IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

PATTY C. WILSON, individually : CIV. No. 4:14-CV-00771

and as administrator of the Estate of :

Jerry Wilson, deceased, : (Judge Brann)

:

Plaintiff, :

:

v. :

:

MOORE FREIGHTSERVICE, INC., :

et al., :

:

Defendants. :

MEMORANDUM

March 25, 2015

This case concerns the unfortunate death of a man due to heart failure at the

scene of a fire. Before the court is Plaintiff Patty C. Wilson’s Motion for

Reconsideration (ECF No. 116) of this Court’s Order (ECF No. 113) granting

Defendants TA Operating LLC and Treston W. Harris’ Motion for Summary

Judgment (ECF No. 96). The Court retains jurisdiction pursuant to 28 U.S.C. §

1332. Venue was transferred to this Court pursuant to 28 U.S.C. § 1404 and §

1406. 

The matter has been briefed by the Parties, the Court held oral argument, and

the matter is ripe for disposition. Because it is not “undeniably clear” that

Wilson’s harm was unforeseeable when defined at a general level of abstraction as

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“physical injury including death,” and, therefore, the scope of the Defendants’ duty

did encompass Wilson’s harm, the Plaintiff’s motion for reconsideration is granted. 

I. BACKGROUND

The material facts for the purposes of this motion are not in dispute, and are

as follows. On October 17, 2011, Defendant Moore Freight services contracted

with Jerry Wilson (“Wilson”), husband of Plaintiff Patty C. Wilson, to haul glass

using a Moore Freight trailer. Shortly after 3:00 p.m. that day, Wilson, traveling

along Interstate 80 in Pennsylvania, perceived a problem with the left front trailer

brake after a trailer tire blew. See Pl.’s Ans. Statement Facts ¶ 4, Jun. 25, 2014,

ECF No. 100 [hereinafter Pl.’s SOF]. After glancing in the rear view mirror,

Wilson saw smoke emanating from a fire on the left front part of the trailer near the

break. Wilson stopped the vehicle, exited, and utilized the vehicle’s fire

extinguisher to douse the fire emerging from the brake.

He brought the truck to a repair garage approximately two miles from the

scene of the incident: the Defendant TA Operating LLC, in Lamar, Clinton County,

Pennsylvania. Wilson arrived at the garage at 3:42 p.m., and gave the truck to the

mechanics for repair. Pl.’s SOF, ¶ 4. While waiting, Wilson purchased a fire

extinguisher to replace the empty one he used on the fire. Several employees of

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Defendant TA Operating, including Defendant Treston W. Harris, completed the

repairs and represented that the trailer was safe to use. Wilson paid for the repairs

at 5:51 p.m. Id. Based on the Defendants’1

 representations that the vehicle was

safe, Wilson got back into the trailer and pulled the vehicle back onto Interstate 80

to continue his journey.

After driving a short distance, the left front trailer brake caught fire again. 

According to the police report, Wilson exited the vehicle and attempted to put out

the fire with the new fire extinguisher. When this failed to quench the flames, he

returned to the vehicle, secured a gallon of water, and again attempted to

extinguish the fire. As Wilson tried to douse the fire, he perished from a heart

affliction that the Plaintiff avers was ventricular dysrhythmia. Wilson died at 6:53

p.m. See id.

In the wake of this devastating event, Wilson’s estate filed an action against

the Defendants. The Defendants moved for summary judgment, alleging that,

while Wilson’s death was tragic, the Defendants had no duty to prevent this

unforeseeable harm. The Court, after considering the briefs of the Parties, granted

the Defendants’ Motion for Summary Judgment. The Court found that Wilson’s

1

 In using the term “Defendants” throughout the opinion, the Court refers collectively to

those Defendants that are the subject of this opinion: Defendant TA Operating LLC and

Defendant Treston W. Harris.

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death by heart malfunction was an unforeseeable result of the Defendants’ alleged

failure to repair the truck, such that the particular harm was beyond the scope of

Defendants’ duty. 

Plaintiff’s counsel filed the instant Motion for Reconsideration alleging that

the Court made an error of law because it is not “undeniably clear” that the

Defendants did not owe a duty to Wilson, and that newly discovered evidence

supports a claim of negligent infliction of emotional distress claim.

II. DISCUSSION

A. Motion for Reconsideration Standard

“The purpose of a motion for reconsideration is to correct manifest errors of

law or fact or to present newly discovered evidence.” Harsco v. Zlotnicki, 779

F.2d 906, 909 (3d Cir. 1985). A court should grant a motion for reconsideration if

the party seeking reconsideration shows: “(1) an intervening change in the

controlling law; (2) the availability of new evidence that was not available when

the court granted the motion for summary judgment; or (3) the need to correct a

clear error of law or fact or to prevent manifest injustice.” Max’s Seafood Café ex

rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999).

“The standard for granting a motion for reconsideration is a stringent one . . .

. [A] mere disagreement with the court does not translate into a clear error of law.” 

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Mpala v. Smith, CIV. 3:CV-06-841, 2007 WL 136750, *2 (M.D. Pa. Jan. 16, 2007)

(Kosik, J.) aff'd, 241 F. App'x 3 (3d Cir. 2007). “Because federal courts have a

strong interest in the finality of judgments, motions for reconsideration should be

granted sparingly.” Cont’l Cas. Co. v. Diversified Indus., Inc., 884 F. Supp. 937,

943 (E.D. Pa. 1995). 

Nevertheless, this Motion for Reconsideration provided the Court with the

opportunity to ruminate more deeply on these issues and, with the benefit of its

own thorough research, refine its thinking to a more precise conclusion and correct

its prior misapprehension. Despite the handicap of one-sided advocacy, the Court

spent a considerable amount of time and effort endeavoring to achieve the right

result. While the Court undoubtedly has interests in efficiency and finality, our

highest duty is to justice. Precise articulation of the law and its proper application

to cases are vital components of our system, and that is what the Court endeavors

to provide in this case. 

Moreover, the Parties indicated at oral argument that they will most likely

pursue an interlocutory appeal of these difficult legal issues. The Court concurs

that the issues are worthy of consideration, and certifies the accompanying Order

as such. Therefore, the Court aims to provide a thorough discussion of the issues

to ease the burden of the appellate court in an effort to achieve the just result. 

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B. Defendants Owed a Duty to Wilson

To state a claim for negligence in Pennsylvania, a plaintiff must establish:

(1) a duty owed by a defendant; (2) a defendant’s breach of that duty; (3) actual

damages; and, (4) a causal connection between the breach and those damages.2

See, e.g., R.W. v. Manzek, 888 A.2d 740, 746 (Pa. 2005). “The primary element in

any negligence cause of action is that the defendant owes a duty of care to the

plaintiff.” Althaus ex rel. Althus v. Cohen, 756 A.2d 1166, 1169 (Pa. 2000). 

There can be no negligence claim when there is no duty of care established, even if

2 It is this Court’s duty to apply the substantive law of Pennsylvania to this

issue. See Erie R. Co. v. Tompkins, 304 U.S. 64, 78–80 (1938). As the United

States Court of Appeals for the Third Circuit wrote:

[When there is] no reported decision by the Pennsylvania Supreme

court or any other Pennsylvania court addressing the precise issue

before it, it [is] the duty of the District Court to predict how the

Pennsylvania Supreme Court would interpret [the relevant issue] if

presented with this case. See, e.g., Pennsylvania Glass Sand Corp. v.

Caterpillar Tractor Co., 652 F.2d 1165, 1167 (3d Cir. 1981). In so

doing, a federal court can also give due regard, but not conclusive

effect, to the decisional law of lower state courts. See, e.g., Burke v.

Maasen, 904 F.2d 178, 182 (3d Cir. 1990). The opinions of

intermediate appellate state courts are “not to be disregarded by a

federal court unless it is convinced by other persuasive data that the

highest court of the state would decide otherwise.” West v. AT &T

Co., 311 U.S. 223, 237 (1940).

Nationwide Mut. Ins. Co. v. Buffetta, 230 F.3d 634, 637 (3d Cir. 2000).

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a defendant’s actions were careless, reckless, or inadvertent. Zanine v. Gallagher,

497 A.2d 1332, 1334 (Pa. Super. Ct. 1985). Furthermore, “[t]he existence of a

duty is a question of law for the court to decide.” Manzek, 888 A.2d at 746.

When undertaking the duty inquiry, courts must discern both whether the

defendant owed the plaintiff a legal duty, and what the scope and parameters of

that duty are. See, e.g., RESTATEMENT (SECOND) OF THE LAW – TORTS § 328B

(1965). “The determination of whether a duty exists in a particular case involves

the weighing of several discrete factors which include: (1) the relationship between

the parties; (2) the social utility of the actor’s conduct; (3) the nature of the risk

imposed and foreseeability of the harm incurred; (4) the consequences of imposing

a duty upon the actor; and (5) the overall public interest in the proposed solution.” 

Althaus, 756 A.2d at 1169. The first and the third elements of that inquiry are

most pertinent in this analysis: the relationship between the parties and the

foreseeability of the harm.

In this case, it is undeniable that the commercial relationship between the

Parties establishes that the Defendants owed a duty of care to Wilson. The scope

of that duty, however, is less clear. Defining the scope of that duty was the focus

of the Court’s original opinion, and is the crucial element at this juncture. 

Discerning the scope of that duty implicates the concept of foreseeability, 

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because the duty only extends to those harms that are reasonably foreseeable. 

Roche v. Ugly Duckling Car Sales, Inc., 879 A.2d 785, 790 (Pa. Super. Ct. 2005). 

In this case, the issue is whether Wilson’s harm was a foreseeable injury from one

in the Defendants’ position. 

Foreseeability is an oft-maligned inquiry in the negligence analysis. As one

professor noted, “the concept of foreseeability is a scourge, and its role in

negligence cases is a vexing, crisscrossed morass.” W. Jonathan Cardi, Purging

Foreseeability: The New Vision of Duty and Judicial Power in the Proposed

Restatement (Third) of Torts, 58 VAND. L. REV. 739, 740 (2005). Indeed, other

scholars state that foreseeability may as well be called “strawberry shortcake,”

because it is such a “malleable standard” that has been muddled and misconstrued

to the extent that it has lost any force as a discernable legal test.3

 Patricia K.

Fitzsimmons & Bridget Genteman Hoy, Visualizing Foreseeability, 45 ST. LOUIS

U. L.J. 907, 908, 2011 (2001). Here, the Court hopes to articulate clearly the

proper application of foreseeability under Pennsylvania law for the questions

3

 For a juxtaposition of two applications of foreseeability that demonstrates its rather

comical malleability, compare Baltimore City Passenger Ry. Co. v. Kemp, 61 M.D. 74, 82–83

(1884) (finding unforesseable that a speeding driver would hit another car, that the collision

would bruise the shin of its driver, and that the bruise would later become cancerous), with Hines

v. Morrow, 236 S.W. 183, 187–88 (Tex. Civ. App. 1921) (finding foreseeable, as a matter of

law, that a pothole left by defendant in a highway would stall a car, that a good-Samaritan

attempting to pull it out would get his wooden leg stuck in the mud, and that a loop in the tow

rope would lasso his good leg and break it). Cardi, 58 VAND. L. REV. at 749 n.44. 

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before it, because “even the most consumptive among us tires eventually of

strawberry shortcake.” Cardi, 58 VAND. L. REV. at 809.

The Court addresses two issues concerning foreseeability that pertain to this

case. First, under Pennsylvania law, should courts continue to conduct a

foreseeability inquiry under the “duty” prong of a negligence analysis, or should it

be purged from duty and confined to the breach or causation analyses, as the

RESTATEMENT (THIRD) OF TORTS, some courts, and some scholars suggest? 

Second, when examining the foreseeability of the harm plaintiff suffered at the

duty stage of the negligence analysis, should courts state that harm at a general

level of abstraction, or consider the particular facts of that case? This case hinges

on these issues, and the Court addresses them in turn.

1. Foreseeability as Component of the Duty Analysis

a. Foreseeability Remains Part of Duty Analysis in

Pennsylvania

Traditionally, foreseeability is a subcomponent of both the duty and

causation analyses in a negligence claim under Pennsylvania law. In the duty

inquiry, “[t]he scope of an individual’s duty of care extends to those risks that are

reasonably foreseeable under the circumstances.” Allen v. Fletcher, No. CIV-A

3:07-0722, 2009 WL 1542767, at *3 (M.D. Pa. June 2, 2009) (Caputo, J.) (citing

Roche v. Ugly Duckling Car Sales, Inc., 879 A.2d 785, 790 (Pa. Super. Ct. 2005)). 

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Pennsylvania courts have routinely held that a defendant may only be held liable

for the harm that a person in his position could have reasonably foreseen. See, e.g.,

Roche, 879 A.2d at 790; McPeake v. William T. Cannon, Esquire, P.C., 553 A.2d

439, 442–43 (Pa. Super. Ct. 1988); Zanine, 497 A.2d at 1334–35 (Pa. Super. Ct.

1985); Maffei v. Palina, 16 Pa. D. & C.4th 228, 233–34 (Phila. Ct. Comm. Pl.

1993); Farley v. Sley Sys. Garages, 13 Pa. D. & C.2d 680, 688–89 ( Ct. Comm. Pl.,

Phila. Cnty. 1958).

The weight of these cases, however, predate the American Law Institute’s

(ALI) publication of the RESTATEMENT (THIRD) OF TORTS, which eliminates

“foreseeability” language in its formulation of duty. The RESTATEMENT (THIRD)’s

formulation of duty reads in pertinent part:

(a) An actor ordinarily has a duty to exercise reasonable care when the

actor’s conduct creates a risk of physical harm.

RESTATEMENT (THIRD) OF TORTS: PHYS. & EMOT. HARM § 7 (2010). The type of

physical harm need not be foreseeable under this language.

The comments further elaborate on the absence of foreseeability language in

this formulation of duty:

A lack of foreseeable risk in a specific case may be a basis for a nobreach determination, but such a ruling is not a no-duty determination. 

Rather, it is a determination that no reasonable person could find that

the defendant has breached the duty of reasonable care.

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. . .

Despite the widespread use of foreseeability in no-duty

determinations, this Restatement disapproves that practice and

limits no-duty rulings to articulated policy or principle in order to

facilitate more transparent explanations of the reasons for a no-duty

ruling and to protect the traditional function of the jury as factfinder.” 

RESTATEMENT (THIRD) § 7 cmt. j (emphasis added).4

4

 The full text of the comment reads:

j. The proper role for foreseeability. Foreseeable risk is an element in the

determination of negligence. In order to determine whether appropriate care was

exercised, the factfinder must assess the foreseeable risk at the time of the

defendant’s alleged negligence. The extent of foreseeable risk depends on the

specific facts of the case and cannot be usefully assessed for a category of cases;

small changes in the facts may make a dramatic change in how much risk is

foreseeable. Thus, for reasons explained in Comment i, courts should leave such

determinations to juries unless no reasonable person could differ on the matter.

A no-duty ruling represents a determination, a purely legal question, that no

liability should be imposed on actors in a category of cases. Such a ruling should

be explained and justified based on articulated policies or principles that justify

exempting these actors from liability or modifying the ordinary duty of reasonable

care. These reasons of policy and principle do not depend on the foreseeability of

harm based on the specific facts of a case. They should be articulated directly

without obscuring references to foreseeability.

Courts do appropriately rule that the defendant has not breached a duty of

reasonable care when reasonable minds cannot differ on that question. See

Comment i. These determinations are based on the specific facts of the case, are

applicable only to that case, and are appropriately cognizant of the role of the jury

in factual determinations. A lack of foreseeable risk in a specific case may be a

basis for a no-breach determination, but such a ruling is not a no-duty

determination. Rather, it is a determination that no reasonable person could find

that the defendant has breached the duty of reasonable care.

Despite widespread use of foreseeability in no-duty determinations, this

Restatement disapproves that practice and limits no-duty rulings to articulated

policy or principle in order to facilitate more transparent explanations of the

reasons for a no-duty ruling and to protect the traditional function of the jury as

factfinder.

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Several states have either adopted the ALI’s new formulation of the duty

analysis that eliminates considerations of foreseeability, or have eliminated

foreseeability as a component in that analysis with similar reasoning. See, e.g.,

Hoyt v. Gutterz Bowl & Lounge L.L.C., 829 N.W.2d 772, 774–78, 783, 784 (Iowa

2013 ) (emphasizing that an assessment of the foreseeability of the risk was no

longer part of a court’s analysis in determining whether a duty was owed as a

matter of law in accordance with the RESTATEMENT (THIRD), but instead was

allocated to a fact finder as part of its determination of whether a duty had been

breached); A.W. v. Lancaster Cnt. Sch. Dist. 0001, 784 N.W.2d 907, 914–18 (Neb.

2010) (holding that, pursuant to the principles articulated in the RESTATEMENT

(THIRD), foreseeability should not be considered part of the duty analysis

performed by the court, but to be considered by the finder of fact); Thompson v.

Kaczinski, 774 N.W.2d 829, 835 (Iowa 2009) (explicitly finding the

RESTATEMENT (THIRD)’s elimination of foreseeability in no-duty determinations to

be “compelling” and adopting it); Gipson v. Kasey, 150 P.3d 228, 231 (Ariz. 2007)

(“[W]e now expressly hold that foreseeability is not a factor to be considered by

RESTATEMENT (THIRD) § 7 cmt. j.

 

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courts when making determinations of duty, and we reject any contrary suggestion

in prior opinions.”); see also Satterfield v. Breeding Insulation Co., 266 S.W.3d

347, 378–79 (Tenn. 2008) (Holder, J., concurring and dissenting) (criticizing the

majority for retaining foreseeability in the determination of duty and arguing for

adoption of the Restatement (Third)’s duty analysis). 

The ALI’s elimination of foreseeability as an element of the duty inquiry

also sparked a heated debate among practitioners and scholars colorfully dubbed

by some as “duty wars.” See Alani Golanski, A New Look at Duty in Tort Law:

Rehabilitating Foreseeability and Related Themes, 75 ALB. L. REV. 227, 228

(2011–12) (“This article addresses the subtle yet turbulent ‘duty wars’ currently

raging with respect to the conceptual nature of duty in tort law.”); W. Jonathan

Cardi & Michael D. Green, Duty Wars, 81 S. CAL. L. REV. 671 (2008). Arguments

abound on the legal, intellectual, and normative benefits and detriments of

maintaining a foreseeability element in the duty analysis. See, e.g., Golanski, 75

ALB. L. REV. at 228 (noting the article argues the vision of duty articulated in the

new RESTATEMENT (THIRD) OF TORTS that purges foreseeability from duty is

incoherent); Cardi, Purging Foreseeability, 58 VAND. L. REV. at 740 (“[J]udges’

use of foreseeability as a means of deciding duty has a pernicious effect on the rule

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of law.”).5

 

While the debate swirls over the proper place of foreseeability in a

negligence analysis, the Supreme Court of Pennsylvania has not yet adopted the

RESTATEMENT (THIRD)’s formulation. That court has, however, commented on

this issue and provided guidance to courts charged with the duty of applying

Pennsylvania law on this point. An instructive footnote in an opinion on ancillary

issues addressed the point:

Parenthetically, there is a prominent debate in the literature

concerning whether foreseeability should continue to play a role in the

judicial duty assessment or should be relegated entirely to the

proximate cause inquiry ordinarily undertaken by jurors. Compare

RESTATEMENT (THIRD) OF TORTS: Liab. For Physical Harm § 7 cmt. J

(Proposed Final Draft No. 1, 2005) (approval by American Law

Institute Council and members in relevant part as indicated in Third

Restatement § 40, Note (Proposed Final Draft No. 1 2007)), and

Aaron D. Twerski, The Cleaver, the Violin, and the Scalpel: Duty and

the Restatement (Third) of Torts, 60 HASTINGS L.J. 1, 22–23 (2008)

(lending support for the Third Restatement’s approach of excising

foreseeability from judicial duty assessments, explaining

“foreseeability is the exact type of factor that belongs in the domain of

the jury, in making the decisions as to whether defendant’s conduct

was reasonable”), with David G. Owen, Figuring Foreseeability, 44

Wake Forest L. Rev. 127 (2009) (offering a defense of the use of the

concept of foreseeability in duty analysis). Foreseeability, of course,

remains a factor in duty assessments undertaken by Pennsylvania

courts unless and until the matter is raised, preserved, and

5

 See also W. Jonathan Cardi, The Hidden Legacy of Palsgraf: Modern Duty Law in

Microcosm, 91 B.U. L. REV. 1873 (2011); W. Jonathan Cardi, Reconstructing Foreseeability, 46

B.C. L. REV. 921 (2005); John C.P. Goldberg & Benjamin C. Zipursky, The Restatement (Third)

and The Place of Duty in Negligence Law, 54 VAND. L. REV. 657 (2001)

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reconsidered on developed advocacy. 

Seebold v. Prison Health Servs., Inc., 57 A.3d 1232, 1249 n.26 (Pa. 2012)

(emphasis added).

While the Pennsylvania Supreme Court acknowledges the prominent debate

surrounding the RESTATEMENT (THIRD)’s elimination of foreseeability in the duty

analysis, it defers consideration of that debate and possible adoption of the new

RESTATEMENT until the issue is squarely before it and ripe for consideration.6

Accordingly, regardless of the merits or demerits of the RESTATEMENT (THIRD)’s

duty analysis, it is not any federal court’s place to alter the law of Pennsylvania. 

With the Pennsylvania Supreme Court’s instruction in mind, this Court predicts

that, without a fully briefed consideration of all aspects of this question, the

Pennsylvania Supreme Court would continue to apply the existing law’s

formulation of the duty analysis in which foreseeability remains a consideration. 

With foreseeability unmistakably a component of the duty analysis, then, the

harm the plaintiff suffered must be reasonably foreseeable for the scope of the

defendant’s duty to encompass that harm. This, however, begs the question: with

what level of particularity should a court define the harm at the duty stage of the

6

 Relatedly, the Pennsylvania Supreme Court recently declined to adopt the

RESTATEMENT (THIRD) in a different area of tort law. See Tincher v. Omega Flex, Inc., 104

A.3d 328 (Pa. 2014) (declining to adopt the RESTATEMENT (THIRD) in areas of strict liability tort

law).

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negligence analysis? What must be foreseeable? 

b. Courts Define Harm in General Terms in Duty Analysis

Although courts have struggled with the application of foreseeability, at the

duty stage of the negligence analysis, courts should define the foreseeable harm at

a general level of abstraction. See Kleinknecht v. Gettysburg College, 989 F.2d

1360, 1369 (3d Cir. 1993). Defining the foreseeable harm with particularity and

incorporating case-specific facts is appropriately considered under the causation

element of the negligence analysis and not under the duty inquiry. 

In its original memorandum opinion in this case, this Court defined the harm

in terms too particular for the duty analysis, and, in doing so, misapprehended the

proper foreseeability inquiry at that stage in the negligence analysis. See Ct. Mem.

9–11, Jan. 28, 2015, ECF No. 112. Therefore, it was clear error to define the harm

at the duty stage of the analysis in the particular terms as “death by heart

malfunction,” rather than as merely “physical injury including death.” 

While counsel for the Parties could not provide a satisfactory explanation on

this issue in either their briefs or at oral argument, through its own efforts the Court

discovered a case of the United States Court of Appeals for the Third Circuit that

directly addresses this point, which is dispositive of the issue before the Court. In

Kleinknecht v. Gettysburg College, 989 F.2d 1360, 1369 (3d Cir. 1993), Judge

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Hutchinson wrote for the majority:

The type of foreseeability that determines a duty of care, as opposed

to proximate cause, is not dependent on the foreseeability of a specific

event. . . . Instead, in the context of duty, the concept of foreseeability

means the likelihood of the occurrence of a general type of risk rather

than the likelihood of the occurrence of the precise chain of events

leading to the injury. . . . Only when even the general likelihood of

some broadly definable class of events, of which the particular event

that caused the plaintiff’s injury is a subclass, is unforeseeable can a

court hold as a matter of law that the defendant did not have a duty to

the plaintiff to guard against that broad general class of risks within

which the particular harm the plaintiff suffered befell. 

Kleinknecht, 989 F.2d at 1369 (internal quotations and citations omitted).

Applying this analysis to the case before the Court, the harm Wilson

suffered is foreseeable when stated in general terms appropriate for the duty

analysis. The general harm Wilson suffered, physical injury up to and including

death, is a foreseeable result from the failure to properly repair a vehicle. The

foreseeability of the particularized subset of that general harm, death by heart

malfunction, is appropriately analyzed under the causation inquiry in this case. 

Tellingly, despite defense counsel’s competent and helpful advocacy, she was

unable to muster a cohesive explanation at oral argument for denying that Wilson’s

harm falls within the scope of the Defendants’ duty when articulated in general

terms.

With this analysis as a guidepost, the cases advanced by the Defendants and

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relied on by the Court in its original opinion are distinguishable. For example, in

McPeake v. William T. Cannon, Esquire, P.C., 553 A.2d 439 (Pa. Super. Ct. 1988),

the Pennsylvania Superior Court held that a defendant owed no duty to a plaintiff

who killed himself shortly after he was criminally convicted, and whose estate

alleged that the suicide was a direct result of legal malpractice committed by the

defendant defense attorney. This harm, physical injury including death, is not a

foreseeable harm from legal malpractice when stated in terms both general and

particular to that case. As such, the harm was outside the scope of the defendant’s

duty. 

In many of the other cases the Court considered, there was no relationship

between the parties, rendering it “undeniably clear” that the defendants had no duty

to the plaintiffs.7

 In the case before the Court, however, the commercial

relationship between the parties combined with the foreseeability of the harm when

stated in general terms (as physical injury including death) remove this situation

from those “undeniably clear” cases. 

7

 See, e.g., Roche v. Ugly Duckling Car Sales, Inc., 879 A.2d 785, 789–90 (Pa. Super Ct.

2005) (discussing the relationship between the parties as an important consideration in the duty

analysis); Maffei v. Palina, 16 Pa. D. & C.4th 228, 231 (Ct Cmm. Plea, Phila. Cnty. 1993) (“The

extent of the duty owed by a defendant to a plaintiff depends upon the relationship which then

exists between the parties.”); Zanine v. Gallagher, 497 A.2d 1332, 1334 (Pa. Super. Ct. 1985)

(“‘Duty, in any given situation, is predicated on the relationship existing between the parties at

the relevant time.’”) (quoting Morena v. South Hills Health Sys., 462 A.2d 680, 684 (Pa. 1983)); 

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Rather, when examining the duty in general terms, the Defendants did have a

duty to plaintiff that was predicated upon their commercial relationship. See

Althaus, 756 A.2d at 1169. Once that duty is established, the Court must look to

the foreseeability of the general harm to establish the scope of that duty, namely to

prevent physical harm including death. See Kleinknecht, 989 F.2d at 1369. The

foreseeability of the harm in its particular manifestation in this case, namely death

by heart malfunction, is more properly considered under the causation element of

this negligence claim. See id.

Therefore, when stating the harm at the level of generality required under the

duty analysis, it is not “undeniably clear” that the Defendants did not owe a duty to

Wilson whose scope encompasses his harm. Accordingly, the claim should

survive the Defendants’ Motion for Summary Judgment, and be examined under

the breach and causation elements of the negligence analysis. 

C. Plaintiff Cannot State a Negligent Infliction of Emotional Distress

Claim at this Juncture

The second ground of Plaintiff’s Motion for Reconsideration rests on the

argument that new evidence obtained in discovery that provides more specific

information on the factual scenario Wilson endured and the injuries he suffered

provides him with a viable claim of negligent infliction of emotional distress. 

Plaintiff may not state a claim of negligent infliction of emotional distress at this

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juncture. Because Plaintiff’s attorney did not include such a claim in the

pleadings, that claim is now barred by the statute of limitations, and Plaintiff’s

counsel has made no argument as to why the statute of limitations should not

apply. 

Pennsylvania law recognizes a cause of action for negligent infliction of

emotional distress in three types of cases, namely when: 1) plaintiff suffers a

physical injury which causes the emotional distress; 2) plaintiff did not suffer a

personal impact but was in the zone of danger; or, 3) plaintiff witnesses an accident

causing serious injury to a close family member. See, e.g., Hershman v.

Muhlenberg College, 17 F. Supp. 3d 454, 459 (E.D. Pa. 2014).

Plaintiff’s claim for negligent infliction of emotional distress, therefore, is

barred by the statute of limitations for such claims in Pennsylvania, which is two

years. See 42 Pa. C.S. § 5524; Jarvis v. Analytical Laboratory Servs. Inc., Civ. A.

No. 1:CV-12-0574, 2012 WL 1986442, *14 n.14 (M.D. Pa. Apr. 9, 2012). The

incident in question took place on October 17, 2011. Plaintiff’s counsel’s first

mention of a negligent infliction of emotional distress claim was in his brief in

support of his motion for reconsideration, filed February 9, 2015, well beyond the

two-year statute of limitations for this claim. Absent a viable argument under the

relation back doctrine harbored in Federal Rule of Civil Procedure 15(c), which

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Plaintiff’s counsel does not make, this claim is barred by the statute of limitations. 

See Jarvis, 2012 WL 1986442, *14 n.14.

To the extent that Plaintiff’s counsel conflates a negligent infliction of

emotional distress claim with mental anguish damages resulting from bodily injury

in a negligence claim, mental anguish damages remain viable so long as the

negligence claim on which they are predicated remains viable. See, e.g.,

Cunningham v. Forbes Regional Hosp., No. 1961 WDA 2013, 2014 WL 6682459,

*3–4 (Pa. Super. Ct. Nov. 21, 2014).

III. CONCLUSION

Because it is not undeniably clear that the scope of the Defendants’ duty

does not encompass Wilson’s harm when that harm is defined from a general level

of abstraction, the Plaintiff’s motion for reconsideration is granted, the judgment

for Defendants is vacated, and the Defendants’ Motion for Summary Judgment is

denied.

An appropriate Order follows. 

BY THE COURT: 

s/ Matthew W. Brann 

Matthew W. Brann

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United States District Judge

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