BANYAS v. LOWER BUCKS HOSPITAL

BROSKY, Judge:

This suit was instituted by appellant who seeks damages for mental distress which he claims appellees caused him to suffer. The complaint contained counts charging appellees with both intentionally and negligently inflicting emotional distress upon him. The lower court sustained preliminary objections in the nature of a demurrer and dismissed the complaint. We affirm the order as to the negligence counts but reverse as to the count alleging an intentional infliction of mental distress by appellees.

Our Supreme Court has summarized the guidelines we are to follow in determining whether the preliminary objections were properly granted.

Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979).

We have paraphrased the complaint's allegation of facts pertinent to this appeal as follows. On July 27, 1977, Thomas Lavin was admitted to the emergency room of Lower Bucks Hospital complaining of facial and jaw injuries which resulted from an altercation with Joseph A. Banyas, III. Mr. Lavin was admitted to the hospital for surgical reduction of what was diagnosed as a fractured jaw. On July 28, 1977, Mr. Lavin was taken to the operating room for the reduction and was placed under the care of Alvin Martin, M.D., Young Kim, M.D., and C.R.N.A. Tanya O'Neill. Mr. Lavin died at that time due to the negligence of the named defendants (the hospital and persons named in previous sentence), their agents, servants or employees acting within the course and scope of their employment. The death of Thomas Lavin was due solely to the acts of the defendants and was due to no act or failure to act on the part of Mr. Banyas.

The complaint alleges three causes of action, all of which incorporate the above recited factual allegations. The first count charges that the defendants knowingly, wilfully, recklessly and intentionally prepared records indicating that Mr. Lavin's death was due solely to the injuries inflicted upon him by Mr. Banyas. Banyas stated in his complaint that as a result of the wrongful preparation of records, he was charged with the crimes of aggravated assault, simple assault, recklessly endangering another person, murder, third degree murder and voluntary manslaughter. He seeks recovery for severe mental anguish and emotional stress which he claims to have suffered as a result of having been charged with the above-mentioned crimes.

The second count charges that Mr. Banyas suffered damages as a result of what he claims was the negligent, reckless and wanton preparation of records by the defendants.

The third count traced the cause of Mr. Banyas' being charged with crimes to the death of Mr. Lavin and sought damages for what the complaint alleged to be the negligence which caused his death.

The intentional infliction of mental distress is an actionable wrong in Pennsylvania. See Papieves v. Lawrence, 437 Pa. 373, 263 A.2d 118 (1970); Jones v. Nissenbaum, Rudolph and Seidner, 244 Pa.Super. 377, 368 A.2d 770 (1976); Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265 (1979).

Section 46 of the Restatement (Second) of Torts § 46 (1965) provides in part:

As the Supreme Court said in Jones, supra, "It is apparent that the gravamen of this tort is that the conduct complained of must be of an extreme or outrageous type." Id., 244 Pa.Super. at 383, 368 A.2d at 773.

We have found the Third Circuit Court's opinion in Chuy, supra, helpful in our analysis of this case. In Chuy, a professional athlete sought recourse for mental distress he experienced as a result of the publication of a newspaper article that falsely stated that he suffered from a potentially fatal disease. The plaintiff contended that making such a false statement constituted "extreme and outrageous conduct." The court found sufficient evidence to support his claim and wrote, upholding motions for judgment N.O.V. and for new trial that,

If the appellees in the present appeal, defendants below, in fact intentionally propagated a falsehood when they wrote that Mr. Lavin's death was attributable solely to Mr. Banyas, we believe that they could also be found liable for the emotional distress suffered by Mr. Banyas. We would find an intentional misstatement of the cause of death to be intolerable professional conduct and extreme and outrageous. Certainly, Mr. Banyas was substantially certain to suffer emotional distress following such a report. Therefore, if proven, the facts alleged by appellant in this first count would entitle him to relief.

We come to a different conclusion as to the remaining counts, both of which are based on averments of negligence.

The second count seeks recovery for the negligent infliction of mental distress and is based on the factual allegations previously recited.

The Restatement (Second) Torts, § 436 provides:

Restatement (Second) Torts, § 436A states:

Comment A to the Section explains that "Under the rule stated in this Section, the negligent actor is not liable when his conduct results in the emotional disturbance alone, without the bodily harm or other compensable damage." See also Sinn v. Burd, supra, 486 Pa. at 175-177, 404 A.2d at 687, 688 (Roberts, J. dissenting).

Appellant's complaint avers no physical harm. We find it does not state a cause of action for negligent infliction of emotional distress. See Niederman v. Brodsky, 436 Pa. 392, 261 A.2d 84 (1970), and Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979), both of which discuss this tort. In each case, the opinion states that damages were sought for physical and emotional injuries.1

Until 1970, our courts required as an element of the tort that the plaintiff has suffered a physical impact from a negligent force. See Sinn v. Burd, supra, at 675, 676. Neiderman, supra, altered this rule to the extent of granting a cause of action to a plaintiff within the "zone of danger" of such impact. Sinn abolished that requirement where a mother witnesses the violent death of her small child and suffers injury therefrom. The later case, Hoffner v. Hodge, 47 Commonwealth 277, 407 A.2d 940 (1979), emphasizes the narrowness of the holding in Sinn v. Burd.

In sum, given the restrictions that our courts have consistently imposed on recovery for this tort, we would err in finding a cause of action without an allegation of bodily harm.

Appellant's third count seeks damages for what the complaint alleges was the negligent causation of Mr. Lavin's death.

It is axiomatic that a finding of negligence requires a finding that the defendant breached a duty owed to the plaintiff. The complaint does not allege nor do we find a duty owed to Mr. Banyas as to the care rendered to Mr. Lavin.2

Our Supreme Court discussed the concept of duty in Sinn v. Burd, supra. Citing Prosser Palsgraf Revisited, 52 Mich. L.Rev. 1, 14-15 (1953), the court noted:

It would be impractical to find a duty here. It was not Mr. Lavin's death that caused any emotional distress suffered by appellant, but, rather, his being accused of causing that death which may have harmed him. Such accusation did not arise from the fact of the death, but from the facts surrounding the altercation between Messrs. Lavin and Banyas, and perhaps, from an explanation of the cause of death given by the medical personnel.

Finding no duty owed to Mr. Banyas as to care given to Mr. Lavin, we find that appellant did not state a cause of action in the third count of his complaint.

The order of the lower court granting appellee's motion for demurrer on the first count is reversed; the order is affirmed as to counts two and three.