DZIOKONSKI V. BABINEAU, 380 N.E.2d 1295 (1978) CASE BRIEF

DZIOKONSKI V. BABINEAU

380 N.E.2d 1295 (1978)

NATURE OF THE CASE: Dziokonski (P), administratrix of two estates, filed actions against Babineau (Ds), school bus owner and driver and automobile driver, after a minor was struck by the automobile driver's car after she stepped off the school bus. The action was for wrongful death and conscious suffering after both parents died after suffering shock and distress due to the minor's injuries.

FACTS: Norma, a minor, alighted from a motor vehicle, used as a school bus, on Route 117 in Lancaster. That motor vehicle was owned by Pelletier and operated by the Kroll (both defendants in the action). A motor vehicle owned and operated by the defendant Babineau struck Norma as she was crossing the road. P alleges the negligence of each defendant on various grounds. Lorraine Dziokonski, the mother of Norma, 'lived in the immediate vicinity of the accident, went to the scene of the accident and witnessed her daughter lying injured on the ground.' Mrs. Dziokonski 'suffered physical and emotional shock, distress and anguish as a result of the injury to her daughter and died while she was a passenger in the ambulance that was driving her daughter to the hospital.' This complaint alleges one count for wrongful death and one count for conscious suffering against each of the three defendants. Anthony Dziokonski was the father of Norma and the husband of Mrs. Dziokonski. Mr. Dziokonski 'suffered an aggravated gastric ulcer, a coronary occlusion, physical and emotional shock, distress and anguish as a result of the injury to his daughter and the death of his wife and his death was caused thereby.' This complaint similarly alleged a count for wrongful death and one count for conscious suffering against each of the three defendants. Ps' actions do not involve any claim on behalf of Norma for her own injuries. The trial court granted a motion to dismiss based on the impact rule under Spade v. Lynn & Boston R.R., 168 Mass. 285, 290 (1897), which denies recovery for physical injuries arising solely from negligently caused mental distress. This appeal resulted.

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