Nevels v. Yeager

• Citation: 199 Cal.Rptr. 300,152 Cal.App.3d 162
• Parties: Mary NEVELS, Plaintiff and Appellant, v. Ralph William YEAGER, et al., Defendants and Respondents. Civ. 69772.
• Decision Date: 22 February 1984
• Court: California Court of Appeals

Page 300

199 Cal.Rptr. 300

152 Cal.App.3d 162

Mary NEVELS, Plaintiff and Appellant, v. Ralph William YEAGER, et al., Defendants and Respondents.

Civ. 69772.

Court of Appeal, Second District, Division 4, California.

Feb. 22, 1984.

Hearing Granted April 26, 1984.

Good & Novack and Ned Good, Pasadena, for plaintiff and appellant.

Gilbert, Kelly, Crowley & Jennett, William D. Jennett, Patrick A. Mesisca, Jr., and Peter J. Godfrey, Los Angeles, for defendants and respondents.

WOODS, Presiding Justice.

Mary Nevels appeals a summary judgment granted to respondents, Ralph Yeager and Hoffman Brothers Packing Company. She sued to recover damages for suffering the negligent infliction of emotional distress caused by "witnessing" her daughter's injury in an automobile accident. ¹

Respondent, Ralph Yeager, an employee of Hoffman Brothers, ran a stop sign at the intersection of Baseline Road and the Citrus Avenue off ramp of the 210 Freeway in Azusa. His truck broadsided the Pinto in which appellant's 13-year-old daughter Michelle and her 18-year-old daughter Julia were passengers. Appellant was at home three-quarters of a mile away when the accident occurred. The driver of the Pinto called appellant's residence within five minutes of the accident and told Donald Cook, a friend who answered the telephone, that he had been in a "bad accident." In response to this information, appellant rushed to the scene of the accident; she arrived within 10 minutes of its occurrence. There she saw her daughter Michelle lying in the street "with blood coming from her nose and her ears and she was screaming and screaming and screaming. Her hair was full of blood and blood was everywhere. Two paramedics were working on her."

As a result of the accident, Michelle has two holes in the dura of her brain. Her hearing and sight are adversely affected by seeping brain fluid. The brain damage has also caused lack of coordination, difficulty in focusing her eyes, memory lapses, and other physical discomforts. Additionally, she sustained a fractured skull and clavicle.

Appellant alleged, in her first amended complaint, her parental relationship with Michelle and that she witnessed her daughter's "accident, injuries and damages" which proximately caused appellant physical and mental injury.

Respondents made a motion for summary judgment against appellant or, in the alternative, for summary adjudication of issues without substantial controversy. The basis of the motion was the fact that appellant did not contemporaneously observe the accident, and consequently, she failed to meet the criteria of Dillon v. Legg (1968) 68 Cal.2d 728, 740-741, 69 Cal.Rptr. 72, 441 P.2d 912.

I

Appellant contends that "every Defendant has a duty to exercise ordinary care to refrain from inflicting severe emotional injuries upon a parent, child, or spouse if the severe emotional injuries are caused by the prompt, even though not simultaneous, witnessing of serious injuries and the witnessing of the prolonged suffering of that victim's child, spouse or parent." (Emphasis in original.)

For the reasons hereinafter set forth, we have concluded that the trial court erred in holding that no triable issue of fact was presented by appellant.

Our analysis necessarily begins with Dillon v. Legg, supra, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912. That case determined that a mother who witnessed her child's death could recover from the tortfeasor for the emotional distress she suffered. Justice Tobriner dissected the legal concept of "duty" and established guidelines for determining the existence of a duty in these cases:

"Since 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.

"We note, first, that we deal here with a case in which plaintiff suffered a shock which resulted in physical injury and we confine our ruling to that case. 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.

"The evaluation of these factors will indicate the degree of the defendant's foreseeability: obviously defendant is more likely to foresee that a mother who observes an accident affecting her child will suffer harm than to foretell that a stranger witness will do so. Similarly, the degree of foreseeability of the third person's injury is far greater in the case of his contemporaneous observance of the accident than that in which he subsequently learns of it. The defendant is more likely to foresee that shock to the nearby, witnessing mother will cause physical harm than to anticipate that someone distant from the accident will suffer more than a temporary emotional reaction. All these elements, of course, shade into each other; the fixing of obligation, intimately tied into the facts, depends upon each case." (Dillon v. Legg, supra, 68 Cal.2d at pp. 740-741, 69 Cal.Rptr. 72, 441 P.2d 912.)

In Archibald v. Braverman (1969) 275 Cal.App.2d 253, 79 Cal.Rptr. 723, the plaintiff witnessed her son's severe injuries within moments of the gunpowder explosion which caused them. The court applied the Dillon guidelines and concluded that the mother's not having witnessed the accident itself would not preclude her from recovery. Summary judgment for defendants was reversed. The Archibald court stated:

"While the complaint does not reflect where the plaintiff was when she received word of the tragedy, she appeared at the scene within moments after its occurrence. A tortfeasor who causes injury to a child may reasonably expect that the mother will not be far distant and will, upon witnessing the event, suffer emotional trauma. (Dillon v. Legg, supra, 68 Cal.2d 728, 741, 69 Cal.Rptr. 72, 441 P.2d 912.) Consequently, the mother, having witnessed the injuries within moments after the explosion at a time when she was attempting to render aid, fulfilled the 'nearness' requirement in terms of distance as well as time.

"The issue then arises whether the 'observance' factor requires that the plaintiff witness the tortious act. A plaintiff claiming damages for emotional trauma as a result of injury to a third party must either be present at the time of the accident (Dillon v. Legg, supra, 68 Cal.2d 728, 740-741, 69 Cal.Rptr. 72, 441 P.2d 912) or the shock sustained by the plaintiff must be fairly contemporaneous with the accident rather than follow when the plaintiff is informed of the whole matter at a later date. (Prosser, Law of Torts (3d ed. 1964) p. 354.) Manifestly, the shock of seeing a child severely injured immediately after the tortious event may be just as profound as that experienced in witnessing the accident itself. Consequently, the shock sustained by the mother herein was 'contemporaneous' with the explosion so as to satisfy the 'observance' factor." (Archibald v Braverman, supra, 275 Cal.App.2d at p. 256, 79 Cal.Rptr. 723.)

Ten years ago, this court held in Powers v. Sissoev (1974) 39 Cal.App.3d 865, 114 Cal.Rptr. 868, that a mother who witnessed her daughter's injuries at the hospital 30 to 60 minutes after the accident could not sustain a cause of action for her emotional distress. We recognized that "the [Dillon ] rule allowing recovery for emotional shock and its after effect is not necessarily limited to the narrow facts involved in that case." (Id., at p. 873, 114 Cal.Rptr. 868.) Nevertheless, we declined to apply Dillon "where the shock ... resulted from seeing the daughter 30 to 60 minutes after the accident and thereafter under circumstances not materially different from those undergone by every parent whose child has been injured in a nonobserved and antecedent accident." (Id., at p. 874, 114 Cal.Rptr. 868.)

Here, appellant's shock is materially different from that suffered by every parent of an injured child. While appellant did not observe the accident itself, she arrived at the scene quickly enough to see her daughter's bloody injuries, hear her screams, and observe the wreckage of the car and truck. We agree with Archibald that seeing a child in these circumstances is just as profoundly shocking as witnessing the accident itself. We do not read Dillon to unwaiveringly require both the mother's presence and her contemporaneous perception of the accident. If both were absolute requirements for recovery, they would not have been mentioned separately since a contemporaneous perception of the accident would, in fact, require the parent's presence at the scene. ²

It is clear that Dillon intended to determine the foreseeability of risk in this type of tort on a "case-by-case" basis. Justice Tobriner specifically rejected the application of "immutable rules," and did not propose the three "guidelines" as dogma. ³ The majority of subsequent decisions have nonetheless applied these guidelines with a Draconian adherence to form over substance:...