Schmidt v. Boardman Co.

Justice BAER,

concurring in support of vacation and remand.

I join in full Parts I and II of the Opinion of the Court, regarding the product line exception to the rule against successor liability. I agree that Appellant Sinor Manufacturing waived its argument concerning the viability of the doctrine as part of Pennsylvania law, and further concur with the discussion concerning the contours of the exception itself.

In regard to Part III, however, I respectfully cannot concur that the judgments in favor of Joyce Schmidt, Lindsay Schmidt, and Lauren Jeffress (hereinafter, Appellees) for their respective claims of infliction of emotional distress should be outright reversed. As developed below, I would hold that persons who contempora*954neously witness a close family member incur serious bodily injury as the result of a defective product possess a cognizable cause of action for the emotional distress suffered from observing such an incident so long as they meet the “physical harm” requirements of Section 402A(1) of the Restatement (Second) of Torts and Pennsylvania common law. I would further hold that plaintiffs can meet this physical harm requirement by pleading and proving a physical manifestation arising from their emotional distress. Nevertheless, because the jury in the instant matter was not instructed to consider only the physical manifestation of the emotional injuries suffered, I would vacate that portion of the verdict and order a new trial.

As established in the order granting al-locatur, this appeal only presents the question of “whether a plaintiff must prove a physical injury in order to be entitled to recover under a strict product liability theory.” Schmidt v. Boardman Co., 601 Pa. 381, 973 A.2d 411 (2009) (per curiam). In concluding that Appellees’ claims for emotional distress should be reversed, the Opinion in Support of Reversal authored by Mr. Justice Saylor, and joined by Mr. Chief Justice Castille and Mr. Justice Ea-kin (OISR), determines that “for purposes of a strict liability claim, a plaintiffs recovery for emotional distress is limited to that which is proximately caused by contemporaneous physical impact.” OISR Slip Op. at 50. Such a finding, however, is not supported by the plain language of Section 402A of the Restatement (Second) of Torts or Pennsylvania strict products liability jurisprudence; nor does it answer the question squarely before this Court.

Relevant to this case, Section 402A(1) provides,

One who sells any product in a defective condition unreasonably dangerous to the user or consumer [... ] is subject to liability for physical harm thereby caused to the ultimate user or consumer [...]•

Restatement (Second) Torts § 402A(1). Contrary to the OISR’s holding herein, Section 402A does not require a “physical impact” for recovery for injuries sustained from a defective product. Rather, the Restatement merely requires that one be “physically harmed.” Indeed, the OISR notes that “[pjhysical impact and physical injury are not synonymous terms.... ” OISR Slip Op. at 41. In common usage, “to injure” relates specifically to the harm done to another: “to cause physical harm; to hurt.” The American Heritage College Dictionary 714 (4th ed.). “To impact” someone or something, however, does not require harm; rather, it is “the striking of one body against another; collision.” Id. 694. Further, Section 7 of the Restatement, which contains definitions of terms to be used throughout the Restatement, defines “physical harm” as “physical impairment of the human body.... Where the harm is impairment of the body, it is called ‘bodily harm,’ as to which see § 15.” Restatement (Second) Torts § 7 cmt. e. Section 15 then defines “bodily harm” as “any physical impairment of the condition of another’s body, or physical pain or illness.” Restatement (Second) Torts § 15. Critically, comment b to Section 15 states that disturbances to nerve centers caused by fear or shock do not constitute bodily harm, but such fear and shock may “result in some appreciable illness or have some other effect upon the physical condition of the body which constitutes bodily harm.” Restatement (Second) Torts § 15 cmt. b. Conspicuously absent from these definitional sections is any reference to the term “impact.” Thus, Section 402A, by its plain language, and in accord with its accompanying sections and expansive commentary, does not require, or even infer, that one must be “physically impacted” by a defec*955tive product in order for a plaintiff to recover damages. Instead, the Restatement merely requires “physical harm,” or, alternatively stated, “bodily harm” or “physical impairment.” All these terms, used interchangeably in the Restatement (Second) of Torts and this Court’s jurisprudence, are functionally identical and distinct from “physical impact.”

This appeal presents this Court with the opportunity to consider whether a plaintiff suffering from an emotional injury still possesses a cognizable cause of action under Section 402A. As the parties acknowledge, this question has never been answered by this Court in the context of strict liability, nor has it been resolved in the more common realm of negligent infliction of emotional distress (NIED). Nevertheless, in my view, there are several decisions of both the courts of this Commonwealth, as well as courts from other jurisdictions, which guide the instant inquiry.

Consistent with my analysis above regarding the “physical harm” requirement of Section 402A, decisions from other courts have not equated physical harm with a mere impact with the defective product. Rather, courts considering this question have found that, so long as the emotional distress alleged manifests itself physically, such as headaches, sleeplessness, chronic stomach pains, and the like, the physical harm requirement of Section 402A will have been met. Importantly, however, such physical manifestation is required; it is not enough to simply suffer from emotional trauma.

For example, in Pasquale v. Speed Products Engineering, 166 Ill.2d 337, 211 Ill.Dec. 314, 654 N.E.2d 1365 (1995), a husband sought emotional distress damages, under a strict products liability theory of recovery, for purely psychic injuries he suffered from witnessing his wife die after engine parts from a racecar exploded and flew into a stand of spectators. Like Pennsylvania, Illinois has adopted Section 402A as the controlling authority for strict products liability actions. The Illinois Supreme Court, although recognizing that a physical manifestation of emotional distress was not required for a NIED claim in Illinois, declined to extend a similar rule to emotional distress claims sounding in strict liability based upon the plain language of Section 402A. Id., 211 IlLDec. 314, 654 N.E.2d at 1372-73. Decisions by courts in Utah, Oregon, and the U.S. Virgin Islands have also held that Section 402A requires some physical harm to result from, or manifest out of, a bystander’s emotional distress arising after witnessing a traumatic event to a close family member.1

The United States Court of Appeals for the Third Circuit in Walters v. Mintec/International, 758 F.2d 73 (3d Cir.1985), also held that the plaintiff therein could recover for his physical injuries that resulted from emotional distress, despite the fact that the plaintiff was not impacted by the defective product. The plaintiff narrowly escaped being impacted by a collapsing crane, but witnessed his co-worker being crushed to death. Although the plaintiff did not suffer any immediate physical injuries, he did suffer severe mental anguish and emotional distress, which, the court found, resulted in the plaintiff suffering severe headaches, weakness under stress, *956insomnia, recurring nightmares, and post-traumatic stress disorder. The Third Circuit reasoned that Section 402A’s “physical harm” requirement encompassed harm resulting from emotional distress because Section 7 of the Second Restatement defined physical harm as “the physical impairment of the human body” and did not impose any restrictions on the source of that harm. The court noted that Section 7 provided a definition of physical harm that is to be used consistently throughout the entire Restatement. Additionally, the court reasoned that, based on Section 7, in conjunction with Section 436, which discusses physical harm resulting from emotional distress, the authors of the Restatement believed that emotional distress could cause physical harm. Id. at 77. Further, the court concluded that Section 402A should not apply with less force when the physical harm to the plaintiff resulted from emotional disturbance than when the physical harm resulted from some sort of impact. Id. at 79.

Again, while this Court has not defined “physical harm” to date in this context, decisions from our Superior Court provide additional guidance. Within the separate, but related, context of NIED,2 the Superi- or Court has noted that “symptoms of severe depression, nightmares, stress and anxiety, requiring psychological treatment, and ... ongoing mental, physical and emotional harm,” sufficiently establish physical harm or injury as physical manifestations of a psychic injury. Love v. Cramer, 414 Pa.Super. 231, 606 A.2d 1175, 1179 (1992). A later panel of that court found “knots” in a plaintiffs stomach, nightmares, low self-esteem, being susceptible to fright, and major depression cognizable symptoms of a physical manifestation of emotional distress. Brown v. Phila. Coll, of Osteopathic Med., 449 Pa.Super. 667, 674 A.2d 1130, 1137 (1996).

It is not sufficient, however, to end the analysis here. Indeed, before a plaintiff may assert a claim for emotional distress in a strict liability setting in the first instance, a plaintiff must, as a threshold matter, fall within the class of persons protected by Section 402A; thus, we must consider whether Appellees, as bystanders to this accident, are encompassed within Section 402A. More specifically, the bystander plaintiffs must still plead and prove that the defendant sold a product in a defective condition unreasonably dangerous to the user or consumer. To that end, while Section 402A lists “users and consumers” of the defective product as the members of society to whom recovery of damages is available, this Court has implicitly permitted persons who are physically harmed by a defective product, yet not the ultimate user or consumer, to recover under Section 402A. The factual circumstances of this case provide such an example — Erin Schmidt and Joeylynne Jeffress, the two young girls actually struck by the fire hose, did not use or consume the defectively designed product. Nevertheless, no one has challenged availabilities of recovery available to them under Section 402A.

In much the same way, our seminal decision of Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966), the decision in which we adopted Section 402A as the law of Pennsylvania, did not involve a plaintiff who either used or consumed a defective product, but rather, someone who merely *957walked into a room containing the defective product:

Charles Webb [plaintiff Nelson Webb’s father] purchased a quarter-keg of beer from a distributor, John Zern. That same day, plaintiffs brother tapped the keg and about a gallon of beer was drawn from it. Later that evening, when plaintiff entered the room in which the keg had been placed, the keg exploded, severely injuring plaintiff [Nelson Webb],

Id. at 853. In expressly providing for recovery in such situations, the Superior Court has succinctly stated,

no reason appears to distinguish between [a person] who did not buy the product, and someone who did buy the product. If, in other words, [a manufacturer] is effectively the guarantor of (its) products’ safety, the guaranty should extend to those persons who encounter the product after ... its manufacturer has released it [into the stream of commerce].

Pegg v. Gen. Motors Corp., 258 Pa.Super. 59, 391 A.2d 1074, 1079 (1978). Certainly, plaintiffs who witness their loved ones be severely injured or killed by a defective product “encounter the product after ... its manufacturer has released it [into the stream of commerce].” Id.3

Once more, however, stopping the analysis at this point would be imprudent, as the proverbial floodgates could open to any sort of emotional injury that manifests itself physically as a result of the defective product. In theory, should the availability of such damages not be curtailed, anyone who experiences the physical manifestation of an emotional injury, from the mother who witnesses her child struck by a fire hose, to the grandmother or family friend 3,000 miles away who is told of the accident over the telephone, could recover for the physical effects of the emotional turmoil endured.

This Court was faced with a similar situation in the context of emotional distress recovery based on negligence, and it is here where I believe that jurisprudence guides the inquiry. Generally, recovery for emotional distress in any context is not permitted absent some “bodily harm.” See Restatement (Second) of Torts § 436A. In claims based on negligence, our common law initially relegated the “bodily harm” requirement to some sort of “physical impact” by the tortfeasor. In recognizing the “inherent humanitarianism of our judicial process,” as well as the ridiculousness of affording liability based solely on spatial fortuity, this Court in Niederman v. Brodsky, 436 Pa. 401, 261 A.2d 84, 85 (1970), deviated from the “impact rule” to allow persons within the “zone of danger” to recover for emotional distress. For arguably the same reasons, a second deviation occurred, when we further permitted bystanders to an incident recover for emotional damages, so long as said bystander was (1) located near the scene of the accident; (2) the emotional distress resulted from a contemporaneous *958and sensory observation of the accident; and (3) the plaintiff was closely related to the ultimate victim of the accident. Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979).

Again, while I recognize that our zone of danger and bystander rules have their genesis in the negligence context, the policy concerns implicated in that context are nonetheless applicable in properly framing the scope of liability for emotional distress in cases such as the one presented instantly. Indeed, in Pasquale, supra p. 955, the Illinois Supreme Court recognized that, while the plaintiff therein ultimately was not entitled to damages because his emotional distress did not manifest physically (and, thus, he was not physically harmed pursuant to Section 402A), he both was within the zone of danger of a defective product, and contemporaneously witnessed the death of his wife from that defective product. Had the plaintiff in that case suffered physical harm, he unquestionably would have been entitled to damages.

The framework under which I would decide this case so established, I turn directly to the issue before us. First, as a direct answer to the question as posed in our grant of allocatur, the record contains unrebutted and irrefutable evidence that Appellees each have physical manifestations of emotional trauma, which resulted from witnessing the incident underlying this appeal, such that they suffered “physical harm” or “physical injury” as contemplated by Section 402A. Indeed, Appellees began to suffer emotional strain and distress almost immediately after the incident. Within weeks, each was under the care of various social workers and psychiatrists. During this time, Lindsay Schmidt could not sleep or eat, suffered from panic attacks at the mere sound of a siren, and became clinically depressed. Ms. Sandra Faulkner, Lindsay’s clinical social worker, diagnosed her with post-traumatic stress disorder (PTSD).4

Mother Joyce Schmidt suffered from an even more severe case of PTSD. She was clinically depressed, no longer possessed energy or emotion, and also suffered from panic attacks and hysteria associated with sensory observation of a fire engine or emergency siren. Moreover, as of July of 2006 (almost two years after the accident), both Lindsay and Joyce continued to suffer from the effects of chronic PTSD. Lauren Jeffress similarly endured chronic effects of PTSD, including sleeplessness and severe anxiety.

Second, consistent with Pegg and Zern, while not “users and consumers,” Appel-lees are afforded the protections of Section 402A as persons injured by “the product after ... its manufacturer has released it” into the stream of commerce. Pegg, 391 A.2d at 1079. Finally, Appellees sought emotional harm damages under the three-part rule established in Sinn, supra pp. 957-58. They easily satisfy those three requirements to fall within the narrow avenue of available recovery: they were each located within feet of the incident when it occurred; they contemporaneously witnessed the fire hose strike Erin Schmidt and Joeylynne Jeffress, resulting in emotional distress; and each were sufficiently *959related to the injured victim. Thus, they are excepted from the general prohibition against emotional damages.

My analysis aside, I cannot stand in support of affirmance of the Superior Court’s opinion or the verdict as rendered by the jury in the trial court. As made clear by the above construct, Appellees were required to plead and prove, and any recovery should have been limited to, physical harm suffered as mandated by Section 402A. The jury in this case, however, was not instructed concerning this requirement or that the verdict should be only for that physical harm endured. Rather, the trial court instructed the jury merely upon the three Sinn factors, and additionally that it should order compensation for the “mental pain, anguish, suffering, and distress, if any, which [Appellees have] endured since [the incident].”5 Notes of Testimony, Sept. 14, 2006, at 1266-67. The jury simply was not charged with the more objective task of “putting a number” on the amount and severity of physical harm arising as a consequence of the emotional injury. Accordingly, I would vacate the verdicts in favor of Ap-pellees Joyce Schmidt, Lindsay Schmidt, and Lauren Jeffress, but would further remand for a new trial consistent with the construct developed herein.

Justice MeCAFFERY joins this opinion.

Justice TODD joins this opinion in part.

. See Straub v. Paykel Health Care, 990 P.2d 384, 390 (Utah 1999) (requiring physical harm, as contemplated by Section 402A, to a bystander alleging emotional distress caused by a defective product harming a third person); Sease v. Taylor’s Pets, Inc., 74 Or.App. 110, 700 P.2d 1054, 1059 (1985) (same, citing with approval Illinois strict liability jurisprudence); see also Mingolla v. Minn. Mining & Mfr. Co., 893 F.Supp. 499 (D.Vi.1995).

. It should be noted that it remains an open question in Pennsylvania as to whether physical manifestation of an emotional injury is a prerequisite to recovery in an NIED setting, especially when a claim of bystander liability pursuant to Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979), is alleged.

. I recognize that, through what has become known as the "intended use doctrine,” we have limited recovery in certain circumstances to only the "intended user” of the defective product. Thus, we have precluded the estate of a small child, killed in a fire, from recovering wrongful death and survival damages, when the small child started the fire by playing with a cigarette lighter, despite the failure of the manufacturer to place a child safety device on the lighter. See Phillips v. Cricket Lighters, 576 Pa. 644, 841 A.2d 1000 (2003) (plurality). Such reasoning is not implicated in this case, however, where the defective product (the fire engine) was being used by intended users (firemen) for its intended use (transporting fire equipment to a structure fire), yet the defective product still physically harmed a person it encountered in the stream of commerce. Pegg, supra.

. While psychic in origin, PTSD manifests itself in a number of physical respects, including difficulty falling or staying asleep, depression, hallucinations, stomachaches, headaches, hyper-anxiety, and difficulty in concentrating. Moreover, PTSD may be either acute and/or chronic in nature, depending upon the duration of the symptoms. See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, § 309.81 (4th ed., 1994); Testimony of Carrie Seslow, Notes of Testimony, Sept. 8, 2006, at 521-29.

. The entirety of the relevant portion of the jury instruction is as follows:

The second claim is for Joyce Schmidt for what is called tortuous [sic] infliction of emotional distress. According to Pennsylvania law, a plaintiff may recover for infliction of emotional distress due to the traumatic impact of viewing a close relative suffer injury as a result of tortuous [sic] conduct. The tortfeaser [sic] inflicts upon this bystander an injury separate and apart from the injury to the victim.
It is your duty to consider the mental pain, anguish, suffering, and distress, if any, which Joyce Schmidt has endured since the
injury to her daughter and which she may endure in the future. Similarly, Erin's sister, Lindsay, also witnessed the injury causing her sister’s death. She too may recover damages for tortuous [sic] infliction of emotional distress if you so find.
Plaintiff, Lauren Jeffress, who also witnessed the accident which caused the injury to her sister, Joeylynne, and the death of Erin Schmidt, may also recover damages for tortuous [sic] infliction of emotional distress if you so find.

Notes of Testimony, Sept. 14, 2006, at 1266-67; 1268-69.