Hair v. County of Monterey

• Decision Date: 25 February 1975
• Citation: 45 Cal.App.3d 538,119 Cal.Rptr. 639
• Court: California Court of Appeals Court of Appeals
• Parties: Don HAIR and Betty Hair, Plaintiffs and Appellants, v. COUNTY OF MONTEREY et al., Defendants and Respondents. Civ. 32592.

Page 639

119 Cal.Rptr. 639

45 Cal.App.3d 538

Don HAIR and Betty Hair, Plaintiffs and Appellants, v. COUNTY OF MONTEREY et al., Defendants and Respondents.

Civ. 32592.

Court of Appeal, First District, Division 2, California.

Feb. 25, 1975.

Hearing Denied April 24, 1975.

Jack Miller, Inc., Jack Miller, San Francisco, for plaintiffs and appellants; John H. Russell, San Francisco, of counsel.

Wines, Coffee & Robinson, Inc., by Allan C. Anderson, San Jose, for defendant and respondent County of Monterey.

Hoge, Fenton, Jones & Appel, Inc., Richard K. Harray, Monterey, for defendant and respondent John Mead.

ROUSE, Associate Justice.

This is an appeal from a judgment of dismissal after an order sustaining demurrers without leave to amend. Plaintiffs Don and Betty Hair are the natural parents of Michael Hair, a minor nine years of age at the time of the filing of this action. The complaint alleges that as the result of oral surgery performed by the defendant physician, John Mead, in facilities of defendant County of Monterey's General Hospital, the child sustained permanent injuries including blindness, brain damage, quadraplegia and petit and grand mal seizures.

The original complaint was demurred to by defendant Mead and an amended complaint was filed, which was demurred to by both defendants. The amended complaint sought recovery on behalf of the parents for the extraordinary care and attention they would provide the child; the diminution of the time, care and attention available for each other and their remaining children; emotional shock and injury to the parents' nervous systems sustained after witnessing the child's injuries; and for the lost society, companionship, comfort and society of their child.

Plaintiffs contend that they are entitled to recover for care and attention above and beyond that which would be normally expected of a parent but for the injuries received by the minor.

Insofar as such care and attention cause a pecuniary loss to the parents, and do not entail a double recovery, they are compensable elements of damage. The plaintiffs have attempted to establish that Bradford v. Edmands (1963) 215 Cal.App.2d 159, 30 Cal.Rptr. 185, stands for the broader proposition that nonpecuniary damages for affection expended should be allowed. In that case, the cause of action was for the mother's services rendered to the injured minor. The court was concerned only with the value of the nursing care afforded to the child by his mother as a consequence of the child's injuries. The trial court had given the following instruction: "A parent is entitled to recovery for the reasonable value of the parent's care or attention which he, himself, or herself, may have rendered to his child as a result of the injuries received from an accident proximately caused by the negligence of another." (P. 165, 30 Cal.Rptr. p. 189) While this instruction would appear to support the plaintiffs' position herein, the appellate court rejected the contention that the mother was entitled to more than the value of nursing services. The court held that such an instruction was too broad and pointed out that care and attendance of a son is a maternal duty and that only the special care necessitated by the accident should be the subject of compensation (p. 168, 30 Cal.Rptr. 185). In the instant case, it is apparent that plaintiffs have seized on the words 'special care' to include extraordinary affection. However, as noted in Bradford supra, special care contemplates only nursing, or other like services, provided by the parents.

Defendants point out that plaintiffs' minor son has previously recovered money damages for the reasonable value of all medical, nursing and related care required by him by reason of his injuries. Plaintiffs do not dispute this but argues that the extraordinary care and attention now demanded of them as parents of an utterly helpless child constitutes an element of damage which is extremely personal to them and is not recoverable in the action brought on behalf of the child. We conclude that existing authority does not support their contention.

Plaintiffs further contend that they are entitled to recover for damage to their family unit caused by the substantial lessening of time, care and support which they are able to give each other and their other children. In support of their position, plaintiffs have cited the case of Custodio v. Bauer (1967) 251 Cal.App.2d 303, 59 Cal.Rptr. 463. In that case, physicians were sued in a malpractice action for failure of a tubal ligation surgery for the purpose of sterilizing a wife. The operation failed to prevent a pregnancy. The court had overruled a dismissal by the lower court and in its discussion of the possible damages recoverable noted: 'Where the mother survives without casualty there is still some loss. She must spread her society, comfort, care, protection and support over a larger group. If this change in the family status can be measured economically it should be as compensable as the former losses.' (Pp. 323--324, 59 Cal.Rptr. p. 476.) The recent decision of our California Supreme Court in Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 115 Cal.Rptr. 765, 525 P.2d 669, holds that an objection that such damages are difficult to measure economically is not a bar to stating a cause of action for their recovery. Thus, it appears that by applying the reasoning of the Rodriguez case, such allegation may be sufficient to state a cause of action. However, for reasons set forth elsewhere herein, we conclude that, in this instance, the judgment of dismissal must be affirmed.

Plaintiffs' second cause of action seeks damages for 'great mental distress and injury to (plaintiffs') nervous systems, worry and anxiety' caused by their witnessing the child's injuries. These allegations are insufficient since they fail to plead physical injury which must be alleged and proven in order to recover for damages sustained by parents who merely witness injury to their child. In Dillon v. Legg (1968) 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912, our Supreme Court allowed recovery by a parent witnessing injury to her child on the basis that such injuries were foreseeable. However, the court stated 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.' (P. 740, 69 Cal.Rptr. p. 80, 441 P.2d p. 920; emphasis added.)

The plaintiffs have alleged that they 'suffer great mental distress and injury to their nervous systems, worry and anxiety . . ..' They assert that these allegations are sufficient to pass scrutiny under Dillon, supra. In support of this contention they have relied upon Espinosa v. Beverly Hospital (1952) 114 Cal.App.2d 232, 249 P.2d 843. In that case the court held that definite nervous disturbances or disorders could be considered physical injuries. (P. 234, 249 P.2d 843.) In the instant case, there is no allegation of a definite nervous disturbance or disorder. The plaintiffs' allegation of 'injury to their nervous systems,' taken in context with the other elements of damage, indicates that they seek recovery for nervousness only, and not for damages having a physical component. Obviously, if physical injuries are claimed, they must be alleged with sufficient particularity so as to inform the adverse parties and the court of the physical dimensions of those injuries. Nor was it error for the court to refuse to allow the plaintiffs a third opportunity to plead an adequate case. Plaintiffs' counsel had admitted in correspondence to the court while the demurrers were under submission that 'In the case at Bench, I do not believe that we would be able to prove 'actual physical injury' . . ..' In view of the fact that counsel conceded the absence of physical injury, which is the threshold element of recovery under the opinion rendered in Dillon v. Legg, supra, the court properly granted the demurrers on this purported cause of action. A concession of a fact in a letter may be treated as an admission to control disposition of a case on appeal. (Estate of Kretschmer (1965) 232 Cal.App.2d 789, 43 Cal.Rptr. 121.)

Assuming, arguendo, that the plaintiffs had alleged the physical injuries necessary, recovery still could not have been had. In Powers v. Sissoev (1974) 39 Cal.App.3d 865, 114 Cal.Rptr. 868, the appellate court considered whether evidence adduced on behalf of a mother of a child who had been struck by a truck and treated in the hospital constituted a cause of action. The facts showed that the daughter had been injured at 3:30 in the afternoon and that the plaintiff mother did not see her daughter for 30 to 60 minutes after the accident. The child was treated and released and later developed convulsions witnessed by the mother and sustained permanent brain damage. The court held that 'Although it is true . . . that the rule allowing recovery for emotional shock and its after effect is not necessarily limited to the narrow facts involved in that case, and although the footnote in Capelouto (Capelouto v. Kaiser Foundation Hospitals (1972) 7 Cal.3d 889, 892, fn. 1, 103 Cal.Rptr. 856, 500 P.2d 880) tangentially seems to indicate a right of recovery for physical harm flowing from knowledge of an unobserved tort, we do not think that this court (especially in light of the strong dissents in Dillon (supra)) should extend the rule to a case such as this where the shock, as claimed, 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 non-observed and antecedent accident.' (Pp. 873--874, of 39 Cal.3d, p. 874 of 114 Cal.Rptr.)

In this case, the facts alleged are that the mother was in the waiting room while the oral surgery was performed; that post-operatively the child was suffering from unknown injury which was described to...