Archibald v. Braverman

Citation79 Cal.Rptr. 723,275 Cal.App.2d 253
CourtCalifornia Court of Appeals
Decision Date28 July 1969
PartiesJoan ARCHIBALD, Plaintiff and Appellant, v. Edward BRAVERMAN et al., Defendants and Respondents. Civ. 9231.

KERRIGAN, Acting Presiding Justice.

In February 1968 a summary judgment was granted the defendants on the basis that plaintiff could not recover for mental illness and emotional shock sustained when she witnessed the severe injuries experienced by her son immediately after an explosion. (Amaya v. Home Ice Fuel & Supply Co., 59 Cal.2d 295, 29 Cal.Rptr. 33, 379 P.2d 513.) Plaintiff promptly appealed. In June 1968, the Supreme Court overruled Amaya, supra, and determined that a mother is entitled to recover for physical injuries resulting from emotional trauma in witnessing the tortious infliction of death or injury to her child. (Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912.)

The material allegations of plaintiff's complaint may be summarized as follows: At 12:40 p.m. on the 21st day of March, 1965, the plaintiff's son, Robert, aged 13 years visited defendants' Palm Springs property at the defendants' invitation for the purpose of doing business thereon; that at said time and place the defendants '* * * negligently packaged, stored, managed, maintained, controlled, sold and delivered a * * * quantity of explosive material (gunpowder) * * *.' to the boy; at said time and place the material exploded; as a result of the explosion, the boy sustained serious personal injuries causing traumatic amputation of the right hand, the right wrist, and a portion of his right forearm, traumatic amputation of a portion of his left hand, severe lacerations of his body, a grave injury of the right eye, and loss of copious amounts of blood; that within moments of the actual explosion, the plaintiff appeared at the scene in an effort to render aid to her son; upon observing her son's injuries, she suffered severe fright, shock, and mental illness requiring institutionalization.

Defendants' answer to plaintiff's complaint denied the allegations of liability and set up affirmative defenses of contributory negligence, assumption of risk, and failure to state a cause of action.

Following the filing of the answer, the defendants submitted a motion for summary judgment, supported by an affidavit of defense counsel. The affidavit contained the following averments: The plaintiff and her son filed separate actions arising from the explosion of a vial of gun powder purchased by the boy from the son of the defendants; the minor's action was for personal injuries sustained by him in the explosion; in the instant action, the mother sought to recover damages for the emotional distress sustained by her after the explosion when she arrived at the scene and observed her son's condition; the mother had admitted in pretrial discovery proceedings that she had not witnessed the explosion; consequently, her absence from the scene at the time of the tortious event precluded recovery by her.

The issue on appeal is whether a mother is entitled to recover damages for mental and emotional illness requiring institutionalization as a result of witnessing the tortious injuries to her minor child when she did not actually witness the tort but viewed the child's injuries within moments after the occurrence of the injury-producing event.

Recovery of damages for emotional shock resulting in physical injury depends on whether defendant owes plaintiff a duty of due care; the primary factor in determining such a duty is the reasonable foreseeability of plaintiff's...

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79 cases
  • Nazaroff v. Superior Court
    • United States
    • California Court of Appeals Court of Appeals
    • May 1, 1978
    ...139 Cal.Rptr. 97, 565 P.2d 122; Arauz v. Gerhardt (1977) 68 Cal.App.3d 937, 940-941, 137 Cal.Rptr. 619 and Archibald v. Braverman (1969) 275 Cal.App.2d 253, 254, 79 Cal.Rptr. 723.) Nevertheless, where an order bars a substantial portion of a plaintiff's case from being heard on the merits, ......
  • Ko v. Maxim Healthcare Servs., Inc.
    • United States
    • California Court of Appeals Court of Appeals
    • December 23, 2020
    ...865, 771 P.2d 814.) But the Thing court disapproved the post- Dillon Court of Appeal opinions in Archibald v. Braverman (1969) 275 Cal.App.2d 253, 79 Cal.Rptr. 723 ( Archibald ) and Nazaroff v. Superior Court (1978) 80 Cal.App.3d 553, 145 Cal.Rptr. 657 ( Nazaroff ). ( Thing , at p. 668, 257......
  • Elden v. Sheldon
    • United States
    • California Supreme Court
    • August 18, 1988
    ...728, 169 Cal.Rptr. 435, Nazaroff v. Superior Court, supra, 80 Cal.App.3d 553, 145 Cal.Rptr. 657, and Archibald v. Braverman, supra, 275 Cal.App.2d 253, 79 Cal.Rptr. 723; see generally, Diamond, Dillon v. Legg Revisited: Toward a Unified Theory of Compensating Bystanders and Relatives for In......
  • Justus v. Atchison
    • United States
    • California Supreme Court
    • June 8, 1977
    ...upholding a cause of action of the Dillon theory, and five rejecting it. We begin with the first group. In Archibald v. Braverman (1969) 275 Cal.App.2d 253, 79 Cal.Rptr. 723, 'within moments' after a child was seriously injured in an explosion his mother appeared on the scene and saw his bl......
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