Amaya v. Home Ice, Fuel & Supply Co.

• Citation: 23 Cal.Rptr. 131
• Parties: Lillian AMAYA, Appellant, James Amaya, a minor, by Joe Amaya, Jr., his Guardian ad Litem, and Lillian Amaya, Plaintiffs, v. HOME ICE, FUEL & SUPPLY CO., a California corporation, Homer L. Foote, et al., Defendants and Respondents. Civ. 20099.
• Decision Date: 03 July 1962
• Court: California Court of Appeals

Page 131

23 Cal.Rptr. 131

Lillian AMAYA, Appellant James Amaya, a minor, by Joe Amaya, Jr., his Guardian ad Litem, and Lillian Amaya, Plaintiffs, v. HOME ICE, FUEL & SUPPLY CO., a California corporation, Homer L. Foote, et al., Defendants and Respondents.

Civ. 20099.

District Court of Appeal, First District, Division 1, California.

July 3, 1962.

Hearing Granted Aug. 29, 1962.

Opinion vacated 29 Cal.Rptr. 33, 379 P.2d 513.

Thompson, Sherbourne & Oppen, Van Nuys, for appellant.

Berry, Davis, Channell & McNamara, Oakland, for respondents.

TOBRINER, Justice.

We probe here the single question whether a mother may recover damages for physical injuries resulting from emotional shock caused by fear for the safety of her infant child. While the cases are divided upon the issue, we cannot rule that the negligent driver owes no 'duty' to the injured mother and thus avoids liability. As we shall point out, we cannot hold as a matter of law that the risk of such injury is not foreseeable in the context of presentday conditions.

Appellant, Lillian Amaya, and her son, James Amaya, by his father and guardian ad litem, Joe Amaya, Jr., brought this action for personal injuries arising out of the alleged negligent operation of respondent corporation's truck by respondent Homer L. Foote and 'Doe One.'

The complaint sets forth two causes of action. The first cause of action alleges that respondent Foote and 'Doe One,' operating respondent corporation's truck with its permission and within the scope of their employment, negligently drove the truck and thereby proximately caused enumerated personal injuries to plaintiff, James Amaya, who 'was in a private driveway at or near' a designated residence.

The second cause of action states that appellant, Lillian Amaya, is the mother of the injured boy, who was seventeen months of age. At the time of the accident, appellant, who was seven months pregnant, 'was standing near her * * * infant son, watching over him,' and 'observed the negligent conduct' of respondents Foote and 'Doe One' as the truck bore down on him. She 'shouted a warning,' but they failed to stop the truck and ran over the boy. Appellant 'was compelled to stand helpless and watch her infant son be struck and run over by the defendants' truck.'

As a proximate result of the negligent operation of the truck appellant 'suffered an emotional shock and great mental disturbance as a result of being forced to observe her infant child struck and run over by said truck and became violently ill and nauseous and was hurt and injured in her health, strength and activity, sustaining injury to her body and shock and injury to her nervous system and person,' etc. Appellant alleges on information and belief that her injuries 'will result in some permanent disability,' all 'to her general damages in the sum of $50,000.' Appellant likewise seeks medical expenses and other relief.

The court sustained respondents' general demurrer to the second cause of action without leave to amend. The court entered judgment on the demurrer against appellant on April 5, 1961. Thereafter the court entered judgment against both appellant, Lillian Amaya, and James Amaya. The record does not disclose the basis of the judgment against James Amaya, who has not appealed from the adverse ruling. Appellant appeals from the judgment against her.

Additionally, appellant, in her opening brief states: 'The court offered plaintiff's counsel the opportunity to amend and state that the fright and shock suffered by the plaintiff was for the fear of her own safety. Plaintiff's counsel declined stating to the Court that the plaintiff suffered fright and shock as a result of being compelled to watch her infant child crushed beneath the wheels of an ice truck, and that all the fright and shock she suffered was as a result of her fear for the safety of her child, and not out of fear for her own safety.' Respondents 'accept this volunteer statement as a stipulation by appellant * * *.'

Whatever natural and human impulse there may be to allow recovery to a plaintiff mother in this situation, the decisions reflect neither magnanimity nor uniformity in granting relief. We certainly agree with Prosser's statement: 'It seems sufficiently obvious that the shock of a mother at danger or harm to her child may be both a real and a serious injury. All ordinary human feelings are in favor of her action against the negligent defendant.' (Prosser, Law of Torts (2d ed., 1955), p. 181.) To understand the reluctance of some courts to give effect to that feeling we must glance backwards briefly to certain aspects of the development of the law of torts.

In the early stages of that unfolding, the courts, following an approach that is the very antithesis of the reasoning which denied recovery in our case, ¹ fastened a strict liability upon the actor who caused the damage. In the decisions, which set the rules of conduct for the enclosed feudal society, the actor bore responsibility for the damage he caused without regard to whether he was at fault or whether he owed a 'duty' to the injured person. Indeed, the defendant owed a duty to all the world to conduct himself without causing injury to his fellows. It may be that the physical contraction of the feudal society imposed an imperative for maximum procurable safety, and a corresponding absolute responsibility upon its members.

The Industrial Revolution, which cracked the solidity of the feudal society and opened up wide and new areas of expansion, changed the legal concepts. Just as the new competitiveness in the economic sphere figuratively broke out of the walls of the feudal community, so it broke through the rule of strict liability. In the place of strict liability it introduced the theory that an action for negligence would lie only if the defendant breached a duty which he owed to plaintiff. As Lord Esher said in Le Lievre v. Gould (1893) 1 Q.B. 491, 497: 'A man is entitled to be as negligent as he pleases towards the whole world if he owes no duty to them.' The evolution of this concept of 'duty' proved to be a tortuous one, a course which has been marked by courts that have disagreed and decisions that have been vague. Indeed, Prosser has written that "duty' is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.' (P. 167.) Whatever its content, however, the concept of duty lies deeply rooted in the cases, and our task requires us to determine if we can properly saw respondents own one to appellant here.

The classic definition of duty has been in terms of foreseeability, but the definition itself is wide and general, and its application here becomes even more difficult because of the incursion of two other factors: the so-called 'unforeseeable' plaintiff and the infliction upon such plaintiff of emotional distress. As to the definition, one statement of it occurs in the famous case of Donoghue v. Stevenson (1932) A.C. 562, 580: 'The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be--persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.'

But our question is the more difficult because we must determine if appellant is a person who is so 'closely and directly affected' by the act of the driver of the truck that he should have reasonably had her in contemplation when he directed his mind to performing the act. Respondents would contend here that the mother of the injured child, should, instead, be characterized as an 'unforeseeable' victim of the driver's negligence and outside the zone of any apparent danger. She would fall within the exclusion of Palsgraf v. Long Island R. Co. (1928), 248 N.Y. 339, 162 N.E. 99, 59 A.L.R. 1253, a leading case in which the court denied liability against a railroad, whose agent, assisting a passenger to board a train, dislodged a package of firewords which exploded, causing some scales, many feet away, to fall upon plaintiff. The court held that defendant owed no duty to this 'unforeseeable' plaintiff. Indeed, our case compounds the Palsgraf difficulty because the injury to plaintiff consisted of emotional distress, a type of harm which the courts have been reluctant to recognize. ²

We believe, however, that the proper approach is to recognize, and grant, recovery for an injury caused to one who suffers emotional distress. We think, too, that such injury is foreseeable if a defendant's conduct encompasses potential risk of harm to a class of persons which includes the plaintiff. Harper and James point out that this foreseeable risk may be of two types. The first class involves actual physical impact. 'In other cases, however, plaintiff is outside the zone of physical risk (or there is no risk of physical impact at all), but bodily injury or sickness is brought on by emotional disturbance which in turn is caused by defendant's conduct. Under general principles recovery should be had in such a case if defendant should foresee fright or shock severe enough to cause substantial injury in a person normally constituted. Plaintiff would then be within the zone of risk in very much the same way as are plaintiffs to whom danger is extended by acts of third persons, or forces of nature, or their own responses (where these things are foreseeable).' (2 Harper & James, The Law of Torts, pp. 1035-1036; footnotes omitted.)

Prosser states the following rule: 'In negligence cases, duty is an obligation,...