KRYSMALSKI BY KRYSMALSKI v. Tarasovich
424 Pa.Super. 121, 622 A.2d 298 (1993)
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Rule of Law:
A bystander may recover for negligent infliction of emotional distress if they have a sensory and contemporaneous observance of an accident involving a close relative, which does not require visual perception of the impact but can be satisfied by hearing the event and immediately witnessing the traumatic aftermath. Medical evidence is not required to prove the resulting psychic injury in such a case.
Facts:
- Shirley Krysmalski was shopping in a Giant Eagle supermarket while her three minor children, Gloria, Diane, and David, waited for her just outside the store's entrance.
- Albert Tarasovich was driving recklessly in the supermarket parking lot.
- Tarasovich's vehicle struck several other cars, crashed through a concrete barrier at the store's entrance, and struck the three Krysmalski children.
- As a result of the collision, both Gloria and Diane Krysmalski suffered severe leg injuries that required amputations.
- David Krysmalski suffered a laceration on his chin.
- Shirley Krysmalski, who was inside the store near the checkout line, heard the commotion of the accident, ran to the scene, and witnessed her children horribly injured.
- Approximately one year after the accident, Tarasovich transferred rental properties valued at over $60,000 to his son for a nominal consideration of ten dollars.
Procedural Posture:
- The Krysmalskis brought a negligence action against Albert Tarasovich in the trial court.
- A jury found Tarasovich liable, awarding compensatory damages to the minor children and to Shirley Krysmalski's estate for negligent infliction of emotional distress.
- The trial court also awarded delay damages pursuant to Pennsylvania Rule of Civil Procedure 238.
- Tarasovich filed post-trial motions requesting a new trial or remittitur, which the trial court denied.
- Tarasovich, as appellant, appealed the trial court's judgment to the Superior Court of Pennsylvania, an intermediate appellate court.
- Following an initial panel decision, the Superior Court granted Tarasovich's petition for en banc consideration, leading to this review by the full court.
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Issue:
Does a mother who did not visually witness the moment of impact but was nearby, heard the crash, and immediately saw her children's severe injuries have a valid claim for negligent infliction of emotional distress under Pennsylvania law?
Opinions:
Majority - Olszewski, J.
Yes. A parent who is in close proximity to an accident, hears the impact, and immediately witnesses the horrific injuries to their children has a valid claim for negligent infliction of emotional distress. The requirement of a 'sensory and contemporaneous observance' is not limited to visual perception but focuses on whether the emotional shock was immediate and direct, which can be established through auditory perception followed by immediate visual confirmation of the aftermath. The court affirmed that psychic injury is provable without a physical manifestation, and medical evidence is not required to substantiate a bystander NIED claim, as the contemporaneous observance and close relationship guarantee the veracity of the claim. The court also held that the defendant, Tarasovich, was liable for delay damages because he did not qualify for the indigency exception established in Berry v. Anderson, having transferred significant assets for nominal consideration after the accident, thus failing to offer all available assets for settlement.
Dissenting - Cavanaugh, J.
No. The majority improperly expands the rule from Sinn v. Burd, which requires the claimant to be an eyewitness to the impact of the accident, not just its aftermath. There was no evidence that Shirley Krysmalski witnessed the vehicle strike her daughters. Furthermore, the claim should fail because no medical evidence was presented to support the alleged emotional distress, which is necessary to establish a causal link between the event and the psychic damage.
Dissenting - Cirillo, J.
No. A claim for bystander recovery requires observation of the tortious conduct itself, which generates a compensable 'shock.' Shirley Krysmalski only witnessed the aftermath, which produces 'grief,' a natural but non-actionable response. Her experience is analogous to prior cases where recovery was denied to relatives who arrived on the scene shortly after the accident. While the complaint sufficiently pleaded physical harm, her claim fails on the causation element because her injury stemmed from grief, not from the shock of contemporaneously observing the accident. This dissent also argues separately that Rule 238 delay damages are unconstitutional.
Concurring - Johnson, J.
Yes. While joining the majority opinion, this concurrence emphasizes that the court's decision on delay damages should rest solely on the trial court's factual finding that Tarasovich transferred personal assets for nominal consideration after the accident. This fact alone is sufficient to disqualify him from the indigency protection of Berry v. Anderson. Therefore, it is unnecessary to analyze the complex details of the insurance settlement negotiations to resolve the issue of Tarasovich's liability for delay damages.
Analysis:
This decision significantly broadens the 'sensory and contemporaneous observance' test for bystander NIED in Pennsylvania, moving away from a strict visual requirement. It establishes that a plaintiff's awareness of an accident through other senses, like hearing, coupled with an immediate observation of the horrific result, can satisfy the test for direct emotional impact. The ruling also clarifies a key distinction in tort law by holding that medical evidence, while potentially required for intentional infliction of emotional distress claims, is not a prerequisite for negligent infliction claims where the circumstances themselves provide sufficient indicia of genuineness. This case lowers the evidentiary bar for bystander NIED claims and expands the scope of potential liability for defendants in similar tragic circumstances.
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