IN THE COURT OF COMMON PLEAS, ABC COUNTY, PENNSYLVANIA
CIVIL ACTION-LAW

LUKE SPENCER & LAURA SPENCER :
100 Maple Street :
Anywhere, PA 19100 : Plaintiff : v. : No. 04-1234 :
GENERAL HOSPITAL :
200 City Avenue :
Anywhere, PA 19100 : Defendant :

PLAINTIFFS' MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT'S PRELIMINARY OBJECTIONS IN THE NATURE OF A DEMURRER

Statement of Facts Laura Spencer was admitted to General Hospital on May 1, 2003. Lucky Spencer was delivered at 11:52 p.m. The following morning a nurse brought the baby into the plaintiff’s room in a rolling crib and then left. After about fifteen minutes of nursing, Laura feeling tired called the nurse to come and take the baby back to the nursery. When the nurse returned she was hurried and appeared tired. She picked up the baby to the transport him back to the nursery, but failed to put the baby into the rolling crib per hospital policy. Instead, she held the baby in one arm and attempted to open and close the door to plaintiff’s room. The nurse lost her grip and dropped the newborn on his head onto the floor. The plaintiff immediately heard the nurse screaming “oh my God, I dropped the baby” followed by the sound of the baby’s head hitting the floor. She then heard her newborn screaming and then saw his blood running under her closed hospital door. Moments later an orderly and a nurse burst into Laura Spencer’s room and forcibly put her into her bed and sedated her by injection. Luke Spencer was stepping off the elevator seconds after the baby fell to the floor. Luke heard the end of the nurses sentence “I dropped the baby”. He attempted to make it to his son, but the shock of seeing the baby lying on the floor bleeding and screaming caused him to lose consciousness. Due to the negligence of the nurse, Lucky Spencer has suffered severe and permanent brain damage as a result from his being dropped.

Issues Presented
I. Whether mother can recover for negligent infliction of emotional distress where she had to hear her newborn child’s head hit the floor, hear his screams and see his blood coming under her door.
II. Whether father can recover for negligent infliction of emotional distress where he witnessed his child lying in the floor screaming and bleeding.

Argument The Pennsylvania Supreme Court held in 1983 that the standard for the review of a demurrer is as follows: “The question presented by the demurrer is whether, on the facts averred, the law says with the certainty that no recovery is possible. Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it”. Vattimo v. Lower Bucks Hospital, Inc., 502 Pa. 241, 465 A.2d 1231-3 (1983), as quoted in Neff v. Lasso, 382 Pa.Super. 487, 489, 555 A.2d 1304, 1305 (1989).
I. Mother Can Recover for Negligent Infliction of Emotional Distress. In 1979, the Pennsylvania Supreme Court held that “(1) recovery of damages for negligently caused mental trauma suffered by bystander is not to be precluded merely on basis of fact that he was outside the zone on danger of being struck by the negligent force, and (2) the count in question stated cause of action on which relief could be granted, in light of the fact that such emotional distress on part of a mother was a reasonably foreseeable injury. Sinn v. Burd, 486 Pa.146, 404 A.2d 672 (1979). Based on the Sinn case there are three requirements for recovery in a negligent infliction of emotional distress. It was determined that when mental distress is caused by the shock of a parent witnessing their child being struck and killed then the ‘field test’ is not a requirement and the person must be the parent for that test to be waived. Even though the witness was not in the zone of danger that the plaintiff should be able to recover if the witness is the parent as the trauma of seeing you child killed is a foreseeable emotional distress. In Neff v. Lasso, 382 Pa.Super. 487 (1989), 555 A.2d 1304, determined that a plaintiff can recover for emotional distress without seeing the “moment of impact” but could hear it. The court states, "Clearly our Supreme Court focused upon the first-hand observation by plaintiff of her son's fatal accident in Sinn v. Burd. However, we cannot believe that the court intended thereby to limit recovery to those situations where the shocking event might manifest itself through the eyesight of the witness, to the exclusion of other types of sensory observation". Also in Bliss v. Allentown Public Library, 497 F.Supp. 487 (E.D.Pa.1980) the court addressed this very issue and they held that a mother can recover for negligent infliction of emotional distress, even though the mother was not looking at the child at the exact “moment of impact”.

I. Father Can Recover for Negligent Infliction of Emotional Distress.

Luke Spencer saw his child lying in a pool of his own blood immediately following the impact of the infant hitting the hospital floor. He also heard the nurse cry out, “I dropped the baby”. As we look to the It Neff v. Lasso, 382 Pa.Super. 487 (1989), 555 A.2d 1304, the widow did not see the collision involving her husband, but knew her husband was in the accident and therefore was granted recovery. Just because the baby’s head hit the floor a moment before Luke Spencer witnessed his new born son screaming and bleeding on the floor, the emotional damage as a result of what he witnessed is no less than had he stepped off the elevator a second prior. Due to the negligence of the nurse, Lucky Spencer suffered severe and permanent brain damage as a result of being dropped. Lucky Spencer will require special care for the rest of his life and his quality of life has been greatly reduced. This child will be unable to develop normally and enjoy the simple life of a child. It is unable to be determined at this time the extent of his brain damage. Some damage will progress with his development and age.

Conclusion and Relief Requested.

Based on the foregoing argument and the foregoing authorities, Defendant’s Preliminary Objections as to both Counts One and Two of the Complaint should be overruled.

Respectfully,

Dated: _______________ ________________________ XXXXXX Attorney for Plaintiffs