This appeal is from the order of the lower court granting defendant-appellee’s motion for summary judgment. Appellant 1 contends that the decision was improper becаuse a genuine issue of fact exists and, under current case law, her claim should reach the jury. We agree that appellee’s motion for summary judgment was improperly granted, аnd therefore, reverse the lower court’s order.
Appellant, her two adult daughters and two grandchildren were shopping in appellee’s department store in Glen Riddle, Delаware County, on March 6, 1974. Appellant alleges in her complaint filed on March 21, 1974, that, while shopping, she saw five men employed by appellee accost and forcibly rеmove her daughters from the shopping area. The complaint also alleges that appellee’s employees detained them for approximately one-hаlf *533 hour. Upon returning to appellant, her daughters found her in a state of great anxiety. Appellant alleges that she suffered a severe heart attack as a direct result оf appellee’s reckless, wanton, and willful misconduct. She avers that this injury resulted not only from the mental anguish and shock of seeing the assault upon her daughters, but also from her own feаr of physical impact from the appellee’s conduct.
The parties took depositions in the instant case on August 6, and August 8, 1974. In her deposition, appellant stated that whilе she was seated in the shoe department of appellee’s store she saw the appellee’s employees assault her daughters and force them onto an elevator. Her testimony does not indicate clearly the distance between her and the store employees at the time of the alleged assault.
Appellant further testified that after her daughters returned from the security office, she tried to find the store manager to obtain an explanation for the assault and detention. A few minutes later she collapsed in the store. One of appellee’s employees summoned an ambulance, and appellant was taken to the hospital. Appellant suffered a heart аttack for which she was hospitalized two and one-half weeks.
On August 28, 1974, appellee moved for a summary judgment against appellant on the ground that there was no tortious conduct of the appellee or appellee’s agents directed toward appellant. The lower court granted the motion because it concluded that apрellant was not in any fear of personal danger of physical contact; she was merely a passive observer some distance away from the activity. The lower cоurt based its decision on
Niederman v. Brodsky,
The law on summary judgment is well-settled. “Summary judgment is made available by Pa.R.C.P. 1035, 12 P.S.Appendix, when the pleadings, depositions, answers to interrogatories, admissions on file and supporting affidavits considered together reveal no genuine issue аs to any material fact and the moving party is entitled to a judgment as a matter of law. This severe disposition should only be granted in cases where the right is clear and free from doubt. To determine the absence of a genuine issue of fact, the court must take the view of the evidence most favorable to the non-moving party, and any doubts must be resolved against the entry of the judgment.” (citations omitted)
Husak v. Berkel, Inc.,
Appellant first contends that whether she was put in actual fear of physical impact to herself is a question of fact for the jury. Prior to 1970, Pennsylvania upheld the “impact rule” which precluded a plaintiff’s recovery for emotional distress unless hе had shown that some physical impact, however slight, had resulted from a defendant’s negligence.
Bosley v. Andrews,
The Restatement (Second) of Torts has adopted an approach similar to that in Niederman: § 436 “ . (2) If the actor’s conduct is negligent as creating an unreasonable risk of causing bоdily harm to another otherwise than by subjecting him to fright, shock, or other similar and immediately emotional disturbance, the fact that such harm results solely from the internal operation of fright оr other emotional disturbance does not protect the actor from liability.” The comments to § 436 make clear that it retains the requirement that the plaintiff be within the zone of danger. See comments b and f, § 436, Restatement (Second) of Torts.
[ 3, 4] Tort law uses words such as foreseeability, duty, and proximate cause which serve to limit liability for negligent acts in accordance with a court’s and presumаbly society’s notions of the just and feasible bounds of an actor’s moral culpability.
Scarf v. Koltoff,
In the instant case, the lower court held, as a matter of law, that appellant was not within the zone of danger and, therefore, could not have been in fear for her own safety. However, appellant alleged in her complaint that her injuries resulted not only from her observation of the assault upon her two daughters, but also from appellee’s treatment of appellant. Moreover, there is no clear evidence in the deposition as to the distance between appellant and her daughters at the time of the assault. Therefore, viewing the evidence in the light most favorable to the appellant,
Kent v. Miller,
*537
See
Prince v. Pavoni,
We remand for proceedings consistent with this opinion.
Notes
. Appellant’s husband, John Bowman, filed a derivative claim against appellee based upon the deprivation of his wife’s society and her medical expenses. Although he also appeals from the order of the lower court, references herein to appellant are to Merle Bowman. Appellant’s daughters, Mary Moyer and Carolyn Lincoln and their husbands, are plaintiffs in the same action against appellee. However, they are not parties to this apрeal, because appellee did not file a summary judgment motion against them.
. Appellant also contends that because appellee’s conduct was intentional, and not merely negligent, that she is excused from proving that she was within the zone of danger. Because we find that appellant is entitled to proceed to trial, it is unnecessary to decide this question.