Sinn v. Burd

*175 ROBERTS, Justice,

dissenting.

“Rachael weeping for her children refused to be comforted: because they were not.” Jeremiah, xxxi, 15.

The depth and inconsolable nature of a parent’s loss at the death of a child is unique in human experience. And where that death is caused by another’s irresponsible act, it is not unexpected that parents turn to the law to seek redress for the harm done to them.

“The law of torts ... is concerned with the allocation of losses arising out of human activities. . ‘The purpose of the law of torts is to adjust these losses, and to afford compensation for injuries sustained by one person as the result of the conduct of another.’ ”

Prosser on Torts, 4th ed. § 1 (1971) quoting Wright, “Introduction to the Law of Torts,” 8 Camb.L.J. 238 (1944).

Yet even the law must recognize that not every human loss arising out of another’s conduct constitutes a legal injury for which compensation shall be available. Prosser, supra, § 1. The ineluctable fact is that among all the jurisdictions which have addressed the question now before us, in only one, Hawaii, is judicial redress provided for appellant’s injury. This is not explained, as Mr. Justice Nix would suggest, by a national judicial indifference to the emotional distress caused either by the death of a loved one or the shock, for anyone, of immediately perceiving a violent death. It is explained, rather, by the foundational jurisprudential wisdom that recovery justified only by arbitrary rules and distinctions must be avoided. This is true not only because arbitrary distinctions are fundamentally unfair, but also because, of course, they defy rational application in future cases, the cornerstone of the law. Because Mr. Justice Nix’s opinion can rest only on arbitrary distinctions, I must dissent.

The crux of appellant’s injuries is described in paragraphs 26, 27 & 28 of the Fourth Count of the Complaint:

“26. The Plaintiff became hysterical, unnerved, and emotionally shattered as she viewed the Defendant’s automobile strike and kill her daughter, Lisa Anne Sinn.

*176 27. As a result of watching the aforementioned accident, the Plaintiff suffered a shock to her nerves and nervous system, and sustained grievous mental pain and suffering resulting in severe depression and an acute nervous condition.

28. As a result of the foregoing, Plaintiff was required to expend money for medicines and/or tranquilizers, and may be required to expend considerable sums for the treatment of her resulting injuries and mental suffering in the future.”

While Mr. Justice Nix summarizes appellant’s complaint as seeking damages for physical and mental injuries, the complaint reveals only a claim for emotional injuries. See Restatement (Second) Torts, § 436 A, comment c (1965). 1 Further, the complaint seeks, in addition to compensation for emotional injuries, damages for future mental suffering. Thus, the novel issue truly presented by this complaint is whether a plaintiff-parent whose safety is never at risk, who suffers no physical injury, but who witnesses a fatal accident involving her children should be allowed to recover from the tortfeasor for negligent infliction of emotional distress and future mental suffering.

I

Mr. Justice Nix, announcing the judgment of the Court, asserts that there is “no sound policy basis” upon which to distinguish this case from Neiderman v. Brodsky, 436 Pa. 401 , 261 A.2d 84 (1970). Reason, as well as the overwhelm *177 ing weight of authority, demonstrates that the majority is in error.

In Neiderman , recovery was sought for physical injuries. The issue there was whether those injuries could be proximately traced to the tortfeasor’s negligence when the physical injury followed emotional distress caused by the tortfeasor, rather than a physical impact. We held that physical injuries such as the heart attack suffered by the Neiderman plaintiff clearly could be proximately caused by emotional distress or fear for one’s own safety and that one who puts another in risk of physical safety is liable for the physical injuries caused as a result. Thus, in Neiderman , recovery was permitted for physical injuries suffered as a result of emotional distress brought on by another’s negligent threat to the plaintiff’s physical safety.

Here, there was no threat to plaintiff’s physical safety and plaintiff has suffered no physical injury. Plaintiff seeks recovery only for mental distress caused by the defendant’s negligent interference with another’s safety. Since in Neiderman , the plaintiff sought recovery for his physical injuries and for the pain and suffering which accompanied those injuries, but not for the emotional distress which caused the injury, that case in no way controls today’s decision. Indeed, there is nothing inconsistent in recognizing that physical injuries may be caused by mental distress but not awarding damages for mental distress suffered without physical consequence. Further, there is nothing inconsistent about permitting recovery where the distress for one’s own safety causes physical injury, but denying recovery where one is distressed only for another’s safety.

No one could seriously deprecate the severity of the emotional shock plaintiff here claims to have sustained. But the distinctions between recovery in Neiderman and recovery here cannot be ignored. Here, if there is no reasonable measure of plaintiff’s pain, then any recovery will be essentially speculative. Then, too, the nature of our society requires of each of us a remarkable degree of emotional fortitude. It is not unreasonable to draw the line between *178 that degree which is required and that which is not by reference to that emotional distress which causes serious physical injury or harm. And it cannot be denied that if not the genuineness, then at least the intensity and thus the nature of the injury, may be difficult to assess where it causes no physical injury.

Even the Restatement (Second) of Torts, supra, distinguishes between recovery for physical harm caused by mental distress, and recovery for mental distress, permitting recovery only in the first instance. 2 Compare §§ 436 & 436 A.

Similarly, the Supreme Court of California has repeatedly reaffirmed that Dillon v. Legg, 68 Cal.2d 728 , 69 Cal.Rptr. 72 , 440 P.2d 912 , 29 A.L.R.3d 1316 (1968) (in bank), upon which Mr. Justice Nix places heavy reliance, permits recovery only where the emotional shock of witnessing an accident causes physical injuries. “[T]he traumatic shock which plaintiff suffers must result in some form of physical injury.” Krouse v. Graham, 19 Cal.3d 59 , 137 Cal.Rptr. 863, 871 , 562 P.2d 1022, 1030 (1977) (in bank). Accord Hoyem v. Manhattan Beach City School District, 22 Cal.3d 508 , 150 Cal.Rptr. 1 , 585 P.2d 851 (1978); Justus v. Atchison, 19 Cal.3d 564 , 139 Cal.Rptr. 97 , 565 P.2d 122 (1977) (in bank). So, too, where emotional distress has not caused physical injury recovery has been denied by the Illinois Supreme Court, Neuberg v. Michael Reese Hospital & Medical Center, 60 Ill.App.3d 679 , 18 Ill.Dec. 62 , 377 N.E.2d 215 (1978), the Massachusetts Supreme Judicial Court, Dzionkonski v. Babineau, 380 N.E.2d 1295 , (1975) the Rhode Island Supreme *179 Court, D’Ambra v. United States, 338 A.2d 524 (1975) and the Arizona Supreme Court, Keck v. Jackson, 593 P.2d 668 (1979) (en banc). D'Amicol v. Alvarez Shipping Co., 31 Conn.Super. 164, 326 A.2d 129 (1973), cited by the majority appears to have been reconsidered, McGovern v. Piccolo, 33 Conn.Super. 225, 372 A.2d 989 (1976) (court applies zone of danger rule and questions whether recovery permitted even for emotional distress of mother when caused by witnessing injury to child, and mother within zone of danger). In any event, DAmicol, unlike here, involved a physical injury to the plaintiff caused by emotional distress.

The Tennessee Supreme Court continues to limit recovery to those suffering physical injury as a result of fear for one’sown safety when in zone of danger. Shelton v. Russell Pipe & Foundry Co., 570 S.W.2d 861 (1978). Vermont, too, has adopted this rule. Guilmette v. Alexander, 128 Vt. 116 , 259 A.2d 12 (1969). Even Washington, one of the most liberal states in awarding damages for emotional distress requires some physical symptoms of the emotional distress for recovery. Hunsley v. Giard, 87 Wash.2d 424 , 553 P.2d 1096 (1976). Hawaii stands completely alone in permitting recovery in the absence of any physical harm. Leong v. Takasaki, 55 Haw. 398 , 520 P.2d 758 (1974).

Thus with the overwhelming majority of these courts, I would' reject permitting recovery for one whose safety was never at risk and whose emotional distress caused no physical injury.

II

Mr. Justice Nix erroneously assumes that the only causation problem which could possibly arise here is the same kind as we have already held unproblematic in Neiderman, supra. But here, to permit recovery, we must find not that physical harm can be proximately caused by mental distress but that it is possible to distinguish between that emotional distress caused appellant by witnessing the accident and that caused *180 by the natural grief and loss which accompanies the death of a child.

As the Court of Appeals of New York foresaw a decade ago:

“In this very case, as already noted, the eyewitness limitation provides no rational practical boundary for liability. The distance from the scene and time of notice of the accident are quite inconsequential for the shock more likely results from the relationship with the injured party than what is seen of the accident. The age of the child, always assumed to be relevant, is difficult to define or limit. Indeed, it may be callous to assess as lesser the loss or injury of an older child than a younger one. Nor can the father, the grandparents, the siblings and other relatives, or even others in loco parentis, be excluded on any acceptable rational basis, although, to be sure, distinctions can be made and verbalized. It is quite significant, too, that the now discarded caveat in the first Restatement referred to spouses as possibly being entitled to recover for shock and its consequences. Indeed, whichever way one turns in permitting a theory of recovery one is entangled in the inevitable ramifications which will not stay defined or limited. There are too many factors and each too relative to permit creation of only a limited scope of liability or duty.

“Beyond practical difficulties there is a limit to attaining essential justice in this area. While it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world. Every injury has ramifying consequences, like the ripplings of the waters, without end. The problem for the law is to limit the legal consequences of wrongs to a controllable degree. The risks of indirect harm from the loss or injury of loved ones is pervasive and inevitably realized at one time or another. Only a very small part of that risk is brought about by the culpable acts of others. This is the risk of living and bearing children. It is enough that the *181 law establishes liability in favor of those directly or intentionally harmed.”

Tobin v. Grossman, 24 N.Y.2d 609, 618-19 , 301 N.Y.S.2d 554, 561-62 , 249 N.E.2d 419, 424 (1969). See Scarf v. Koltoff, 242 Pa.Super. 294 , 363 A.2d 1276 (1976) (Spaeth, J.) (quoting Tobin, supra.) In fact, one may wonder whether it is not less injurious to a parent’s mental state to see the accident which causes the death of his child than never to know exactly its circumstances. Neither the opinion of Mr. Justice Nix nor the parties cite us to any medical or psychological authority on this issue. And a common sense compels the conclusion that no jury could evaluate the difference between the damages due to the emotional distress of actually witnessing the accident from those due to learning of and living with the fact that one’s child suffered an accidental and violent death. This is especially true with respect to “future mental suffering” for which appellant also seeks recovery.

Mr. Justice Nix demonstrates his failure to grasp the special causation problems here present with his assertion that those courts which have limited recovery to cases where emotional distress caused some physical injury have imposed the “device” of physical injury merely to “guarantee the genuineness of the claim.” The problem of isolating the damages caused by the injury complained of here is so great that without physical harm courts would be at a loss to know how to relate damages to injury:

“Despite the admitted artificiality of linking recovery for mental distress to the possibility of physical injury, this limitation does reflect the core notion of some reasonable relation or nexus between the negligent conduct and the injury sued upon.”

D’Ambra, supra, 338 A.2d at 530 .

“The problems in finding causation in fact should not be minimized. . . . [Tjhere is no escaping the problem of whether the injuries sued on should be attributed to the *182 shock of witnessing the accident or to the fact of the victim’s death.”

Id. 338 A.2d at 529, n. 5 .

Ill

The central problem this kind of action brings before the courts is not that of the genuineness of the emotional distress, but that of rationally limiting defendant’s liability. The opinion of Mr. Justice Nix disingenuously would have us believe that today we need not consider whether it is possible to limit recovery solely to plaintiff’s class. If, however, there is no principled means of distinguishing this plaintiff from any other, then to decide her case is to decide the question the majority claims is not before us. One can say that question is not before us only by assuming its answer.

Mr. Justice Nix asserts that he sufficiently limits liability by narrowing recovery to “foreseeable injuries.” But what constitutes a foreseeable injury is the conclusion of legal analysis, not its principal tool. Indeed there is remarkable disagreement about how to distinguish the “foreseeable” from the “unexpected.” In Massachusetts one who does not witness an accident to a third party may still suffer foreseeable emotional distress from learning of the death. Dzionkonski, supra. In Hawaii, such injuries are not foreseeable. Kelly v. Kokua Sales & Supply, 56 Haw. 204 , 532 P.2d 675 (1975). In Connecticut, seeing an accident will foreseeably cause emotional distress, while hearing one will not. Compare D’Amicol, supra, and McGovern, supra. In California, witnessing a negligent stillbirth does not create a foreseeable injury, Justus, supra, while coming upon an already injured victim may, Archibald v. Braverman, 275 Cal.App.2d 253 , 79 Cal.Rptr. 723 (1969).

In Rhode Island a mother may recover, DAmbra, supra, but not a close personal friend. In Arizona, anyone who was a close friend of the victim may suffer a foreseeable injury. Keck, supra. In Hawaii, not every one who is close will *183 suffer a foreseeable injury, but a step-grandson’s emotional distress is foreseeable. This variety of rules “limiting” recovery is eloquent testimony that there is no natural non-arbitrary way to limit liability for this injury.

“A mother who sees her child suffer and die an hour, a day or even a week after an accident is no less traumatized than one who comes upon the scene ‘immediately’ after an accident. And what of the woman who learns of her child’s accidental death at some time and place distant from the scene of the accident or who learns of her cousin’s death under like circumstances?”

McGovern, supra, 372 A.2d at 989 .

All the injuries which courts have compensated have been, in Mr. Justice Nix’s terms, “legitimate emotional responses.” Even Prosser, a firm supporter of recovery in these cases, admits that foreseeability does not limit liability. He limits liability to immediate relatives suffering physical harm because he realizes some line must be drawn.

“It would be an entirely unreasonable burden on all human activity if the defendant who has endangered one man were to be compelled to pay for the lacerated feelings of every other person disturbed by reason of it, including every bystander shocked at an accident, and every distant relative or the person injured, as well as his friends.”

Prosser, supra, § 54 at 334. But as Justice Joslin noted in dissent in D’Ambra, supra, limiting a defendant’s liability to members of the injured person’s immediate family who observed the accident is adopting a rule which

“cannot be applied even-handedly and . . . will therefore lead to admittedly arbitrary results . It would . . . frustrate a basic purpose and policy underlying the scope of liability rules, namely, to achieve consistently just results by providing for even and predictable resolutions of private disputes . . . . I fear that arbitrary case-by-case determinations will result in more injustice over time than would the uniform denial of *184 recovery to those who do not reasonably fear for their own safety. For these reasons I agree with the great weight of authority1 and answer the certified question in the negative.”

338 A.2d at 536 (Note 1: Most of the cases can be found in Annot. 18 A.L.R.2d 220 et seq. (1951) and Annot. 29 A.L.R.3d 1337 et seq. (1970). The American Law Institute, which in 2 Restatement Torts § 313 (1934) in a caveat refrains from expressing any opinion on the question, in 2 Restatement (Second) Torts § 313 (1965), strikes that caveat and on facts substantially identical to those of the certified question substitutes a rule of nonliability.)

Mr. Justice Nix’s foreseeable injury “test,” adopted from Dillon, predicates recovery upon plaintiff’s (1) witnessing an accident, (2) close-up (3) in which a “close” relative is injured. This test, ostensibly simple, will produce monumental problems both of application and fair limitation. If recovery is extended in the present case, can the law close its eyes to the emotional distress of bystanders who recently witnessed the traumatic amputation of a young woman’s hand by a subway car? Does the majority’s “rule” give us any principle at all in the following situation? Three siblings get off a bus. Two attempt to cross the street. The third begins to walk away from them down the block. A moment later he hears screeching car brakes, screams and one of his siblings yelling, “My God, Jim is dead.” Does the brother have a foreseeable injury? Is there any way to judge whether his emotional distress “resulted from a direct emotional impact upon the plaintiff from the sensory and contemporaneous observance of the accident” or from “learning of the accident from others after its occurrence?” How many steps down the street distinguish immediate observation from indirect learning? As Judge Spaeth has noted, “The criteria suggested by Prosser and adopted in Dillon are not reasoned but arbitrary, for they are unsupported on any policy capable of uniform application.”. Scarf, supra, 242 Pa.Super. at 299-300 , 363 A.2d at 1276 (footnotes omitted).

*185 IV

Perhaps most telling is the consideration that Mr. Justice Nix’s allowance of a cause of action here, in reality, permits circumvention of the Commonwealth’s wrongful death statute, Act of April 15, 1851, P.L. 669, § 19; Act of April 26, 1855, P.L. 309, § 1, as amended, 12 P.S. §§ 1601 et seq. This legislation specifically provides recovery to a mother injured by the tortfeasor’s negligent killing of her child.

“The law was in 1855 altered, and the right to sue was conferred on parents for the loss of children. . This right was a new and independent right given by positive law — not cast upon them by survivorship as for an injury to the decedent. It is for the wrong done to them.”

The Pennsylvania R.R. Co. v. Zebe, 33 Pa. 318, 329 (1858). Thus, the Act of 1855 already provides a cause of action for a tortfeasor’s direct injury to the plaintiff, for the wrong done to her by his negligence. As the Connecticut court in McGovern noted, to permit additional recovery where the plaintiff is closely related to the victim, “raises serious policy questions. The defendant in such a case is already liable in one tort action for wrongful death.” 372 A.2d at 989 .

Damages under wrongful death in Pennsylvania have always been limited to pecuniary damages and nothing is recoverable for “the mental suffering occasioned to the survivors by the death and nothing may be allowed as solatium, that being incapable of pecuniary estimate. . . ” Zebe, supra at 328 . Recovery here only undermines over a century’s adherence to the legislative policy that compensation for damages suffered by the class of individuals to which plaintiff belongs is through the wrongful death statute.

I would affirm the order of the Superior Court affirming the order of the court of common pleas sustaining appellee’s preliminary objections in the nature of a demurrer to Count 4 of appellant’s complaint.

O’BRIEN, J., joins in this dissenting opinion.

. Comment c: “The rule stated in this Section applies to all forms of emotional disturbance, including temporary fright, nervous shock, nausea, grief, rage, and humiliation. The fact that these are accompanied by transitory, non-recurring physical phenomena, harmless in themselves, such as dizziness, vomiting, and the like, does not make the actor liable where such phenomena are in themselves inconsequential and do not amount to any substantial bodily harm. On the other hand, long continued nausea or headaches may amount to physical illness, which is bodily harm; and even long continued mental disturbance, as for example in the case of repeated hysterical attacks, or mental aberration, may be classified by the courts as illness, notwithstanding their mental character. This becomes a medical or psychiatric problem, rather than one of law.”

. And as the majority notes, even where physical harm is caused by emotional distress, the Restatement takes a position against recovery where the distress is not for one’s own physical safety, but is for one’s child’s.

“Emotional Distress Unintended

* * * * * *

(2) The rule [of liability] in Subsection (1) has no application to illness or bodily harm of another which is caused by emotional distress arising solely from harm or peril to a third person, unless the negligence of the actor has otherwise created an unreasonable risk of bodily harm to the other.”

Restatement (Second) Torts, supra, § 313.