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Falzone v. Busch

Decided: October 25, 1965.

CHARLES FALZONE AND MABEL FALZONE, PLAINTIFFS-APPELLANTS,
v.
LEONARD R. BUSCH, DEFENDANT-RESPONDENT



For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Proctor, J.

Proctor

The question before us on this appeal is whether the plaintiff may recover for bodily injury or sickness resulting from fear for her safety caused by a negligent defendant, where the plaintiff was placed in danger by such negligence, although there was no physical impact.

The complaint alleges in the first count that the plaintiff, Charles Falzone, was standing in a field adjacent to the roadway when he was struck and injured by defendant's negligently driven automobile. The second count alleges that the plaintiff, Mabel Falzone, wife of Charles, was seated in his lawfully parked automobile close to the place where her husband was struck and that the defendant's negligently driven automobile "veered across the highway and headed in the direction of this plaintiff," coming "so close to plaintiff as to put her in fear for her safety." As a direct result she became ill and required medical attention. There is no allegation that her fear arose from apprehension of harm to her husband. In the third count plaintiff, Charles Falzone, seeks damages per quod.

The Law Division granted the defendant's motion for summary judgment on the second and third counts, holding that it was constrained to follow the existing New Jersey rule that where there is no physical impact upon the plaintiff, there can be no recovery for the bodily injury or sickness resulting from negligently induced fright. We certified the plaintiffs' appeal before it was considered by the Appellate Division.

Neither this Court nor the former Court of Errors and Appeals has considered a case directly presenting this question. However, since a decision of our former Supreme Court in 1900, Ward v. West Jersey & Seashore R.R. Co., 65 N.J.L. 383, it has been considered settled that a physical impact upon the plaintiff is necessary to sustain a negligence action. See e.g., Greenburg v. Stanley, 51 N.J. Super. 90, 106 (App. Div. 1958), modified on other grounds 30 N.J. 485 (1959).

In Ward, the complaint alleged that the plaintiff, while driving on a highway, was permitted without warning from the defendant railroad to drive upon a public crossing of its tracks in the face of an approaching train; that the defendant, by improperly lowering the gates before the plaintiff was off the tracks, subjected him to "great danger of being run down and killed by said train" and caused him to be "shocked, paralyzed, and otherwise injured." 65 N.J.L., at p. 383. On the defendant's demurrer, the court stated the issue: "[W]hether, in an action for negligence, the mere apprehension of personal injuries, which are not in fact received, will support an action, when physical suffering follows as a consequence of the mental disturbance." Id., at p. 384. The court recognized a division of authority in other jurisdictions but chose to follow those decisions which denied liability in the absence of impact.*fn1 Three reasons for denying recovery were set forth in the opinion. The first was that physical injury was not the natural and proximate result of the negligent act:

"The doctrine of non-liability affirmed in the several opinions already referred to, rests upon the principle that a person is legally responsible only for the natural and proximate results of his negligent

act. Physical suffering is not the probable or natural consequences of fright, in the case of a person of ordinary physical and mental vigor; and in the general conduct of business, and the ordinary affairs of life, although we are bound to anticipate and guard against consequences, which may be injurious to persons who are liable to be effected [ sic ] thereby, we have a right, in doing so, to assume, in the absence of knowledge to the contrary, that such persons are of average strength both of body and of mind." Id., at p. 385.

Second, the court concluded that since this was the first action of its kind in New Jersey, the consensus of the bar must have been that no liability exists in the absence of impact. Id., at pp. 385-386. The third reason was "public policy" which the court explained by quoting with approval from Mitchell v. Rochester Ry. Co., 151 N.Y. 107, 45 N.E. 354 (Ct. App. 1896):

"If the right of recovery in this class of cases should be once established, it would naturally result in a flood of litigations in cases where the injury complained of may be easily feigned without detection, and where the damages must rest upon mere conjecture and speculation. The difficulty which often exists in cases of alleged physical injuries, 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 unrighteous*fn2 or speculative claims." Ward, supra, 65 N.J.L., at p. 386.

We think that the reasons assigned in Ward for denying liability are no longer tenable, and it is questionable if they ever were. The court there first stated that it is not "probable or natural" for persons of normal health to suffer physical injuries, when subjected to fright, and that since a person whose acts cause fright alone could not reasonably anticipate that physical harm would follow, such acts cannot constitute negligence as to the frightened party. It appears that the court decided as a matter of law an issue which we ...


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