68 Cal.2d 728, 7816, Dillon v. Legg

Docket Nº:7816
Citation:68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912
Opinion Judge:[9] Tobriner
Party Name:Dillon v. Legg
Attorney:[7] Bradford, Cross, Dahl & Hefner, Archie Hefner and James M. Woodside for Plaintiffs and Appellants. [8] McGregor, Bullen, Erich & McKone, George Bullen and William C. McKinley for Defendant and Respondent.
Case Date:June 21, 1968
Court:Supreme Court of California

Page 728

68 Cal.2d 728

69 Cal.Rptr. 72, 441 P.2d 912

Margery M. DILLON et al., Plaintiffs and Appellants,

v.

David Luther LEGG, Defendant and Respondent.

Sac. 7816.

Supreme Court of California

June 21, 1968.

In Bank

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[Copyrighted Material Omitted]

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Bradford, Cross, Dahl & Hefner, Archie Hefner and James M. Woodside, Sacramento, for plaintiffs and appellants.

McGregor, Bullen, Erich & McKone, George Bullen and William C. McKinley, Sacramento, for defendant and respondent.

TOBRINER, Justice.

That the courts should allow recovery to a mother who suffers emotional trauma and physical injury from witnessing the infliction of death or injury to her child for which the tort-feasor is liable in negligence would appear to be a compelling proposition. As Prosser points out, 'All ordinary human feelings are in favor of her (the mother's) action against the negligent defendant. If a duty to her requires that she herself be in some recognizable danger, then it has properly been said that when a child is endangered, it is not beyond contemplation that its mother will be somewhere in the vicinity, and will suffer serious shock.' (Prosser, Law of Torts (3d ed. 1964) p. 353.)

Nevertheless, past American decisions have barred the mother's recovery. Refusing the mother the right to take her case to the jury, these courts ground their position on an alleged absence of a required 'duty' of due care of the tortfeasor to the mother. Duty, in turn, they state, must express public policy; the imposition of duty here would work disaster because it would invite fraudulent claims and it would involve the courts in the hopeless task of defining the extent of the tortfeasor's liability. In substance, they say, definition of liability being impossible, denial of liability is the only realistic alternative.

We have concluded that neither of the feared dangers

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excuses the frustration of the natural justice upon which the mother's claim rests. We shall point out that in the past we have rejected the argument that we should deny recovery upon a legitimate claim because other fraudulent ones may be urged. We shall further explain that the alleged inability to fix definitions for recovery on the different facts of future cases does not justify the denial of recovery on the specific facts of the instant case; in any event, proper guidelines can indicate the extent of liability for such future cases.

In the instant case plaintiff's 1 first cause of action alleged that on or about September 27, 1964, defendant drove his automobile in a southerly direction on Bluegrass Road near its intersection with Clover Lane in the County of Sacramento, and at that time plaintiff's infant daughter, Erin Lee Dillon, lawfully crossed Bluegrass Road. The complaint further alleged that defendant's negligent operation of his vehicle caused it to 'collide with the deceased Erin Lee Dillon resulting in injuries to decedent which proximately resulted in her death.' (Complaint, p. 3.) Plaintiff, as the mother of the decedent, brought an action for compensation for the loss.

Plaintiff's second cause of action alleged that she, Margery M. Dillon, 'was in close proximity to the * * * collision and personally witnessed said collision.' She further alleged that 'because of the negligence of defendants * * * and as a proximate cause (sic) thereof plaintiff * * * sustained great emotional disturbance and shock and injury to her nervous system' which caused her great physical and mental pain and suffering.

Plaintiff's third cause of action alleged that Cheryl Dillon, another infant daughter, was 'in close proximity to the * * * collision and personally witnessed said collision.' Because of the negligence, Cheryl Dillon 'sustained great emotional disturbance and shock and injury to her nervous system,' which caused her great physical and mental pain and suffering.

On December 22, 1965, defendant, after he had filed his answer, moved for judgment on the pleadings, contending that 'No cause of action is stated in that allegation that plaintiff sustained emotional distress, fright or shock induced by apprehension of negligently caused danger or injury or the witnessing of negligently caused injury to a third person.

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Amaya v. Home Ice, Fuel & Supply Co., 59 Cal.2d 295, 29 Cal.Rptr. 33 (1963). Even where a child, sister or spouse is the object of the plaintiff's apprehension no cause of action is stated, Supra, p. 303, 29 Cal.Rptr. 33, Unless the complaint alleges that the plaintiff suffered emotional distress, fright or shock as a result of fear for his own safety. Reed v. Moore, 156 Cal.App.2d 43 (1957) at page 45 ().' (Italics added.) The court granted a judgment on the pleadings against the mother's count, the second cause of action, and denied it as to the sister's count, the third cause of action. The court, further, dismissed the second cause of action. Margery M. Dillon, the mother appealed from the judgment.

Thereafter, on January 26, further proceedings took place as to the third cause of action, Cheryl Dillon's claim for emotional trauma from witnessing her sister's death while 'watching her sister lawfully cross Bluegrass Road.'

Defendant moved for summary judgment on this count. In opposition plaintiff contended that the declaration of one McKinley disclosed that Mrs. Dillon testified at her deposition that when she saw the car rolling over Erin she noted that Cheryl was on the curb, but that the deposition of Cheryl Dillon contradicts such statements. Plaintiff therefore submitted that 'Since the declarations filed by defendant are contradictory and the testimony contained in the testimony of Mrs. Dillon does not establish as a matter of law that Cheryl Dillon was not in the zone of danger or had fear for her own safety, plaintiff respectfully submits that the motion must be denied.'

The court denied the motion for summary judgment on the third cause as to Cheryl on the ground that the pretrial order precluded it. The trial court apparently sustained the motion for judgment on the pleadings on the second cause as to the mother because she was not within the zone of danger and denied that motion as to the third cause involving Cheryl because of the possibility that she was within such zone of danger or feared for her own safety. Thus we have before us a case that dramatically illustrates the difference in result flowing from the alleged requirement that a plaintiff cannot recover for emotional trauma in witnessing the death of a child or sister unless she also feared for her own safety because she was actually within the zone of physical impact.

The posture of this case differs from that of Amaya v. Home Ice, Fuel & Supply Co. (1963) 59 Cal.2d 295, 298, 29 Cal.Rptr. 33, 35, 515, which involved 'fright or nervous

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shock (with consequent bodily illness) induced solely by * * * apprehension of negligently caused danger or injury to a third person' because the complaint here presents the claim of the emotionally traumatized mother, who admittedly was Not within the zone of danger, as contrasted with that of the sister, who May have been within it. The case thus illustrates the fallacy of the rule that would deny recovery in the one situation and grant it in the other. In the first place, we can hardly justify relief to the sister for trauma which she suffered upon apprehension of the child's death and yet deny it to the mother merely because of a happenstance that the sister was some few yards closer to the accident. The instant case exposes the hopeless artificiality of the zone-of-danger rule. In the second place, to rest upon the zone-of-danger rule when we have rejected the impact rule becomes even less defensible. We have, indeed, held that impact is not necessary for recovery (Cook v. Maier (1939) 33 Cal.App.2d 581, 584.) The zone-of-danger concept must, then, inevitably collapse because the only reason for the requirement of presence in that zone lies in the fact that one within it will fear the danger of Impact. At the threshold, then, we point to the incongruity of the rules upon which any rejection of plaintiff's recovery must rest.

We further note, at the outset, that defendant has interposed the defense that the contributory negligence of the mother, the sister, and the child contributed to the accident. If any such defense is sustained and defendant found not liable for the death of the child because of the contributory negligence of the mother, sister or child, we do not believe that the mother or sister should recover for the emotional trauma which they allegedly suffered. In the absence of the primary liability of the tort-feasor for the death of the child, we see no ground for an independent and secondary liability for claims for injuries by third parties. The basis for such claims must be adjudicated liability and fault of defendant; that liability and fault must be the foundation for the tort-feasor's duty of due care to third parties who, as a consequence of such negligence, sustain emotional trauma.

We turn then to an analysis of the concept of duty, which, as we have stated, has furnished the ground for the rejection of such claims as the instant one. Normally the simple facts of plaintiff's complaint would establish a cause of action: the complaint alleges that defendant drove his car (1) negligently, as a (2) proximate result of which plaintiff suffered

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(3) physical injury. Proof of these facts to a jury leads to recovery in damages; indeed, such a showing represents a classic example of the type of accident with which the law of negligence has been designed to deal.

The assertion that liability must nevertheless be denied because defendant bears no 'duty' to plaintiff 'begs the essential...

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