Mazzagatti v. Everingham by Everingham

516 A.2d 672, 512 Pa. 266, 1986 Pa. LEXIS 886

• Court: Supreme Court of Pennsylvania
• Decided: October 16, 1986
• Docket: 125 E.D. Appeal Docket 1985
• Status: Published

Opinions

OPINION

NIX, Chief Justice.

In the instant matter we are called upon to revisit Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979), and to review its parameters for pleading the negligent infliction of emotional distress. Specifically, appellants ask us to recognize a cause of action for the negligent infliction of emotional distress in instances where the close relative does not observe the accident itself, but instead arrives at the scene of the accident and observes the victim a few minutes afterwards. We granted allocatur to clarify our position on this point.

I.

This case arose on August 12, 1980, when fourteen-year-old Mumtaz Mazzagatti was struck and fatally injured by a car operated by appellee Ricky Allen Everingham (“Everingham”) as she rode her bike in the residential area near her home in Whitpain Township. At the time of the accident Mumtaz’s mother, Jane Mazzagatti (“Mazzagatti”), was at work, approximately one mile away. She received a telephone call immediately after the collision informing her that her daughter had been involved in an automobile accident. Mazzagatti arrived at the scene of the accident a few minutes afterwards. On February 12, 1981, appellants filed a three count complaint in trespass based upon Everingham’s allegedly negligent conduct, the second of which is the subject of this appeal.¹ In the second count Mazzagatti pled an action for the negligent infliction of emotional distress. That count stated in part:

26. Within moments after the aforesaid accident, plaintiff Jane Mazzagatti was called and came to the scene and there observed her daughter Mumtaz Mazzagatti lying in Union Meeting Road.

27. Plaintiff Jane Mazzagatti became hysterical, unnerved and emotionally shattered as she viewed her daughter Mumtaz Mazzagatti so injured by defendants.

28. As a result of the aforementioned observation, which, in turn, resulted from a collision caused by defendants’ negligence, plaintiff Jane Mazzagatti suffered shock to her nerves and nervous system, sustained grievous mental pain and suffering resulting in severe depression and an acute nervous condition.

29. As a further result of the aforementioned observations and of defendants’ aforementioned negligence, plaintiff Jane Mazzagatti is further tortured by flashbacks and nightmares of that observation and suffers from a general inability to sleep peacefully through the night. The residual results of the foregoing may be of a permanent nature and significance.

R. 9a-10a.

Additionally, Mazzagatti alleged that her acute nervous condition and mental distress prevented her from attending to the duties of her employment at the Sperry Corporation and might, in the future, require her to expend considerable sums for medical treatment. Id.

Thereafter, appellees filed a motion for summary judgment in the nature of a demurrer² to dismiss Mazzagatti’s claim for the negligent infliction of emotional distress. Appellee’s motion stated that since Mazzagatti did not view the fatal accident, she had failed to state a cause of action pursuant to Sinn v. Burd, supra.

The Court of Common Pleas of Montgomery County granted appellees’ motion for summary judgment on August 10, 1983. In the written opinion which followed,³ the court held that under the parameters enunciated in our Sinn decision, where, as here, the close relative is not an eyewitness and did not have a contemporaneous perception of the tortious conduct, she has failed to state an actionable claim for emotional distress. Appellants appealed this determination to the Superior Court arguing that consideration be given to Dziokonski v. Babineau, 375 Mass. 555, 380 N.E.2d 1295 (1978), which allowed recovery where the parent arrived at the scene of the accident while the injured child was still there. The Superior Court found Dziokonski unpersuasive since this Court was cognizant of Dziokonski at the time of the Sinn decision and nonetheless limited our holding to those instances where the plaintiff actually witnessed the negligent act. The Superior Court thereupon affirmed the Court of Common Pleas in its order dated February 21, 1985, 341 Pa.Super. 626, 491 A.2d 925. We granted allowance of appeal on September 12, 1985, pursuant to Pa. R.A.P. 1112(a).

II.

Summary judgment can be sustained only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Pocono International Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 83 n. 4, 468 A.2d 468, 470 n. 4 (1983); Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 204, 412 A.2d 466, 468 (1979); Commonwealth v. Transamerica Insurance Co., 462 Pa. 268, 273, 341 A.2d 74, 76 (1975); Linwood Harvestore, Inc. v. Cannon, 427 Pa. 434, 436, 235 A.2d 377, 379 (1967); Pa.R.C.P. 1035(b). In the case sub judice the facts are undisputed and the remaining legal question for our consideration is whether the courts below erred in granting appellees’ motion for summary judgment in the nature of a demurrer. It is axiomatic that a demurrer may only be sustained where the complaint, on its face, fails to establish a legal right to relief. County of Allegheny v. Commonwealth, 507 Pa. 360, 372, 490 A.2d 402, 408 (1985); Cianfrani v. Commonwealth, State Employee’s Retirement Board; 505 Pa. 294, 297, 479 A.2d 468, 469 (1984); Sinn v. Burd, supra 486 Pa. at 150, 404 A.2d at 674; Firing v. Kephart, 466 Pa. 560, 563, 353 A.2d 833, 834 (1976); Hoffman v. Misc.icordia Hospital of Philadelphia, 439 Pa. 501, 504, 267 A.2d 867, 868 (1970).

For the purpose of testing the legal sufficiency of the complaint, a motion for summary judgment in the nature of a demurrer admits as true all well-pleaded, material, relevant facts. See County of Allegheny v. Commonwealth, supra 507 Pa. at 372, 490 A.2d at 408; Klein v. Raysinger, 504 Pa. 141, 144, 470 A.2d 507, 508 (1983); Sinn v. Burd, supra 486 Pa. at 149, 404 A.2d at 674; Savitz v. Weinstein, 395 Pa. 173, 174, 149 A.2d 110, 111 (1959); Byers v. Ward, 368 Pa. 416, 420, 84 A.2d 307, 309 (1951). If the facts as pleaded state a claim for which relief may be granted under any theory of law, then a demurrer must be denied. County of Allegheny v. Commonwealth, supra 507 Pa. at 372, 490 A.2d at 408; Cianfrani v. Commonwealth, State Employee’s Retirement Board, supra 505 Pa. at 297, 479 A.2d at 469; Mahoney v. Furches, 503 Pa. 60, 66, 468 A.2d 458, 461-62 (1983); Vattimo v. Lower Bucks Hospital, Inc., 502 Pa. 241, 244, 465 A.2d 1231, 1232-33 (1983); Sinn v. Burd, supra 486 Pa. at 150, 404 A.2d at 674; Packler v. State Employment Retirement Board, 470 Pa. 368, 371, 368 A.2d 673, 675 (1977); Schott v. Westinghouse Electric Corporation, 436 Pa. 279, 291, 259 A.2d 443, 449 (1969); Birl v. Philadelphia Electric Co., 402 Pa. 297, 302, 167 A.2d 472, 475 (1960); Savitz v. Weinstein, supra 395 Pa. at 174, 149 A.2d at 111; Waldman v. Shoemaker, 367 Pa. 587, 589, 80 A.2d 776, 777 (1951). It is under the above standard of review that we analyze the facts of the instant case.

A.

Appellants contend that the grant of demurrer was improper in this case because Mazzagatti is entitled to recover under the flexible reasonable foreseeability test adopted by this Court in Sinn v. Burd, supra. Appellants allege that Mazzagatti’s emotional distress resulting from having promptly witnessed the entire accident scene moments after Everingham’s automobile struck her child was reasonably foreseeable under the circumstances, and was neither remote nor unexpected. We believe, however, that appellants’ expansive interpretation of the Sinn foreseeability test ignores several basic principles of tort liability. These principles, which require that the defendant’s breach of a duty of care proximately cause plaintiff’s injury, have established the jurisprudential concept that at some point along the causal chain, the passage of time and the span of distance mandate a cut-off point for liability. See generally, Wright, Causation in Tort Law, 73 Calif.L.Rev. 1735 (1985); Brennwald, Proving Causation in “Loss of a Chance” Cases: A Proportional Approach, 35 Cath.U.L. Rev. 757 (1985); Lopatka, State Action and Municipal Antitrust Immunity: An Economic Approach, 53 Fordham L.Rev. 23 (1984); Note: Manufacturers’ Liability to Victims of Handgun Crime: A Common-Law Approach, 51 Fordham L.Rev. 771 (1988); Silverstein, Seller Liability Under Section 12(2) of the Securities Act of 1933: A Proximate Cause-Substantial Factor Approach Limited by a Duty of Inquiry, 36 Vand.L.Rev. 361 (1983); Proximate Cause in California, 38 Calif.L.Rev. 369 (1950). The term proximate cause or legal cause is applied by courts to those more or less undefined considerations which limit liability even where the fact of causation can be demonstrated. See W.P. Keeton, Prosser and Keeton on Torts (5th ed. 1984) (hereinafter “Prosser and Keeton”) at 273.

In Niederman v. Brodsky, 436 Pa. 401, 261 A.2d 84 (1970), we posited, “[t]he best statement of the rule is that a wrong-doer is responsible for the natural and proximate consequences of his misconduct.” Id., 436 Pa. at 403, 261 A.2d at 85. As we quoted in Sinn v. Burd, supra, Justice Andrews in his famous dissent in Palsgraf v. Long Island R.R., 248 N.Y. 339, 162 N.E. 99 (1928) wrote:

What we do mean by the word ‘proximate’ is that, because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point. This is not logic. It is practical politics. Sinn, supra 486 Pa. at 166, 404 A.2d at 682, quoting Palsgraf v. Long Island R.R., supra 248 N.Y. at 352, 162 N.E. at 103 (Andrews, J., dissenting).

We are thus charged with determining whether the policy of law in this Commonwealth holds Everingham legally responsible for the emotional injury to Mazzagatti. As the following excerpt from Prosser and Keeton, supra, illustrates, this determination is one fraught with circumlocution:

It is quite possible to state every question which arises in connection with “proximate cause” in the form of a single question: was the defendant under a duty to protect the plaintiff against the event which did in fact occur? Such a form of statement does not, of course, provide any answer to the question, or solve anything whatever; but it may be helpful since “duty” — also a legal conclusion — is perhaps less likely than “proximate cause” to be interpreted as if it were a policy-free fact-finding. Thus, “duty” may serve to direct attention to the policy issues which determine the extent of the original obligation and of its continuance, rather than to the mechanical sequence of events which goes to make up causation in fact. The question whether there is a duty has most often seemed helpful in cases where the only issue is in reality whether the defendant stands in any such relation to the plaintiff as to create any legally recognized obligation of conduct for the plaintiffs benefit. Or, reverting again to the starting point, whether the interests of the plaintiff are entitled to legal protection at the defendant’s hands against the invasion which has in fact occurred. Or, again reverting, whether the conduct is the “proximate cause” of the result. The circumlocution is unavoidable, since all of these questions are, in reality, one and the same.

Id. at 274.⁴

We wrestled with this perplexity in Sinn v. Burd, supra, wherein we were confronted with the issue whether a close relative who witnessed the accident, albeit outside of the zone of danger, could recover for the negligent infliction of emotional distress. In Sinn we concluded that in such instances the defendant did owe a duty of care to the bystander, noting that “[t]he scope of potential liability commonly finds theoretical expression in such concepts as duty and proximate cause.” Id. 486 Pa. at 165, 404 A.2d at 682, quoting D’Ambra v. United States, 114 R.I. 643, 338 A.2d 524 (1975). We held that the resultant harm was foreseeable and stated:

We are confident that the application of the traditional tort concept of foreseeability will reasonably circumscribe the tortfeasor’s liability in such cases. Foreseeability enters into the determination of liability in determining whether the emotional injuries sustained by the plaintiff were reasonably foreseeable to the defendant.

Id. 486 Pa. at 169-70, 404 A.2d at 684.

We adopted the Dillon v. Legg, 68 Cal.2d 728, 69 Cal. Rptr. 72, 441 P.2d 912 (1968), parameters for determining whether the infliction of emotional distress was reasonably foreseeable. We held that a cause of action is stated when the following criteria are met:

(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;

(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.

Id. 486 Pa. at 170-71, 404 A.2d at 685.

In Sinn the plaintiff-mother was, present at the time of the accident and actually witnessed the injury to her child. We thus found a contemporaneous observation of the accident which proximately caused emotional distress to the mother. We limited our Sinn holding solely to those cases in which the plaintiff alleges psychic injury as a result of actually witnessing the defendant's negligent act. Id., 486 Pa. at 166-67 n. 15, 404 A.2d at 683 n. 15. We reserved for another day the case where the mother is notified of the accident by another. Id., 486 Pa. at 173 n. 21, 404 A.2d at 686 n. 21.⁵

Pour years later this Court decided Yandrich v. Radic, 495 Pa. 243, 433 A.2d 459 (1981), wherein we denied recovery to a plaintiff-father who did not witness the accident and who did not arrive at the accident scene until after his son had been taken to the hospital. The father then proceeded to the hospital and remained there until the boy died five days later. In a three-to-three vote we sustained the grant of demurrer in an Opinion in Support of Affirmance⁶ holding that the father’s pleadings had not satisfied the Sinn criteria and, therefore, his emotional distress was not foreseeable as a matter of law. Id., 495 Pa. at 247, 433 A.2d at 461 (Wilkinson, J.). In a separate Opinion in Support of Affirmance, this writer gave the following explanation for the denial of recovery:

The progression of the law relating to the question of responsibility for emotional distress caused to another because of one’s negligent conduct, emphasizes the fact that a ruling as to what duty is owed is a legal judgment which must accommodate the demands of public policy in determining whether the law will countenance a shifting of the burden of loss in a particular situation.

Id., 495 Pa. at 249-50, 433 A.2d at 462 (Nix, J).

A look at decisions from other jurisdictions that have addressed similar issues on the negligent infliction of emotional distress reveals that “only a few jurisdictions recognize the right of the plaintiff witness who did not suffer an impact, was not in fear of his own safety, or was not within the zone of danger to recover, and those jurisdictions require that the severe emotional distress to the plaintiff result from the direct and contemporaneous observance of the accident or conduct.”⁷ Annot., Immediacy of Observation of Injury as Affecting Right to Recover Damages for Shock or Mental Anguish From Witnessing Injury to Another, 5 A.L.R. 4th 833, 835 (1985). Only three jurisdictions have allowed the recovery sought by appellants— where the plaintiff appeared on the scene of the accident immediately after its occurrence and suffered emotional distress from witnessing the victim’s injuries.⁸

B.

In light of the prior law in this area, we now embark upon an analysis of the facts of the instant case. Our first point of determination is whether Everingham owed a duty of care to Mazzagatti. As Dean Prosser phrased it, “[t]he word [duty] serves a useful purpose in directing attention to the obligation to be imposed upon the defendant, rather than the causal sequence of events. . . .” Prosser, Palsgraf Revisited, 52 Mich.L.Rev. 1, 14-15 (1953).

In determining the existence of a duty of care, it must be remembered that the concept of duty amounts to no more than “the sum total of those considerations of policy which led the law to say that the particular plaintiff is entitled to protection” from the harm suffered.

Sinn v. Burd, supra 486 Pa. at 164, 404 A.2d at 681, quoting Leong v. Takasaki, 55 Haw. 398, 520 P.2d 758, 764 (1974).

In essence, the precise issue before us is whether, at the time of the accident, Everingham owed a duty of care to Mazzagatti, who was approximately one mile away from the scene of the accident. A duty of care arises only where a reasonable person would recognize the existence of an unreasonable risk of harm to others through the intervention of such negligence. Prosser and Keeton, supra at 199. As we noted above, a determination of a duty of care entails an analysis of its integral component, proximate cause. Id. 462 Pa. at 274, 341 A.2d 74.

We presently adhere to the view in this Commonwealth that the driver of a vehicle owes a duty of care to all motorists and pedestrians in his immediate zone of danger and to any bystander who experiences a contemporaneous observance of an injury to a close relative. In those circumstances we found that the driver’s conduct was the proximate cause of the physical or psychic injury to the plaintiff. In Sinn we expressed the concept of proximate cause in the first two criteria of the foreseeability test, which bear repetition:

(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. Sinn v. Burd, supra 486 Pa. at 170-71, 404 A.2d at 685 (emphasis added).

The corollary of those two criteria is that when a plaintiff is a distance away from the scene of the accident and learns of the accident from others after its occurrence rather than from a contemporaneous observance, the sum total of policy considerations weigh against the conclusion that that particular plaintiff is legally entitled to protection from the harm suffered. Thus, we conclude that, as relative to Mazzagatti, Everingham’s conduct was not negligence at all. “Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right.” Palsgraf supra 248 N.Y. at 341, 162 N.E. at 99.

We believe that where the close relative is not present at the scene of the accident, but instead learns of the accident from a third party, the close relative’s prior knowledge of the injury to the victim serves as a buffer against the full impact of observing the accident scene. By contrast, the relative who contemporaneously observes the tortious conduct has no time span in which to brace his or her emotional system. The negligent tortfeasor inflicts upon this bystander an injury separate and apart from the injury to the victim. See Sinn v. Burd, supra 486 Pa. at 158-62 404 A.2d at 678-80. Hence, the critical element for establishing such liability is the contemporaneous observance of the injury to the close relative. Where, as here, the plaintiff has no contemporaneous sensory perception of the injury, the emotional distress results more from the particular emotional makeup of the plaintiff rather than from the nature of defendant’s actions.

In reality this is a claim for affectional loss or solatium to recompense a surviving relative for her feelings of anguish, bereavement and grief caused by the fact of the injury to and death of the decedent. In Sinn we noted that the common law has traditionally denied a damage award for solatium. Id., 486 Pa. at 151-52 n. 3, 404 A.2d at 675 n. 3. See also Yandrich v. Radic, supra, 495 Pa. at 250, 433 A.2d at 462-63. The feelings of anguish and bereavement suffered by Mazzagatti are not substantially different from those suffered by any parent who sees his or her dying injured child, whether it be at the scene of the accident or in the hospital room afterwards. See Arauz v. Gerhardt, 68 Cal.App.3d 937, 137 Cal.Rptr. 619 (2d Dist.1977); Powers v. Sissoev, 39 Cal.App.3d 865, 114 Cal.Rptr. 868 (2d Dist.1974). For the foregoing reasons we are constrained to conclude that the present factual situation does not justify Mazzagatti’s action for the negligent infliction of emotional distress.⁹

Accordingly, the Order of the Superior Court affirming the judgment entered by the Court of Common Pleas is affirmed.

FLAHERTY, J., joins in this opinion and files a concurring opinion. HUTCHINSON, J., files a concurring opinion. LARSEN, J., files a dissenting opinion in which PAPADAKOS, J., joins. PAPADAKOS, J., files a dissenting opinion in which LARSEN, J., joins.

1 . Count I sets forth a cause of action for negligent infliction of emotional distress by the victim’s sister, Amini Mazzagatti, who actually witnessed the accident. Count III alleges that as a result of Jane Mazzagatti’s injuries as described in Count II, her husband, Peter Mazzagatti, has been deprived of her society and services.

2 . Appellees elected to file a motion for summary judgment pursuant to Rule 1035(b) of the Pennsylvania Rules of Civil Procedure ("Rules”) rather than to file the customary motion for judgment on the pleadings pursuant to Rule 1034 of the Rules. The motion for summary judgment is designed to supplement the motion for judgment on the pleadings to provide for an equivalent summary disposition of the case where the pleadings may be sufficient, on their face, to withstand a preliminary objection but where, in actuality, there is no genuine issue of fact and this can be conclusively shown through depositions, answers to interrogatories, admissions, or affidavits. Ruhe v. Kroger Co., 425 Pa. 213, 228 A.2d 750 (1967); Standard Pennsylvania Practice 2d, vol. 6, § 32:1. The motion for judgment on the pleadings is in effect a demurrer and, in considering the motion, the court should be guided by the same principles as would be applicable if it were disposing of a preliminary objection in the nature of a demurrer. Rice v. Rice, 468 Pa. 1, 359 A.2d 782 (1976); Toff v. Vlahakis, 480 Pa. 512, 112 A.2d 340 (1955); Standard Pennsylvania Practice 2d, Vol. 6, § 31:18.

3 . Since appellants appealed the trial court’s determination to the Superior Court of Pennsylvania, the trial court filed a written opinion pursuant to Pa.R.A.P. 1925(a).

4 . We are well aware of the “purity” argument raised by Mr. Justice Hutchinson. However, since Dahlstrom v. Shrum, 368 Pa. 423, 84 A.2d 289 (1951), the only explicit expression in a decision of this Court of the proposition that foreseeability must be confined to an analysis of "duty” may be found in Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975), which was authored by then Chief Justice Jones and joined in by only one other Justice, this writer. More importantly, the utility of a strict adherence to such an approach is at best questionable, since the terms "duty”, “legal” or "proximate cause” and “foreseeability” are all terms of art and merely reflect a policy judgment as to the appropriate extent of liability.

5 . With clairvoyance we stated:

[W]e need not here consider the case where the mother is notified of the accident by another____ [This question] may properly be left for another day. Jurisprudentially, the remote and unexpected can best be excluded by reaching these issues on a more appropriate record. Sinn v. Burd, 486 Pa. 146, 173 n. 21, 404 A.2d 672, 686 n. 21 (1979).

6 . Yandrich v. Radic, 495 Pa. 243, 433 A.2d 459 (1981), affirmed a Superior Court order by an equally divided Supreme Court. Justice Wilkinson filed an Opinion in Support of Affirmance in which Justice Roberts joined. This writer also filed an Opinion in Support of Affirmance. Justice Flaherty filed an Opinion in Support of Reversal joined by Justice Larsen and Justice Kauffman.

7 . See, e.g., D’Ambra v. United States 354 F.Supp. 810 (D.R.I.1973); Keck v. Jackson, 122 Ariz. 114, 593 P.2d 668 (1979); Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 (1968); D'Amicol v. Alvarez Shipping Co., 31 Conn.Sup. 164, 326 A.2d 129 (1973); Leong v. Takasaki, 55 Hawaii 398, 520 P.2d 758 (1974); Toms v. McConnell, 45 Mich.App. 647, 207 N.W.2d 140 (1973); Landreth v. Reed, 570 S.W.2d 486 (Tex.Civ.App.1978); Grimsby v. Samson, 85 Wash.2d 52, 530 P.2d 291 (1975).

8 . See, e.g., Archibald v. Braverman, 275 Cal.App.2d 253, 79 Cal.Rptr. 723 (1969); Dziokonski v. Babineau, 375 Mass. 555, 380 N.W.2d 1295 (1978); Corso v. Merill, 119 N.H. 647, 406 A.2d 300 (1979).

9 . In Amadio v. Levin, 509 Pa. 199, 230, 501 A.2d 1085, 1101 (1985) (Nix, C.J., dissenting), this writer expressed his personal views as to the dangers of unwarranted extension in the area of tort recovery.