Negligent Infliction of Emotional Distress: What Must You Prove?

I. INTRODUCTION

One of the most confusing areas of the law for personal injury practitioners in Pennsylvania concerns the type of proof one must have in order to make out a claim for negligent infliction of emotional distress.

For example, here are some questions lawyers often ask:

  1. What are the basic elements of the cause of action?
  2. What is meant by "contemporaneous observation" of the accident, i.e. must the plaintiff actually see the impact between the tortfeasor and the victim, or is it sufficient that the plaintiff just have some immediate sensory impression of the accident?
  3. Must the plaintiff actually witness an "accident" to another person, or is it enough to prove that the defendant committed some negligent act (without causing an "accident") which caused emotional distress to the plaintiff?
  4. Is it necessary for the plaintiff to show that the emotional distress produced some physical manifestation?
  5. Is it necessary for the plaintiff to seek medical treatment to legitimize the claim of emotional distress?
  6. Is it necessary to produce expert testimony on causation?

By reviewing the evolution of this cause of action --- which is of relative recent vintage --- this article will try to answer those questions, and perhaps raise a few unanswered ones.

II. BACKGROUND DISCUSSION

Prior to 1969, there simply was no tort of negligent infliction of emotional distress recognized in Pennsylvania. The law was straightforward and simple: If you weren't hit, you had no cause of action for the physical or emotional effects from an accident. See Knaub vs. Gotwalt, 220 A.2d 646 (1966). This was known as the "impact rule."

There were three broad policy reasons for refusing to recognize a cause of action for so-called "bystanders," i.e. people who were not physically injured by the tortfeasor but merely witnessed injury to another:

1. Lack of Medical Causation: The courts generally accepted the notion that medical science was not capable of establishing a link between observance of an accident and psychic injury. For example, in Houston vs. Freemansburg Boro, 61

A. 1002 (1905), the court described the cause of action for mental disturbance as being "intangible, untrustworthy, illusory, and speculative."

  1. Fraudulent Claims: It was generally felt that the judicial system would be unable to separate the legitimate claims from the illegitimate claims. "For every wholly genuine and deserving claim, there would likely be a tremendous number of illusory or imaginative or 'faked' ones." Bosley vs. Andrews, 142 A.2d 263, at 267 (1958).
  2. Flood of Litigation: It was assumed that if bystander causes of action were recognized, the courts would be overwhelmed with claims of this sort.

In the 1970 case of Niederman vs. Brodsky, 261 A.2d 84, the Pennsylvania Supreme Court announced the first significant departure from the traditional impact rule. In Niederman, the father-plaintiff was on a sidewalk with his son when a negligently driven vehicle came up over the curb, struck the son, and nearly struck the plaintiff himself. The father experienced almost the immediate onset of chest pain, and he was taken from the accident scene to a hospital where he was diagnosed with a coronary condition. He later filed suit against the operator of the vehicle seeking damages for his coronary condition and the emotional distress from having witnessed the injury to his son.

Obviously, under the traditional impact rule, the father would have no cause of action since he was not actually hit by the vehicle. The supreme court, however, concluded that the impact rule drew an arbitrary line of demarcation which should no longer be followed. Instead, the court adopted a "zone of danger" test in which any individual who was so close to the point of impact that he had fear of injury could state a cause of action for emotional distress brought on by witnessing injury to another person. In adopting this new and more liberal standard, the court rejected as either untrue or unconvincing the broad policy reasons which provided the underpinnings for the old impact rule.

For example, as to the argument that medical science could not provide a causal link between observance of an injury and emotional distress, the court stated that simply was no longer a valid conclusion. Instead, it was felt that medical science had progressed to the point that such a link certainly could be established, and in any event the plaintiff should at least be given the opportunity to prove such a link.

As to the argument that abandoning the impact rule would lead to fraudulent claims, the court stated that the danger of illusory claims in this area was no greater than in cases where impact occurs. Furthermore, certain key components of the adversary system, such as the availability of expert witnesses and the right to cross examination, would make it unlikely for fraudulent claims "to emerge from a trial unmasked." Niederman, p. 88.

Finally, as to the argument that abandonment of the impact rule would lead to a flood of suits for emotional distress, the court said that the possibility of an increased burden on the judicial system was no reason to deny a forum for otherwise legitimate claims.

The Niederman zone of danger standard remained the rule in Pennsylvania throughout most of the decade of the 1970's. In 1979, the supreme court once again took up a broad consideration of the tort of emotional distress in Sinn vs. Burd, 404 A.2d 672, and it further liberalized the law in this area. In Sinn, the mother-plaintiff witnessed her minor daughter being struck by a car as she stood along the side of a roadway running in front of the house. However, the mother was not within the so-called "zone of danger" but was instead standing some distance away on the front porch of the house. The mother alleged that as a result of witnessing the accident she suffered shock to her nervous system resulting in severe depression. Thus, the court was faced with the issue of whether one who observes an injury to a loved one but is herself located outside the zone of danger can nevertheless recover for emotional distress.

Just as Niederman had concluded that the impact rule was arbitrary, Sinn concluded that the "zone of danger" standard likewise represented an irrational basis on which to exclude certain claims. In that regard, the court stated that it accepted the proposition that "the emotional impact upon a parent witnessing the killing of a minor child is at least as great and legitimate as the apprehension that is inspired by the plaintiff personally within the zone of danger." Sinn, supra., at 677.

Starting from that broad proposition --- that the zone of danger test adopted in Niederman was not entirely logical --- the court set about the business of fashioning a new rule. While Sinn echoed the sentiments first expressed in Niederman to reject the traditional arguments against recognizing emotional distress claims in the absence of impact (e.g. difficulty of medical proof, fear of fraudulent claims, the threat of increased litigation), it nonetheless recognized that some limitations needed to be adopted; otherwise, the scope of potential liability would be limitless. Therefore, the court, guided by the general notion of foreseeability, decided that the area of potential liability could be reasonably circumscribed by limiting emotional distress claims to those situations where the plaintiff satisfied the following three elements:

  1. the plaintiff was located close to the accident scene;
  2. the alleged distress resulted from the plaintiff's contemporaneous and sensory observation of the accident; and
  3. the plaintiff and the victim were closely related.

The court was satisfied that this new rule would achieve the dual goals of reasonably circumscribing the scope of liability while at the same time not setting arbitrary barriers which existed under the impact and zone of danger tests.

III. APPLICATION OF SINN TEST

Since the Sinn decision some 15 years ago, there have been relatively few decisions from the supreme court which discuss the tort of negligent infliction of emotional distress. Those that have been rendered strictly adhere to the Sinn standard. For example, in Yandrich vs. Radic, 433 A.2d 459 (Supreme Ct. 1981), the father-plaintiff's 19-year-old son was struck and seriously injured as he rode on his bicycle. The father, however, did not contemporaneously observe the accident but instead arrived on the scene after his son had already been taken to the hospital. The father then went to the hospital where he remained until his son died five days later. Thereafter, the father became extremely despondent and eventually committed suicide. His estate filed suit against the tortfeasor claiming damages for his emotional distress and death. The supreme court refused to recognize a cause of action under these circumstances, relying on the fact that the father had failed to establish one of the critical elements under Sinn, i.e. that he personally observed the accident.

Similarly, in Mazzagatti vs. Everingham, 516 A.2d 672 (Supreme Ct. 1986), the court refused to recognize a cause of action on behalf of a mother who was not at the scene when her minor child was struck by a vehicle, but instead was located one mile away at work and only came to the scene after being notified of the accident. In denying the mother a right of recovery, the court implicitly recognized that contemporaneous observation was the most critical of the three elements set out in Sinn.

"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. 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 the defendant's actions." Mazzagatti, p. 679

As may be observed, the supreme court has not strayed from the test first announced in Sinn in 1979.

Most of the judicial activity (and confusion) in applying the Sinn test has come in the superior court decisions on the subject. Indeed, most of the questions posed at the beginning of this article are raised in various decisions of that court. As will be noted below, however, the answers suggested are not always clear and consistent.

One answer that does appear to be clear, at least in the superior court, is to this question: Must the plaintiff actually see the impact in order to satisfy the "contemporaneous observance" element of the Sinn test? Based on the superior court decision in Neff vs. Lasso, 555 A.2d 1304 (1989), the answer is "No," so long as it may be said from all of the surrounding circumstances that the plaintiff had a contemporaneous sensory impression of the accident. In Neff, the wife-plaintiff was standing in her kitchen looking out the window at the highway in front of her house. She saw her husband's vehicle stopped in the roadway preparing to turn left into the driveway. She saw a second vehicle approaching from the rear at a high rate of speed. Moments later, that second vehicle crashed into the rear of her husband's vehicle. While the wife apparently glanced elsewhere for an instant and, thus, did not see the actual crash, she clearly heard the impact. In holding that the plaintiff satisfied Sinn's "contemporaneous observation" element even though she did not actually see the impact, the superior court stated:

"It may be true that unlike visual observance, aural awareness may rarely, standing alone, give rise to a sufficient awareness of the nature and import of the event that caused severe emotional injury. However, aural perception (hearing the impact), when considered together with prior and subsequent visual observance, may produce a full, direct, and immediate awareness of the nature and import of the negligent conduct which may foreseeably result in emotional injury, and which is not buffered by the intervention of a third party or the effects of the removal of the awareness temporarily or geographically from the impact and its consequences. To deny appellant's claim solely because she did not see the precise moment of the impact would ignore the plain reality that the entire incident produced emotional injury for which the plaintiff seeks redress . . . Therefore, we conclude that 'sensory and contemporaneous observance' is not limited to visual sensory perception but properly includes an aural sensory awareness as well. Succinctly, it is not the source of the awareness, rather, it is the degree of the awareness arising from all of the individual's senses and memory which must be determinative of whether the plaintiff's emotional shock resulted from a 'sensory and contemporaneous' observance of the accident." Neff, p. 13.

An interesting twist on the "contemporaneous observance" element was presented in the case of Love vs. Cramer, 606 A.2d 1175 (Superior Ct. 1992). In that case, a daughter who was personally present when her mother had a heart attack and died, filed suit for negligent infliction of emotional distress against the mother's attending physician. In her complaint, the daughter alleged that the doctor was negligent in the course of several office visits when he (the physician) disregarded her (the daughter's) suggestion that the mother was having symptoms of congestive heart failure and should be treated accordingly. The court ruled that the daughter sufficiently stated a claim in view of the fact that she personally observed both the negligent conduct (the repeated failure to treat the cardiac symptoms) and the resulting cardiac arrest.

As one may note, virtually all of the cases discussed thus far have involved situations in which the plaintiff allegedly suffers emotional distress as a result of witnessing an accident causing physical injury to another family member. Most of these cases involve vehicle accidents, although Love, supra., did stretch the notion of "accident" somewhat by equating it with the mother's suffering of a heart attack. In either event, the cases have all involved a victim who suffers some physical injury, and the primary dispute centered on whether the plaintiff's observation of that injury was sufficiently contemporaneous to make foreseeable and credible the claimed emotional distress. However, the recent superior court case of Armstrong v. Paoli Memorial Hospital, 633 A.2d 605 (Superior 1993), required the court to focus on this different question: Can a plaintiff state a claim for emotional distress where the defendant's negligence did not cause an "accident" involving a loved one?

In Armstrong, the wife-plaintiff received a telephone call from Paoli Hospital telling her that she should come to the hospital immediately because her husband had been involved in a serious accident. She immediately went to the hospital where she met with a neurosurgeon who explained the seriousness of the victim's injury. It was not until an hour later, however, that the plaintiff discovered that the victim was not her husband. Upon being told of such news, the plaintiff testified that she urinated, defecated, and "just lost it." The wife filed suit claiming the hospital did not take adequate steps to identify the victim at the outset.

In deciding whether or not the plaintiff stated a cause of action for negligent infliction of emotional distress, the court started from the premise that not every instance of emotional distress is compensable, and then it turned to the broad concept of foreseeability first discussed in Sinn as a means of rationally circumscribing which instances of distress are actionable. The court reviewed the evolution of emotional distress claims in Pennsylvania and concluded that, except for two cases it termed "anomalous," this jurisdiction had never recognized a cause of action for persons other than those who were bystanders to injury inflicted upon a family member. For example, Pennsylvania courts have refused to recognize a claim for emotional distress on behalf of the following plaintiffs: a patient issued a false report of an AIDS test, Lubovitz v. Albert Einstein Medical Center, 623 A.2d 3 (Superior 1993); one allegedly defamed in a newspaper article, Salerno v. Philadelphia Newspapers, Inc., 546 A.2d 1168 (Superior Ct. 1988); a wife whose whereabouts were disclosed by the phone company to an abusive husband, Nagy v. Bell Telephone, 436 A.2d 701 (Superior Ct. 1981).

The two "anomalous" results included a case in which an employee was coerced by her employer into entering a controversial drug and alcohol program, Crivellaro v. Pennsylvania Power and Light, 491 A.2d 207 (Superior 1985), and another case in which a motorist ran over a body which had been negligently left in the road, Stoddard v. Davidson, 513 A.2d 419 (Superior 1986). In the first case, the court said that the recognition of the cause of action was appropriate because there was a contractual or fiduciary relationship between the employer and employee. In the second case, however, the court suggested the result could simply not be reconciled with previous or subsequent cases and, therefore, it strongly implied the case should simply be disregarded.

Having reviewed the precedent in this area, the Armstrong court concluded that the plaintiff could not state a cause of action since this was not a case in which she witnessed an injury to a family member. In so holding, the court squarely stated what perhaps had only been implied in earlier cases, namely, that in order to state a cause of action for negligent infliction of emotional distress in this jurisdiction, the plaintiff must show that the emotional distress arose from having observed some injury to a loved one caused by the defendant's negligence. The only possible exception to this might be a circumstance in which there is a fiduciary or contractual relationship between the plaintiff and a defendant whose negligent action causes emotional distress to the plaintiff. In short, no cause of action will exist if the plaintiff only alleges that the defendant committed some negligent act which caused emotional distress.

Unquestionably, the issue that has led to the most discussion in the superior court cases is the question of whether the plaintiff must allege that there has been some physical manifestation of the emotional distress. Until the 1993 en banc decision in Krysmalski vs. Tarasovich, 622 A.2d 298 (1993), (see discussion below), there was an unbroken line of superior court authority dating back to Banyas vs. Lower Bucks Hospital, 437 A.2d 1236 (1980), which held that the plaintiff must prove some physical manifestation, i.e. that emotional distress alone is not enough to make out the cause of action.

In Banyas, the court reached the conclusion that physical manifestation of the distress was necessary by relying on §436A of the Restatement of Torts, 2nd, which in pertinent part, states the following:

"If the actor's conduct is negligent as creating an unreasonable risk of causing either bodily harm or emotional disturbance to another, and it results in such emotional disturbance alone, without bodily harm or other compensable damage, the actor is not liable for such emotional disturbance."

In attempting to show that its conclusion was consistent with Sinn, the Banyas court in a footnote indicated that, while it was not clear from the Sinn opinion, it assumed that there was indeed an allegation by the plaintiff of both emotional distress and some physical manifestation. See Banyas at fn. 1.

Interestingly, the supreme court never adopted (or discussed in much detail at all) §436A in either Niederman or Sinn. Hence, it is unclear what the basis is for the superior court's suggestion that §436A represents the law in Pennsylvania. Nevertheless, several other superior court cases, citing §436A and the Banyas holding, have similarly held that proof of physical manifestation is necessary to make out the cause of action. See Abadie vs. Riddle Memorial Hospital, 589 A.2d 1143 (1991); Wall vs. Fisher, 565 A.2d 498 (1989); and Houston vs. Texaco Inc., 538 A.2d 502 (1988).

Assuming for the moment that physical manifestation is a continuing requirement in Pennsylvania law (but see discussion below of Krysmalski), the next logical question is this:

What is a sufficient physical manifestation? Perhaps the best way to answer that question is to review and compare those allegations which have been deemed to sufficiently allege physical manifestation and those that have not. Allegations deemed insufficient include the following:

  • general allegation of "severe mental anguish and emotional distress," Banyas, supra.;
  • general allegation of "emotional and psychological damage," Abadie, supra.;
  • general allegation of "severe emotional distress," Lazor vs. Milne, 499 A.2d 369 (Superior Ct. 1985);
  • general allegation of emotional distress, and plaintiff admitted in interrogatories that she had no physical injuries and required no treatment by a psychologist or a psychiatrist, Wall, supra.;
  • general claim for emotional distress but no allegation that the plaintiff suffered any bodily impairment as a result of the stress, Strain vs. Ferroni, 592 A.2d 698 (Superior Ct. 1991)

Those allegations deemed sufficient include the following:

  • severe emotional distress and related physical trauma, including intense headaches, uncontrollable shaking, involuntary hyperventilation, shortness of breath, frequent nightmares, inability to control bowels, upset stomach, and intense tightening of the muscles of the neck, back, and chest, which produce severe pain lasting several days, Crivellaro vs. PA Power and Light Co., 491 A.2d 207 (Superior Ct. 1985)
  • "extreme mental and emotional anguish and distress, causing severe depression, nightmares, stress, and anxiety, requiring psychological treatment," Love, supra. at 1179.

The last significant questions posed at the out-set of this article were these: Must the plaintiff seek medical treatment? and, Must the plaintiff have medical testimony establishing a link between observance of the accident and the claimed emotional distress? These issues were not directly raised in the appellate courts until the superior court's recent en banc decision in Krysmalski, supra. Not only did Krysmalski address those questions, it revisited two other significant issues, namely, the need for contemporaneous observation and the question of physical manifestation. Because it represents the view of the entire court and because it touches upon several key issues in this area of the law, Krysmalski is worthy of detailed discussion.

In this case, a mother and two of her daughters had gone grocery shopping in a supermarket in the Pittsburgh area. When their shopping was complete, the two daughters left the store and went outside to wait for their mother who was in the checkout line. From the checkout line, one has a view of the parking lot in front of the store. As the daughters stood in front of the store at the edge of the parking lot, a vehicle driven by a drunk driver went out of control and crashed into them causing severe lower leg injuries. While it was not clear whether Mrs. Krysmalski actually saw the impact, a security guard describes her as being on the scene within moments and screaming hysterically. The case eventually went to trial and Mrs. Krysmalski's estate (she died prior to trial) made a recovery for emotional distress.

In seeking to overturn the award, the defendant raised several alleged deficiencies in the evidence, the first being that Mrs. Krysmalski did not actually see the impact. As noted above, the court indicated it was unclear whether Mrs. Krysmalski had actually seen the accident, but in any event, it could not be denied that under all the circumstances, she had a contemporaneous sensory impression of the accident consistent with the principle announced in Neff, supra. In that regard, the Court noted that Mrs. Krysmalski certainly heard the impact and was at a vantage point from which the area of the accident could be observed. Thus, she satisfied the contemporaneous observance element.

The defendant next argued that the award should be overturned because there was inadequate evidence of some physical manifestation of the emotional distress. The court rejected this argument, and in so doing it seemed to purposely back away from the rule first set out in Banyas requiring proof of physical manifestation. The court indicated that the critical element in a claim for negligent infliction of emotional distress is the "contemporaneous observance" requirement. Given the fact that Mrs. Krysmalski satisfied that element, and considering that her family testified that she was hysterical, unstable, and distraught after the accident, the court said the evidence was sufficient to justify submitting the case to the jury. While the court never expressly ruled on the physical manifestation issue, this seemed to represent a marked relaxation of the hard line set out in Banyas. In backing away from the strict physical manifestation requirement the court cited a quote from Sinn, wherein the supreme court observed that "psychic injury is capable of being proven despite the absence of a physical manifestation of such injury." (In truth, however, it must be noted that this statement by the supreme court was made during the course of a discussion criticizing the old impact rule, and therefore it seems reasonable to assume that, viewed in such context, "physical manifestation" was being used synonymously with physical impact to the plaintiff).

Since Krysmalski is an en banc decision, its position on the "physical manifestation" issue should arguably be accorded greater credence than individual panel decisions of the superior court. Nevertheless, a discussion of this issue would not be complete without reference to the position taken by court in its most recent decision in the emotional distress area, the aforesaid Armstrong case. As described previously, this case involved a wife-plaintiff who experienced emotional distress as a result of being improperly informed that her husband had been involved in a serious accident. While the court ultimately determined that the plaintiff could not state a cause of action (see discussion, supra.) for unrelated reasons, it noted at the outset that the plaintiff did satisfy other requirements of an emotional distress claim, including proof of a physical manifestation. In this particular case, the testimony established that, upon being informed that there had been a mistake as to the identity of the injury victim, the plaintiff testified that she urinated, defecated, and "just lost it." Also, there was testimony that she went on to suffer depression, nightmares, insomnia, and required psychological counseling. The court made no reference to Krysmalski's apparent relaxation of the physical manifestation requirement, and instead simply mimicked earlier cases which relied upon §436A of the Restatement 2d. and Banyas in requiring evidence of a physical manifestation.

The final argument raised by the defendant in Krysmalski was that the plaintiff failed to introduce any expert testimony to support the allegation of emotional distress. The court quickly dispatched this argument saying that it must fail "for the simple reason that medical evidence is not required in an action for damages for negligent infliction of emotional distress." Krysmalski, supra., at 305. According to the court, the requirement of medial proof is only necessary in intentional infliction of emotional distress cases where it serves to buttress the proof of outrageousness. In cases of negligent infliction of emotional distress, the contemporaneous observance of a traumatic event serves to assure the veracity of the claim.

IV. COMMENTARY

There is no question but what our appellate courts have indicated that the most important element in making out a claim of negligent infliction of emotional distress is the "contemporaneous observation" of the accident. As the supreme court noted in Mazzagatti, for the average person there is an understandable difference between the reaction experienced by one who directly observes injury to a loved one and one who learns of that injury through some means other than direct and contemporaneous observation.

Quite correctly, the superior court has concluded that eyesight is not the only sense that one might employ in experiencing a contemporaneous impression of an accident. Hearing a crash and realizing that a family member has been the victim of a negligent act is hardly less traumatic than seeing the impact itself. In both circumstances, there has been an instantaneous and contemporaneous realization of injury to a loved one, all of which is unbuffeted by a third person or some other source of indirect knowledge.

Admittedly, one could make a credible argument that the emotional distress experienced by a mother who receives a telephone call at work indicating that her child has been seriously injured in an automobile accident is no less significant than the distress experienced by the parent who actually witnesses that accident. The court seems to be suggesting, however, that to extend a cause of action beyond those persons who have a contemporaneous sensory observation of the injury would create a new world of litigation akin to granting a consortium claim to every family member who experiences some emotional upset as the result of an injury to a close relative.

If contemporaneous observance is the key to an emotional distress claim, one may raise an interesting issue that has never been specifically discussed in any of the appellate cases: For those plaintiffs who contemporaneously "observe" an accident, are they entitled to be compensated only for the emotional distress related to that observation, or are they entitled to damages for all of the emotional distress they experience as a result of the injury to their loved one. For example, suppose that a mother who witnesses a fatal accident involving her minor child testifies at trial (and even offers medical evidence in support thereof) that she keeps having visions of the accident over and over in her mind, and it causes her to break out into uncontrollable crying, causes nightmares and night sweats, etc. Suppose also, however, that it is conceded or otherwise established by medical testimony, that a certain portion of the depression and distress is simply related to the fact that her daughter is dead and gone. Certainly, a credible argument can be made that the latter component of the distress --- that brought on by the general realization that her child is dead --- is no different than the distress experienced by a parent who does not observe an injury to their child.

There is no answer to this question in any of the case law. On the one hand, it could be argued that if contemporaneous observation is the key factor which determines whether one has a cause of action at all, the damages that one can claim should be limited to those directly flowing from that observation. On the other hand, one could argue that the court was merely setting out a classification of plaintiffs who could recover at all, much as the classification of those who can recover in a wrongful death claim are set out by statute, and that once having fit within the defined classification, a plaintiff can claim all emotional distress resulting from the injury to the loved one.

As to the issue of physical manifestation, the law is neither clear nor well reasoned. On the one hand, we have Banyas and its progeny definitely requiring proof of physical manifestation, while on the other hand, Krysmalski seems to eliminate or relax the requirement. Ironically, both cases purport to be consistent with Sinn when in reality each of them has arguably misapplied it. For example, the Banyas holding was based in large part on §436A of the Restatement of Torts, 2nd., and that section was never explicitly adopted in Sinn or elsewhere. Furthermore, Banyas assumed there was a sufficient pleading of physical manifestation in Sinn when, in fact, the issue is never even discussed. Likewise, Krysmalski draws support from Sinn's statement that "psychic injury can be proven in the absence of a physical manifestation," but that quote, if read in context, seems to be equating physical manifestation with physical impact. In the end, a clear statement from the supreme court --- something that has yet to emerge --- will be needed in order to confidently answer the question of whether Pennsylvania requires proof of physical manifestation.

On the question of expert testimony, one can properly criticize Krysmalski to the extent it stands for the proposition that medical proof of causation (i.e. that the emotional distress relates to the witnessing of the accident) is not required in Pennsylvania. As was noted in the Background section, supra., one of the major barriers to our courts recognizing a bystander's claim for emotional distress at all was the supposed inability of medical science to make such a link. In liberalizing the law and moving beyond the impact rule, the supreme court used as one of its primary justification the notion that medical science now can establish the necessary causal nexus. Seen in that light, one can argue rather persuasively that if the supreme court did not intend for medical testimony to be offered, it never would have gone to such lengths to rely upon modern medicine's capabilities in abandoning the old impact rule.

V. CONCLUSION

Having traced the evolution of the emotional distress cause of action, the following answers to the questions posed at the beginning of this article may be offered.

  1. What are the basic elements of the cause of action for negligent infliction of emotional distress? The basic elements remain the same as originally set out in Sinn, namely, the plaintiff must prove:
    • He was located close to the scene of the accident;
    • His emotional distress results from the contemporaneous and sensory observation of the accident;
    • He and the victim were closely related.
  2. Must the plaintiff actually see the impact to a loved one? No, not necessarily. At a minimum, he is going to have to be located in such a position that he experiences a direct and immediate sensory impression of the accident. Hearing a crash and seeing the involved vehicles moments before impact was sufficient in Neff.
  3. Must the plaintiff actually witness an "accident" to another person? i.e. Is it not sufficient that the defendant simply commits some negligent act which causes emotional distress to the plaintiff? Apparently, the answer to this question is "No" with a possible exception for a situation in which a defendant having a fiduciary or contractual relationship with the plaintiff does some negligent act which causes emotional distress. The superior court in Armstrong has stated rather emphatically that it is not going to extend the cause of action for emotional distress beyond situations in which one family member observes a physical injury to another family member caused by the negligence of the defendant. Thus, if a defendant commits a negligent act, but that act does not cause a physical injury to plaintiff's loved one which plaintiff observes, no cause of action will exist, even though the act causes emotional distress to the plaintiff.
  4. Must the plaintiff prove some physical manifestation of the emotional distress? The answer to this question remains unclear. Prior to Krysmalski, the answer in a long line of superior court cases was an unequivocal "Yes." Now, however, Krysmalski casts doubt on that prior authority, although the recent Armstrong case reaffirms the earlier precedent. In any event, the supreme court has yet to address the issue, and, hence, the answer remains unclear.
  5. If physical manifestation is required, what specifically must the plaintiff prove? Again, this is somewhat uncertain. Prior to Krysmalski, general allegations of distress were deemed to be insufficient, while allegations of resulting physical affects (e.g. headaches, shortness of breath, irritable bowels, etc.) were deemed to be sufficient. In Krysmalski, however, the only allegation was to the mother's general distress and hysteria. Definitive clarification awaits some expression from the supreme court.
  6. Is it necessary that medical testimony be offered on the issue of causation? The answer, at least from the superior court, is "No." Bear in mind, however, that a good argument can be mounted that Sinn implied such testimony should be required of a plaintiff in order to sustain the cause of action.

ADDENDUM

TO: JPG

FROM: JPG

DATE: February 3, 1995

SUBJECT: EMOTIONAL DISTRESS

I read and article entitled "Expansion of Bystander Recovery for Negligent Infliction of Emotional Distress," which was written by Attorney David Kline of Montgomery County and which appeared in the January 1995 PBA Bar Quarterly. I compared it to my original article on the subject. I think that only case of interest that he points out that I did not have in my article was a federal court case entitled Pearsall v. Emhart Industries, Inc., 599 F. Supp. 207 (E.D. 1984).

In this case, the court found that a mother stated a claim for negligent infliction of emotional distress where the mother arrived home while her house was on fire while the firefighters were bringing the blaze under control. She testified that she stood near the bodies of her husband and children at the scene of the fire, and she arrived at the hospital shortly before the ambulance arrived and witnessed the bodies of her husband and daughter being carried off the ambulance.

The court said that the fact that she arrived at the house shortly after her family members had died does not diminish the foreseeability of her emotional distress. When she first arrived home, she did not know if they were dead or alive, and she later touched their bodies as the fire was still smoldering. The court went on to say that her emotional distress was caused not merely by others notifying her of the accident, but by her own personal shock and emotional distress resulting from the direct impact upon her senses of the fire and its aftermath.

John Gismondi on G+

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