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22 Md. L. Rev. 48 (1962)
Recovery for Physical Injury Resulting from Fright without Impact - Battalla v. State

handle is hein.journals/mllr22 and id is 54 raw text is: 



MARYLAND LAW REVIEW


facts;26 therefore, the opinion is not superfluous and the
declaration is admitted on the basis of necessity.7        The
trier of fact should not be deprived of the declaration, for
what it is worth, even though in the form of an opinion,
if it meets all the requirements of an admissible dying
declaration.
                                      LAuRENCE M. KATz


    Recovery For Physical Injury Resulting From
                  Fright Without Impact
                      Battalla v. State'
    Infant plaintiff was placed in a chair lift at Bellayre
Mountain Ski Center by a state employee who failed to
secure and properly lock the belt intended to protect the
occupant. As a result of this negligence the child became
frightened and hysterical upon descent and suffered con-
sequential injuries. Plaintiff brought suit in the Court of
Claims of New York.2 The State's motion to dismiss the
claim  was denied.3 The State appealed, and the Supreme
Court, Appellate Division, reversed the order and dismissed
the claim.' Claimant appealed, and a divided Court of
Appeals, in overruling a previous decision to the contrary,
held that the claim stated a cause of action.5
  Indeed the declarant when he made the declaration might not have
been able to state the facts because of his physical condition.
  27 5 WIGMORE, loc. cit. supra, n. 24:
      The theory of that rule [opinion rule] is that, wherever the witness
    can state specifically the detailed facts observed by him, the infer-
    ences to be drawn from them can equally well be drawn by the jury,
    so that the witness' inferences become superfluous. Now, since the
    declarant is here deceased, it is no longer possible to obtain from him
    by questions any more detailed data than his statement may contain,
    and hence his inferences are not in this instance superfluous, but
    are indispensable.
  110 N.Y. 2d 237, 176 N.E. 2d 729 (1961).
  '17 Misc. 2d 548, 184 N.Y.S. 2d 1016 (1959). New York has a general
waiver of immunity statute which provides that the tort liability of the
state is to be determined in accordance with the same rules of law as
applied to an action against an individual or corporation. N.Y. CT. CL.
Act § 8; see also MoK-uNEY, N.Y. CONST. Art. 6, § 23. See Note, Liability
Of Municipal Corporations Under The State's Statutory Waiver Of Tort
Immunity, 20 Md. L. Rev. 353 (1960).
  8 The Court of Claims was of the opinion that Mitchell v. Rochester Ry.
Co., 151 N.Y. 107, 45 N.E. 354 (1896), which had held there can be no
recovery for injuries, physical or mental, incurred by fright negligently
induced, should be overruled.
  '11 A.D. 2d 613, 200 N.Y.S. 2d 852 (1960). The court stated that the
case was controlled by Mitchell v. Rochester Ry. Co., ibid.
  'The claim stated that the plaintiff suffered severe emotional and
neurological disturbances with residual physical manifestations .... 
Battella v. State, supra, n. 1.


[VOL. XXII

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