*3 CERCONE, WICKERSHAM, JJ. Before WIEAND CERCONE, Judge: case, E. Little appellee of trial in this Jeanne
At the time the phone and an years employee old forty-three wage her in York Her withheld company County. employer in no no that Little was dispute and there is every year tax wage her local tax. payment in the way delinquent H R Block engaging & Contrary previous practice to her returns, the offer of her accepted Little prepare tax tax Little year. friend to do her taxes with her for the 1978 to Red Spring in the middle of 1978 from Grove had moved a form the Lion District. She had not received School taxes, so, tele- finding her local filing mail for the *4 Earned Income County York phone appellant number information, she under tax phone Bureau in the book Tax (The described at trial as the Bureau. Bureau was called collection service for tax non-governmental, profit-making districts.) An employee and school municipalities certain and told her that phone her on the spoke with bureau She informed necessary Little the form. she would send that her fill one form and move she should out Little that entered on the back other should be from one district to the erroneously of the form. Little was told to return the form to the Bureau. she should completed actually What to Spring have done was send return also to Grove School Bureau, but, District. Little sent the return to the un- Little, to district not serviced Spring known Grove copy the Bureau and that district never received a of her So, Grove, to to Spring appeared return. Little be to file a tax required default of the local tax laws which her return, though even amount of tax monies had proper her employer. been withheld Then, in early April of Little was at home with her and some friends when she was arrested for failure to son go Magistrate her taxes. She was made to to Sam pay pleaded, Hill’s office. When she was asked how she she plea, although explained said she entered no she had to the constable at her home that all her taxes had withheld been returns filed. The her at Magistrate and set bond $500.00 and it required paid night cash bail in cash. on As neither Little or friends had that much cash them, County Little was committed to the Jail. Her brother lawyer lawyer retained a for her and the visited her at the the next That was the jail evening. day before Good Friday, holiday, a court and the informed lawyer get Monday. Little that he could not her released until evening, having spent Little was released on after Monday described her as out- days jail. experience five She for, rageous, something likely uncalled that was “more testified to denied her happen being to Russia.” She medication, space to share with allergy being made felonies, charged inadequate had with women who food, clothing sleeping quarters, by jail to mistreatment matrons, and to other were even- indignities. charges against dismissed her. tually the York Earned In- brought against County Little suit Tax Bureau in both contract and tort. The court come action, the contract cause of sustained the demurrer as to jury theory the case to the on a but submitted the Bureau. It instructed the representation part on the *5 caused the Bureau to decide whether they that were jury Little, Little herself acted or whether incarceration of the the Restate in course of events.1 Under unreasonably the § the that Torts, 2d, 905, jury the court instructed ment of jury damages Little for humiliation. could award they amount of of Little in the in favor returned verdict ($20,000.00) dam represented thousand $20,361.05. Twenty humiliation, attorney’s included for her ages $361.05 for judgment After denial of motions court costs. fees and trial, entered. judgment was and/or a new N.O.V. lower court erred argues Bureau that the appeal, the
On to Little failed its motions because refusing post-verdict County in the York Jail was her experience that prove Bureau; Little not that was caused proximately distress; and that for her mental damages entitled to We affirm. was excessive. verdict case to chain of causation this compares the Appellant the Restatement contraption. It cites Goldberg a Rube it that when Torts, 2d, 435(2) states essentially that harm that the highly extraordinary the court to appears that, conduct, it is caused actor’s should have been asserts Appellant of the harm. legal not the cause then judge ignored that the trial that events and unforeseeable
“separate,
independent
notice
receive the first class mail
fail to
plaintiff would
requisite
filed the
that she had not
Spring
from
Grove
letter at
pick up
not
the certified
return, that
would
she
notice, and
containing
important
the same
the Post Office
either.
pick
up
to
it
family
in her
had time
no one
that
set
said to have been
hardly
can
be
These events
appellant’s
consequences
probable
as natural or
motion
extraordinary event
highly
can the
negligence, nor
that certified or
she received notices
trial
testified at
1. Little
office,
up
post
that she
picked
at
but
registered mail was to
knowing
way
from
up.
that she had no
picked it
She stated
never
notices
these were
originated.
was established that
they
It
whom
her
regarding
failure to file
District
Spring
School
Grove
from
it was his
Spring
testified that
Grove also
official from
return. An
notice.
a first class mail
notices with
practice
precede the certified
that notice.
never received
stated that she
Little
she
on the
post
evening April
able
bail
she
arrested.
It
totally
when
unforeseeable
*6
age, good reputation, steady
that woman of mature
and solid
arrested on
employment,
property,
such trivial
released on her
or
charge,
recognizance
would
own
bail,
post
unable to
in short order such a modest
or
at least
unable to
obtain
bail bond.”
Appellant
argues
attorney
also
that the advice of Little’s
he
her out of
get
prison
that
could not
until after the
regarded
superseding
weekend must be
as a
cause of her
injury, relieving
any liability.
Bureau
in our
guided
We are
review
certain well-estab
principles
Initially,
lished
of tort law.
a distinction is tradi
as
has ar
tionally
foreseeability
appellant
drawn between
cause.
is not an
gued
proximate
Foreseeability
it
in determining
negligent
element to be considered
whether
accident,
an
proximate
conduct was the
cause
an
but it is
determining
element of
whether an actor’s conduct was
Castora,
v.
negligent. Fredericks
Superior
Ct.
Inc.,
Wynne,
Lerro Thomas
In
451
“[T]he in its intervention either nothing extraordinary see may development it the future upon in the effect which has or This conduct. results of the defendant’s injurious is intervening force where the important is particularly animal, being or by the act of a human supplied of a situation for which a reaction to the stimulus itself responsible.” the actor is case, director testified instant the Bureau’s former
In the any employers precluded its volume of “taxables” for the Spring Grove to Little that she filed with notice name, that the she lived there. He admitted months that did cause some Tax Bureau” County Earned Income “York *7 it confusion, considered was erroneously in that taxpayers Thus, the filing a with government. arm of the local an a to by taxpayer assumed reasonably could be Bureau returns, of what regardless his to file his tax satisfy duty at trial that it established he resided in. It was also district return to file a tax knowledge that failure general care in Reasonable imprisonment. result fines and could public cognizant appellant have made this case would name; employees that those its engendered by very trust it accurate the advice extremely dealing public with the be effort be made that some taxpayers; to given filed erroneously return that a of a copy to see appellant district. school to the non-serviced them be forwarded with case, a care this Thus, appellant’s for want of reasonable in motion that reason- set of unfortunate events was series could have been foreseen. ably proximately conduct
However, negligent whether considered. Little’s harm must be caused at denoting point is a term of art Proximate cause to anoth- the harm attaches for legal responsibility defendant, Es- Flickinger out of some act of arising er (1973)] 40 W. 69, A.2d Pa. 305 v. Ritsky, tate [452 § 1971); be (4th may and it Prosser, Torts, 41 ed. Law of 16 act negligent defendant’s evidence that the
established
in bringing
act
factor
or failure to
substantial
Ritsky,
v.
harm.
Estate
plaintiff’s
Flickinger
about
448,
A.2d 889
Pa.
263
v.
437
Lojeski,
Whitner
supra;
Hotel, 416
v. Brodhead
(1970)
opinion); Majors
(plurality
Roebuck
265,
(1965);
v. Sears
It is
inAs
of the defendant.
due to the conduct
fered was
sus-
law, that
must be
areas of the
burden
many other
of the evidence. Cwiakala
preponderance
tained
aby
(1967);
Zeman v. Can-
Paal, 427
235 A.2d
Pa.
(1966); Amon v.
Boro,
Pa.
17
reasonably
could
conclude that defendant’s actions were a
harm,
factor
about the
bringing
substantial
“...
‘the fact that some
cause
with the
other
concurs
of the
negligence
producing
injury
defendant
an
does
not
the
he
liability
relieve
defendant from
unless
can
such
show that
other
would
produced
cause
have
injury independently
negligence,’
of his
v.
Carlson A. &
216, 223,
P.
Box
364
Corrugated
Corporation,
Pa.
(1950).
Grontkowski,
A.2d
See Yenchko v.
(1956).”
385 Pa.
Our persuades review evidence us that the proximate issue of cause properly reserved for the jury since this is not such a clear case that reasonable minds could not on what differ caused Little’s harm. The jury could find negligent misrepresentation Bureau’s Little’s responsibilities taxpayer as a set the wheels in complied motion. Little with the erroneous advice. Subse quently, Moreover, she failed to her retrieve mail. magistrate bond; demanded a cash told her attorney she get could not out of until after jail the weekend. Appellant trial, able to at appeal, show nor on any of these produced other causes would have the injury Thus, of its independently negligence.2 own is not it re liability lieved of on this theory.
As unusual and as the events in this extraordinary case are, correctly their resolution was reserved for the jury’s collective mind. What the Bureau’s employee should have realized might be result of her inaccurate advice what person impossible reasonable would as regard virtually questions result were jury. fact for the We are satisfied decide, that the jury was able to from the presented facts at 2. “... the fact that some other concurs with cause producing injury defendant an does not relieve the defendant liability from unless he can such show that other cause would have produced injury independently negligence.” Majors of his Hotel, supra, p. Brodhead at 17. *9 Little trial, by proximately that the harm suffered was of the Bureau. by caused what harm was suffered The next concerns question $20,000 for Little, damages of in award whether anguish mental correct humiliation, degradation, and The tort for which the found jury under law. Pennsylvania misrepresentation. negligent the Bureau liable was court, 2d language of the Restatement of Torts using the § 552, jury in this manner: instructed had a
It is clear that in this case defendant quite something it not to the hold itself out as duty not to that reasonably upon rely detriment of others who would connection, that and in that the law said representation, business, or profession, one in the ocurse of his who in has a other transaction he employment any or guid- for the supplies interest false information pecuniary subject in their transactions is ance others business justifi- caused to them their liability pecuniary for loss if he fails to exercise upon able reliance information competence or or communi- obtaining care reasonable cating the information. intentional involving cases
Appellant argues
only
fit to grant recovery
torts
courts seen
Pennsylvania
have
false
suffering
for
and humiliation. These include
mental
libel,
imprisonment,
prosecution,
malicious
and invasion
Moreover,
contends,
tort of
inflic-
it
privacy.
damages
will
rise to
give
tion mental distress
mental
436 Pa.
261 A.2d
anguish.
Brodsky,
v.
Niederman
(1970);
Burd,
146, 404
A.2d 672
Sinn v.
However,
action
remaining
that in the
argues
it
causes
anguish
for mental
negligence,
recovery
on
premised
there is some concomitant
only
has been
where
allowed
Therefore,
argues, Little should
appellant
physical injury.
$20,000
suffering.
for her
not have
entitled
mental
other,
in isolation from each
these statements
Considered
as false
true. With intentional torts such
by appellant are
the harm suffered
imprisonment
prosecution,
and malicious
itself.
damage
considered to
in and of
by plaintiffs is
Evans,
Superior
*10
See Shelton
Pa.
Ct.
The tort negligent
distress,
infliction of mental
deals
specifically
bystander
with
liability,
experienced
has
in
rapid evolution
this
abrogation
state. The
physical
the
impact rule
401,
Niederman v.
436 Pa.
Brodsky,
(1970)
A.2d 84
meant
plaintiff
“where the
inwas
personal danger of physical
impact because
the direction
negligent
of a
force against him and
plaintiff
where
actual-
ly did fear the physical impact
he could
...
recover for the
shock,
pain,
mental
and physical injuries attendant
to the
negligent incident even though he
was
struck
Id.,
negligent
force.”
“This new awareness of the unfairness of the zone of
danger requirement in
[involving
... cases
a parent who
has suffered emotional harm from witnessing a tortious
assault upon his or her minor
upon
based
child]
implicit acceptance that
impact
emotional
upon a
parent witnessing the
killing
a minor child is at least as
great
legitimate
as the apprehension that is inspired
by plaintiff being
within the
personally
zone of danger.”
Burd,
156-157,
Sinn v.
Chief Justice O’Brien concluded that mental distress dam- recovered.) ages But, then, could be in Mason v. Western (1982), Pa. Hospital, A.2d 974 the Court denied the emotional costs of raising unplanned an healthy child because of the public policy favoring Commonwealth’s of a joy healthy child as outweighing the costs of raising (The it as a matter of law. child unexpected because a sterilization procedure had negligently per- formed.) found to appellant the tort for which
Instantly,
ar
misrepresentation. Appellant
be liable was
any
that since that cause of action did not involve
gues
*11
conduct,
physical
or fear of
physical impact,
intentional
humilia
damages
Little should not be.entitled to
for
impact,
However,
precedent
suffering.
prior
tion and mental
unusual
recovery merely
because an
preclude
should
in
a similar result
another
preceded by
result has not been
may
is fundamental that one
seek
case.3 This is because it
wrongdoer
and that a
every
wrong,
redress for
substantial
of
probable consequences
for the natural and
responsible
Public
Philadelphia
his misconduct.
v.
Board
Ayala
584,
(1973).
do not
Education, 453 Pa.
If harm to James in fact resulted it is emotional fortuitous harm will not argued, physical avoidance of question hospital’s liability. foreclose the We in regard and note this defendant need agree that “[t]he ‘that an should injury way not foresee occur in the exact occur,’ and to the same extent as that which did he need foresee that some of a like character only injury general care.” unlikely is not to result from failure to use Weaber, 590, 595, 112 A.2d Thornton v.
(1955) original) in Smith in (emphasis (quoting Jeremiah Tort,” in Actions of on “Legal Essays Cause “Selected 649, 690). of Torts” Law premised a case on the of a mental Vattimo was hospital caring paranoid-schizophrenic for a with a fasci- fire, placed semi-private nation with who was room A supervision. without few hours after his left the parents room, set a fire in hospital, allegedly James resulted the death of his roommate. The cause of action Supreme permitted which the Court jury decide distress, humiliation, James’ claim for emotional embarrass- anxiety, though may ment and even James have suffered no harm. physical
We see no reason to deny jury’s determination damages for emotional harm be awarded in the absence *12 in physical harm the instant case. It is indeed fortuitous physical that Little suffered no harm from the humiliation, of did testify the Bureau. She as to her embarrassment, indignation, and emotional distress at hav- to in for ing spend days jail noncompliance five with a tax on negligent misrepresenta- law occasioned reliance the tion of the Bureau. Torts, 2d, see no reason why
We Restatement of (d) 905(b) (1979) and did to this case. apply Comment approval Supreme of 4. Court affirmed the Commonwealth Court’s distress; James Vattimo’s cause of action for his own emotional see Inc., A.2d Hospital, v. Lower Bucks Vattimo Hutchinson, Roberts, Larsen, (1983) (Messrs. Zappala and Justice concurring.) Compensatory Damages Nonpecuniary Harm for damages may be without Compensatory that awarded compensation of loss proof pecuniary include (b) for emotional distress.
(d) a cause for a Humiliation. One who has of action damages to an of may tort entitled recover as element humiliation, that of mental known as form distress is, feeling degradation a of or or a feeling inferiority regard dislike. that other will him with aversion or people harm, an may This mind result from a physical state of statement, of imprisonment, defamatory disruption a relation, trespass or the deliberate marital even or or dispossession land destruction chattels.
Appellant contends that this comment on humiliation torts, intentional like false pertains imprisonment, only mis and not to which results from imprisonment see no to draw a distinc representation. We reason such tion, resolution of the issue above. given foreseeability our correctly charged The lower on this section court Restatement. characterizing confident in situation
We feel to our presenting unique question the within as one a case the York Earned duty County undertaken Court. The in public served to aid members of the Income Tax Bureau complying legally imposed duty, their own violation with negli fine their imprisonment. By could or which result appellant intangible invaded Little’s duty, their gence of, calls, or “personality,” interest Dean Prosser what Torts, (4th ed., 1978). The Prosser dignitary interest. rise to protect gives such interests class of case which said to be presumed, wrong are or is damages Thus, we hold that where of itself. Id.5 damage interest, argues if an like freedom persuasively 5. One author defendant, movement, infringed by it belonging plaintiff then to a damage, plaintiff plaintiff has suffered can be said that the *13 negligent act of an entity which holds respon- itself out as sible for the collection of taxes and which works closely taxing with bodies which the authority prosecute have individuals for noncompliance, advises an erroneously indi- vidual as to the manner in which she should file a certain return, which fact ultimately results in that individual’s unjustified imprisonment, that entity may be found liable for the emotional distress suffered individual upon reliance the negligent misrepresentation.
Appellant argues
$20,000
was an excessive
amount because Little should
arranged
have
to post the
bond,
cash
$500.00
fact would have shortened her
time in jail and mitigated her damages. As this court
remarked in
Evans,
Shelton v.
supra,
p.
at
“it is
always suspect, when considering the adequacy or exces
verdict,
siveness of a
to refer
case,
to the verdict in another
for no two
Shelton,
cases are the same.”
supra, 292 Pa.
Superior
Ct. at
[t]he jury should not court, be interfered with by the unless it clearly appears that the amount awarded result- ed from caprice, prejudice, corruption or some im- other proper influence. Tonik Apex Inc., Garages, Pa. 373, 378, (1971). 275 A.2d We cannot say $20,000 that the jury’s verdict of was exces- sive when parade faced with the of horribles which resulted in Little’s imprisonment. She was shown to appel- be—and lant admits such—an upstanding citizen complied who had with all tax laws according appellant’s advice. The action, damage should have an whether the defendant caused the intentionally indirectly. or "... infliction of [T]he loss of give damages. freedom of movement should rise to a claim for freedom, damages depend will on the duration of the loss of humiliation, degree resulting, Heffey, "Negli illness and so forth."
gent Imprisonment: Infliction of Actionable 'Per Se' or ‘Cum Dam no’?’ 14 Melbourne U.L.R. *14 the Kafkaesque jury scenario of her experience provided adequate recovery. an which to upon provide with basis affirmed. Order lower court J., WIEAND, dissenting opinion. filed a WIEAND, Judge, dissenting: by an respectfully given I dissent. The advice Bureau of York Earned Income Tax was employee County by independent highly and extra- subsequent so attenuated cannot that such ordinary intervening events appellee’s imprisonment. legal said to be cause Therefore, I to be en- judgment would reverse and cause appellant. tered for the Telephone E. an employee
Jeanne Little was of General local customarily wage Her deducted Company. employer taxing from her and them to the local salary paid taxes In Little from the Central authorities. Ms. moved Her Spring District to the Grove District. York School H R annually prepared by tax returns & Block wage were the same. In signed mailed after she had appropriately and to Spring District Red she moved from Grove year for that her prepared Lion. Her tax returns were receive friend. Ms. Little had failed to tax Because District,1 the York from the she called Spring forms Grove inquire Tax Bureau to about the Earned Income County changed had by one who filing procedure to be followed who person, that an unidentified residence. She testified and to mail her a form told phone, promised answered received, form filing one would suffice. That was Tax to the Earned Income Bureau. completed, mailed Bureau, serviced Spring The Grove District return to however, Ms. tax was not forwarded Little’s district. testified Spring Grove District representative A apparent, had delinquency Ms. Little’s become that after Little’s representative District testified that Ms. name of the School 1. A forms the District had mailed on the tax and that rolls persons tax rolls. to all on its December tax return and a notice complete and file within three weeks were sent to her in Red Lion by first class mail. She said she didn’t receive the letter. The School District showed, however, that the undelivered letter had not been returned to Therefore, the sender. it assumed that delivery of the notice had been made. itWhen received no response from the taxpayer, School District caused notice to be sent by mail, certified return receipt requested. post office sent three separate notices to the which, taxpayer, Ms. concedes, Little were duly testified, received. She however, that she was too busy go to the post office for *15 letter, the certified and the letter was eventually returned “unclaimed” to the School District.
The Spring Grove School District thereafter filed a com- plaint Magistrate Hill, with who issued not only summons but a warrant for Jeanne Little’s arrest. The warrant was served on appellee on Wednesday before Easter in 1980. When she declined to enter a plea of the guilty, magistrate set bail at He then refused to accept a personal $500. check for the bail and also refused to allow time for a friend to obtain the cash bail demanded. Because Ms. Little was not carrying adequate cash on person her to meet the demand of magistrate, the he ordered that she be commit- ted to the York County Prison. An attorney was employed, but he did get to see Ms. Little or otherwise contact her until Thursday evening. Inexplicably, the attorney then represented powerless that he was to obtain the client’s release prison from until after the Easter holiday. Ms. Little was not released until Monday evening. The charges against her were subsequently dismissed when complet- she ed a return at her hearing.
The issue proximate of cause includes a consideration of the degree of culpability in determining whether to hold an actor liable for negligent Seidelson, conduct. Some Reflec- Cause, tions on Proximate 19 Duq.L.Rev. 1, (1980); 2-3 Morris, Duty, Causation, Negligence 101 U.Pa.L.Rev. For reasons of propriety fairness, 189, (1952). 193-194 scope of a liability defendant’s should not be wholly 26 Seidelson, his act.
disproportionate culpability of of cause is as a term art to denote supra. Proximate used legal responsibility will not attach point beyond Bashline, 256, 265, act. Hamil v. for a 1280, (1978). A.2d 1284 392 cause, negligence defendant’s must be proximate
To be plaintiff’s harm —in this causing factor a substantial Bashline, mental distress. Hamil v. case, alleged Co., 167, v. 170, Takach B.M. Root Pa.Super. 279 supra; Knavel, Noon 1084, (1980); Pa.Super. 234 420 A.2d 1086 Wisniewski v. Great 208, 545, (1975); 198, A.2d 550 339 Co., Tea 574, 581-582, 226 Atlantic and Pacific Pa.Super. 744, (1974). the facts are not 323 A.2d 748 Where the defendant’s and the causal connection between dispute remote, is injuries clearly and the plaintiff’s law proximate question cause court. issue 74, Ritsky, 452 69, 40, Pa. A.2d 43 Flickinger Estate v. 305 Motors, Inc., 26, 421 218 v. Chestnut (1973); Pa. Liney Company v. 7-Up Bottling Klimczak (1966); A.2d 338 Inc., 385 287, 293, 122 A.2d Philadelphia, Pa. Bell Tele on other Smith v. disapproved grounds, (1956), Pa. 153 A.2d phone Company Pennsylvania, (Second) 434(1)(a) (1959); of Torts Restatement Inc., Hospital, v. Lower Bucks See: Vattimo *16 (Nix, J., 241, 257-259, (1983) A.2d 1239 concur 465 Pa. § (1941). Prosser, Law Torts of ring dissenting); conduct a substantial determining negligent In whether to “the harm, given must be causing in consideration factor in producing factors which contribute number other in have they of the effect which harm and the extent § (1965). Torts (Second) of producing it.” Restatement bring- in such effect may predominant have factors Other insignif- act is negligent harm that actor’s ing about the thus, factor. Restatement icant, and, not a substantial § (d) (1965). comment (Second) of Torts in operates intervening actively force is one which “An negligent act or to after actor’s producing harm another (Second) of Restatement committed.” omission has been § 441(1) (1965). determining Torts In whether an interven- ing supersedes cause the actor’s or act omission so as to relieve the actor from liability a court must consid- er the following factors:
(a) the fact that its brings intervention harm about different kind from that which would otherwise have resulted from the negligence; actor’s
(b) the fact its operation or the consequences appear thereof after the event to extraordinary rather than normal view the circumstances existing at the operation; time of its
(c) the fact intervening operating force is independently any situation by created the actor’s or, hand, negligence, on the other is or is not a normal situation; result of such a
(d) operation the fact that the intervening force act; is due to a third person’s act or to his to failure (e) the fact that the intervening force is due to an act of a third person wrongful which is toward the other and him; as such subjects person the third liability (f) the degree of of a third culpability wrongful act of a person which sets the intervening force in motion. (Second) Restatement of Torts
After examining number of additional factors which contributed to Jeanne Little’s imprisonment examining in the light them of the considerations suggested by the foregoing Restatement, sections I would conclude as a matter of law that appellant’s negligence not the legal proximate or cause of her harm.
Jeanne Little’s mental distress and humiliation were caused her imprisonment, by negli- the Bureau’s gence failing to advise her correctly. Her humiliation caused not because of mere tax or failure to liability wage file a return. Her necessary paid; taxes had been her they wages had been withheld from employer, paid and had to the school districts they to which were *17 apparent seeming owed. Her default had only been a failure to file an annual return with the school district from fact, had In this return in mid year. she had moved Tax Earned Income County York forwarded to the
been not had and, negligence, Bureau’s Bureau because District. School Spring the Grove properly filed with been considering and imprisonment from Looking appellee’s back about, I find brought it factors which subsequent the many reasonably can negligence appellant’s it inconceivable negli- Appellant’s cause thereof. legal to the said be be too remote. entirely gence sent matter of two notices there is place, In the first by not received that a tax return had to Ms. Little notice, although first District. The School Spring Grove mail, nor returned neither delivered first class was by sent is that it was lost inference necessary to the sender. mail, not notice, certified was A second sent the mail. no- because, separate three despite Ms. Little received office, she post her in the being it held for tices that was If one of up. only to it busy pick herself too found received, it seems obvious notices had been District’s School to file a return would deficiency failing apparent that the Instead, Little remained bliss- Jeanne corrected. have been not received a District had that the School ignorant fully followed. prosecution return. Criminal of her tax copy to file a for the failure prosecution if criminal Even proxi- caused said to have been conceivably return could Bureau, neverthe- negligence, the Bureau’s mately by act of the independent less, responsible hearing without appellee incarcerated magistrate who explanation, rejected he Week because during Holy accept arbitrarily refused insisted on cash bail cash. Similar- time to obtain her reasonable check or allow and un- from separate Bureau’s ly, the inexplic- supine and his of counsel delay related to the prison from release appellee’s to obtain helplessness able are point At this we evening. following Monday before At negligence. appellant’s from steps five removed four or have coincided intervening causes independent, least four incarceration without day five bring appellee’s about *18 29 intervening This of causes for hearing. combination responsible produced entirely others were a result different reasonably anticipate consequence than one could as a negligence. Indeed, Bureau’s the result was one which majority being truly extraordinary. even the conceives as circumstances, holding responsible these the Bureau Under imprisonment reasonable appellee’s opportunity without post hearing disproportionate bail and without is wholly mishandling to the of the Bureau’s of Ms. Lit- culpability Indeed, inquiry. negligence pales tle’s tax the Bureau’s insignificance predominant into when the effect of these hold, therefore, intervening causes is considered. I would legal proximate the Bureau’s was not the or harm. appellee’s cause act, event, tortious was an act or
Appellant’s any simple negligence. omission of Its tortious conduct was not intentional, Appellee’s nor was it reckless or wanton. cause arrest, of action is not one for false it is an action to feelings resulting recover for embarrassment and hurt from an caused imprisonment allegedly negligent act damages another. Whether for such embarrassment and feelings, hurt where there has been neither nor physical can injury, against mental be recovered one who has been guilty simple negligence vexing is a issue. rule,
As general damages anguish for mental or humili- ation, where there has physical injury, been no can be only recovered cases of tortious conduct committed inten- or 22 tionally, wantonly recklessly. See: Am.Jur.2d Dam- (1965). ages general 195 is stated in Section rule (Second) 436A of Restatement of Torts as follows: “If creating the actor’s conduct is as an unreasonable another, causing risk of ... emotional disturbance and it alone, results such emotional disturbance without bodily harm or other the actor is compensable damage, not liable for such emotional disturbance.” This section was adopted in Banyas Hospital, followed v. Lower 293 Bucks 122, 128-129, 1236, (1981). 437 A.2d Pa.Super. 1239-1240 Laboratories, See also: 568 F.Supp. Plummer v. Abbott 30 (D.R.I.1983); States,
920
v. United
559
Sypert
F.Supp. 546
(D.D.C.1983)
law);
(applying Virginia
Avallone v. Wilming
Center, Inc.,
ton Medical
F.Supp.
(D.Del.1982);
553
931
States,
(D.Kan.1981)
White v. United
510 F.Supp.
law);
(applying Georgia
114, 115,
Jackson,
Keck v.
122 Ariz.
(1979);
593 P.2d
Davis, Iowa,
Barnhill v.
(1981);
N.W.2d
107-108
Labs,
Payton
Abbott
Mass.
Emotional disturbance which is not so severe and seri- ous as to physical have consequences is in the normally trivial____ realm of the It is so likely temporary, be evanescent, so and so relatively harmless and unimpor- tant, that the task of compensating for it unduly would courts____ burden the in the absence of the [Moreover] guarantee genuineness of provided by resulting bodily harm, such emotional disturbance may be too easily feigned, depending, must, as it very largely upon the subjective testimony plaintiff may] open too [and wide a door for false claimants who have suffered no real harm at all. [Finally,] where the defendant has been merely negligent, without any element of intent to do harm, his fault is not so great that he should required be to make good mere [for embarrassment].
The relies on majority Section 905 of the Restatement (Second) of Torts to sustain an award for solely mental section, distress in the however, instant case. That does not support the rule which majority espouses. It does no more than recognize action, in some causes of harm, such non-pecuniary distress, as emotional may compensated. The Restatement does pretend not to create a cause of negligent action for infliction of emotional dis- tress. This readily apparent c, is from comment provides as follows: ele- principal The general.
c. Emotional distress in for assault or false battery, of in actions damages ment defamation, mali- in actions for imprisonment, as well as affections, frequent- is and alienation of prosecution cious experienced by plaintiff. disagreeable emotion ly cases, emotions disagreeable In other protection against given only is involving bodily pain ordinarily not some other interest. infringement an action for of another, caus- annoys thereby Thus one who insults or or discom- ing person fright physical a third to suffer to the third ordinarily subject liability fort, §§ (See 312 and unless harm results. person bodily 313). merely can be an action harm Whether there existence feelings presents question to the of of problem cause action and is not a the amount of damages. § 905, (Second)
Restatement
of Torts
comment c
specific
decisions have addressed
fact
Pennsylvania
In
patterns
establishing
per
without
se rule.
Niederman
(1970),
Supreme
wrongful birth
held that such an action could be maintained and that
Court
parents
for mental distress caused to the
could be
damages
Pennsylvania
Mason v. Western
However, in
recovered.
(1982),
Hospital,
In the instant there was neither direct negligence as a result of nor appellee appellant’s physical which she felt injury resulting from embarrassment And it is understanda- upon being imprisoned. yet, readily and humiliation in unfeigned embarrassment will ble result to a has unnecessar- probability person all who in that humiliation cases of ily imprisoned. Recognizing than in other cases of emo- imprisonment may greater be negligence resulting imprison- tional distress and that rule, also may require recognizing ment a different but rule, (Sec- of such a the Restatement consequences serious ond) position. has declined to take a caveat to By Torts g and in comment of Section the Restate- Section 35 ment has no view on whether a should expressed plaintiff for harm to his or her permitted damages to recover act or feelings deprived when of freedom person. omission of another has entered this vacuum and has held that majority prem- for emotional distress such cases can be
recovery doing, placed ised on alone. so it has mem- By particularly the members of legal profession, bers bar, and, in unnec- grave my judgment, the criminal trial at a cause unnecessary risk. I find it to establish such essary mischief, action, in the instant case. potential with its from, lacking so remote and so Appellant’s negligence about, emotion- bringing appellee’s in relative culpability *21 I legal not the cause thereof. would al distress that it was judgment n.o.v. favor entry reverse and direct appellant.