Schultz v. Barberton Glass Co.

Celebrezze, C.J. The issue raised in this appeal is whether a contemporaneous physical injury is a necessary condition precedent to liability for the negligent infliction of serious emotional distress. For the reasons which follow, we conclude that a contemporaneous physical injury is unnecessary. In 1908, Ohio adopted the rule which requires the finding of contemporaneous physical injury before any recovery can be obtained for fright, shock, emotional distress, or mental suffering. Miller, supra. The court — 133 — reasoned that “* * *‘[i]f the right of recovery in this class of cases should be once established, it would naturally result in a flood of litigation in cases where the injury complained of may be easily feigned without detection, and where the damages must rest upon mere conjecture or speculation. The difficulty which often exists in cases of alleged physical injury, in determining whether they exist, and if so, whether they were caused by the negligent act of the defendant, would not only be greatly increased, but a wide field would be opened for fictitious or speculative claims. To establish such a doctrine would be contrary to principles of public policy.’ ” Id. at 321. (Quoting from Mitchell v. Rochester Ry. Co. [1896], 151 N.Y. 107, 110.) We find that the reasons set forth in Miller are no longer valid. The first concern that a flood of litigation would result if recovery were permitted has not materialized. Commentators and courts in other jurisdictions have concluded that this argument lacks merit. As stated in Falzone v. Busch (1965), 45 N.J. 559, 567, 214 A. 2d 12, “[t]here is no indication of an excessive number of actions of this type in other states which do not require an impact as a basis for recovery.”2 Similarily, “[t]he truth of the matter is that the feared flood tide of litigation has simply not appeared in states following the majority rule allowing recovery of psychic injuries without impact.” Lambert, Tort Liability for Psychic Injuries (1961), 41 Boston U. L. Rev. 584, at 592. The California Supreme Court concluded in Molien v. Kaiser Foundation Hospitals (1980), 27 Cal. 3d 916, 928, 167 Cal. Rptr. 831, 616 P. 2d 813, that “Hf physical injury, however slight, provides the ticket for admission to the courthouse, it is difficult for advocates of the ‘floodgates’ premonition to deny that the doors are already wide open.” Even if there may be a possibility of increased litigation, it is not a valid reason for denying a judicial forum. The Supreme Court of Pennsylvania, quoting Prosser, Intentional Infliction of Mental Suffering: A New Tort (1939), 37 Mich. L. Rev. 874, stated: “ ‘It is the business of the law to remedy wrongs that deserve it, even at the expense of a ‘flood of litigation’; and it is a pitiful confession of incompetence on the part of any court of justice to deny relief upon the ground that it will give the courts too much work to do.’ ” Niederman v. Brodsky (1970), 436 Pa. 401, 412, 261 A. 2d 84. Even if the caseload increases, the “proper remedy” is an expansion of the judicial machinery, not a decrease in the availability of justice. Battalla v. State (1961), 10 N.Y. 2d 237, 241-242, 176 N.E. 2d 729, 731. Therefore, we are not convinced that the problem of increased litigation is real or inevitable. Moreover, even if the caseload increases, we believe it is an unacceptable reason for denying justice. A second reason for the physical injury requirement is the fear of fic — 134 — titious injuries and fraudulent claims. In response to this concern, the Supreme Court of Pennsylvania concluded that there was no merit in this proposition and stated that “[fjactual, legal, and medical charlatans are unlikely to emerge from a trial unmasked.” Niederman, supra, at page 410. The danger of illusory claims for mental distress is no greater than in cases of physical injury, especially when the injury is slight.3 The opportunity for fraud is as likely in such a case as one absent any physical injury.4 “The problem is one .of adequate proof, and it is not necessary to deny a remedy in all cases because some claims may be false.” Prosser, Law of Torts (4 Ed. 1971) 327-328, Section 54. We are not convinced that the fear of fraudulent claims is a valid reason to preclude the opportunity for recovery. The judicial system and evidentiary requirements have proven to be safeguards against fictitious claims in other personal injury cases and will function similarly in emotional distress cases. The last argument urged by appellee for retaining the physical injury rule is that problems regarding the proof of emotional distress are insurmountable because damages must be based upon conjecture or speculation. Other courts which have addressed the issue have found this proposition without merit. For example, the Supreme Court of Hawaii determined that “[i]n judging the genuineness of a claim of mental distress, courts and juries may look to ‘the quality and genuineness of proof and rely to an extent on contemporary sophistication of the medical profession and the ability of the court and jury to weed out dishonest claims.’ ” Rodrigues v. State (1970), 52 Hawaii 156, 172, 472 P. 2d 509. Furthermore, the court noted that in cases in which the proof of mental distress is not medically significant, the “general standard of proof required to support a claim of mental distress is some guarantee of genuineness in the circumstances of the case.” Id. Similarly, the Supreme Court of Pennsylvania surveyed the response of other jurisdictions and concluded that “[t]he virtually unanimous response has been that (1) the danger of illusory claims in this area is no greater than in cases where impact occurs and that (2) our courts have proven that any — 135 — protection against such fraudulant claims is contained within the system itself — in the integrity of our judicial process, the knowledge of expert witnesses, the concern of juries and the safeguards of our evidentiary standards.” Niederman, supra, at page 409. We agree with these courts. Judges and juries will consider the credibility of witnesses and the genuineness of the proof as they do in other cases. In most instances, expert medical testimony will help establish the validity of the claim of serious emotional distress. Three medical doctors and a doctor of psychology testified, in the case sub judice, to the effect that appellant suffers from traumatic neurosis which was directly caused by the collision. Appellee did not offer expert testimony to the contrary. Having carefully examined the arguments in support of the contemporaneous physical injury rule, it is clear that continued adherence to the rule makes little sense. Legal scholars who have considered the rule denying recovery in the absence of contemporaneous physical injury or impact are unanimous in condemning it as unjust and contrary to experience.5 The justifications for the doctrine are no longer valid and the reasons for abrogating it are strong. Consequently, the earlier cases upholding the doctrine are overruled. Miller, supra, and Davis v. Cleveland Ry. Co. (1939), 135 Ohio St. 401 [14 O.O. 307], Emotional injury can be as severe and debilitating as physical harm and is deserving of redress. Molien, supra. “[T]he gravity of appellant’s injury and the inherent humanitarianism of our judicial process and its responsiveness to the current needs of justice dictate that appellant be afforded a chance to present [her] case to a jury * * Sinn v. Burd (1979), 486 Pa. 146, 174, 404 A. 2d 672, quoting Niederman, supra, at page 404. An award of damages for emotional suffering is not new in Ohio. As previously indicated, damages have been allowed when a contemporaneous physical injury has been established. Recovery for emotional distress unaccompanied by a contemporaneous physical injury has been allowed under special circumstances. See Columbus Finance v. Howard (1975), 42 Ohio St. 2d 178 [71 O.O. 2d 174] (malice on the part of the wrongdoer); Housh v. Peth (1956), 165 Ohio St. 35 — 136 — [59 O.O. 60] (right of privacy invaded); Brownlee v. Pratt (1946), 77 Ohio App. 533 [33 O.O. 356] (right of burial of the dead transgressed). Similarly, those injured by the negligent infliction of serious emotional distress should have the opportunity to recover damages. For these reasons, we hold that a cause of action may be stated for the negligent infliction of serious emotional distress without a contemporaneous physical injury. Applying these principles to the case sub judice, we conclude that appellant has such a cause of action. Due to appellee’s negligence, a large sheet of glass fell off the truck onto the highway and crashed into the windshield of appellant’s vehicle. The validity of appellant’s claim of serious emotional distress as a result of the accident is supported by the expert testimony of three medical doctors and a psychologist. Although the trial court awarded damages for emotional distress, the court of appeals remanded for a determination of a contemporaneous physical injury. Because of our holding, such a determination is unnecessary. Accordingly, the judgment of the court of appeals is reversed. Judgment reversed. W. Brown, Sweeney, Locher, C. Brown and Kerns, JJ., concur. Holmes, J., dissents. Kerns, J., of the Second Appellate District, sitting by assignment. Footnotes [2] Because the justifications for the impact doctrine are similar to those for a contemporary physical injury, this conclusion applies to both doctrines. [3] Courts have allowed recovery for emotional distress accompanied by the slightest injury. “When there is evidence of any injury, no matter how slight, the mental anguish suffered by plaintiff becomes an important element in estimating the damages sustained.” Clark Restaurant Co. v. Rau (1931), 41 Ohio App. 23, 26 [31 O.O. 576], In Wolfe v. Great A & P Tea Co. (1944), 143 Ohio St. 643 [28 O.O. 520], the plaintiff was allowed to recover for mental suffering, after eating food contaminated with worms, if any physical injury was proven. See, also, Ward Baking Co. v. Trizzino (1928), 27 Ohio App. 475. [4] Molien, supra, established a cause of action for negligent infliction of serious emotional distress absent physical injury. Molien suggests “that the seriousness criterion is superior to the physical injury requirement as a guide to emotional distress actions * * Nolan & Ursin, Negligent Infliction of Emotional Distress: Coherence Emerging from Chaos (1982), 33 Hastings L.J. 583, 614. The authors concluded that a seriousness requirement in conjunction with the foreseeability criterion in tort recovery will “avoid the prospect of unlimited liability, as well as protect against fraud and trivial claims, by identifying those cases of emotional distress most worthy of compensation.” Id. at 615. [5] See Comment, Negligently Inflicted Mental Distress: The Case For an Independent Tort (1971), 59 Georgetown L.J. 1237; Prosser, Law of Torts (4 Ed. 1971) 328-332, Section 54; 2 Harper & James, Law of Torts (1956), 1031-1039, Section 18.4; McNiece, Psychic Injury and Tort Liability in New York (1949), 24 St. John’s L. Rev. 1; Smith, Relation of Emotions to Injury and Disease, Legal Liability for Psychic Stimuli (1944), 30 Va. L. Rev. 193; Smith & Solomon, Traumatic Neuroses in Court (1943), 30 Va. L. Rev. 87; Magruder, Mental and Emotional Disturbance in the Law of Torts (1936), 49 Harv. L. Rev. 1033; 1936 Report of N.Y. Law Rev. Comm. 375; Green, “Fright” Cases (1933), 27 Ill. L. Rev. 761; Hallen, Damages for Physical Injuries Resulting from Fright or Shock (1933), 19 Va. L. Rev. 253; Wilson, The New York Rule as to Nervous Shock (1926), 11 Cornell L.Q. 512; Goodrich, Emotional Disturbance as Legal Damage (1922), 20 Mich. L. Rev. 497; Throckmorton, Damages for Fright (1921), 34 Harv. L. Rev. 260; Burdick, Tort Liability for Mental Disturbance and Nervous Shock (1905), 5 Colum. L. Rev. 179; and Bohlen, Right to Recover for Injury Resulting from Negligence without Impact (1902), 41 Am. L. Reg. (N.S.) 141.