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06/30/78 GAIL F. DZIOKONSKI v. OLA BABINEAU &

June 30, 1978

GAIL F. DZIOKONSKI, ADMINISTRATRIX, *FN1
v.
OLA BABINEAU & OTHERS *FN2 (AND A COMPANION CASE *FN3



Worcester. Civil actions commenced in the Superior Court on October 23, 1975. The cases were heard by Meagher, J., on motions to dismiss. After review was sought in the Appeals Court, the Supreme Judicial Court, on its own initiative, ordered direct appellate review.

Hennessey, C.j., Quirico, Braucher, Kaplan, Wilkins, Liacos, & Abrams, JJ. Quirico, J., Dissenting.

SYLLABUS BY THE COURT

Negligence, Motor vehicle, Emotional distress. Emotional Distress, Physical injuries to another. Actionable Tort.

The opinion of the court was delivered by: Wilkins

Review of authorities pertaining to recovery for physical injury resulting from fright or emotional distress. [558-562]

Allegations in a complaint concerning a parent who sustains substantial physical harm as a result of severe mental distress over some peril or harm to his minor child caused by the defendant's negligence state a claim for which relief might be granted where the parent either witnesses the accident or soon comes on the scene while the child is still there. [562-569] Quirico, J., Dissenting.

Neither a complaint alleging that the mother of a child who was injured as a result of the defendants' negligence suffered an emotional distress when finding her child seriously injured resulting in the mother's death nor a complaint alleging that the father of the child died as a result of emotional distress over the injury to his daughter and the death of his wife should have been dismissed for failure to state a claim. [569] Quirico, J., Dissenting.

These appeals require us to re-examine the question whether a person who negligently causes emotional distress which leads to physical injuries may be liable for those injuries even if the injured person neither was threatened with nor sustained any direct physical injury. At the heart of the plaintiffs' claims is the argument that this court should abandon the so called "impact" rule of Spade v. Lynn & Boston R.R., 168 Mass. 285, 290 (1897), which denies recovery for physical injuries arising solely from negligently caused mental distress. We agree that the rule of the Spade case should be abandoned. Our inquiry does not cease at that point, however, because we must determine what new limits of liability are appropriate and how those limits affect the plaintiffs' decedents, parents of a child alleged to have been injured by the defendants' negligence.

These appeals, transferred here on our own motion, come to us following the allowance of the defendants' motions to dismiss for failure to state claims on which relief can be granted. Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974). For the purpose of considering the propriety of the allowance of these motions, we summarize the allegations of each complaint.

On October 24, 1973, Norma Dziokonski, a minor, alighted from a motor vehicle, used as a school bus, on Route 117 in Lancaster. *fn4 That motor vehicle was owned by the defendant Pelletier and operated by the defendant Kroll. A motor vehicle owned and operated by the defendant Babineau struck Norma as she was crossing the road. The complaints allege the negligence of each defendant on various grounds.

The complaint filed by the administratrix of the estate of Lorraine Dziokonski (Mrs. Dziokonski) alleges that Mrs. Dziokonski was the mother of Norma and that she "lived in the immediate vicinity of the accident, went to the scene of the accident and witnessed her daughter lying injured on the ground." Mrs. Dziokonski "suffered physical and emotional shock, distress and anguish as a result of the injury to her daughter and died while she was a passenger in the ambulance that was driving her daughter to the hospital." This complaint alleges one count for wrongful death and one count for conscious suffering against each of the three defendants.

The complaint filed by the administratrix of the estate of Anthony Dziokonski (Mr. Dziokonski) alleged the facts previously set forth and added that he was the father of Norma and the husband of Mrs. Dziokonski. Mr. Dziokonski "suffered an aggravated gastric ulcer, a coronary occlusion, physical and emotional shock, distress and anguish as a result of the injury to his daughter and the death of his wife and his death was caused thereby." This complaint similarly alleged a count for wrongful death and one count for conscious suffering against each of the three defendants. *fn5

The Spade Case.

We start with an analysis of Spade v. Lynn & Boston R.R., 168 Mass. 285 (1897), which announced a principle of tort law that has been limited and refined by our subsequent decisions but not heretofore abandoned. Margaret Spade had been a passenger on a crowded car of the Lynn & Boston Railroad Company late one Saturday night in February, 1895. She was so frightened by the negligent conduct of an employee of the defendant in removing an unruly passenger from the car that she sustained emotional shock and consequent physical injury. The trial Judge instructed the jury that, when physical injury results from fear or nervous shock, "there may be a recovery for that bodily injury, and for all the pain, ...


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