Laskas v. Zimmerman

39 Pa. D. & C.3d 593, 1985 Pa. Dist. & Cnty. Dec. LEXIS 188
CourtPennsylvania Court of Common Pleas, Lancaster County
DecidedMay 7, 1985
Docketno. 2883 of 1984
StatusPublished

This text of 39 Pa. D. & C.3d 593 (Laskas v. Zimmerman) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lancaster County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Laskas v. Zimmerman, 39 Pa. D. & C.3d 593, 1985 Pa. Dist. & Cnty. Dec. LEXIS 188 (Pa. Super. Ct. 1985).

Opinion

PEREZOUS, J.,

— Before the court is the preliminary objection of Lloyd H. Zimmerman, defendant, in the nature of a demurrer to the complaint of John Laskas and Eileen Laskas, husband and wife and parents and guardians of Alyson Laskas, a minor, for and on behalf of said minor and John Laskas and Eileen Laskas in their own right, plaintiffs.

The standard governing our disposition of defendant’s demurrer has been stated as follows:

“In considering preliminary objections in the nature of a demurrer, the question presented in whether, on the facts averred, the law says with certainty that no recovery is possible. (Citation omitted.) A demurrer admits every well-pleaded material fact set forth in the complaint, as well as all inferences reasonably deducible therefrom, but not con-[594]*594elusions of law. (Citations omitted.) The law does not provide a ‘magic formula’ to determine the sufficiency of a plaintiff’s complaint, however, the law is clear that a demurrer can only be sustained in a case free from doubt.” (Citations omitted.) Bartanus v. Lis, 332 Pa. Super. 48, 52, 53, 480 A.2d 1178, 1180 (1984).

Under the above standard the facts are as follows. On or about January 10, 1984, nine-year-old plaintiff, Alyson Laskas, was on the property of defendant when she was, without warning, attacked by defendant’s dog. The dog viciously bit into the right cheek and jaw of Alyson Laskas resulting in severe and disfiguring injuries. At all times relevant, Alyson Laskas did not provoke the attack or biting by defendant’s dog nor did she engage in conduct which would cause the dog to attack and bite her.

Plaintiffs assert that the conduct of defendant’s dog was caused by negligent, careless and reckless conduct on the part of defendant.

Count III of plaintiffs’ complaint attempts to set forth a cause of action in John Laskas and Eileen Laskas based on the following averments:

“[A]s a direct and proximate result of the negligent, careless and reckless conduct on the part of defendant Lloyd Zimmerman, as above described, plaintiff, John Laskas, sustained extreme and severe emotional and mental distress as a result of seeing and attempting to treat the dog bites, dog puncture wounds and sutured wounds to the minor plaintiff after defendant’s dog had attacked her for which he makes claim. The plaintiff, Eileen Laskas, sustained extreme and severe emotional distress as a result of seeing the sutured dog bites and dog puncture wounds for which she makes claim.” (Emphasis added.)

[595]*595The rights of the mother and father to recover damages for the negligent infliction of emotional distress will be examined separately.

Insofar as whether the father has stated a cause of action in Count III, the specific issue is whether a father may recover damages for emotional trauma incurred by virtue of viewing and attempting to treat his nine-year-old daughter immediately1 after she had suffered severe disfiguring dog bite and puncture wounds.

In Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979), the Pennsylvania Supreme Court was confronted with the issue of whether a mother could recover damages for mental trauma incurred when she saw her minor daughter struck and killed by an automobile. The court adopted a theory of recovery for the negligent infliction of emotional stress based on the foreseeability of a party incurring emotional trauma resulting from the party’s ássociation with an incident in which another is negligently injured.2 In determining whether plaintiff in Sinn was entitled to recover for her emotional distress, then-justice Nix stated in his plurality opinion “we must examine whether the injuries sustained by [the mother] were reasonably foreseeable.” Sinn v. Burd, 486 Pa. at 173, 404 A.2d at 696.

[596]*596Justice Nix set forth the analysis for determining foreseeability which was established in Dillon v. Legg, 69 Cal. Rptr. 72, 441 P.2d 912 (1968):

“In the seminal Dillon case, the California Supreme Court identified three factors determinative* of whether the injury to the plaintiff was reasonably foreseeable:

“(1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it; (2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous, observance of the accident, as contrasted with learning of the accident from others after its occurrence; [and] (3) Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.” Dillon v. Legg, 69 Cal. Rptr. at 80, 441 P.2d at 920.

In’ elaborating upon these factors, the court stated:

“The evaluation of these factors will indicate the degree of defendant’s foreseeability: obviously defendant is more likely to foresee that a mother who observes an accident affecting her child will suffer harm than to foretell that a stranger witness will do so. Similarly, the degree of foreseeability of the third person’s injury is far greater in the case of his contemporaneous observance of the accident than that in which he subsequently learns of it. Defendant is more likely to foresee that shock to the nearby, witnessing mother will cause physical harm than to anticipate that someone distant from the accident will suffer more than a temporary emotional reaction. All these elements, of course, shade into each other; the fixing of obligation, intimately tied into the facts, depends upon each case.

[597]*597“In light of these factors the court will determine whether the accident and harm was reasonably foreseeable. Such reasonable foreseeability does not turn on whether the particular defendant as an individual would have in actuality foreseen the exact accident and loss; it contemplates that courts, on a case-to-case basis, analyzing all the circumstances, will decide what the ordinary man under such circumstances should reasonably have foreseen. The courts thus mark out the areas of liability, excluding the remote and unexpected.” (Emphasis in the original.) Id. at 80-81, 441 P.2d at 920-921. Sinn v. Burd, 486 Pa. at 170-171, 404 A.2d at 685.

Applying the preceding quoted discussion to the facts of the case Justice Nix concluded “Where the bystander is a mother who witnessed the violent death of her small child and emotional shock emanated directly from personal observation of the event, we hold as a matter of law that the mental distress and its effects is a foreseeable injury.” Sinn v. Burd, 486 Pa. at 173, 404 A.2d at 686.

The second factor of the Sinn foreseeability analy-ses is the subject of defendant’s demurrer. He asserts that plaintiff-parents have faded to state a cause of action for the negligent infliction of emotional distress because they did not see the injuries inflicted.

In Yandrich v. Radic, 495 Pa. 243, 433 A.2d 459

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Related

Dillon v. Legg
441 P.2d 912 (California Supreme Court, 1968)
Portee v. Jaffee
417 A.2d 521 (Supreme Court of New Jersey, 1980)
Bartanus v. Lis
480 A.2d 1178 (Supreme Court of Pennsylvania, 1984)
Dziokonski v. Babineau
380 N.E.2d 1295 (Massachusetts Supreme Judicial Court, 1978)
Parsons v. Superior Court
81 Cal. App. 3d 506 (California Court of Appeal, 1978)
Madigan v. City of Santa Ana
145 Cal. App. 3d 607 (California Court of Appeal, 1983)
Hathaway v. Superior Court
112 Cal. App. 3d 728 (California Court of Appeal, 1980)
Arauz v. Gerhardt
68 Cal. App. 3d 937 (California Court of Appeal, 1977)
Niederman v. Brodsky
261 A.2d 84 (Supreme Court of Pennsylvania, 1970)
Yandrich v. Radic
433 A.2d 459 (Supreme Court of Pennsylvania, 1981)
Mercado v. Transport of New Jersey
422 A.2d 800 (New Jersey Superior Court App Division, 1980)
Sinn v. Burd
404 A.2d 672 (Supreme Court of Pennsylvania, 1979)
Landreth v. Reed
570 S.W.2d 486 (Court of Appeals of Texas, 1978)

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39 Pa. D. & C.3d 593, 1985 Pa. Dist. & Cnty. Dec. LEXIS 188, Counsel Stack Legal Research, https://law.counselstack.com/opinion/laskas-v-zimmerman-pactcompllancas-1985.