The question before us for decision is this: May the plaintiff recover for the physical consequences of fright caused by the negligence of the defendant, the plaintiff being within the immediate zone of physical danger created by such negligence, although there was no contemporaneous bodily impact?
Considering the record in the light most favorable to the plаintiff, the facts may be thus summarized:
A private lane leading to the home of the plaintiff, Dixie B. Robb, was intersected by a railroad right-of-way leased to the defendant, The Pennsylvania Railroad Company. On March 11, 1961, *456 the plaintiff was driving an automobile up the lane toward her home when the vehicle stalled at the railroad grade crossing. A rut about a foot deep had been nеgligently permitted by the defendant to form at the crossing. The rear wheels of the automobile lodged in the rut and, although the plaintiff tried to move the vehicle for several minutes, she was unable to do so. While thus engaged in attempting to move the vehicle, the plaintiff saw the defendant’s train bearing down upon her. With only seconds to spare, she jumped from the stalled vehicle and fled for her life. Immediately thereafter, the locomotive collided with the vehicle, hurled it into the air and demolished it. The pfaintiff was standing within a few feet of the track when the collision occurred and her face was covered with train soot and dirt. However — and this is the nub of the problem — she was not touched by the train; there was no bodily impact; and she suffered no сontemporaneous physical injury. Nevertheless, the plaintiff was greatly frightened and emotionally disturbed by the accident as the result of which she sustained shock to her nervous system. The fright and nervous shock resulted in physical injuries including cessation of lactation which interfered with the plaintiffs ability to nurse and otherwise care for her infant child. Her nervous and general physicаl condition resulting from the accident also obliged the plaintiff to abandon a horse breeding business and an article which she had been engaged to write for substantial compensation.
The defendant moved for summary judgment taking the position that, assuming the defendant’s negligence and its proximate causation of the plaintiffs fright and nervous shock, she may not recover because there was no “impact” and contemporaneous physical injury. The trial judge agreed and granted summary judgment in the defendant’s favor, stating: “In spite of a modern trend to the contrary in other jurisdictions, I feel compelled to follow the ‘impact theory’ in this matter by reason of well established precedents in this State.” The plaintiff appeals, asserting that there are no such governing precedents in Delaware.
I.
The question is still an open one in this State. Two reported Delaware cases and one unreported case border upon the field of *457 inquiry, but none really enter it.
In
Boyle v. Chandler,
It is obvious that the question hеre presented remains unresolved in this State. The instant case requires us to determine the matter.
II.
The many decisions on the question are collected in the Annotations at
There is sharp diversity of judiсial opinion as to the right to recover for the physical consequences of fright in the absence of an impact and contemporaneous physical injury. The disparity is strikingly illustrated by the fact that the courts of our neighboring States of Maryland and Pennsylvania have reached, and continue to adhere to, opposite conclusions on the question. See
Bowman v. Williams,
Two facets of the question are herewith eliminated from further consideration: First, it is accepted as settled that there can be no recovery for fright alone, not leading to bodily injury or sickness, arising from the negligence of another. See
Boyle v. Chandler,
supra; 2 Harper and James, The Law of Torts, p. 1031;
The two schools of thought in the matter at hand evolved from two lines of cases originating about the turn of the century. The impact rule was established in America by the leading cases of
Ewing v.
*459
Pittsburgh, etc. R. Co.,
The impact rule is based, generally speaking, upon three propositions expounded in the Mitchell and Sрade cases:
1) It is stated that since fright alone does not give rise to a cause of action, the consequences of fright will not give rise to a cause of action. This is now generally recognized to be a non-sequitur, want of damage being recognized as the reason that negligence causing mere fright is not actionable. It is now generally agreed, even in jurisdictions which have adopted the impact rule, that the gist of the action is the injury flowing from the negligence, whether operating through the medium of physical impact or nervous shock. See
Comstock v. Wilson,
2) It is stated that the physical consequences of fright are too remote and that the requisite causal connection is unprovable. See, e.g.,
Ward v. West Jersey & S. R. Co.,
3) It is stated that public policy and expediency demand that there be no recovery for the physical consequences of fright in the absence of a contemporaneous physical injury. See, e.g.,
Mitchell v. Rochester R. Co.,
supra;
Huston v. Freemansburg Borough,
In considering the expediency ground, the Supreme Court of Connecticut said in the Orlo case, supra:
“* * * There is hardly more risk to the accomplishment of justice because of disparity in possibilities of proof in such situations than in those where mental suffering is allowed as an element of damage following a physical injury or recovery is permitted for the results of nervous shock provided there be some contemporaneous slight battery or physical injury. Certainly it is a very questionable position for a court to take, that because of the possibility of encouraging fictitious claims compensation should be denied those who have actually suffered serious injury through the negligence of another.”
On the same point, the Supreme Court of Maryland had this to say in the Bowman case, supra:
“* * * These considerations undeniably tend to multiply fictitious or speculative claims, and to open to unscrupulous litigants a wide field for exploitation, but these difficulties are common, are surmountable, and so should not prevent the operation of the general and fundamental theory of the common law that there is a remedy for every substantial wrong. * * *”
And in
Battalia v. State,
“* * * Although fraud, extra litigation and a measure of speculation are, of course, рossibilities, it is no reason for a court to eschew a measure of its jurisdiction. ‘The argument from mere expediency cannot commend itself to a Court of justice, resulting in the denial of a logical legal right and remedy in
all
cases because in
some
a
*462
fictitious injury may be urged as a real one.’
Green v. T. A. Shoemaker & Co.,
III.
It is our opinion that the reasons for rejecting the impact rule far outweigh the reasons which have been advanced in its support.
The cause of action and proximate cause grounds for the rule have been discredited in the very jurisdictions which first gave them credence. As stated by Holmes, C. J., for the Supreme Judicial Court of Massachusetts, the Spade decision did not result from “a logical deduction from the general principles of liability in tort, but as a limitation of those principles upon purely practical grounds.”
Smith v. Postal Telegraph Cable Co.,
If more were needed to warrant a declination to follow the cause of action and the proximate cause arguments, reference to the fictional and mechanical ends to which the impact rule has been carried would
*463
suffice for the purpose. The most trivial bodily contact, itself causing little or no injury, has been considered sufficient to take a case out of the rule and permit recovery for serious physical injuries resulting from the accompanying fright. Token impact sufficient to satisfy the rule has been held to be a slight bump against the seat,
Homans v. Boston Elevated R. Co.,
supra; dust in the
eyes, Porter v. Del., L. & W. R. Co.,
This leaves the public policy or expediency ground to support the impact rule. We think that ground untenable.
It is the duty of the courts to afford a remedy and redress for every substantial wrong. Part of our basic law is the mandate that “every man for an injury done him in his * * * person * * * shall have remedy by the duе course of law * * *.” Del. Const. Art. 1, Sec. 9, Del. C. Ann. Neither volume of cases, nor danger of fraudulent claims, nor difficulty of proof, will relieve the courts of their obligation in this regard. None of these problems are insuperable. Statistics fail to show that there has been a “flood” of such cases in those jurisdictions in which recovery is allowed; * but if there be increased litigation, the cоurts must willingly cope with the task. As to the danger of illusory and fictional claims, this is not a new problem; our courts deal constantly with claims for pain and suffering based upon subjective symptoms only; and the courts and the medical profession have been found equal to the danger. Fraudulent claims may be feigned in a slight-impact case as well as in a no-impact case. Likewise, the problems *464 of adequacy of proof, for the avoidance of speculative and conjectural damages, are common to personal injury cases generally and are surmountable, being satisfactorily solved by our courts in case after case.
We are unwilling to accept a rule, or an expediency argument in support thereоf, which results in the denial of a logical legal right and remedy in all cases because in some a fictitious injury may be urged or a difficult problem of the proof or disproof of speculative damage may be presented. Justice is not best served, we think, when compensation is denied to one who has suffered injury through the negligence of another merely because of the possibility of encouraging fictitious claims or speculative damages in other cases. Public policy requires the courts, with the aid of the legal and medical professions, to find ways and means to solve satisfactorily the problems thus presented — not expedient ways to avoid them. We recognize that “ [e] xpediency may tip the scales when arguments are nicely balanced,”
Woolford Realty Co. v. Rose,
Accordingly, we decline to adopt the impact rule, as urged by the defendant in this cause. The impact rule “is almost certainly destined for ultimate extinction, although it displays surprising vitality, and the process may not be a rapid one. * * * it seems clear that the courts which deny all remedy in such cases are fighting a rearguard action.” Prosser on Torts (3d Ed.) pp. 351 — 352.
We hold, therefore, that wtiere negligence proximately caused fright, in one within the immediate area of physical danger from that negligence, which in turn produced physical consequences such as would be elements of damage if a bodily injury had been suffered, the injured party is entitled- to recover under an application of the prevailing principles of law as to negligence and proximate causation. Otherwise stated, where results, which are regarded as proper elements of recovery as a consequence of physical injury, are proximately caused by fright due to negligence, recovery by one in the immediatе zone of *465 physical risk should be permitted. Compare Restatement of the Law of Torts, Sections 313,436.
This view has the general approval of the writers on the subject and is now distinctly the majority rule. We are satisfied that it is the better rule, supported by reason, logic and fairness.
We conclude, therefore, that the Superior Court erred in the instant case in holding that the plаintiffs right to recover is barred by the impact rule. The plaintiff claims physical injuries resulting from fright proximately caused by the negligence of the defendant. She should have the opportunity to prove such injuries and to recover therefor if she succeeds. The summary judgment granted in favor of the defendant must be reversed and the cause remanded for further proceedings.
Notes
See Smith, “Relation of Emotions to Injury and Disease.” 30 Va.L.Rev. 193, 302.