Vincenzi, J. v. Morgan, R.
2108 EDA 2015
| Pa. Super. Ct. | Nov 18, 2016Background
- On Nov. 30, 2011, Robert Morgan drove a company truck into a concrete pillar and parked vehicles, propelling the pillar into the first-floor kitchen of John Vincenzi’s apartment building. No one on the first floor was injured.
- Vincenzi was in his second-floor bedroom when he heard the impacts, felt the building shake, and experienced fear and chest pressure; he did not witness the collision visually.
- Vincenzi sued for negligent infliction of emotional distress (NIED) and property damage; he later released the property damage claim for a settlement and does not contest that part of the summary judgment.
- Morgan moved for summary judgment on the NIED claim arguing Vincenzi was not in the zone of danger and did not witness the event contemporaneously.
- The trial court granted summary judgment for Morgan, finding no evidence Vincenzi was within the zone of danger and that he did not know of the incident until it had ended. Vincenzi appealed pro se.
- The Superior Court affirmed, concluding Vincenzi presented no proof he was exposed to a negligent force aimed at him or in personal danger of physical impact; sensory perceptions alone could support fear, but only if the plaintiff was in the zone of danger.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Vincenzi can recover for NIED under the "zone of danger" theory | Vincenzi argues that being in the second-floor bedroom, hearing impacts, feeling the building shake, and fearing for his life placed him in the zone of danger | Morgan argues Vincenzi was not in the zone of danger, did not witness the crash, and thus cannot recover as a matter of law | Court held Vincenzi was not in the zone of danger; summary judgment for Morgan affirmed |
| Whether contemporaneous non-visual sensory perception can substitute for visual observation to establish fear of impact | Vincenzi cites Neff to argue auditory and other sensory perceptions produced contemporaneous fear sufficient for NIED | Morgan implicitly argues that lack of contemporaneous awareness of being struck defeats the claim | Court recognized non-visual sensory perceptions can contribute to fear, but declined to reach this issue because Vincenzi failed to show he was in the zone of danger |
Key Cases Cited
- Basile v. H & R Block, Inc., 761 A.2d 1115 (Pa. 2000) (standard of appellate review for summary judgment).
- Atcovitz v. Gulph Mills Tennis Club, 812 A.2d 1218 (Pa. 2002) (summary judgment viewed in light most favorable to nonmoving party).
- Weiley v. Albert Einstein Med. Ctr., 51 A.3d 202 (Pa. Super. 2012) (NIED limited to four scenarios including zone of danger).
- Schmidt v. Boardman Co., 11 A.3d 924 (Pa. 2011) (zone-of-danger requires plaintiff to be in personal danger of physical impact and to have actually feared impact).
- Niederman v. Brodsky, 261 A.2d 84 (Pa. 1970) (formative zone-of-danger NIED authority).
- Neff v. Lasso, 555 A.2d 1304 (Pa. Super. 1989) (bystander case holding non-visual sensory perception can constitute contemporaneous observance of impact to a close relative).