Love v. Cramer

606 A.2d 1175, 414 Pa. Super. 231, 1992 Pa. Super. LEXIS 483
CourtSuperior Court of Pennsylvania
DecidedMarch 10, 1992
Docket480
StatusPublished
Cited by70 cases

This text of 606 A.2d 1175 (Love v. Cramer) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Love v. Cramer, 606 A.2d 1175, 414 Pa. Super. 231, 1992 Pa. Super. LEXIS 483 (Pa. Ct. App. 1992).

Opinions

MONTEMURO, Judge:

This is an appeal from an order granting appellees’ Preliminary Objections to appellant’s complaint. The sole issue on appeal is whether the trial court erred in dismissing appellant’s cause of action for negligent infliction of emotional distress on Preliminary Objections. For the reasons set forth below, we reverse.

During the summer of 1988, appellant’s mother, Marlene Love, began experiencing problems with her health, among them retention of abnormal body fluid, causing her ankles and abdomen to swell, and difficulty in breathing. Appellant researched her mother’s medical problems and became concerned that the symptoms might be related to a coronary condition, i.e., congestive heart failure. Consequently, appellant took her mother to see appellee, Dr. Bernard Cramer, who had treated Marlene for many years, and, therefore, was aware that she had a history of high blood pressure, angina and diabetes. During the office visit, appellant related to Dr. Cramer her concerns that her [233]*233mother was having heart problems, and asked whether testing or hospitalization were appropriate. Dr. Cramer advised appellant and her mother that further tests and treatment were not necessary.

For the next six weeks appellant and her mother sought alternative explanations for Marlene’s medical problems, consulting a gynecologist about the fluid build up, and seeing Dr. Cramer on several occasions. At no time, however, did Dr. Cramer investigate further the possibility of a heart condition.

On October 9, 1988, Marlene Love died of heart failure. At that time, appellant had been resting by her mother’s side, and was forced to witness her mother’s death. As a result, appellant became severely depressed, suffered nightmares, stress and intense anxiety, and was forced to undergo prolonged psychological treatment.

As administratrix of her mother’s estate, appellant filed a wrongful death and survival action. In the complaint, appellant asserted a claim for damages on her own behalf against Dr. Cramer for the emotional harm she claims to have suffered as a result of witnessing appellee’s alleged negligent, and her mother’s resulting death. Appellee filed preliminary objections to the complaint, and on December 30, 1990, the trial court granted the motion seeking to dismiss appellant’s claim for negligent infliction of emotional distress. This appeal followed.

Initially, we note that our scope of review in an appeal from an order granting preliminary objections in the nature of a demurrer is plenary. Kyle v. McNamara & Criste, 506 Pa. 631, 487 A.2d 814 (1985). Any doubt as to whether a demurrer should be sustained is to be resolved against the moving party. Baker v. Magnetic Analysis Corp., 347 Pa.Super. 188, 500 A.2d 470 (1985). Furthermore, “we accept as true all well-pleaded material facts in the complaint, as well as all inferences reasonably deducible therefrom.” Id., 347 Pa.Superior Ct. at 192, 500 A.2d at 472. Preliminary objections should be sustained only when it [234]*234appears with certainty that, upon the facts averred, the law will not permit recovery by the plaintiff.

In Pennsylvania, a cause of action for negligent infliction of emotional distress depends upon three factors:

(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.

Sinn v. Burd, 486 Pa. 146, 171, 404 A.2d 672, 685 (1979). Recovery is further limited by the requirement that the person seeking the damages must suffer physical injury as a result of actually witnessing the harm to the close relative. Mazzagatti v. Everingham by Everingham, 512 Pa. 266, 516 A.2d 672 (1986). In the instant case, the trial court concluded that appellant’s claim was not within the parameters set forth above, and accordingly dismissed the cause of action. We disagree.

The basis of recovery for a claim of negligent infliction of emotional distress is the traumatic impact of viewing the negligent injury of a close relative. Hoffner v. Hodge, 47 Pa.Comm. 277, 407 A.2d 940 (1979). A person who does not experience a sensory and contemporaneous observance of the injury does not state a cause of action for negligent infliction of emotional distress. Mazzagatti, supra. In formulating the rule, the Supreme Court “contemplated a discrete and identifiable traumatic event to trigger recovery.” Beradi v. Johns-Manville Corp., 334 Pa.Super. 36, 44, 482 A.2d 1067, 1071 (1984). In the absence of such an event, no recovery is permitted.

[235]*235In the instant case it is apparent that appellant witnessed a discrete and identifiable traumatic event. Unlike the Mazzagatti situation1, appellant did not arrive on the scene after her mother was injured, but rather experienced a sensory and contemporaneous observance of her mother’s fatal heart attack. The fact that the negligence of Dr. Cramer did not take place at the time of the actual injury should not prevent appellant from attempting to prove her claim. It is enough if the negligence constituted the proximate cause of the injury, and of the resulting emotional trauma.2

Recently in Bloom v. Dubois Regional Medical Center, 409 Pa.Super. 83, 597 A.2d 671 (1991), we were confronted with a similar situation wherein a physician was sued for negligent infliction of emotional distress for allegedly failing to treat his patient.3 In that case we denied recovery, holding that the plaintiff husband did not observe any [236]*236traumatic infliction of injury by the defendants, as he observed his wife after her own suicide attempt.

He did not, however, observe any traumatic infliction of injury on his wife at the hands of the defendants because none occurred. The alleged negligence of the defendants here is an omission and involved no direct and traumatic infliction of injury on Mrs. Bloom by defendants.

Bloom, 409 Pa.Superior Ct. at 105, 597 A.2d at 683. Although we denied recovery in that case because the plaintiff failed to observe the alleged negligent omission of the defendant, we stated that

We hasten to add, however, that we do not intend to fashion a rule that excludes recovery to all plaintiffs who allege negligent infliction based on their observance of a negligent omission by defendants.

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Bluebook (online)
606 A.2d 1175, 414 Pa. Super. 231, 1992 Pa. Super. LEXIS 483, Counsel Stack Legal Research, https://law.counselstack.com/opinion/love-v-cramer-pasuperct-1992.