MadIGAn v. City of Santa Ana

• Citation: 193 Cal.Rptr. 593,145 Cal.App.3d 607
• Parties: Patricia MADIGAN and William Madigan, Plaintiffs and Appellants, v. CITY OF SANTA ANA, Richard L. Zugman, and Terri Lynn Hernandez, also known as Terri Lynn Zintzun, Defendants and Respondents. Civ. 30173.
• Decision Date: 29 July 1983
• Court: California Court of Appeals

Page 593

193 Cal.Rptr. 593

145 Cal.App.3d 607

Patricia MADIGAN and William Madigan, Plaintiffs and Appellants, v. CITY OF SANTA ANA, Richard L. Zugman, and Terri Lynn Hernandez, also known as Terri Lynn Zintzun, Defendants and Respondents.

Civ. 30173.

Court of Appeal, Fourth District, Division 3, California.

July 29, 1983.

[145 Cal.App.3d 608] Klinger, Leevan & Glassman and Michael S. Glassman, Los Angeles, for plaintiffs and appellants.

Kinkle, Rodiger & Spriggs and Judith I. Lang, Santa Ana, for defendant and respondent City of Santa Ana.

Patterson & Lucas, West Covina, for defendant and respondent Terri Lynn Hernandez, also known as Terri Lynn Zintzun.

OPINION

TROTTER, Presiding Justice.

We are asked to extend a cause of action for negligent infliction of emotional distress to include a parent and stepparent who were not present and did not contemporaneously observe the accident which resulted in the death of their son/stepson. We decline for reasons stated in Dillon v. Legg (1968) 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912.

Patricia and William Madigan (Madigans) filed a complaint for wrongful death and negligent infliction of emotional distress against City of Santa Ana (City), Richard Zugman, Saul and Robert Rodriguez and Terri Lynn Hernandez, aka Terri Lynn Zintzun (Hernandez). City and Hernandez demurred to Madigans' second amended complaint, which stated three causes of action. The court sustained the demurrers to the first and second causes of action without leave to amend and dismissed them accordingly. ¹ Madigans appeal from that portion of the judgment dismissing the second cause of action. ²

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On September 29, 1980, Hernandez' Camaro, driven by Robert Rodriguez, ran a red light and collided with a Volkswagen in which John Kimberling was riding. Richard Zugman, a City police officer, was pursuing the Camaro at the time of the accident; Kimberling, Madigans' son and stepson, was killed in the accident.

The Madigans were advised of the accident a few minutes after it occurred and arrived at the scene within 15 minutes. They observed the damaged cars, knew Kimberling was in the Volkswagen, saw the ambulance, police and fire vehicles and were told the occupants of the Volkswagen had been killed. They immediately "visualized" the events of the accident including Kimberling's death and sustained "great mental distress and shock and injury to their nervous system to the same extent as if they had actually observed the accident." (Emphasis omitted.)

At the hearing on demurrers, Madigans conceded inability to amend their complaint to satisfy the trial court's position on the requirements for negligent infliction of emotional distress.

DISCUSSION

Plaintiffs argue that the Dillon court did not intend to predetermine a defendant's liability by fixed standards or guidelines. Rather each case is to be determined by its own facts, thus the trial court erred in sustaining defendant's demurrer since by so doing it applied a rigid and fixed formula. Plaintiffs are mistaken.

In order to determine the existence of a duty, the court must look to and consider the facts before it. As stated in Dillon, "[s]ince the chief element in determining whether defendant owes a duty or an obligation to plaintiff is the foreseeability of the risk, that factor will be of prime concern in every case. Because it is inherently intertwined with foreseeability such duty or obligation must necessarily be adjudicated only upon a case-by-case basis. We cannot now predetermine defendant's obligation in every situation by a fixed category; no immutable rule can establish the extent of that obligation for every circumstance of the future. We can, however, define guidelines which will aid in the resolution of such an issue as the instant one." (Dillon v. Legg, supra, at p. 740, 69 Cal.Rptr. 72, 441 P.2d 912.)

Thus a trial court in making the threshold inquiry of whether a defendant owes a duty of care must look to the facts presented. The Dillon court set down guidelines for trial courts to follow in resolution of that issue. "In determining, in such a case, whether defendant should reasonably foresee the injury to plaintiff, or, in other terminology, whether defendant owes plaintiff a duty of due care, the courts will take into account such factors as the following: (1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it. (2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence. (3) Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship." (Dillon v. Legg, supra, at pp. 740-741, 69 Cal.Rptr. 72, 441 P.2d 912.)

The trial court found plaintiffs did not suffer a direct emotional impact resulting from the sensory and contemporaneous observance of the accident. We agree and also note plaintiffs failed to meet the nearness criteria as well. Since it is not necessary to the resolution of this case, we defer the issue of whether a stepparent relationship is sufficient for such a cause of action.

1. Nearness Requirement

Plaintiffs arrived at the scene almost 15 minutes after the accident. Recovery has been denied when only five minutes have elapsed between the accident and arrival of the plaintiff on the scene. (Arauz v. Gerhardt (1977) 68 Cal.App.3d 937, 949, 137 Cal.Rptr. 619.) In cases where the cause of action has been allowed to stand, the plaintiff was present when the accident occurred (...