Contemporaneous Observance Requirement for Negligent Infliction of Emotional Distress Claim Upheld

A United States District Court recently reiterated Pennsylvania’s “contemporaneous observance”  requirement as necessary to establish a claim for negligent infliction of emotional distress in Rapchak v. Freightliner Custom Chassis, et al, U.S.D.C. WDPA 2:13-CV-1307.  In a Memorandum Opinion, United States District Court Judge Terrence F. McVerry granted partial summary judgment to a Defendant seeking to dismiss a mother’s negligent infliction of emotional distress (NIED) claim arising from discovering the body of her deceased son who was killed when a valve allegedly malfunctioned, allowing a motor coach to fall and suffocate him.

Products liability Defendant Haldex argued it was entitled to summary judgment on the negligent infliction of emotional distress claim asserted by the decedent’s mother since, she was not present near the scene of the accident, nor did she contemporaneously observe the accident when it occurred.  In response, Plaintiff Mother, Ms. Borzik, asserted she was able to recover as a bystander because she visualized the circumstances of the current and ongoing tortious conduct.  In discussing Pennsylvania law, the Court noted that when a Plaintiff seeks to recover under a claim for NIED, under the bystander theory, there is a three-part inquiry which requires that a Plaintiff 1) be located at or near the scene of the accident; 2) suffered emotional shock as a result of contemporaneous and sensory observance of the accident; and 3) be closely related to the victim of the accident.

The Court reiterated that the contemporaneous observance requirement was intended to distinguish those Plaintiffs who suffer severe emotional distress as a direct and foreseeable result of the Defendant’s negligence, from those Plaintiffs who suffer feelings of anguish and grief caused by an injury to a loved one.  The Pennsylvania Supreme Court has been explicit not to extend this area of tort recovery and allow damages for a Plaintiff’s grief.  Thus, in order to be contemporaneous, the observance must be an immediate and direct trigger for the emotional distress.  Pennsylvania case law has only permitted recovery where the Claimant had actually witnessed the negligent infliction of harm.

In the instant case, the Plaintiff’s mother returned home and observed her son’s legs sticking out from beneath the motor coach where he had been working when she left.  Plaintiff’s mother went outside and found that the motor coach had descended onto his forehead and chest, trapping him underneath.  At that point, she presumed her son was dead.

The Court granted partial summary judgment in favor of Haldex, finding that the Plaintiff was not present at the time that a valve allegedly malfunctioned causing the vehicle to descend.  The Court held, “To be sure, Pennsylvania law requires the personal observation of the event and focuses on the ‘contemporaneous sensory observance of an isolatable traumatic event, not the facts and circumstances preceding and following the event.”’  In the absence of any evidence that a claimant personally observed the incident – through sight, sound, or any other sensory perception – the Court cannot permit claimant to proceed with her NIED claim.

David T. Bush

Office: King of Prussia
Phone: (610) 977-4105
Email: dbush@forryullman.com
Practice Areas: Construction Litigation, Commercial Litigation, General Liability, Nursing Home Defense, Premises Liability, Third Party