Abadie v. Riddle Memorial Hosp.

Page 1143

589 A.2d 1143

404 Pa.Super. 8

Marilyn D. ABADIE, Appellant, v. RIDDLE MEMORIAL HOSPITAL.

Superior Court of Pennsylvania.

Argued Jan. 29, 1991.

Filed April 23, 1991.

John M. Hickey, Media, for appellant.

Susan L. Wallack, Philadelphia, for appellee.

Before CAVANAUGH, CIRILLO and BROSKY, JJ.

BROSKY, Judge.

This is an appeal from an Order sustaining preliminary objections in the nature of a demurrer to appellant's two-count amended Complaint.

According to the allegations of her amended Complaint, appellant was a patient at appellee hospital where she was to undergo a lower gastrointestinal x-ray. She was placed upon a table in the x-ray room with an intravenous needle in her arm. However, the attendant had then left the room. Shortly thereafter, appellant heard loud, roaring noises, laughter and vulgar language. Appellant averred that the noise was caused by a birthday celebration for a hospital employee. As a gift to the employee, the other employees had hired a male dancer dressed in a gorilla outfit to strip. Appellant claimed that she was already emotionally fragile and suffered from severe anxiety disorders and that appellee's employees, by their conduct, had intentionally and negligently caused her emotional distress.

Appellee filed preliminary objections in the nature of a demurrer on the basis that (1) no cause of action exists in this jurisdiction for the tort of intentional infliction of emotional distress and, even if it were recognized, the facts of the amended Complaint are insufficient to set forth a cause of action for intentional infliction of emotional distress; (2) the tort of "abandonment" does not exist in Pennsylvania and, even if it were cognizable in this jurisdiction, the facts in the Complaint do not support this cause of action; ¹ and (3) no claim can be made for punitive damages if the underlying cause of action is not sustainable. The court sustained appellee's preliminary objections, whereupon this appeal followed.

We first note the guidelines which we must follow in reviewing the propriety of an Order granting preliminary objections in the nature of a demurrer. Preliminary objections in the nature of a demurrer admit the truth of the factual averments of the Complaint, but not conclusions of law, as well as all reasonably deducible inferences therefrom. The demurrer must be dismissed if the averments of the Complaint set forth a cause of action which, if proven, would entitle the party to relief. If the Complaint fails to set forth a cause of action, the demurrer must be sustained. Crivellaro v. Pennsylvania Power & Light Co., 341 Pa.Super. 173, 491 A.2d 207 (1985); Banyas v. Lower Bucks Hospital, 293 Pa.Super. 122, 437 A.2d 1236 (1981), citing Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979).

Appellant's first argument on appeal is that her Complaint does make out a cause of action for negligent infliction of emotional distress as a result of the conduct of appellee's employees. Appellant argues that the averments in the amended Complaint of her emotionally and psychologically fragile condition plus the fact that appellee knew that she did suffer from anxiety neurosis are sufficient to sustain her claim. It is apparent from amended Complaint that she is alleging infliction of emotional distress, only, as a result of appellee's conduct. Negligent infliction of emotional distress is the subject of Section 436A of the Restatement (Second) Torts.

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.

Comment a to this section explains:

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.

The above section of the Restatement and its accompanying Comment have been interpreted as requiring an averment of physical harm. Banyas, supra. See also Sinn v. Burd, supra, and Niederman v. Brodsky, 436 Pa. 401, 261 A.2d 84 (1970), which discuss the requirement of physical harm resulting from emotional disturbance as set forth in the Restatement (Second) Torts § 436. The Banyas requirement for pleading a cause of action for negligent infliction of emotional distress is now well-established. Houston v. Texaco, Inc., 371 Pa.Super. 399, 538 A.2d 502 (1988); Reimer v. Tien, 356 Pa.Super. 192, 514 A.2d 566 (1986); Lazor v. Milne, 346 Pa.Super. 177, 499 A.2d 369 (1985); Justice v. Booth Maternity Center, 345 Pa.Super. 529, 498 A.2d 950 (1985), reversed on other grounds, 510 Pa. 429, 509 A.2d 838 (1986); Crivellaro, supra.

Appellant states in her Brief to this court that she has alleged in her amended Complaint emotional and psychological damage. We have examined her amended Complaint and find this to be so. At the same time, however, and despite appellant's assertion to the contrary, we find wholly absent from the amended Complaint any averments of physical harm, injury or illness occurring as a result of appellee's conduct. Although appellant does aver in her amended Complaint that she is suffering from psychological factors affecting her physical condition and, further, that she will be required to expend substantial sums of money for medical care for her injuries, she does not plead the nature of her physical ills or injuries. ²

For example, in Crivellaro, supra, Ms. Crivellaro averred in her amended Complaint that she "ha[d] suffered from severe emotional distress and related physical trauma, including intense headaches, uncontrollable shaking, involuntary hyperventilation and shortness of breath, frequent nightmares, inability to control bowels, upset stomach, and an intense tightening of the muscles in the neck, back and chest which produced severe pain lasting several days...." At 179-80, 491 A.2d 210. Therefore, on the basis of Banyas and its progeny, we conclude that the trial court was correct in sustaining appellee's demurrer to this claim.

In her second issue on appeal, appellant asserts that her amended Complaint states a cause of action for intentional infliction of emotional distress on the part of the employees of appellee because of the outrageousness of their conduct. This type of conduct is explained in Section 46(1) of the Restatement (Second) Torts.

One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.

The gravamen of the tort of intentional infliction of emotional distress is outrageous conduct on the part of the tortfeasor. Kazatsky v. King David Memorial Park, 515 Pa. 183, 527 A.2d 988 (1987). However, in that case, our supreme court imposed, as a threshold requirement to determining whether specific conduct of which a party complains reaches the level of outrageousness under Section 46 of the Restatement (Second) Torts, an allegation of physical injury or harm. The Kazatsky court explained, "Given the advanced state of medical science, it is unwise and unnecessary to permit recovery to be predicated on an inference based on the defendant's 'outrageousness' without expert medical confirmation that the plaintiff actually suffered the claimed distress." At 197, 527 A.2d at 995. What is required, according to Kazatsky, is "some objective proof of severe emotional distress." Id. "At the very least, existence of the alleged emotional distress must be supported by competent medical evidence." Id. Because the Kazatskys failed to present evidence which would have established their right of recovery under Section 46 of the Restatement (Second) Torts, the supreme court did not consider it necessary to determine whether King David's conduct reached the level of outrageousness required to sustain a claim under Section 46 and refused to adopt that section of the Restatement as the law in this Commonwealth.

The decisions of this court are in accord with Kazatsky. Field v. Philadelphia Electric Co., 388 Pa.Super. 400, 565 A.2d 1170 (1989) (medical assistance for emotional distress must be offered into evidence); Ford v. Isdaner, 374 Pa.Super. 40, 542 A.2d 137 (1988) (objective medical proof of emotional distress required; degree of tortfeasor's conduct not outrageous to justify liability under Section 46...