Guise v. TNT Enterprises Inc.

29 Pa. D. & C.4th 153, 1995 Pa. Dist. & Cnty. Dec. LEXIS 40
CourtPennsylvania Court of Common Pleas, Adams County
DecidedOctober 4, 1995
Docketno. 94-S-690
StatusPublished

This text of 29 Pa. D. & C.4th 153 (Guise v. TNT Enterprises Inc.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Adams County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Guise v. TNT Enterprises Inc., 29 Pa. D. & C.4th 153, 1995 Pa. Dist. & Cnty. Dec. LEXIS 40 (Pa. Super. Ct. 1995).

Opinion

SPICER, P.J.,

On February 15, 1995, plaintiffs filed a multiple count complaint against defendants. Shawn C. Guise and Angela L. Hawbaker Guise are the parents of two minor children, Matthew C. Guise and Shawn M. Guise, who will be referred to as “children.”

The complaint describes a landlord and tenant relationship between plaintiffs and James C. Hill which began January 1, 1992, and lasted until December 31, [155]*1551993. Water for the leased premises was provided by a shallow well, which plaintiffs say was subject to contamination from surface water running into the well. Hill contracted with TNT Enterprises Incorporated to treat the water. A Culligan water treatment system, equipped with an ultraviolet disinfectant light, was installed and serviced by TNT. According to the complaint, plaintiffs dealt directly with TNT thereafter and paid monthly bills.

All plaintiffs began suffering health problems in 1992, consisting of stomach cramps, joint stiffness and other stomach disorders. When they complained to TNT about the condition of the water, TNT indicated that tests showed the water to be high in iron but otherwise safe for human consumption.

When illness persisted in 1993, and Angela developed skin rashes and bumps, plaintiffs arranged for an independent test, the results of which indicated that the water was unfit for human consumption, because of bacterial contamination and turbidity.

Among the causes of action advanced are claims based upon both negligent and intentional infliction of emotional distress. Plaintiffs also seek punitive damages.

Defendants have demurred to various counts, arguing that those particular allegations cannot support an award of damages.

We began by reviewing standards for ruling on demurrer.

The standard for ruling on a demurrer has been described as follows:

“In reviewing a demurrer, the receiving (sic) court must accept the facts and all reasonable inferences [156]*156drawn therefrom of the party against whom the motion is granted, (citation omitted)

“All material facts set forth in the complaint as well as all inferences reasonably deducible therefrom are admitted as truefor [the purpose ofthis review.] (citation omitted) The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible, (citation omitted) Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it. ” (citation omitted) Gabel v. Cambruzzi, 532 Pa. 584, 588, 616 A.2d 1364, 1367 (1992). (emphasis added)

However, the court does not accept conclusions as true. Frankel v. Northeast Land Company, 391 Pa. Super. 226, 570 A.2d 1065 (1990).

Next, we must venture into the state of the law concerning infliction of emotional distress.

It is still an open question whether Pennsylvania has adopted Restatement (Second) of Torts §46 which deals with infliction of emotional distress by outrageous conduct. A Superior Court panel recently reviewed the subject and found that some panels had upheld the action which others had rejected. Hart v. O’Malley, 436 Pa. Super. 151, 647 A.2d 542 (1994). Whatever the status, it is clear that Pennsylvania courts require physical injury, contrary to the Restatement position. Id. Physical injury cannot be mere transitory discomfort, but prolonged headaches, upset stomach, involuntary muscle tension, physical pain and nervousness will suffice. Johnson v. Caparelli, 425 Pa. Super. 404, 625 A.2d 668 (1993).

Restatement §46 covers two situations. The first, section 46(1), applies to conduct directed at a plaintiff. The second, section 46(2), involves conduct directed [157]*157at a third person.1 It has been suggested that not only must plaintiff be present during the traumatic event, but known by defendant to be present. Johnson v. Caparelli, supra.

One panel decision holds that recovery for negligent infliction of emotional distress may lie even if there is a hiatus between defendant’s negligence and the traumatic event. In Love v. Cramer, 414 Pa. Super. 231, 606 A.2d 1175 (1992), preliminary objections were overruled when plaintiff alleged negligent medical care which resulted in the death of plaintiff’s mother seven weeks later. That court held allegations sufficient when negligence constituted the proximate cause of injury, witnessed by plaintiff who was at her mother’s side at the time of death.

The basis upon which section 46(2) rests, however, is observation by plaintiff of outrageous conduct inflicted upon a third person. More is required than in the case of negligent infliction.

As in the case of punitive damages, Rizzo v. Michener, 401 Pa. Super. 47, 584 A.2d 973 (1990),'it is initially for the court to determine if conduct is sufficiently outrageous to justify recovery. Hackney v. Woodring, 424 Pa. Super. 96, 622 A.2d 286 (1993); Johnson v. Caparelli, supra. If reasonable minds could differ, the issue must be submitted to a jury. Id.

It would seem that recovery in negligent infliction of emotional distress is restricted to traumatic events involving persons closely related to plaintiff. Bloom v. Dubois Regional Medical Center, 409 Pa. Super. 83, 597 A.2d 671 (1991).

[158]*158It also seems that recovery for negligent infliction is limited to traumatic incidents involving people other than plaintiff.

In describing the development of the law in this area, Superior Court observed that “[t]he tort of negligent infliction of emotional distress has evolved almost exclusively in the context of those who observe injury to close family members and are as a consequence of the shock emotionally distressed.” Armstrong v. Paoli Memorial Hospital, 430 Pa. Super. 36, 44, 633 A.2d 605, 609 (1993).

If plaintiff is injured as a result of defendant’s negligence, he or she may recover for injuries proximately caused by that negligence. Thus, an independent action for emotional distress is unnecessary and duplicative.

Furthermore, the law, as determined by collected cases, is that shock must result from contemporaneous observance of a traumatic event by plaintiff closely related to the victim, with resulting direct emotional impact. Id. at 46, 633 A.2d at 610.

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Related

Frankel v. Northeast Land Co.
570 A.2d 1065 (Supreme Court of Pennsylvania, 1990)
Bloom v. DuBois Regional Medical Center
597 A.2d 671 (Superior Court of Pennsylvania, 1991)
Rizzo v. Michener
584 A.2d 973 (Superior Court of Pennsylvania, 1990)
Johnson v. Caparelli
625 A.2d 668 (Superior Court of Pennsylvania, 1993)
Hart v. O'MALLEY
647 A.2d 542 (Superior Court of Pennsylvania, 1994)
Ruffing v. 84 Lumber Co.
600 A.2d 545 (Superior Court of Pennsylvania, 1991)
Hackney v. Woodring
622 A.2d 286 (Superior Court of Pennsylvania, 1993)
Armstrong v. Paoli Memorial Hospital
633 A.2d 605 (Superior Court of Pennsylvania, 1993)
Gabel v. Cambruzzi
616 A.2d 1364 (Supreme Court of Pennsylvania, 1992)
Moran v. G. & W.H. Corson, Inc.
586 A.2d 416 (Superior Court of Pennsylvania, 1991)
Love v. Cramer
606 A.2d 1175 (Superior Court of Pennsylvania, 1992)

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29 Pa. D. & C.4th 153, 1995 Pa. Dist. & Cnty. Dec. LEXIS 40, Counsel Stack Legal Research, https://law.counselstack.com/opinion/guise-v-tnt-enterprises-inc-pactcompladams-1995.