“How to Read and Brief a Case”

Assignment for Wednesday, August 15 Prior to your session on Wednesday, August 15, on “How to Read and Brief a Case,” please read the attached materials. Then, see if you can identify the various parts of the attached Battalla case, and, in particular, write down what you think is the “rule” contained in the case regarding recovery for negligent infliction of emotional distress under New York law. (Do not concern yourself with any other legal issues that may be in the case.)

Court of Appeals of New York.Carmen BATTALLA, an Infant, by Her Guardian ad Litem, Carmen Battalla, Appellant,

v.STATE of New York, Respondent.

(Claim No. 35621.)July 7, 1961.

Proceeding on a claim against the state. The Court of Claims, Alexander Del Giorno, J., 17 Misc.2d 548, 184 N.Y.S.2d 1016, denied the state's motion to dismiss, and the state appealed. The Supreme Court, Appellate Division, Third Department, 11 A.D.2d 613, 200 N.Y.S.2d 852, reversed the order and dismissed the claim. The claimant appealed from a judgment, entered August 26, 1960, in the Court of Claims upon the order of the Appellate Division. The Court of Appeals, Burke, J., overruled the case of Mitchell v. Rochester Ry. Co., 151 N.Y. 107, 45 N.E. 354, deciding that there could be no recovery for injuries, physical or mental, incurred by fright negligently induced, and held that claim alleging that at Bellayre Mountain Ski Center the infant plaintiff was placed in a chair lift by an employee of the state who failed to secure and properly lock the belt intended to protect the occupant and that as a result of such negligent act the infant plaintiff became frightened and hysterical upon the descent, with consequential injuries, stated a cause of action against the state.

Judgment reversed and claim reinstated.

Van Voorhis, J., Desmond, C. J., and Dye, J., dissented.

See also 9 N.Y.2d 711, 214 N.Y.S.2d 330, 174 N.E.2d 318.

West Headnotes

[1] States 360 184.25(1)

360 States 360V Claims Against State 360k184.25 Pleading and Form and Requisites of Claims 360k184.25(1) k. In General. Most Cited Cases (Formerly 360k184.25)

Claim alleging that, at Bellayre Mountain Ski Center, the infant plaintiff was placed in chair lift by employee of the state who failed to secure and properly lock belt intended to protect occupant and that as result infant plaintiff became frightened and hysterical upon descent, with consequential injuries, stated cause of action against state; overruling Mitchell v. Rochester Ry. Co., 151 N.Y. 107, 45 N.E. 354.

[2] Damages 115 57.16(1)

115 Damages 115III Grounds and Subjects of Compensatory Damages 115III(A) Direct or Remote, Contingent, or Prospective Consequences or Losses

115III(A)2 Mental Suffering and Emotional Distress 115k57.13 Negligent Infliction of Emotional Distress 115k57.16 Nature of Injury or Threat 115k57.16(1) k. In General. Most Cited Cases (Formerly 115k52)

There may be recovery for injuries, physical or mental, incurred by fright negligently induced; overruling Mitchell v. Rochester Ry. Co., 151 N.Y. 107, 45 N.E. 354.

[3] Action 13 2

13 Action 13I Grounds and Conditions Precedent 13k2 k. Acts or Omissions Constituting Causes of Action in General. Most Cited Cases

It is fundamental to the common-law system that one may seek redress for every substantial wrong.

***35 **729 *237 Leon Segan, New York City, for appellant.

*238 Louis J. Lefkowitz, Atty. Gen. (Edwin R. Oberwager, Paxton Blair and Jean R. McCoy, Albany, of counsel), for respondent.

BURKE, Judge.[1][2] The question presented is whether the claim states a cause of action when it alleges that claimant was

negligently *239 caused to suffer ‘severe emotional and neurological disturbances with residual physical manifesta-tions'.

The appellant avers that in September of 1956, at Bellayre Mountain Ski Center, the infant plaintiff was placed in a chair lift by an employee of the State who failed to secure and properly lock the belt intended to protect the occupant. As a result of this alleged negligent act, the infant plaintiff became frightened and hysterical upon the descent, with consequential injuries.

The Court of Claims, on a motion to dismiss the complaint, held that a cause of action does lie. The Appellate Division found **730 itself constrained to follow Mitchell v. Rochester Ry. Co., 151 N.Y. 107, 45 N.E. 354, 34 L.R.A. 781 and, therefore, reversed and dismissed the claim. The Mitchell case decided that there could be no recovery for injuries, physical or mental, incurred by fright negligently induced.

It is our opinion that Mitchell should be overruled. It is undisputed that a rigorous application of its rule would be unjust, as well as opposed to experience and logic. On the other hand, resort to the somewhat inconsistent exceptions would merely add further confusion to a legal ***36 situation which presently lacks that coherence which precedent should possess. ‘We act in the finest common-law tradition when we adapt and alter decisional law to produce common-sense justice. * * * Legislative action there could, of course, be, but we abdicate our own function, in a field peculiarly nonstatutory, when we refuse to reconsider an old and unsatisfactory court-made rule.’ Woods v. Lancet, 303 N.Y. 349, 355, 102 N.E.2d 691, 694, 27 A.L.R.2d 1250.

Before passing to a re sume of the evolution of the doctrine in this State, it is well to note that it has been thoroughly repudiated by the English courts which initiated it, rejected by a majority of American jurisdictions, abandoned by many which originally adopted it, and diluted, through numerous exceptions, in the minority which

retained it. Moreover, it is the opinion of scholars that the right to bring an action should be enforced.[FN1]

FN1 For excellent studies see 1936 Report of N.Y.Law Rev.comm., pp. 379-450; McNiece, Psychic Injury and Tort Liability in New York, 24 St. John's L.Rev. 1; see, also, Smith, Relation of Emotions to Injury and Disease; Legal Liability for Psychic Stimuli, 30 Va.L.Rev. 193 (1944); Magruder, Mental and Emotional Disturbance in the Law of Torts, 49 Harv.L.Rev. 1033 (1936); Throckmorton, Damages for Fright, 34 Harv.L.Rev. 260 (1921); Wilson, The New York Rule as to Nervous Shock, 11 Cornell L.Q. 512 (1926); Edgar, Foreseeability and Recovery in Tort, 9 St. John's L.Rev. 84 (1934); Prosser, Torts (2d ed.), pp. 38-47, 178, 192; for others, see 1936 Report of N.Y.Law Rev.Comm., p. 448; see, also, 15 Am.Jur., Damages, s 188; 25 C.J.S. Damages s 70; Restatement, Torts, s 436, subds. (1), (2).

[3] *240 It is fundamental to our common-law system that one may seek redress for every substantial wrong. ‘The best statement of the rule is that a wrong-doer is responsible for the natural and proximate consequences of his misconduct; and what are such consequences must generally be left for the determination of the jury.’ Ehrgott v. Mayor of City of New York, 96 N.Y. 264, 281. A departure from this axiom was introduced by Mitchell (supra), wherein recovery was denied to plaintiff, a pregnant woman, who, although not physically touched, was negligently caused to abort her child. Defendant's horses were driven in such a reckless manner that, when finally restrained, plaintiff was trapped between their heads. The court indicated essentially three reasons for dismissing the complaint. It stated first that, since plaintiff could not recover for mere fright, there could be no recovery for injuries resulting therefrom. It was assumed, in addition, that the miscarriage was not the proximate result of defendant's negligence, but rather was due to an accidental or unusual combination of circumstances. Finally, the court reasoned that a recovery would be contrary to public policy because that type of injury could be feigned without detection and it would result in a flood of litigation where damages must rest on speculation.

With the possible exception of the last, it seems ‘(a)ll these objections have been demolished many times, and it is threshing old straw to deal ***37 with them.’ (Prosser, Torts (2d ed.), s 37, pp. 176-177.) Moreover, we have stated that the conclusions of the Mitchell case (supra) ‘cannot be tested by pure logic’. Comstock v. Wilson, 1931, 257 N.Y. 231, 234, 177 N.E. 431, 432, 76 A.L.R. 676. Although finding impact and granting recovery, the unanimous court **731 in Comstock rejected all but the public policy arguments of the Mitchell decision.

We presently feel that even the public policy argument is subject to challenge. Although fraud, extra litigation and a measure of speculation are, of course, possibilities, it is no reason*241 for a court to eschew a measure of its jurisdiction. ‘The argument from mere expediency cannot commend itself to a Court of justice, resulting in the denial of a logical legal right and remedy in all cases because in some a fictitious injury may be urged as a real one.’ Green v. T. A. Shoemaker & Co., 111 Md. 69, 81, 73 A. 688, 692, 23 L.R.A.,N.S., 667.

In any event, it seems that fraudulent accidents and injuries are just as easily feigned in the slight-impact cases[FN2] and other exceptions[FN3] wherein New York permits a recovery, as in the no-impact cases which it has heretofore shunned.[FN4] As noted by the Law Revision Commission: ‘The exceptions to the rule cannot be said to insure recovery to any substantial number of meritorious claimants and there is good ground for believing that they breed dishonest attempts to mold the facts so as to fit them within the grooves leading to recovery.’ (1936 Report of N.Y.Law Rev.Comm., p. 450.) The ultimate result is that the honest claimant is penalized for his reluctance to fashion the facts within the framework of the exceptions.

FN2 For example, Jones v. Brooklyn Heights R. R. Co., 23 App.Div. 141, 48 N.Y.S. 914, wherein plaintiff was hit on the head by a small incandescent light bulb which fell from a lamp attached to the roof of defendant's car in which plaintiff was a passenger. Plaintiff was allowed to recover for a miscarriage brought on by the shock stimulated by the injury. See, also, Buckbee v. Third Ave. R. R. Co., 64 App.Div. 360, 72 N.Y.S. 217 (slight electric shock); Powell v. Hudson Valley Ry. Co., 88 App.Div. 133, 84 N.Y.S. 237 (slight burn); Comstock v. Wilson, 257 N.Y. 231, 177 N.E. 431, supra (fright

induced by prior collision caused passenger to faint and fracture skull); Sawyer v. Dougherty, 286 App.Div. 1061, 144 N.Y.S.2d 746 (blast of air filled with glass).

FN3 Injuries from fright are also recoverable generally in: ‘the burial right cases, the contract relationship cases (innkeeper and common carrier cases), the immediate physical injury cases * * *, the Workmen's Compensation cases, the food cases, the wilful or wanton injury cases, and the right of privacy cases' (brackets mine; McNiece, 24 St. John's L.Rev., pp. 33-65).

FN4 No recovery: Newton v. New York, N. H. & H. R. R. Co., 106 App.Div. 415, 94 N.Y.S. 825 (plaintiff passenger in train collision); Hutchinson v. Stern, 115 App.Div. 791, 101 N.Y.S. 145 (plaintiff could not recover for loss of wife's services when she gave birth to a stillborn child while witnessing an attack on plaintiff); O'Brien v. Moss, 220 App.Div. 464, 221 N.Y.S. 621 (passenger in car collision).

Not only, therefore, are claimants in this situation encouraged by the Mitchell disqualification to perjure themselves, but the constant attempts to either come within an old exception, or establish a new one, lead to ***38 excess appellate litigation (see Gulf, C. & S. F. Ry. Co. v. Hayter, 93 Tex. 239, 54 S.W. 944, 47 L.R.A. 325). In any event, even if a flood of litigation were realized by abolition of the *242 exception, it is the duty of the courts to willingly accept the opportunity to settle these disputes.

The only substantial policy argument of Mitchell is that the damages or injuries are somewhat speculative and difficult to prove. However, the question of proof in individual situations should not be the arbitrary basis upon which to bar all actions, and ‘it is beside the point * * * in determining sufficiency of a pleading’. Woods v. Lancet, 303 N.Y. 349, 356, 102 N.E.2d 691, 695, supra. In many instances, just as in impact cases, there will be no doubt as to the presence and extent of the damage and the fact that it was proximately caused by defendant's negligence. In the difficult cases, we must look to the quality and genuineness of proof[FN5], and rely to an extent **732 on the contemporary sophistication of the medical profession and the ability of the court and jury to weed out the dishonest claims. Claimant should, therefore, be given an opportunity to prove that her injuries were proximately caused by defendant's negligence.

FN5 See New York County Supreme Court Special Rule for Medical Examinations in Personal Injury Actions which permits the trial court to appoint an impartial expert when necessary for a just determination of the case.

Accordingly, the judgment should be reversed and the claim reinstated, with costs.

VAN VOORHIS, Judge (dissenting).In following the Massachusetts rule, which corresponded to that enunciated in this State by Mitchell v.

Rochester Ry. Co., 151 N.Y. 107, 45 N.E. 354, Mr. Justice Holmes described it as ‘an arbitrary exception, based upon a notion of what is practicable, that prevents a recovery for visible illness resulting from nervous shock alone. Spade v. Lynn & Boston Railroad, 168 Mass. 285, 288, 47 N.E. 88, 38 L.R.A. 512, 60 Am.St.Rep. 393; Smith v. Postal Telegraph Cable Co., 174 Mass. 576, 55 N.E. 380, 47 L.R.A. 323, 75 Am.St.Rep. 374.’ Homans v. Boston El. Ry. Co., 180 Mass. 456, 457-458, 62 N.E. 737, 57 L.R.A. 291. Illogical as the legal theoreticians acknowledge this rule to be, it was Justice Holmes who said that the life of the law has not been logic but experience. Experience has produced this rule to prevent the ingenuity of special pleaders and paid expert witnesses from getting recoveries in negligence for nervous shock without physical injury, which was stated as well as possible in Mitchell v. Rochester Ry. Co., supra, 151 N.Y. at page 110, 45 N.E. at page 354 as follows: ‘If the right of recovery in this class of cases should be once established, it would naturally result in a flood of litigation in cases where the injury *243 complained of may be ***39 easily feigned without detection, and where the damages must rest upon mere conjecture or speculation. The difficulty which often exists in cases of alleged physical injury,

in determining whether they exist, and if so, whether they were caused by the negligent act of the defendant, would not only be greatly increased, but a wide field would be opened for fictitious or speculative claims. To establish such a doctrine would be contrary to principles of public policy.’

The opinion likewise points out ( 151 N.Y. at page 109, 45 N.E. at page 354) the speculative nature of the usual evidence of causation where it is contended that mere fright has resulted in ‘nervous disease, blindness, insanity, or even a miscarriage’.

These statements in the Mitchell opinion are not archaic or antiquated, but are even more pertinent today than when they were first stated. At a time like the present, with constantly enlarging recoveries both in scope and amount in all fields of negligence law, and when an influential portion of the Bar is organized as never before to promote ever-increasing recoveries for the most intangible and elusive injuries, little imagination is required to envision mental illness and psychosomatic medicine as encompassed by the enlargement of the coverage of negligence claims to include this fertile field. In Comstock v. Wilson, 257 N.Y. 231, 177 N.E. 431, Mitchell v. Rochester Ry. Co. (supra) is not overruled, but the opinion by Judge Lehman ( 257 N.Y. at page 238, 177 N.E. at page 433) cites it as well as the Massachusetts rule of Spade v. Lynn & Boston R. R. Co., 168 Mass. 285, 47 N.E. 88, as holding that ‘for practical reasons there is ordinarily no duty to exercise care to avert causing mental disturbance, and no legal right to mental security.’ Judge Lehman's opinion continues: ‘Serious consequences from mere mental disturbance unaccompanied by physical shock cannot be anticipated, and no person is bound to be alert to avert a danger that foresight does not disclose. The conclusion is fortified by the practical consideration that where there has been no physical contact there is danger that fictitious claims may be fabricated. Therefore, where no wrong was claimed other than a mental disturbance, **733 the courts refuse to sanction a recovery for the consequence of that disturbance’ ( 257 N.Y. at pages 238-239, 177 N.E. at page 433).

The problem involved in enlarging the scope of recovery in negligence, even in instances where, as here, an enlargement *244 might be justified on purely theoretical grounds, is that, when once the door has been opened, ***40 the new and broader rule is in practice pressed to its extreme conclusion. FN* Courts and juries become prone to accept as established fact that fright has been the cause of mental or physical consequences which informed medical men of balanced judgment find too complicated to trace. Once a medical expert has been found who, for a consideration, expresses an opinion that the relationship of cause and effect exists, courts and juries tend to lay aside critical judgment and accept the fact as stated.

FN* In an article on this subject written in 1944, 30 V.L.Rev. 193, 217-220, the following are listed as clinical disorders probably related to emotional stimulation, in addition to the more familiar psychiatric disorders, to which liability would be extended by overruling the principle of Mitchell v. Rochester Ry. Co., supra: bronchial asthma, hyperventilation tetany, DaCosta's syndrome, angina pectoris, hypertension, neurocirculatory asthenia, rheumatoid arthritis, tremors and contractures, mucous colitis, peptic ulcer, dyspepsia and gastritis, retention of urine, enuresis, impotence, dysmenorrhoea, thyrotoxicosis, diabetes mellitus, anorexia nervosa, neurodermatitis, psoriasis. A medical authority is cited in each instance supporting the emotional nature of each of these disorders.

This is the practical reason mentioned by Judges Holmes and Lehman. The Pennsylvania Supreme Court has recently decided that to hold otherwise ‘would open a Pandora's box.’ Bosley v. Andrews, 393 Pa. 161, 168, 142 A.2d 263, 266.

In my view the judgment dismissing the claim should be affirmed.

FULD, FROESSEL and FOSTER, JJ., concur with BURKE, J.VAN VOORHIS, J.. dissents in an opinion in which DESMOND, C. J., and DYE, J., concur.

Judgment reversed and order of the Court of Claims reinstated, with costs in this court and in the Appellate Division.

N.Y. 1961.Battalla v. State10 N.Y.2d 237, 176 N.E.2d 729, 219 N.Y.S.2d 34

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