Square Pegs, Round Holes and Tort Nullification
To paraphrase the law in Pennsylvania as it applies to Outrageous Conduct Causing Severe Emotional Distress, actors (1) who by extreme and outrageous conduct intentionally or recklessly cause severe emotional distress to another is liable; and (2) where such conduct is directed to at a third person, such actor is liable if s/he intentionally or recklessly causes severe emotional distress to a member of such person's immediate family who is present at the time. Such law is premised upon the Restatement (Second) of Torts § 46(1) and (2). In plain terms Section 46(1) provides a remedy to the individual directly effected. Section 46(2), also known as "the Bystander Rule" provides a remedy to a third party also effected by the conduct but conditioned upon the requisite familial connection.
The Bystander Rule, and the supporting reasons, generally make sense. It requires the "presence" of a third party that is not otherwise insulated from time or other factors that may "soften the blow" on what still remains an otherwise "shock to the system." It provides for a line in the sand that avoids a very real risk beginning a judicial journey down a slippery slope that affords greater certainty of: credibility of injury, severity of injury and a need to delineate who may recover and to the extent that the incidental tremors of the injury may travel. By way of example, this rule makes sense in the context of an auto accident involving a child whereby injuries are sustained as a result of outrageous or reckless conduct of another where the accident is (1) witnessed (2) by a mother (3) that results in immediate and contemporaneous shock (4) not insulated by time or other factors. Such is not to say that a mother would not suffer shock or injury to her system upon learning about the accident from another--the injury may be very real--nevertheless, a gateway is installed to prevent disingenuous or fabricated subsequent claims of both injury and/or degree of injury. It also limits the class of claimants by denying relief to otherwise would be bystanders, that although may also suffer shock and horror, provides workable boundaries to effectively and efficiently maintain the judicial system. In the context of the hypothetical car accident this makes sense--the operative word being "accident" i.e., an unintended event. To be sure, some emotional distress claims will be left without a viable remedy, but the rule generally makes sense.
The Bystander Rule, however, is the equivalent of trying to fit a square peg into a round hold when it comes to claims for emotional distress that are the result of intentional acts of extreme and outrageous conduct of others where "the presence" of another would as a practical matter almost always nullify the tort itself. Surely, the literal interpretation of Section 46(2) in all cases, and subsequent application of the same by the Courts of the Commonwealth of Pennsylvania, would deny all claims for recovery for third parties in such circumstances. For example, in a case where a child is abused or sexually molested by a member of the clergy, daycare operator or elementary teacher, common sense tells us that if a parent were present, the abuse (tort) would not occur. The grievous parent that suffers a very real shock to his/her system is left without remedy--penalized for (1) not being present to prevent the harm and (2) left without legal recourse for injuries sustained.
The Restatement (Second) of Torts does provide an avenue of recourse for elimination of the Bystander Rule in such cases where the conduct is intentional. Comment L acknowledges instances where presence should not be a requisite to maintaining a cause of actions in such hypothetical situations while at the same time preserving the necessary element of presence in others. Although there have been no intermediate courts of Pennsylvania that have been willing to apply Comment L to similar matters that have appeared before them, there have been glimmers of hope that if a matter were to appear before them presenting squarely the issue of Comment L that recognition of the Comment would be just or appropriate. For example, in the matter Johnson v. Caparelli, 425 Pa.Super. 404. 625 A.2d 668 (1993) involving the sexual abuse of an altar boy by a priest, the Superior Court denied recovery to the parents of the boy absent the "presence" requirement. The issue before the Court, however, was premised upon Section 46(2) which requires presence of the event. In the dissenting opinion of Justice, McEwen, it was proposed that Comment L should have application to such events to enable a parent to pursue a cause of action for emotional distress sustained as a result of such conduct intentionally committed upon a child, where with the existence of presence, the act would not occur. See id.
Seven years later, in the matter of Taylor v. Albert Einstein Medical Center, 562 Pa. 176, 754 A.2d 650 (2000), involving a medical malpractice wrongful death and survival action, the Pennsylvania Supreme Court denied recovery to parents of a child on the grounds that they were not present to witness the alleged harmful act that was said to cause the death of their child. Justice Castille, by filing a Concurring Opinion joined by Justice Negro (Justices Zappala and Saylor concurring in the result) left open the door to argue that Comment L may have application for certain claims of emotional distress of parents that otherwise lack the requisite of presence. In so doing, however, it was noted that even if the Court would consider such application of Comment L, the matter then appearing before the Court involved only a 46(2) type claim.
It will remain to be seen whether any of the intermediate courts of this Commonwealth, if presented squarely with a Comment L will permit recovery to close family members that have suffered severe and emotional distress as the result of intentional outrageous or reckless conduct will be recognized. There exists sufficient comment that the Courts would either be interested or willing to visit the issue. For the practitioner presented with a "Comment L" type of claim it would be advised to plan and proceed accordingly to preserve such a potential cause of action.
