Negligent Infliction of Emotional Distress In Pennsylvania

By G. Scott Vezina 

George Stoddard was driving on a rural highway in the early morning hours when he ran over the corpse of a woman lying in the road. The woman had been hit and killed by Robert Davidson some time earlier, but Davidson went on his way instead of notifying police or seeking medical assistance. Stoddard was not physically injured, but he nevertheless sought recovery for the severe emotional distress he sustained. Stoddard v. Davidson, 355 Pa. Super. 262, 513 A.2d 419 (1986).

As Shirley Krysmalski was checking out of a supermarket near Pittsburgh, her three children waited for her in the parking lot. A car driven recklessly by Albert Tarasovich ran into the children causing devastating injuries including amputations. Krysmalski did not see her children get hit, but she heard the noise of the collision and certainly saw their injuries immediately after they were sustained. A verdict in her favor for negligent infliction of emotional distress was upheld. Krysmalski v. Tarasovich, 424 Pa. Super. 121, 622 A.2d 298 (1993).

These two cases typify the evolution of the tort of negligent infliction of emotional distress in Pennsylvania. They allow recovery under facts where the tort might not have been sustained historically. But they are logical, straightforward applications of precedents developing the tort in the commonwealth. A brief description of that development follows.

Historically, a plaintiff was required to allege physical impact in order to recover for negligent infliction of emotional distress. Interestingly enough, Stoddard actually falls within the physical-impact rule, albeit a version of the rule expanded somewhat from the normal, historical understanding. The superior court noted that physical impact existed in that case in that “an automobile running over a corpse would cause the automobile to lurch and jostle or jar its occupants,” and “the jostling and jarring of occupants is enough physical impact to meet the physical impact element of a negligent infliction cause of action.” Stoddard, 355 Pa. Super. at 266, 513 A.2d at 422 (citing Zelinsky v. Chimics, 196 Pa. Super. 312, 175 A.2d 351 (1961)). Further, the negligence by a defendant (like leaving the corpse in the road) can cause an impact later in time (like running over the corpse), that would sustain the negligent infliction of emotional distress cause of action. Id. at 267, 513 A.2d at 422.

The Pennsylvania Supreme Court abandoned the physical impact requirement in 1970 in the landmark case of Niederman v. Brodsky, 436 Pa. 401, 261 A.2d 84 (1970), in favor of a “zone of danger” rule. The court wrote that it would “abandon the requirement of a physical impact as a precondition to recovery for damages proximately caused by the tort only in those cases … 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 physical impact.” Id. at 413, 513 A.2d at 90.

Recovery for those suffering absent physical impact and outside the zone of danger was allowed in another landmark case decided nine years later, Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979). There, a mother witnessed her daughter being run down by a car. The court adopted the reasoning of a California case, Dillon v. Legg, 441 P.2d 912 (Cal. 1968), and announced that recovery would be allowed under a negligent infliction of emotional distress theory in cases where a close family member located near the scene of the accident suffers shock that results from direct emotional impact of observing the accident.

Krysmalski falls within this expansion of the tort even though the Krysmalski did not actually see the collision. That is so because the “‘sensory and contemporaneous observance’” requirement that is part of the inquiry adopted in Sinn, focuses on “whether the emotional shock was immediate and direct rather than distant and indirect, and not upon the sense employed in seeing the accident.” Krysmalski, 424 Pa. Super. at 133, 622 A.2d at 303. Krysmalski heard the sound of the collision and immediately thereafter witnessed the condition of her children. Thus, she met this element of the Sinn inquiry.

As a general rule, a physical manifestation of the emotional distress suffered is required. Crivellaro v. Penn. Power & Light Co., 341 Pa. Super. 173, 179-80, 491 A.2d 207, 210 (1985) identified physical symptoms such as headaches, shaking, hyperventilation, upset stomach and muscle spasms as examples of physical manifestations that support recovery. A plaintiff may rely on psychological injury that is severe and ongoing to satisfy the injury element as well. Love v. Cramer, 414 Pa. Super. 231, 606 A.2d 1175 (1992); Brown v. Philadelphia College of Osteopathic Medicine, 449 Pa. Super. 667, 674 A.2d 1130 (1996).

Practitioners should take this tort very seriously. It can be a standalone tort. However, it is often used to supplement the claims of and add a compelling emotional-impact element to the claims of the injured.