Niederman v. Brodsky , 436 Pa. 401 ( 1970 )

Opinion by

Mr. Justice Roberts,

Appellant, Harry Niederman, alleges that on November 4, 1962 he was walking with his son at the corner of 15th and Market Streets in Philadelphia. At that, time, appellant’s complaint asserts, appellee was driving a motor vehicle in a reckless and negligent manner as a result of which the automobile skidded onto the sidewalk and destroyed or struck down a fire hydrant, a litter pole and basket, a newsstand and appellant’s son, who at that time was standing next to appellant. Almost immediately after this destructive path was cut by appellee’s car, appellant claims that he suffered severe chest pain and that upon examination in the hospital, where he was confined for five weeks, appellant was diagnosed to have sustained acute coronary insufficiency, coronary failure, angina pectoris, and possible myocardial infarction. Consequently, appellant sought recovery from appellee for both these severe disabilities and the accompanying shock and mental pain.

Appellant’s complaint was reluctantly dismissed on preliminary objections for failing to state a cause of action under the “impact rule” which provides that there can be no recovery for the consequences of fright and shock negligently inflicted in the absence of contemporaneous impact. Appellant admitted that the careering automobile had never struck his person. The judge noted “The impact rule will, no doubt, eventually be rejected as was the formerly well-entrenched rule of charitable immunities. It is regrettable that Harry Niederman, the plaintiff in this action, may not be afforded the opportunity to prove that his injuries are just as real, just as painful, just as disabling as if he had been struck physically by defendant’s motor vehicle. . . . However, we are bound by the law as set forth by the Supreme Court.”

Today the cows come home.¹ We decide that on the record before us, appellant may go to trial and if he proves his allegations, recovery may be had from a negligent defendant, despite the fact that appellant’s injuries arose in the absence of actual impact. “It is fundamental to our common law system that one may seek redress for every substantial wrong. ‘The best statement of the rule is that a wrongdoer is responsible for the natural and proximate consequences of his misconduct ....’” Battalla v. State, 10 N.Y. 2d 237, 240, 219 N.Y.S. 2d 34, 36, 176 N.E. 2d 729, 730 (1961). By our holding today Pennsylvania proceeds along the path recently followed by our neighboring jurisdictions,¹ see Falzone v. Busch, 45 N.J. 559, 214 A. 2d 12 (1965); Robb v. Pennsylvania Railroad Company, 210 A. 2d 709 (Del. 1965); Battalla v. State, supra, aud removes this ancient roadblock to appellant’s recovery.

Were we to do otherwise, appellant and those who are severely injured in a like manner would be barred from recovery in our courts. But the gravity of appellant’s injury and the inherent humanitarianism of our judicial process and its responsiveness to the current needs of justice dictate that appellant be afforded a chance to present his case to a jury and perhaps be compensated for the injury he has incurred. The Restatement has adopted a view in harmony with this approach: “§436 ... (2) If the actor’s conduct is negligent as creating an unreasonable risk of causing bodily harm to another otherwise than by subjecting him to fright, shock, or other similar and immediately emotional disturbance, the fact that such harm results solely from the internal operation of fright or other emotional disturbance does not protect the actor from liability.” Restatement (Second), Torts §436(2).

We believe that it is not sufficient to perpetuate the old impact rule simply in the name of precedent. Each and every objection raised in the past which would preclude appellant in this case from going to trial can now be answered effectively and persuasively.

An analysis of the prior case law indicates that there have been three basic arguments which in the past would have defeated appellant. The first deals with medical science’s difficulty in proving causation between the claimed damages and the alleged fright. The second involves the fear of fraudulent or exaggerated claims. Finally, there is the concern that such a rule will precipitate a veritable flood of litigation. See, e.g., Knaub v. Gotwalt, 422 Pa. 267, 220 A. 2d 646 (1966) (not the view of a majority of the court); Bosley v. Andrews, 393 Pa. 161, 142 A. 2d 263 (1958); Huston v. Freemansburg Borough, 212 Pa. 548, 61 Atl. 1022 (1905); Ewing v. Pittsburgh Railway Co., 147 Pa. 40, 23 Atl. 340 (1892).

The first objection has been variously stated but the quotation set out below is representative of some earlier judicial sentiments. “In most cases, it would be impossible for medical science to prove that these subjective symptoms could not possibly have resulted from or been aggravated or precipitated by fright or nervous tension or nervous shock or emotional disturbance or distress .... Medical science, we repeat, could not prove that these could not have been caused or precipitated, or aggravated by defendant’s alleged negligent act.” Bosley v. Andrews, 393 Pa. at 168-69, 142 A. 2d at 267. (Emphasis supplied.) While we agree that this might have been an appropriate conclusion because of the lack of sophistication in the medical field when the impact doctrine was first announced in 1888,² it would presently be inappropriate for us to ignore all of the phenomenal advances medical science has achieved in the last eighty years. Today diseases of tbe heart, for example, are comprehended much more fully (to the extent that open heart surgery is almost an everyday occurrence), and the effects of hyperemotional states of the human body no longer are shrouded in mystery or myth.

New equipment and research, improved education and diagnostic techniques, and an increased professional understanding of disease in general require us now to give greater credit to medical evidence. Other jurisdictions have also recognized that this advancement in the medical arts should and could be legitimately reflected in changes in the legal field. See, e.g., Battalla, v. State, 10 N.Y. 2d 237, 219 N.Y.S. 2d 34, 176 N.E. 2d 729 (1961) (“we must... rely to an extent on the contemporary sophistication of the medical profession”); Robb v. Pennsylvania Railroad Company, 210 A. 2d 709, 712 (Del. 1965) (“the early difficulty in tracing a resulting injury back through fright or nervous shock has been minimized by the advance of medical science”). Finally, The American Law Institute through a deletion of a caveat from one of its comments,³ has expressed a similar view.

The logical invalidity of this objection to medical proof can be demonstrated further by noting that the rule has only. been applied where there is absolutely no impact whatsoever. Once there is even the slightest impact, it has been held that the plaintiff can recover for any damages which resulted from the accompanying fright, even though the impact had no causal connection with the fright-induced injuries. The rule has been stated: “However, where, as here, a plaintiff sustains bodily injuries, even though trivial or minor in character, which are accompanied by fright or mental suffering directly traceable to the peril in which the defendant’s negligence placed the plaintiff, then mental suffering is a legitimate element of damages.” Potere v. Philadelphia, 380 Pa. 581, 589, 112 A. 2d 100, 104 (1955).

It appears completely inconsistent to argue that the medical profession is absolutely unable to establish a causal connection in the case where there is no impact at all, but that the slightest impact (e.g., a bruised elbow and sprained ankle in Potere)⁴ suddenly bestows upon our medical colleagues the knowledge and facility to diagnose the causal connection between emotional states and physical injuries. It can easily be urged that recent advances in medical science have bestowed this ability upon physicians; but it is illogical to argue that the presence of some slight injury has accomplished the same effect! As the Supreme Court of our neighboring state of Delaware recently said: “. . . the line of cases permitting recovery for serious injuries resulting from fright, where there has been but a trivial impact in itself causing little or no injury, demonstrates that there is no insuperable difficulty in tracing cansal connection between the wrongdoing and the injury via the fright.” Robb v. Pennsylvania Railroad Company, 210 A. 2d at 712.

Finally, even if we assume arguendo that a great deal of difficulty still remains in establishing the causal connection, this still does not represent sufficient reason to deny appellant an opportunity to prove his case to a jury. There is no reason to believe that the causal connection involved here is any more difficult for lawyers to prove or for judges and jurors to comprehend than many others which occur elsewhere in the law. “We realize that there may be difficulties in determining the existence of a causal connection between fright and subsequent physical injury and in measuring the extent of such injury. However, the problem of tracing a causal connection from negligence to injury is not peculiar to cases without impact and occurs in all types of litigation ... in any event, difficulty of proof should not bar the plaintiff from the opportunity of attempting to convince the trier of fact of the truth of her claim.” Falzone v. Busch, 45 N.J. 559, 566, 214 A. 2d 12, 15-16 (1965). We recognize the recent view of the New Jersey Supreme Court as representative of current jurisprudence.

The second major objection includes the fear of fictitious injuries and fraudulent claims. It has been expressed with varying degrees of politeness: first, in Huston v. Freemansburg Borough, 212 Pa. 548, 550-51, 61 Atl. 1022, 1023 (1905), the Court indicated its lack of respect for claims like this by observing: “In the last half century, the ingenuity of counsel, stimulated by the cupidity of clients and encouraged by the prejudices of juries, has expanded the action for negligence.

. . . It requires but a brief judicial experience to be convinced of the large proportion of exaggeration and even of actual fraud in the ordinary action for physical injuries from negligence, and if we opened the door to this new invention the result would be great danger, if not disaster to the cause of justice.” In recent cases, that concern has been expressed in a more charitable manner but the same denial of recovery for severe injuries has been the result. “For every wholly genuine and deserving claim, there would likely be a tremendous number of illusory or imaginative or ‘faked’ ones.” Bosley v. Andrews, 393 Pa. at 169, 142 A. 2d at 267.

The charge that fraudulent claims will arise is not unique to this Commonwealth. Every court that has been confronted with a challenge to its impact rule has been threatened with the ominous spectre that an avalanche of unwarranted, trumped-up, false and otherwise unmeritorious claims would suddenly cascade upon the courts of the jurisdiction. The virtually unanimous response has been that (1) the danger of illusory claims in this area is no greater than in cases where impact occurs and that (2) our courts have proven that any protection against such fraudulent claims is contained within the system itself—in the integrity of our judicial process, the knowledge of expert witnesses, the concern of juries and the safeguards of our evidentiary standards.

For the first proposition, the New Hampshire Supreme Court provides us with significant support. “From the viewpoint of analogy, allowance for mental pain, and for injury to mind and nerve as well as body, is given as items of damage in all cases of liability for personal injury where there is impact. It would seem practically as easy to pretend them and as difficult to disprove them in such cases as in cases where there is no impact and fright is the intervening agency of transmittal.” Chiuchiolo v. New England Wholesale Tailors, 150 Atl. 540, 543 (N.H. 1930). See Savard v. Cody Chevrolet, Inc., 234 A. 2d 656, 659 (Vt. 1967) (quoting Ghiuehiolo). In addition, it is abundantly clear that in the Potere case, supra, where the injury was slight and unrelated, the opportunity for fraud was just as great; yet in that situation recovery was allowed. See Battalla, v. State, 10 N.Y. 2d 237, 241, 219 N.Y.S. 2d 34, 37, 176 N.E. 2d 729, 731 (1961) (“fraudulent accidents and injuries are just as easily feigned in the slight-impact cases”).

Furthermore, we are unable to accept the proposition that our courts and the judicial system in general cannot deal with fraudulent claims when they arise. Factual, legal, and medical charlatans are unlikely to emerge from a trial unmasked. This same thought has been given compelling exposition in recent opinions by the highest courts of our neighboring states, Delaware,⁵ New Jersey,⁶ and New York.⁷ We, of course, join these and other authorities⁸ in rejecting as patently fallacions the argument that would bar actions such as appellant’s because some other litigants might present false or feigned claims. “Public policy requires the courts, with the aid of the legal and medical professions, to find ways and means to solve satisfactorily the problems thus presented—not expedient ways to avoid them.” Robb v. Pennsylvania, Railroad, Company, 210 A. 2d at 714.

The last argument urged by the proponents of the impact rule is that: “If we permitted recovery in a case such as this, our Courts would be swamped by a virtual avalanche of cases for damages for many situations and cases hitherto unrecoverable in Pennsylvania.” Knaub v. Gotwalt, 422 Pa. at 271, 220 A. 2d at 847. However, it is our view that this argument is currently refuted on two grounds. First, it is not at all clear that the flood of litigation has occurred in states without the impact rule. “The truth of the matter is that the feared flood tide of litigation has simply not appeared in states following the majority rule allowing recovery of psychic injuries without impact. The volume of litigation has been heaviest in states following the Mitchell doctrine and its impact rule. See McNiece, Psychic Injury and Tort Liability in New York, 24 St. John’s L. Rev. 132 (1949) . . . .” Lambert, Tort Liability for Psychic Injuries, 41 Boston U. L. Rev. at 592. Even those who do not believe that the amount of litigation is greater in jurisdictions with the impact rule, maintain that there has been no increase in those states which have abandoned this doctrine. Okrina v. Midwestern Corp., 165 N.W. 2d 259, 263 (Minn. 1969) (“there is no indication that it [the abandonment of the impact rule] has either spawned a flood of litigation or bred a rash of fraudulent claims since its adoption in 1892”); see Smith, Relation of Emotions to Injury and Disease, 30 Va. L. Rev. 193 (1944); Comment, Injuries From Fright Without Contact, 15 Cleve.-Mar. L. Rev. at 336 (1966).

Secondly, and more compelling than an academic debate over the apparent or real increases in the amount of litigation, is the fundamental concept of our judicial system that any such increase should not be determinative or relevant to the availability of a judicial forum for the adjudication of impartial individual rights. “It is the business of the law to remedy wrongs that deserve it, even at the expense of a ‘flood of litigation’; and it is a pitiful confession of incompetence on the part of any court of justice to deny relief upon the ground that it will give the courts too much work to do.” Prosser, Intentional Infliction of Mental Suffering: A New Tort, 37 Mich. L. Rev. 874 (1939). We obviously do not accept the “too much work to do” rationale. We place the responsibility exactly where it should be: not in denying relief to those who have been injured, but on the judicial machinery of the Commonwealth to fulfill its obligation to make itself available to litigants. Who is to say which class of aggrieved plaintiffs should be denied access to our courts because of speculation that the workload will be a burden? Certainly this Court is unwilling to allow such considerations to influence a determination whether a class of litigants will be denied or permitted to seek adjudication of its claims. See Robb v. Pennsylvania Railroad Company, 210 A. 2d at 714 (Del. 1965) (“if there be increased litigation, the courts must willingly cope with the task”); Falzone v. Busch, 214 A. 2d at 16 (N.J. 1965) (“the proper remedy is an expansion of the judicial machinery, not a decrease in the availability of justice”); Battalla v. State, 176 N.E. 2d at 731 (N.Y. 1961) (“it is the duty of the courts to willingly accept the opportunity to settle these disputes”).

We have carefully examined the arguments in support of the old impact rule. It seems clear to us that even if these rationales may have had validity in earlier years, in 1969 continued adherence to the rule makes little sense. We believe that our analysis of the underpinnings of the impact doctrine proves that they are now so weak and that the arguments opposing the doctrine are so strong that an overruling of earlier cases is compelled.

We today choose to abandon the requirement of a physical impact as a precondition to recovery for damages proximately caused by the tort in only those cases like the one before us where the plaintiff was in personal danger of physical impact because of the direction of a negligent force against him and where plaintiff actually did fear the physical impact. Since appellant’s complaint alleges facts which if proven will establish that the negligent force was aimed at him and put him in personal danger of physical impact, and that he actually did fear the force, this case must proceed to trial.

The order of the Court of Common Pleas of Philadelphia County is reversed and appellee’s preliminary objections are dismissed.

1 Since 1929 every other jurisdiction which has considered the issue, has either abandoned the rule or refused to adopt it. See Comment, Injuries from Fright Without Contact, 15 Cleve.-Mar. L. Rev. 331, 337 (1966).

A total of thirty-one jurisdictions have considered the impact rule. Of these 22, and perhaps 23 (depending on the resolution of the current confusion in Ohio) have rejected the requirement of impact. See Restatement, Torts (Second) §436, Reporter’s Notes: Robb v. Pennsylvania Railroad Company, 210 A. 2d 709 (Del. 1965); Falzone v. Busch, 45 N.J. 559, 214 A. 2d 12 (1965); Savard v. Cody Chevrolet, Inc., 234 A. 2d 656 (Vt. 1967).

2 The impact doctrine was first announced in England in Victorian Railways Commissioners v. Coultas, 13 App. & Cas. 222 (1888). Curiously enough the rule was abandoned only thirteen years later in Dulieu v. White & Sons, 2 K.B. 669 (1901) ; this was not sufficiently soon to block the spawning of the doctrine in this country. See, e.g., Ewing v. Pittsburgh Railway Co., 147 Pa. 40, 23 Atl. 340 (1892); Mitchell v. Rochester Ry. Co., 151 N.Y. 107, 45 N.E. 354 (1896).

3 In the year 1931, Tbe American Law Institute in its commentaries to tbe first Restatement of Torts acknowledged that scientific and medical testimony might not be completely foolproof in this area. “Tbe Institute expresses no opinion that the unreliability of the testimony necessary to establish the causal relation between the actor’s negligence and the other’s illness or bodily harm may not make it proper for the Court of a particular jurisdiction to refuse, as a matter of administrative policy, to hold the actor liable for harm to another which was brought about in the manner stated in this Subsection.” But this caveat was deleted in 1948; we believe this is strong support for the belief that the medical profession now has the competency to establish causal relation.

4 The most extreme ease in which recovery was allowed for the damage caused by fear because there was some concurrent contact is Jones v. Brooklyn Heights R.R. Co., 23 App. Div. 141, 48 N.Y.S. 914 (1897). There plaintiff was hit in the head by a small incandescent light bulb, which fell from the roof of the car in which plaintiff was riding. Because of this “impact” plaintiff was permitted to recover for the miscarriage which was brought on by the accompanying shock.

5 “As to the danger of illusory and fictional claims, this is not a new problem; our courts deal constantly with claims for pain and suffering based upon subjective symptoms only; and the courts and the medical profession have been found equal to the danger . . . [T]he problems of adequacy of proof, for the avoidance of speculative and conjectural damages, are common to personal injury cases generally and are surmountable, being satisfactorily solved by our courts in case after ease.” Robb v. Pennsylvania Railroad Company, 210 A. 2d at 714 (Del. 1965).

6 “As to the possibility of actions based on fictitious injuries, a court should not deny recovery for a type of wrong which may result in serious harm because some people may institute fraudulent actions. Our trial courts retain sufficient control, through the rules of evidence and the requirements as to the sufficiency of evidence, to safeguard against the danger that juries will find facts without legally adequate proof.” Falzone v. Busch, 214 A. 2d at 16 (N.J. 1965).

7 “Although fraud, extra litigation and a measure of speculation are, of course, possibilities, it is no reason for a court to eschew a measure of its jurisdiction. ‘The argument from mere expediency cannot commend itself to a Court of justice, resulting in the denial of a logical legal right and remedy in all cases because in some a fictitious injury may be urged as a real one.’ ” Battalla v. State, 176 N.E. 2d at 731 (N.Y. 1961).

8 See, e.g., Lambert, Tort Liability for Psychic Injuries, 41 Boston D. L. Rev. 584, 590-91: “This argument betrays a hopeless belief in the insolvency of the judicial process and its inability to separate genuine from bogus fright cases. The problem is one of the sufficiency of proof, and it is not necessary to bar redress in all cases because some claims may be groundless. ... In truth the paralyzing fear that to allow recovery in ‘psychic link’ cases will make of our courts a dumping ground for false claims, because of the difficulty of proof and the danger of baseless claims, shows a cynical lack of faith in the ability of our courts and juries to sift the false from the true.”