Goodwin v. Reilley

Decision Date23 December 1985
CourtCalifornia Court of Appeals Court of Appeals
PartiesGOODWIN, Norman et al., Plaintiffs and Appellants, v. REILLEY, Lawrence A., Defendant and Respondent. AO26415.
Raymond S. Kraft, Mark S. Pollock, St. Helena, for plaintiffs and appellants

William R. Morton, Oakland, for defendant and respondent.

SABRAW, Associate Justice.

Plaintiffs Norman Goodwin and Joann Goodwin sued defendant Lawrence M. Reilley for the negligent infliction of emotional distress resulting from injuries suffered by their son and caused by defendant's driving while intoxicated. Defendant's demurrer to the first amended complaint was sustained without leave to amend and the action was dismissed. Plaintiffs appeal. The question presented is whether a tortfeasor who injures a third party as the result of driving under the influence of alcohol is liable to the third party's parents for their emotional distress when the parents were not percipient witnesses to the accident.

The facts as set forth in the first amended complaint 1 and plaintiffs' accompanying declaration show that on May 30, 1983, plaintiffs' son Dwight was struck and seriously injured when defendant's motorcycle crossed the center line and collided with Dwight's motorcycle. At 8:00 the next morning, May 31, 1983, plaintiffs received a telephone call from the St. Helena Hospital informing them of Dwight's accident and that he had suffered a broken leg and broken arm. Plaintiffs drove from their home in San Diego to Watsonville, where they spent the night with their daughter and her family. Plaintiffs' daughter had visited Dwight at the hospital and she informed her parents of the extent of his injuries.

The next morning, June 1, plaintiffs visited Dwight at the St. Helena hospital. They found him heavily sedated, his eyes "red with hematomas," his nose bandaged, with a drainage tube inserted, and a breathing tube in his throat. Dwight's spleen had been removed because of hemorrhaging and he suffered fourteen fractures of his bones. Four surgeries were scheduled. Plaintiffs "were put in fear of his imminent death." In an attempt to save his life, plaintiffs were required to give their consent to certain surgical procedures, including the amputation of his left leg. Dwight's leg was amputated on June 15, 1983. On September 1, 1983, defendant was convicted of operating a motor vehicle under the influence of alcohol in violation of Vehicle Code section 23153, subdivisions (a) and (b). 2

Plaintiffs' complaint for negligent infliction of emotional distress sought to recover damages for their emotional distress upon observing Dwight's injuries and his pain and suffering. In three counts they alleged theories of liability based on (1) negligence in driving under the influence of alcohol and crossing the centerline; (2) negligent failure to carry adequate insurance coverage to compensate their son for his injuries; and (3) strict liability resulting from the ultrahazardous activity of driving under the influence of alcohol in violation of sections 23152 and 23153.

On appeal plaintiffs challenge the trial court's order and judgment of dismissal with respect only to counts 1 and 3.

DISCUSSION
1. Ultrahazardous Activity

Relying on SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 200 Cal.Rptr 497, plaintiffs contend that the court erred in sustaining the demurrer to the third cause of action, strict liability for ultrahazardous activity, because the issue of whether an activity is ultrahazardous is one of fact, not law, and cannot be decided on demurrer. Implicit in this argument is the premise that if drunk driving were determined to be an ultrahazardous activity, defendant's liability would thereby extend to damages for the emotional distress suffered by plaintiffs upon learning of their son's serious injury. In this premise plaintiffs mistake the nature of the tort doctrine of strict liability for ultrahazardous activities.

"Strict liability" is liability without fault. (Prosser & Keeton, The Law of Torts (5th ed. 1984), § 75, pp. 534-538; see Luthringer v. Moore (1948) 31 Cal.2d 489, 492, 190 P.2d 1.) Section 519, Restatement Second of Torts, sets forth the general principle as follows: "(1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm. [p](2) This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous." (Rest.2d Torts, § 519, p. 34.)

The tort concept of an abnormally dangerous or ultrahazardous activity presupposes that the activity has some social value and that reasonable care is insufficient to eliminate its risk of harm. 3 The principle that those who engage in such an activity should be held strictly liable for the consequences reflects a social-policy determination that "the defendant's enterprise, while it will be tolerated by the law, must pay its way.... [p ] This ... policy frequently has found expression where the defendant's activity is unusual and abnormal in the community, and the danger which it threatens to others is unduly great--and particularly where the danger will be great even though the enterprise is conducted with every possible precaution. The basis of the liability is the defendant's intentional behavior in exposing those in his vicinity to such a risk. The [defendant's] conduct ... occupies something of a middle ground. It is conduct which does not so far depart from social standards as to fall within the traditional boundaries of negligence--usually because the advantages which it offers to the defendant and to the community outweigh even the abnormal risk; but which is still so far socially unreasonable that the defendant is not allowed to carry it on without making good any actual harm which it does to his neighbors." (Prosser & Keeton, supra, at pp. 536-537; see Rest.2d Torts, § 519, com. d., pp. 34-35.)

Familiar examples of abnormally dangerous activities giving rise to strict liability include the keeping of animals likely to trespass or animals having known dangerous propensities (id., at § 76, pp. 538-543), and dangerous "non-natural" and uncommon uses of land, such as the storage of explosives, blasting, and crop dusting (id., at § 78, pp. 545-551; see Luthringer v. Moore, supra, 31 Cal.2d 489, 190 P.2d 1 [fumigation]; SKF Farms v. Superior Court, supra, 153 Cal.App.3d 902, 200 Cal.Rptr. 497 [crop dusting] ).

Because liability for an ultrahazardous activity is imposed irrespective of the defendant's reasonable care and regardless of fault, an individual who engages in such activity is subject to a narrower, rather than a greater, liability than otherwise obtains. As stated in the Restatement Second of Torts: "The rule of strict liability [for abnormally dangerous activities] applies only to harm that is within the scope of the abnormal risk that is the basis of the liability. One who carries on an abnormally dangerous activity is not under strict liability for every possible harm that may result from carrying it on." (Rest.2d Torts, § 519, com. e., p. 35.) Rather, the strict liability that results from this "special responsibility" (Prosser & Keeton,supra, § 79, p. 560)--responsibility without fault--has been confined to consequences which lie within the extraordinary risk posed by the abnormally dangerous activity (ibid.) and is limited to the "class of persons who are threatened by the abnormal danger, and the kind of damage they may be expected to incur...." (Id., at p. 562.)

As Prosser & Keeton, supra, explain: "The same practical necessity for the restriction of liability within some reasonable bounds, which arises in connection with problems of 'proximate cause' in negligence cases, demands here that some limit be set. It might be expected that this limit would be a narrower one where no initial departure from a social standard is to be found. In general, this has been true. Just as liability for negligence has tended to be restricted within narrower boundaries than when intentional misconduct is involved, there is a visible tendency to restrict it still further when there is not even negligence.... [W]here there is neither intentional harm nor negligence, the line is generally drawn at the limits of the risk, or even without it." (Prosser & Keeton, supra, § 79, at p. 560, fns. omitted.)

Pursuant to the foregoing principles, we conclude that the act of driving a motor vehicle under the influence of alcohol, although unquestionably dangerous and hazardous-in-fact, does not come within the rubric of an ultrahazardous or abnormally dangerous activity for purposes of tort liability, and that to hold defendant strictly liable for the consequences of his driving would not, in any event, extend his liability beyond that imposed for negligence.

We turn, therefore, to a consideration of plaintiffs' first cause of action, negligence per se.

2. Negligence Per Se

The gravamen of plaintiffs' theories below and their argument on appeal is that driving under the influence of alcohol is an especially socially reprehensible activity, as the Legislature has recognized by the enactment of sections 23152 and 23153, and that an individual who engages in such conduct in violation of statute should be held liable for all the proximate and foreseeable consequences, including the predictable severe emotional distress suffered by his primary victim's parents when they view the injuries and pain and suffering resulting to their son from the defendant's conduct.

We start with the principle that the touchstone of tort liability is foreseeability. "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...

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    ...... Goodwin v. Reilley, 176 Cal.App.3d 86, 92, 221 Cal. Rptr. 374 (1985) ("The act of driving a motor vehicle under the influence of alcohol, although ......
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