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2015-2016学年第一学期法律硕士《英语》学期论文

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Case Brief

Case: NIEDERMAN v. BRODSKY

Supreme Court of Pennsylvania, 1970

436. 401; 261 A. 2D 84

Facts: Appellant, Harry Niederman was walking with his son at the corner of 15th and Market Streets in Philadelphia on November 4, 1962. At that time, appellee was driving a motor vehicle in a reckless and negligent manner as a result of which the automobile skidded onto the sidewalk and destroyed or struck down appellant's son, who at that time was standing next to appellant. Appellant suffered severe chest pain , he was confined in the hospital for five weeks and he was diagnosed to have sustained acute coronary insufficiency, coronary failure, angina pectoris, and possible myocardial infarction. Appellant sought recovery from appellee for both these severe disabilities and the accompanying shock and mental pain.But appellant's complaint was reluctantly dismissed on preliminary objections under the "impact rule" . Issue:If the "impact rule" should be rejected?

Holding: Yes

Reasoning:(1)Despite the fact that appellant's injuries arose in the absence of actual impact,but the best statement of the rule(impact rule) is that a wrongdoer is responsible for the natural and proximate consequences of his misconduct.(2)Restatement (Second), Torts §436(2): If the actor's conduct is negligent as creating an unreasonable risk of causing bodily harm to another otherwise than by subjecting him to fright, shock, or other similar and immediately emotional disturbance, the fact that such harm results solely from the internal

operation of fright or other emotional disturbance does not protect the actor from liability."(3)It is not sufficient to perpetuate the old impact rule simply in the name of precedent.

But on the other hand, there have been three basic arguments which would have defeated appellant. The first deals with medical science's difficulty in proving causation between the claimed damages and the alleged fright. The second involves the fear of fraudulent or exaggerated claims. Finally, there is the concern that such a rule will precipitate a veritable flood of litigation.

In response to these rebuttals,in terms of medicine :(1)From1888 to now,it would presently be inappropriate for us to ignore all of the phenomenal advances medical science has achieved in the last eighty years. (2)Medicine can be demonstrated further by noting that the rule has only been applied where there is absolutely no impact whatsoever. (3) It appears completely illogical to argue that the medical profession is absolutely unable to establish a causal connection in the case where there is no impact at all.

In terms of fictitious injuries and fraudulent claims:(1) The virtually unanimous response has been that the danger of illusory claims in this area is no greater than in cases where impact occurs .(2) Our courts have proven that any protection against such fraudulent claims is contained within the system itself, even if we assume arguendo that a great deal of difficulty still remains in establishing the causal connection, this still does not represent sufficient reason to deny appellant an opportunity to prove his case to a jury. (3)We are unable to accept the proposition that our courts and the judicial system in general cannot deal with fraudulent claims when they arise. The aid of the legal and medical professions is to find ways and it

means to solve satisfactorily the problems thus presented —not expedient ways to avoid them.

In terms of the flood of litigation, it is view that this argument is currently refuted on two grounds. (1) At present,the relevant research data indicate that it is not at all clear the flood of litigation has occurred in states without the impact rule.(2) 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. Futhermore,we abandon the requirement of a physical impact as a precondition to recovery for damages proximately caused by the tort in only those cases like the one before us where the plaintiff was in personal danger of physical impact because of the direction of a negligent force against him and where plaintiff actually did fear the physical impact.

Dissenting Opinion:(1)The majority too often forget that an emotionally appealing or heart-rending claim often produces bad law* and sets a dangerous precedent.(2)T he Majority… deal another fatal or near-fatal blow to stare decisis. (3) The basic principle of Stare Decisis which is the bedrock for all our Law is not as immutable as the law of the Medes and the Persians. It may be changed by the Legislature and, under some circumstances. For example :(1) Where the Supreme Court of Pennsylvania is convinced that prior decisions of the Court are irreconcilable; or (2) the application of a rule or principle has undoubtedly created great confusion; or (3) a rule of law has been only fluctuatingly applied; or (4) to correct a misconception in an occasional decision; or (5) in those rare cases where the Supreme Court is convinced that the reason for the law undoubtedly no longer exists, and modern

circumstances and Justice combine to require or justify a change, and no one's present personal rights or vested property interests will be injured by the change. Analysis:First of all ,I totally agree with all of the above reason to support the appellant’s requests.

In addition to this,to my way of thinking,(1)from the perspective of legal economics,laws shall not be at the high cost to require all people should do or should not do ,in order to avoid damage the rights and interests of others.On the contrary ,it shall control source of infringement with the minimum cost.In this case ,we can not ask everyone not to walk, but we can standardize the driver's behavior.Obviously, appellee in the subjective has a huge fault, on the contrary, there is no fault of the appellant,appellee’s infringement is undeniable.(2) As we all know, according to the principle of the right to have a remedy, there shall be compensation for damage. In the present case, appellant's moral rights and interests really suffered tremendous damage, if you do not give protection ,it is illegal and unreasonable.(3)And when the old rules no longer adapt to the development of modern society, It will certainly be changed. “Impact rule” is a formal justice ,but when there is a conflict between substantial justice and formal justice, how should we choose?It is not feasible when you neglected one or another. In practice, we shall adhere to the priority of formal justice , when cases are injustice, we shall adhere to the essence of justice.

In short, history and rationality together to warn us,when the old rules(impact rule) impede or restrict personality, it will damage freedom.In the era of ultimate truth diversifily,between certainty and volatility, particularly we need to have more people from a variety of angles to clarify the reasons for the existence of different interests and in the multiple and complex interests which is more worthy of protection.