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PHILOMENA TOBIN v. STUART GROSSMAN (04/24/69)

COURT OF APPEALS OF NEW YORK 1969.NY.41341 <http://www.versuslaw.com>; 249 N.E.2d 419; 24 N.Y.2d 609 decided: April 24, 1969. PHILOMENA TOBIN, AS NATURAL PARENT AND GUARDIAN OF GREGORY TOBIN, AN INFANT, ET AL., APPELLANTS,v.STUART GROSSMAN, RESPONDENT Tobin v. Grossman, 30 A.D.2d 229, affirmed. Counsel Eugene R. Spada and Sanford Rosenblum for appellants. Myron Komar for respondent. Chief Judge Fuld and Judges Burke, Scileppi, Bergan and Jasen concur with Judge Breitel; Judge Keating dissents and votes to reverse in a separate opinion. Author: Breitel


Tobin v. Grossman, Chief Judge Fuld and Judges Burke, Scileppi, Bergan and Jasen concur with Judge Breitel; Judge Keating dissents and votes to reverse in a separate opinion.

Author: Breitel

 The issue is whether a mother may recover against a tort-feasor for her own mental and physical injuries caused by shock and fear for her two-year-old child who suffered serious injuries in an automobile accident. The appeal rises on the pleading alone which alleges that the accident occurred in the mother's full view and presence. In fact, the examination before trial taken of the mother, and somehow made a part of the record,*fn* reveals that the accident did not occur in the mother's presence, but while she was nearby and heard the screech of automobile brakes. She immediately went to the scene, a few feet away, and saw her injured child lying on the ground.

It is concluded that under the well-established applicable doctrines no cause of action lies for unintended harm sustained by one, solely as a result of injuries inflicted directly upon another, regardless of the relationship and whether the one was an eyewitness to the incident which resulted in the direct injuries. Consequently, the order dismissing such a cause of action was proper and should be affirmed.

Until 1968 no upper court case in this country had held that a mother could recover for her own injuries due to shock and fear for her child as a result of an accident occurring in her view (but for English precedent, compare Boardman v. Sanderson, 1 W. L. R. 1317 [C. A., 1964] with King v. Phillips, [1953] 1 Q. B. 429). In 1968 the Supreme Court of California, by a closely divided court, overruled its five-year old holding to contrary effect, also by a closely divided court of somewhat different composition, and permitted recovery but only where the accident had occurred in the mother's presence (Dillon v. Legg, 68 Cal. 2d 728, overruling Amaya v. Home Ice, Fuel & Supply Co., 59 Cal. 2d 295). No American case has held that a mother can recover for her own injuries due to shock and fear for her child as a result of an accident which she did not view. One English case holding otherwise has been thereafter distinguished (compare Hambrook v. Stokes Bros., [1925] 1 K. B. 141 [C. A.] with Bourhill v. Young, [1943] A. C. 92).

It is in this context of pleading and variant pretrial proof, against a background of top-heavy precedential authority and doctrine denying a cause of action, that this appeal is before the court.

Plaintiff mother's cause of action was sustained at Special Term on motion by defendant to dismiss for insufficiency the third and relevant cause of action (55 Misc. 2d 304). The Appellate Division unanimously reversed and dismissed the cause of action (30 A.D.2d 229).

Taking the allegations as true, as one must, on a motion addressed to the pleadings (Kober v. Kober, 16 N.Y.2d 191, 193), the following appears: On September 18, 1966, defendant, negligently operating his automobile, struck plaintiff's two-year-old son, Gregory, causing severe injuries, including cerebral damage, to him, and emotional and physical injuries to plaintiff, in whose full view and presence the accident occurred. Of course, as already noted, the pretrial examination of the mother reveals that in fact the mother was inside a neighbor's home, outside of which the momentarily unattended child was struck, and she did not see the accident. But she did hear the screech of brakes, noted the absence of her child, went instantly outside, and saw him lying on the ground.

While the court is limited to a determination of the sufficiency of the pleading, this court, unlike the California high court, cannot practically limit its consideration to the pleaded facts before it and leave, as that court said, to a case-by-case development any extensions to be evolved (Dillon v. Legg, supra, p. 740). In this case, the additional undisputed and varying facts of the pretrial examination are before the court in the record. It is already evident that this action, if it were to go to trial, would involve a mother who was not an eyewitness. The problem presented is double-faceted. The first is the recoverability for injuries sustained solely as a result of an initial mental or psychological impact, but with ensuing mental illness and physical injury. The second is the scope of duty to one who is not directly the victim of an accident causing severe physical injury to a third person.

On the first facet, there is no longer any question. Since Battalla v. State of New York (10 N.Y.2d 237) the rule is now settled that one may have a cause of action for injuries sustained although precipitated by a negligently induced mental trauma without physical impact. As much had been presaged in Ferrara v. Galluchio (5 N.Y.2d 16), albeit that case involved a somewhat narrower holding (id., p. 22).

It is the second facet which presents both novelty and difficulty, namely, whether the concept of duty in tort should be extended to third persons, who do not sustain any physical impact in the accident or fear for their own safety. Unlike the problem in the first facet, there are no parallels. Its solution does not depend upon advances in medical science, namely, that mental traumatic causation can now be diagnosed almost as well as physical traumatic causation. The question is profounder than that, because there is now urged the creation of a new duty and therefore an entirely new cause of action.

In recent years this court has expanded many tort concepts, but they have been only expansions rather than significant creations of entirely new causes of action. Thus, in the Battalla and Ferrara cases (supra), the reality of psychological causation with consequent mental and physical harms was recognized in an area where previously even the slightest physical impact would have been sufficient to establish a cause of action. Although in Millington v. Southeastern Elevator Co. (22 N.Y.2d 498) it was necessary to strike down a bar to a wife's recovery for loss of consortium, the fact of such harm was always evident and recovery had always been allowed to the husband in the converse situation. The explanation for the discrimination was an historical anomaly and rested on a purely conceptual distinction. Although in Gelbman v. Gelbman (23 N.Y.2d 434) the immunity from suit between parent and child for non-intentional tort was abandoned, there was no such intra-family immunity for intentional tort, and precisely the same conduct between others would give rise to a cause of action. In Bing v. Thunig (2 N.Y.2d 656) the immunity enjoyed by charitable hospitals for negligent "medical" acts of its employees was struck down. In any other context there would have been a cause of action.

Similarly, Woods v. Lancet (303 N. Y. 349) involved well-understood harms but for which recovery had theretofore been barred only because of difficulties in recognizing the personality as entitled to sue. In that case plaintiff was permitted to recover for injuries sustained while a fetus in utero resulting from impact on the mother. Plaintiff, who had been the direct object of the harm inflicted, would have had a cause of action, except for the conceptual difficulty of not having been a legal person with capacity to sue at the time the wrong was committed.

On the other hand, the court was unanimous in denying a cause of action for an alleged wrong which the law had never before recognized as a wrong at all (Williams v. State of New York, 18 N.Y.2d 481, 483). The Williams case involved an action by an illegitimate child conceived in a State mental hospital of a mentally deficient mother who was not protected from sexual attack. Damages were sought for a "wrongful life". The court, in discussing its recent expansions of tort concepts, observed: "In none of these were we asked to, nor did we, go so far as to invent a brand new ground for suit" (p. 483).

Of course, the common law is not circumscribed by syllogisms, however constructed out of precedents, and this case presents an acute issue that will not pass ...


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