59 Cal.2d 295, S. F. 21152, Amaya v. Home Ice, Fuel & Supply Co.

Docket NºS. F. 21152.
Citation59 Cal.2d 295, 379 P.2d 513, 29 Cal.Rptr. 33
Opinion JudgeSCHAUER, Justice.
Party NameLillian AMAYA, Plaintiff and Appellant, v. HOME ICE, FUEL & SUPPLY CO. et al., Defendants and Respondents.
AttorneyThompson, Sherbourne & Oppen and James J. Oppen, Van Nuys, for plaintiff and appellant. Belli, Ashe & Gerry, Seymour L. Ellison, San Francisco, William P. Camusi, Edward I. Pollock, Theodore A. Horn, Ned Good, David M. Harney, Abe Mutchnik, William J. Pollack, S. M. Dana and James G. Butler, Los ...
Judge PanelPeters, J., and Gibson, C. J., and Peek, J., dissented. TRAYNOR and McCOMB, JJ., and WHITE, J. pro tem., concur. PETERS, Justice (dissenting). GIBSON, C. J., and PEEK, J., concur. Rehearing denied; WHITE, J., pro tem., sitting in place of TOBRINER, J.; GIBSON, C. J., and PETERS and PEEK, JJ., dis...
Case DateMarch 12, 1963
CourtSupreme Court of California

Page 295

59 Cal.2d 295

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

Lillian AMAYA, Plaintiff and Appellant,

v.

HOME ICE, FUEL & SUPPLY CO. et al., Defendants and Respondents.

S. F. 21152.

Supreme Court of California

March 12, 1963

Rehearing Denied April 9, 1963.

Page 296

Action by mother against truck owners and others for fright or nervous shock, with consequent bodily injury, induced in mother by her apprehension of negligently caused danger or injury to her 17-month-old child who was run over by the truck while mother watched helplessly. The Superior Court, Alameda County, Lewis E. Lercara, J., entered judgment adverse to mother, and she appealed. The Supreme Court, Schauer, J., held that liability could not be predicated upon the fright or nervous shock.

Judgment affirmed.

Peters, J., and Gibson, C. J., and Peek, J., dissented.

Opinion, 23 Cal.Rptr. 131, vacated.

Page 297

Thompson, Sherbourne & Oppen and James J. Oppen, Van Nuys, for plaintiff and appellant.

Belli, Ashe & Gerry, Seymour L. Ellison, San Francisco, William P. Camusi, Edward I. Pollock, Theodore A. Horn, Ned Good, David M. Harney, Abe Mutchnik, William J. Pollack, S. M. Dana and James G. Butler, Los Angeles as amici curiae on behalf of plaintiff and appellant.

[379 P.2d 514] [29 Cal.Rptr. 34] Berry, Davis, Channell & McNamara, Clark, Heafey & Martin, Oakland, Herbert Chamberlin, San Francisco, Woodrow W. Kitchel, and Appelbaum, Mitchell & Bennett, Oakland, for defendants and respondents.

SCHAUER, Justice.

Plaintiff Lillian Amaya appeals from a judgment of dismissal entered upon an order sustaining defendants'

Page 298

general demurrer to her complaint1 after she had declined an opportunity to amend.

The sole issue is whether liability may be predicated on fright or nervous shock (with consequent bodily illness) induced solely by the plaintiff's apprehension of negligently caused danger or injury to a third person. After a comprehensive review of the authorities and the several considerations underlying decision on this issue, we have concluded that the complaint does not state facts sufficient to constitute a cause of action and that the judgment should therefore be affirmed.

In the subject complaint plaintiff-appellant alleges that she is the mother of James Amaya; that at the time of the accident she was seven months pregnant, and James was 17 months of age; that on that day she ‘ was standing near her said infant son, watching over him’ and ‘ observed the negligent conduct of the defendants * * * as the said defendants' truck was bearing down upon’ James; that she shouted a warning to defendants, but they failed to stop the truck and ran over the boy; and that she ‘ was compelled to stand helpless and watch her infant son be struck and run over by the defendants' truck.’ She then alleges that as a ‘ direct and proximate result’ of the defendants' negligent operation of their truck she ‘ suffered an emotional shock and great mental disturbance * * * and became violently ill and nauseous (sic) 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 * * *.’ She further alleges on information and belief that such injuries ‘ will result in some permanent disability,’ and prays for general damages in the amount of $50,000, medical expenses, and other relief.

Plaintiff states in her opening brief that ‘ 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.’

Page 299

Defendants assert that they ‘ accept this volunteer statement as a stipulation by (plaintiff),’ and we treat it therefore as an amendment to the complaint.

This court has not yet ruled specifically on whether allegations such as those of the subject complaint are sufficient to constitute a cause of action.2 At the [379 P.2d 515] [29 Cal.Rptr. 35] outset it is necessary to determine whether or not the ‘ impact rule’ is in force in California: i. e., in an action for personal injuries resulting from the internal operation of negligently induced fright or shock, need the plaintiff show that there was some contemporaneous physical impact upon her person? (See generally, Note, 64 A.L.R.2d 100 et seq.) If the ‘ impact rule’ prevails it is at once evident that for such reason alone the complaint in the case at bench fails to state a cause of action. Relying on Sloane v. Southern Cal. Ry. Co. (1896) 111 Cal. 668, 680, 44 P. 320, 32 L.R.A. 193 which dealt, however, with the analytically different question of whether ‘ nervous disturbance’ caused by fright or shock ‘ was a suffering of the body or of the mind’ it has apparently been held by the District Court of Appeal that the ‘ impact rule’ is not the law of this state. ( Cook v. Maier (1939) 33 Cal.App.2d 581, 584(5)-585(6), 92 P.2d 434.) No California decision has been found declaring such a requirement, and we are not disposed to introduce it into our law now. We hold, accordingly, that plaintiff's failure to allege a contemporaneous physical impact upon her person is not, of itself, fatal to her attempt to state a cause of action.

We therefore face this question: May tort liability be predicated on fright or nervous shock (with consequent bodily illness) induced solely by the plaintiff's apprehension of negligently caused danger or injury to a third person? Prior to today that question had been raised in three cases before this court, and in each the court expressly declined to resolve it.

Page 300

( Easton v. United Trade School Con. Co. (1916) 173 Cal. 199, 202, 159 p. 597, L.R.A.1917A, 394; Lindley v. Knowlton (1918) 179 Cal. 298, 301-302, 176 P. 440; Webb v. Francis J. Lewald Coal Co. (1931) 214 Cal. 182, 184(1),4 P.2d 532, 77 A.L.R. 675.) In Easton the court found it unnecessary to rule on the matter in view of its determination that the plaintiff's fright was, at least in part, a direct consequence of physical injuries inflicted on her in a collision caused by the defendant's negligence; hence recovery could be justified under the principle ( id. at p. 203 of 173 Cal., at p. 599 of 159 P.) that ‘ mental anguish as a direct reasonable outcome of the illegal physical injuries is always an element of damage.’ In Lindley and Webb the court avoided the issue by holding that in each instance the case fell within the rule to which we adhere that liability may be predicated upon fright and consequent illness induced by the plaintiff's reasonable fear for her own safety, even when the plaintiff may also have feared for the safety of her children (Lindley) or of a stranger (Webb).3

[379 P.2d 516] [29 Cal.Rptr. 36] The first California case to rule on the question now presented appears to have been Clough v. Steen (1934) 3 Cal.App.2d 392, 39 P.2d 889. There the plaintiff and her husband and minor child were involved in an accident with the defendant's automobile, in which the plaintiff was injured and her son was killed. In her complaint she set forth the extent of her own injuries ‘ and then alleged that the knowledge

Page 301

of the tragic death of her son ‘ immediately threw her into a state of profound shock’ which caused mental and physical disorders for which she sought damages.' ( Id. at p. 393, at p. 890 of 39 P.2d.) The District Court of Appeal reversed a judgment for the plaintiff, distinguishing Lindley and holding that ‘ no case or rule of law has been brought to our attention which would support a recovery by plaintiff for the shock and grief, or injury consequent thereto, growing out of the knowledge of the death of her child. In the absence of such a right at common law or by statute, the plaintiff's recovery cannot be upheld.’ ( Id. at p. 394(2), at p. 890 of 39 P.2d.)

Two federal decisions applying California law reached similar conclusions. In Minkus v. Coca-Cola Bottling Co. of California (1942, N.D. Cal.) 44 F.Supp. 10, a minor sued for personal injuries suffered by finding a decomposed mouse in a soft drink that he had partly consumed; in separate counts his parents sought damages ‘ for nervous shock alleged to have been caused by the happening mentioned.’ The court granted a motion to dismiss the latter counts, citing Clough v. Steen (1934), supra, 3 Cal.App.2d 392, 39 P.2d 889, and holding the matter to be controlled by ‘ the general rule that one may not recover damages for fright or mental shock from injuries received by another when the claimant himself sustained no physical injury.’

In Maury v. United States (1956, N.D. Cal.) 139 F.Supp. 532, an action by parents for the wrongful death of their child, the plaintiff sought to add a second cause of action based on allegations that ‘ during the fire which destroyed the home of plaintiffs (allegedly caused by the defendants' negligence), plaintiffs were present; that plaintiffs with full knowledge that their child was in the said burning house, suffered extreme fright, shock and mental anguish’ causing the plaintiff mother to have a nervous breakdown and be confined in a hospital. The motion to add the second count was denied. The court characterized the proposed amendment as follows ( id. 139 F.Supp. at p. 533(1)): ‘ In essence this is a claim for damages produced by shock from fear of danger or harm to another, where the danger or harm was caused by ordinary negligence, and where the claimant was not himself endangered...

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