negligence rule is applied in the morning but not in the afternoon. Stare Decisis provides some moorings so that men may trade and arrange their affairs with confidence. Stare Decisis serves to take the capricious element out of law and to give stability to a society. It is a strong tie which the future has to the past.”

Mr. Justice Eagen well expressed the same concern for Stare Decisis in the recent case of Commonwealth v. Woodhouse, 401 Pa. 242, 253 , 164 A. 2d 98 (1960) : “Unquestionably, in a republican form of government as we are privileged to enjoy, order, certainty and stability in the law are essential for the safety and pro *423 tection of all. Stare Decisis should not be trifled with. If the law knows no fixed principles, chaos and confusion will certainly follow. ... If it is clear that the reason for a law no longer exists and modern circumstances and justice require a change, and no vested rights will be violated, a change should be made.”

What Chief Justice Black said for this Court in McDowell v. Oyer, 21 Pa. 417, 423 (1853), concerning Stare Decisis, is presently most apposite, viz., “It is sometimes said that this adherence to precedent is slavish; that it fetters the mind of the judge, and compels him to decide without reference to principle. But let it be remembered that stare decisis * is itself a principle of great magnitude and importance. It is absolutely necessary to the formation and permanence of any system of jurisprudence. Without it Ave may fairly be said to have no law; for law is a fixed and established rule, * not depending in the slightest degree on the caprice of those who may happen to administer it.”

Moreover, I may add that which is often forgotten by the Majority—it is one of the most important duties of an appellate Court to erect legal signposts with language inscribed thereon so clearly, definitely, Avisely and well that they who read may easily understand. This the Majority have likewise failed to do, in this case.

For the above reasons, I very strongly dissent.

The old axiom was thus expressed: “Hard cases make bad law.'

Many writers today, including law school students and professors, believe that the way to rise to prominence and fame is through publicly denouncing decisions in any field of the Law and advocating the substitution of new and different standards in the name of “modernity.” Neither such advocates nor the decisions or reasonings found in the Opinions of other State Courts are sufficiently persuasive to cause us to abandon Pennsylvania’s “impact rule.”

All the members of the Supreme Court joined in this Opinion, except Mr. Justice Musmanno and Mr. Justice Cohen.

Italics throughout, ours, unless otherwise noted.

Indeed, I believe that Stare Decisis has been supported and approved by virtually every Chief Justice of Pennsylvania, including particularly Chief Justice Black, Chief Justice Loweie, Chief Justice Mitchell, Chief Justice von Moschziskee, Chief Justice Kephaet, Chief Justice Schaffer, Chief Justice Maxey, Chief Justice Dbew, Chief Justice Steen, Chief Justice Jones, and the present writer.

For Instance, a heart attack could be caused by witnessing an act of violence, being awakened by a sudden loud nearby noise, getting stuck in an elevator, fright or any emotional upset, tension, pressure, worry, anger, an unexpected fall, running for a train, excitement at a professional sports event, a loud explosion, thunder and lightning, a death in the family, a bitter family quarrel, fire, theft or loss of a valuable possession, stock market crash, sharp, loud, unexpected sounds of whistles, sirens, bells, screams, shouts, heavy construction, explosions of mines, bottles, balloons, firecrackers, winning or losing a large bet at the Kentucky Derby (or any sweepstakes or races), fear of loss of job or earnings, an unexpected and unfavorable medical diagnosis, a telegram containing bad news, having one’s pocket picked or purse snatched, getting a “busy signal” when trying to place an important phone call for help, or any number of other everyday occurrences which would cause sudden fright or emotional upset or anger.

Italics in McDowell v. Oyer Opinion.