Macy's California, Inc. v. Superior Court

• Citation: 48 Cal.Rptr.2d 496,41 Cal.App.4th 744
• Decision Date: 26 December 1995
• Docket Number: No. A071386,TUSSY-GARBER,A071386
• Court: California Court of Appeals
• Parties: , 95 Cal. Daily Op. Serv. 9913, 95 Daily Journal D.A.R. 17,131 MACY'S CALIFORNIA, INC., Petitioner, v. The SUPERIOR COURT OF Solano County, Respondent; Catherine Jenaeet al., Real Parties in Interest.

Page 496

48 Cal.Rptr.2d 496

41 Cal.App.4th 744, 95 Cal. Daily Op. Serv. 9913,

95 Daily Journal D.A.R. 17,131

MACY'S CALIFORNIA, INC., Petitioner, v. The SUPERIOR COURT OF Solano County, Respondent;

Catherine Jenae TUSSY-GARBER et al., Real Parties in Interest.

No. A071386.

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

Dec. 26, 1995.

Review Denied April 18, 1996.

Peter A. Meshot, Paul A. Pereira, Colman, Marcus & Meshot, Sacramento, for Petitioner.

No appearance for Respondent.

Cory A. Birnberg, Thomas B. Gill, Birnberg & Associates, San Francisco, for Real Parties in Interest.

CHIN, Presiding Judge.

Catherine Jenae Tussy-Garber (Tussy-Garber) allegedly pricked her finger on a hypodermic needle in the pocket of a jacket that had been returned to Macy's California, Inc. (Macy's), by another customer. Tussy-Garber is now suing Macy's for negligence, asserting a right to emotional distress damages because she fears contracting acquired immune deficiency syndrome (AIDS) ¹ or another serious or lethal disease. Macy's challenges availability of emotional distress damages for fear of disease where no physical harm has been shown. We conclude that the superior court erred in concluding that a needle stick, without more, entitled Tussy-Garber to seek emotional distress damages.

Facts and Procedures

According to her declaration, on February 10, 1993, while trying on a "jean jacket" at a Macy's store in Fairfield, Tussy-Garber placed her hand in one of the pockets and pricked her finger on a hypodermic needle. The pocket contained two hypodermic needles, a knife and a metal pipe possibly used for ingesting cocaine. Tussy-Garber promptly sought hepatitis treatment and testing for the human immunodeficiency virus (HIV). She admits that she has never tested positive for HIV and would stand only a 1 in 200,000 chance of contracting the virus from the needle if it was contaminated. She concedes that she has had no contact with hepatitis A or hepatitis C and, as of May 1995, had no infection related to hepatitis B. According to Tussy-Garber, Macy's refused to help her find the person who returned the jacket so that she could find out if the person had AIDS and refused to assist her in having the needle tested. She claims also that Macy's refused to pay for treatment required because of the incident.

In response to interrogatories, Tussy-Garber described her emotional injuries: "I can't sleep at night. I have panic attacks. I cry all of the time. I am very sharp with my family. I worry constantly about putting my family through a terrible ordeal and what they may experience by being related to a victim of HIV. I experience nightsweats and nightmares concerning my future and the future of my family. If I dwell on the situation, I throw up. I get very angry about being victimized. I focus on this situation so often that I am unable to give adequate attention to my children. I feel helpless. I went through a period of deep mourning." She also described physical injuries, including aches and pains, diarrhea, uncontrolled weight loss and weight gain, tiredness, rapid aging and tumors on her liver.

On February 8, 1994, Tussy-Garber and her husband filed an action against Macy's for negligence, negligent infliction of emotional distress and loss of consortium. Macy's moved for summary adjudication to bar recovery for emotional distress arising out of Tussy-Garber's fear of contracting AIDS or another infectious disease. For purposes of summary adjudication, Macy's stipulated that Tussy-Garber was actually pricked by a hypodermic syringe as alleged in the complaint. After hearing, the court denied summary adjudication, finding that because Tussy-Garber was "within the area of physical risk and ... actually sustained a physical impact" she could recover for any proven psychological reactions which "as a matter of reasonable foreseeability, result from the episode as a whole." This petition followed.

Emotional Distress Damages

Although Tussy-Garber has stated two "causes of action" for negligent infliction of emotional distress, negligently causing emotional distress " '... is not an independent tort but the tort of negligence....' [Citation.] 'The traditional elements of duty, breach of duty, causation, and damages apply. [p] Whether a defendant owes a duty of care is a question of law. Its existence depends upon the foreseeability of the risk and upon a weighing of policy considerations for and against imposition of liability.' [Citation.]" (Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588, 257 Cal.Rptr. 98, 770 P.2d 278.) ²

"Damages for serious mental suffering may now be recovered in the absence of either physical injury or impact. [Citation.] This was the holding in Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916 [167 Cal.Rptr. 831, 616 P.2d 813, 16 A.L.R.4th 518], wherein a husband and wife experienced anxiety, suspicion and hostility after the defendant misdiagnosed the wife as having a sexually transmitted disease. The Supreme Court departed from the traditional rule that physical impact or injury is a prerequisite to recovery of emotional distress damages. [Citations.] ... [p] In addition ... requiring intentional wrongdoing or bad faith, has not been considered a prerequisite to recovery by the Supreme Court in negligent infliction of emotional distress claims." (Pleasant v. Celli (1993) 18 Cal.App.4th 841, 851, 22 Cal.Rptr.2d 663, disapproved on other grounds in Adams v. Paul (1995) 11 Cal.4th 583, 591, fn. 4, 46 Cal.Rptr.2d 594, 904 P.2d 1205.)

"To determine liability for negligent infliction of emotional distress in any given case ... several factors should be considered to ascertain whether the defendant has breached a duty of care. Whether a defendant owes a duty of care is a question of law. [Citations.]" (Id., at p. 852, 22 Cal.Rptr.2d 663.) The pertinent factors to consider include those articulated in Rowland v. Christian (1968) 69 Cal.2d 108, 113, 70 Cal.Rptr. 97, 443 P.2d 561: "the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved." (Christensen v. Superior Court (1991) 54 Cal.3d 868, 885-886, 2 Cal.Rptr.2d 79, 820 P.2d 181; Thompson v. County of Alameda (1980) 27 Cal.3d 741, 750, 167 Cal.Rptr. 70, 614 P.2d 728; Pleasant v. Celli, supra, 18 Cal.App.4th at p. 852, 22 Cal.Rptr.2d 663.)

The Potter Decision

In Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 25 Cal.Rptr.2d 550, 863 P.2d 795 (Potter ), the California Supreme Court weighed the policy considerations involved in imposing liability for emotional distress damages for fear of cancer and severely restricted the circumstances justifying such damages. Plaintiffs in Potter were landowners living adjacent to a landfill where Firestone disposed of toxic wastes. None of the landowners suffered from cancer or precancerous conditions, but each faced "an enhanced but unquantified risk of developing cancer in the future due to the exposure" because of toxic chemicals in their domestic water wells. (Id., at p. 975, 25 Cal.Rptr.2d 550, 863 P.2d 795.)

Addressing the "negligence: fear of cancer" issue, Potter first considered whether parasitic damages were available for emotional distress. "[I]t is settled in California that in ordinary negligence actions for physical injury, recovery for emotional distress caused by that injury is available as an item of parasitic damages. [Citations.] Where a plaintiff can demonstrate a physical injury caused by the defendant's negligence, anxiety specifically due to a reasonable fear of a future harm attributable to the injury may also constitute a proper element of damages. [Citation.]" (Id., at p. 981, 25 Cal.Rptr.2d 550, 863 P.2d 795.) Potter acknowledged decisions in other jurisdictions allowing parasitic damages for emotional distress engendered by a fear of developing cancer where one plaintiff had been burned by X-ray treatments another had received a traumatic breast injury and a third was likely to develop sarcoma from a burn wound. Potter also noted a split of authority in other jurisdictions over whether parasitic damages were available where plaintiffs could show immune system impairment and cellular damage. (Id., at pp. 981-983, 25 Cal.Rptr.2d 550, 863 P.2d 795.) Based on its record, however, the Potter court could find no physical injury, cellular damage or immune system impairment on which to base parasitic damages. It therefore did not resolve the legal issue of whether such damages would be available. (Id., at pp. 983-984, 25 Cal.Rptr.2d 550, 863 P.2d 795.)

Potter next addressed the question of whether the absence of a present physical injury would preclude recovery for emotional distress engendered by fear of cancer. The court reaffirmed the general principle that there is "no duty to avoid negligently causing emotional distress to another, and that damages for emotional distress are recoverable only if the defendant has breached some other duty to the plaintiff." (Id., at p. 984, 25 Cal.Rptr.2d 550, 863 P.2d 795.) Potter then rejected a request to impose a requirement of present physical injury, a requirement discarded more than a decade earlier. (Id., at pp. 985-988, 25 Cal.Rptr.2d 550, 863 P.2d 795.) Potter did, however, state a requirement that "in the absence of a present physical injury or illness, damages for fear of cancer may be recovered only if the plaintiff pleads and proves that (1) as a result of the defendant's negligent breach of a duty owed to the plaintiff, ...