Air Crash Disaster Near Cerritos, Cal., Aug. 31, 1986, In re

• Decision Date: 31 August 1986
• Citation: 973 F.2d 1490
• Parties: In re AIR CRASH DISASTER NEAR CERRITOS, CALIFORNIA,
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1490

973 F.2d 1490

In re AIR CRASH DISASTER NEAR CERRITOS, CALIFORNIA, AUGUST 31, 1986 Joan L. DI COSTA; Gilbert Di Costa, Plaintiffs-Appellants, v. AERONAVES DE MEXICO, S.A., dba: Aeromexico; Daniel W O'Connell; John P. Kramer, as personal representatives for the Estate of William Kenneth Kramer, deceased; Roland Paul Furman, et al; United States of America, Defendants-Appellees.

No. 90-55224.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Dec. 5, 1991.

Decided Sept. 1, 1992.

Ronald L.M. Goldman, Goldman & Stone, Marina Del Rey, Cal., for plaintiffs-appellants.

Marianne Finnerty, U.S. Dept. of Justice, Washington, D.C., for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before PREGERSON, CANBY and RYMER, Circuit Judges.

CANBY, Circuit Judge:

Joan and Gilbert DiCosta appeal the district court's dismissal of their claims for negligent infliction of emotional distress

                under the Federal Tort Claims Act ("Act"), 28 U.S.C. § 2674.   We reverse
                

BACKGROUND

The DiCostas' complaint alleges that they were in their home on August 31, 1986 when two airplanes collided in mid-air and crashed to the ground in the DiCostas' neighborhood. ¹ The DiCostas allege that the crash was proximately caused, in part, by the negligence of air traffic controllers at Los Angeles International Airport who were acting within the scope of their employment with the United States. The DiCostas further allege that they witnessed the collision and its aftermath, ² and that they "were within the zone of danger created because of the mid-air collision and crash of the aircraft ... and suffered severe and lasting emotional distress, fright and shock as a result of fear for [their] own safety." The injuries allegedly suffered by the DiCostas--including "great emotional disturbance," "shock and injury to their ... nervous system[s]," and "great mental and physical pain"--were asserted to be severe enough to require medical treatment of Joan DiCosta and to cause problems in the DiCostas' marriage amounting to a loss of consortium.

The district court dismissed the DiCostas' complaint with prejudice pursuant to Federal Rule of Civil Procedure 12(b)(6). The district court concluded that the complaint does not state a claim for negligent infliction of emotional distress under California law, and therefore could not support a claim against the United States under the Act. See 28 U.S.C. § 2674 (United States is liable "in the same manner and to the same extent as [a] private individual under like circumstances"). In reaching its decision, the district court considered and rejected both theories of liability advanced by the DiCostas: (1) that they were bystanders who witnessed the crash which was the foreseeable result of the United States' negligence, and (2) that they were direct victims of the United States' negligence because they were put in direct and reasonable fear of their own safety while within the "zone of danger" of the collision and crash. The DiCostas now appeal the dismissal of their complaint, but press only their "direct victim" theory of liability.

DISCUSSION

We review de novo the district court's dismissal of the DiCostas' complaint. Kruso v. International Telephone & Telegraph Corp., 872 F.2d 1416, 1421 (9th Cir.1989), cert. denied, 496 U.S. 937, 110 S.Ct. 3217, 110 L.Ed.2d 664 (1990). We must determine whether California courts would hold the DiCostas to have stated a claim for negligent infliction of emotional distress.

Two early California emotional distress cases suggest quite clearly that the DiCostas have stated a valid claim. In Webb v. Francis J. Lewald Coal Co., 214 Cal. 182, 4 P.2d 532 (1931), the California Supreme Court permitted the plaintiff to recover for the emotional distress and associated physical disabilities she suffered when she witnessed a truck crash into a building in which she was standing. The plaintiff was not hit by the truck, but she feared for her own safety. Webb, 4 P.2d at 533. In Cook v. Maier, 33 Cal.App.2d 581, 92 P.2d 434 (1939), the California Court of Appeals held that a plaintiff stated claims for emotional distress which she allegedly suffered when she witnessed an automobile crash into her home. Again, the plaintiff was not hit, but she was fearful for her own safety. Cook, 92 P.2d at 435. ³ The United States argues that the California Supreme Court's recent decision in Thing v. La Chusa, 48 Cal.3d 644, 257 Cal.Rptr. 865, 771 P.2d 814 (1989), signalled a shift away from permitting recovery for direct victims of negligence who suffered no impact either to their person or their property. We disagree. Thing was not concerned with "direct victim" cases such as Webb and Cook. Thing addressed instead a second line of California cases which permits bystanders who witness an injury to another person to sue the negligent party who caused the injury. ⁴ See Estrada v. Aeronaves de Mexico, 967 F.2d 1421 (9th Cir.1992) (applying Thing to bystander injuries arising from same airplane crash as present case). We must examine those California cases briefly to show the context in which Thing was decided, and demonstrate why its rule does not apply here.

The "bystander" line of cases began with the short-lived Amaya v. Home Ice, Fuel & Supply Co., 59 Cal.2d 295, 29 Cal.Rptr. 33, 379 P.2d 513 (1963), which refused to recognize "bystander" liability. The California Supreme Court upheld the dismissal of the plaintiff's complaint which was predicated exclusively on the fright and shock the plaintiff suffered from watching her seventeen-month old son be run over by a truck. Amaya, 29 Cal.Rptr. at 34, 379 P.2d at 514. ⁵ Although principally addressing "bystander" cases, Amaya did effect a change in "direct victim" cases by rejecting the requirement that plaintiffs allege a physical impact upon themselves caused by the negligent act in order to state a valid claim for negligent infliction of emotional distress. Id., 29 Cal.Rptr. at 35, 771 P.2d at 515. After Amaya, direct victim plaintiffs needed only to allege that they were within the "zone of danger" created by the negligent act.

Amaya was overruled by Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 (1968), which allowed "bystanders" to recover if they were (1) near the scene of the accident, (2) directly shocked by witnessing the accident, and (3) closely related to the injured third party. Dillon, 69 Cal.Rptr. at 80, 441 P.2d at 920. The Dillon court rejected as arbitrary and too restrictive the requirement that plaintiffs be within the "zone of danger." Id., 69 Cal.Rptr. at 75-76, 441 P.2d at 915-16. California's courts were now to consider only whether the injury was reasonably foreseeable by the negligent actor. This change, while necessary to permitting "bystander" liability, also loosened the reins on "direct victim" liability.

In Molien v. Kaiser Foundation Hospitals, 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813 (1980), the California Supreme Court blurred the lines between "bystander" and "direct victim" claims by permitting recovery on a "direct victim" theory to a husband whose wife was negligently and incorrectly diagnosed as having syphilis. The doctor told the wife to tell her husband that she was infected, and to have him get a physical examination. Molien, 167 Cal.Rptr. at 832, 616 P.2d at 814. The court concluded that the husband's emotional distress was reasonably foreseeable by the doctor, and that the husband was, therefore, entitled to recover. Id., 167 Cal.Rptr. at 835-36, 616 P.2d at 817.

Thus, at the time that the California Supreme Court was presented with Thing, there had been a trend to blur the distinction between "bystander" and "direct victim" cases, and to expand to the limits of foreseeability the liability for bystanders' emotional injuries. The opinion in Thing reverses these trends. Thing was a classic bystander case; a mother sought to recover for emotional distress that she suffered because her son was injured in an accident that she did not witness. In rejecting her claim, the California Supreme Court sought to rationalize its prior line of decisions. The opinion in Thing disapproved of Molien, and the government makes much of that fact in our case. But the disapproval was directed to the tendency to define as a "direct victim" any person whose emotional distress was foreseeable. See Thing, 257 Cal.Rptr. at 874-76, 771 P.2d at 823. Such a loose definition, among other disadvantages, permitted persons "who had not been at or near the scene of the negligent act to recover for emotional distress on a pure foreseeability-of-the-injury basis." Id. It also permitted such remote "bystanders" to evade the strict requirements of the three-pronged test established in Dillon. The Court in Thing curbed these tendencies by reasserting narrow boundaries for bystander emotional injuries:

We conclude, therefore, that a plaintiff may recover damages for emotional distress caused by observing the negligently inflicted injury of a third person if, but only if, said plaintiff: (1) is closely related to the injury victim; (2) is present at the scene of the injury producing event at the time it occurs and is then aware that it is causing injury to the victim; and (3) as a result suffers serious emotional distress....

Id., 257 Cal.Rptr. at 880-81, 771 P.2d at 829-30 (footnotes omitted; emphasis added). It seems apparent to us from this passage that Thing was addressed to cases in which damages are sought for emotional distress caused by injury to others. It did not change the rule that a person who is in the path of negligent conduct and reasonably fears for his or her own safety may recover for resulting emotional distress. That person is not a bystander.

Our reading of Thing is confirmed by Christensen v. Superior Court, 54 Cal.3d 868, 2 Cal.Rptr.2d, 79, 820 P.2d 181 (1991), the California Supreme Court's most recent word...