PLAINTIFF S MEMORANDUM OF LAW IN OPOSITION TO DEFENDANT S PRELIMINARY OBJECTIONS IN THE NATURE OF A DEMURRER

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1 P.J. Attorney Esq. Attorney I.D. No JFK Boulevard, Suite 901 Philadelphia, PA (610) / Fax (610) Attorney for Plaintiffs IN THE COURT OF COMMON PLEAS, PHILADELPHIA COUNTY, PENSYLVANIA CIVIL ACTION-LAW LAURA SPENCER AND LUKE SPENCER, : Plaintiffs : JUNE TERM 2011 v. : No. 876 GENERAL HOSPITAL : Defendant : PLAINTIFF S MEMORANDUM OF LAW IN OPOSITION TO DEFENDANT S PRELIMINARY OBJECTIONS IN THE NATURE OF A DEMURRER Statement of Facts On May 1, 2003, Laura Spencer was admitted to General Hospital (defendant) ready to give birth. She was accompanied by her husband, Luke Spencer. At eight minutes to midnight, Laura gave birth to a baby boy, Lucky Spencer. The following morning, the nurse on duty, Julie Smith, brought baby Lucky Spencer to Laura s room where she and Luke waited anxiously to see their baby. Laura then attempted to nurse Lucky, but found that she was too hungry. She then asked her husband, Luke, to go downstairs and get her something to eat. While waiting for Luke to return, Laura called for the nurse to come and take Lucky back to the nursery so that she could rest. Nurse Julie Smith rushed into Laura s room, grabbed up baby Lucky and headed for the door. She held Lucky with one hand as she opened the door. Laura then watched as Nurse Smith juggled baby Lucky from one hand to the other while also attempting to close the door behind her.

2 As the door closed, Nurse Smith lost her hold on the baby and she dropped him. Laura heard the nurse yell that she had dropped the baby, followed by the thud of Lucky s head hitting the floor. Laura rushed from her bed as she saw blood begin to seep in under the door. As Laura headed toward the door, two orderlies burst into her room and forced her back to her bed. The orderlies then sedated Laura causing her to lose consciousness. At about the same time as Nurse Smith was losing her grip on Lucky and he was falling to the floor, Luke was in the elevator waiting for the doors to open. The elevator was located directly across from Laura s room. As the doors open, Luke heard the end of Nurse Smith yelling that she had dropped the baby, and he immediately saw his infant son, Lucky, writhing on the floor in a pool of blood and screaming out in pain. Luke began to stumble toward the horrific scene, but collapsed on the floor instead. Issues Presented Do Luke and Laura Spencer have a cause of action under the doctrine of negligent infliction of emotional distress? Argument Several decades ago, the controlling case was Knaub v. Gotwalt, 422 Pa. 267, 220 A.2d 646 (1966). The court held that without any physical impact, there could be cause of action for infliction of emotional distress. Id at 270, 647. The court stated that allowing recovery for extreme emotional distress resulting from shock or fear would open the floodgates to fraudulent and frivolous lawsuits. Id at 271, 647. At the time of the Knaub decision, medical science was not able to make a connection between severe emotional distress and the witnessing of a traumatic event. Today however, this is not true. Medical science can now accurately pinpoint the cause of emotional distress as well as link it to physical reactions. This is especially true when the event witnessed involves a close family member, such as in the plaintiff s case. At the time of this decision, medical science was unable to link the emotional impacts and resulting physical impacts to the witnessing of a traumatic event, especially one involving a close family member as in the instant case of Luke and Laura Spencer.

3 The ruling of Knaub was overruled in Niederman v. Brodsky, 436 Pa. 401, 261 A.2d 84 (1970). The court in Niederman held there was a cause of action in witnessing a traumatic event which results in extreme emotional distress that causes physical injury. In this case, the plaintiff witnessed his child being struck by a car. As a result of the extreme shock experienced by the plaintiff, he suffered a heart attack. Id at 403, 84. The court held that advances in medical science had made it possible to link physical reactions caused by shock and fear to an actual event. Id at 405-5, 86. The further stated that the defendant is not free of a duty of care to the plaintiff simply because his vehicle did not actually strike the plaintiff. Id at 404, 85. In the case at hand, even though the plaintiff s were not the ones physically injured by the actions of an employee of the Defendant, they did experience extreme emotional distress as a result of the incident that left their son, Lucky, with permanent brain damage. Their physical reactions can be linked directly to the emotional shock experienced as a direct result of their son being dropped on his head by Nurse Smith. Another issue the courts have had to decide deals with the physical distance between a plaintiff and a victim of an traumatic event which results in the plaintiff s emotional distress. The court in Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979) dealt with just such an issue. In the Sinn case, the plaintiff s, who were the victim s mother and sister, witnessed the victim being hit by a car which resulted in her death. One of the plaintiffs (victim s sister) stood near here at the mailbox when the incident occurred. Id at 150, 674. The other plaintiff (victim s mother) stood in the doorway of the house watching the girls when the incident occurred. Id at 150,674. The court stated that, [i]f plaintiff witnessed the negligent infliction of an injury to a [family] member and suffered emotional harm as a result, to deny recovery merely because plaintiff was not subjected to the same risk of injury is unjust. Id at 156, 677. It is reasonably foreseeable that a person considered to be of normal emotional stability would react in the same manner as the plaintiffs in this case even if they were not in immediate danger themselves. Id at 156, 677. The court in Sinn then laid out a set of guidelines to assist in determining if there is a cause of action for negligent infliction of emotional distress. They stated that as long as the plaintiff is a close family member, within a distance that allows them to witness the event, and the witnessing of the event causes significant emotional distress. Id at 170-1, 685.

4 The facts of the immediate case meet the elements given in Sinn. Both Luke and Laura are close family members of Lucky, as they are his parents. Both plaintiffs were within hearing distance of the incident so as to be able to hear the incident unfold and both Luke and Laura Spencer suffer such an emotional shock to their systems that they had physical reactions. Luke collapsed on the floor and Laura had to be restrained and forcibly sedated. In 1986, the court ruled on the issue of how much distance between a plaintiff and a victim is too much distance. In Mazzagatti v. Everingham, 512 Pa. 266, 516 A.2d 672 (1986), the plaintiff, who was the mother of the victim, was at work over a mile away at the time that her daughter was struck and killed by a car. Id at 269, 674. Plaintiff received a phone call advising her of the accident resulting in her rushing to the scene. Id at 269, 674. The court held that the plaintiff was too far from the scene to have witnessed the accident and the phone call she received advising her of the accident acted as a buffer against the full impact of observing the accident scene. Id at 279, 679. They further stated that the critical element for establishing liability is the contemporaneous observance of the injury to the close relative. Id at 280, 679. The defense would argue that because both Luke and Laura were behind a closed door (elevator door in Luke s case) that they were not close enough to the actual scene where the nurse dropped their son to have a cause of action under negligent infliction of emotional distress. However, there was no buffer as in the Mazzagatti case. Laura actually heard her son s head hit the floor and Luke heard the nurse yelling that she had dropped his son as the elevator doors opened. The question that is to be asked next is what constitutes the witnessing of an incident? The court in Neff v. Lasso, 382 Pa.Super. 487, 555 A.2d 1304 (1989) was faced with this very issue. In this case, the plaintiff was the wife of the victim who had been hit by another car as he drove past his house, resulting in his death. Id at 1306, 491. At the time of the incident, the plaintiff had been standing in their kitchen. Id at 1306, 491. She saw her husband drive by and then heard the sound of the impact. Id at 1306, 491. She immediately ran out of the house to see her husband lying in the front yard dying. Id at 1306, 491. The court was asked to decide whether visual awareness of the setting, simultaneous auditory perception of the impact, and immediate visual observation of the results of the impact constitute a sensory and contemporaneous observance. Id at 1308, The court ruled

5 that the act of visually and aurally perceiving the events as they occurred prior, during, and after the incident did qualify as contemporaneous observance as required by the court in Sinn. Id at 1310, 499. When the facts presented in Neff are compared to the facts of the case of Luke and Laura Spencer, both experienced contemporaneous observance. Laura saw her son leave the room, heard the nurse yell, heard her son s head hit the floor, and saw blood seeping in under the door. Luke knew the elevator opened directly across from Laura s room, heard the nurse yell as the elevator doors opened that she had dropped the baby, and immediately saw his son lying on the floor in a pool of blood. Conclusion and Relief Requested Due to the previous arguments and authorities, Plaintiffs requests that Your Honor overrule Defendant s Motion for Demurrer and allow Plaintiffs to present their case for negligent infliction of emotional distress to the jury. Date: June 11, 2011 Respectfully submitted, Patricia J Attorney P. J. Attorney, Esq. Attorney for Plaintiffs