Bro v. Glaser

• Decision Date: 24 February 1994
• Docket Number: No. E010924,E010924
• Citation: 27 Cal.Rptr.2d 894,22 Cal.App.4th 1398
• Court: California Court of Appeals Court of Appeals
• Parties: Kim BRO, et al., Plaintiffs and Appellants, v. Joseph GLASER, Defendant and Respondent.

Page 894

27 Cal.Rptr.2d 894

22 Cal.App.4th 1398

Kim BRO, et al., Plaintiffs and Appellants, v. Joseph GLASER, Defendant and Respondent.

No. E010924.

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

Feb. 24, 1994.

Russell J. Thomas, Jr., Santa Ana, for plaintiffs and appellants

McInnis, Fitzgerald, Rees, Sharkey & McIntyre, and Therese K. Twomey, San Diego, for defendant and respondent.

OPINION

McDANIEL, Associate Justice, Assigned. ^*

While performing a caesarean section on Donna Bro, her obstetrician nicked the cheek of baby Brittany Bro with his scalpel. There was no permanent physical injury to the baby; nevertheless, the parents commenced the underlying litigation against the doctor, seeking, on behalf of their baby daughter, to recover for medical malpractice and, for their own account, to recover emotional distress damages, arising because of the allegedly negligent manner in which their child was "presented" to them about 30 minutes after her birth.

Because defendant doctor was later wholly absolved of any medical malpractice (infra ), this appeal presents for decision whether plaintiff parents are entitled to recover damages for negligent infliction of purely emotional distress where such claim stands alone, i.e., there being no adjunct or concurrent claim, tort or otherwise.

Within the scheme of our analysis and reflecting current authority, Kim Bro, the father, and Donna Bro, the mother (plaintiffs), qualify as "direct victims" because of their "preexisting relationship" with Joseph Glaser, M.D. (defendant). (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1074, 9 Cal.Rptr.2d 615, 831 P.2d 1197 (Burgess ).) Despite plaintiffs' being direct victims, their claim for negligent infliction of emotional distress was rejected by the trial court and rightly so, as we shall explain, when it granted defendant's motion for summary judgment on that count.

In seeking a rationale for deciding this appeal, we analyzed a number of post-Molien ¹ emotional distress cases. The data which such analysis produced, as collected in the Appendix, suggests a specific test for use in approaching the daunting task of deciding purely emotional distress cases, where, according to Justice Puglia, "the effort to force disparate cases with a loose family resemblance into a tight, coherent, conceptual scheme has bedeviled this area of decisional law." (Merenda v. Superior Court (1992) 3 Cal.App.4th 1, 8, 4 Cal.Rptr.2d 87 (Merenda ).) The test, which the data above noted suggests, is a reflection of Justice Tobriner's recital in Dillon v. Legg (1968) 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 (Dillon ) that duty " 'is a shorthand statement of a conclusion [that liability shall attach if it be breached], rather than an aid to analysis in itself....' " (Id. at p. 734, 69 Cal.Rptr. 72, 441 P.2d 912.) Similarly, the test, which the data suggests, is an application of Justice Eagleson's admonition in Thing v. La Chusa (1989) 48 Cal.3d 644, 257 Cal.Rptr. 865, 771 P.2d 814 (Thing ), confirmed in Burgess, that foreseeability is "not a useful 'guideline' " in defining the presence of duty in purely emotional distress cases. (Burgess, supra, 2 Cal.4th 1064, 1074, 9 Cal.Rptr.2d 615, 831 P.2d 1197.)

In other words, in all purely emotional distress cases, it is always foreseeable that the plaintiff will be distressed; as a result, if duty were to depend primarily on foreseeability, as in personal injury cases, recovery would be automatic in every emotional distress case. However, as Justice Blease observed in Andalon v. Superior Court (1984) 162 Cal.App.3d 600, 208 Cal.Rptr. 899 (Andalon ), " ' "[n]ot every [emotional distress] loss can be made compensable in money damages, and legal causation must terminate somewhere. In delineating the extent of a tortfeasor's responsibility for damages under the general rule of tort liability (Civ.Code, § 1714), the courts must locate the line between liability and nonliability at some point, a decision which is essentially political." ' " (Id. at p. 607, 208 Cal.Rptr. 899, original emphasis.)

Thus, in an effort to respond to the invitation, implied in Andalon, we shall prescribe, as an aid in deciding emotional distress cases based on negligence, a two-pronged test for use in screening the cases and then for locating that line between liability and nonliability in those cases.

When the prescribed test, which we distilled from Burgess and the catalogue of the 26 post-Molien cases studied, is applied to the undisputed facts presented by the record before us here, it results in a ready showing that the trial court properly granted defendant's motion for summary judgment. We shall affirm the judgment accordingly.

SYNOPSIS OF TRIAL COURT PROCEEDINGS

As above related, plaintiffs' complaint was styled in two counts. The first alleged medical malpractice by three doctors, including defendant, in that while defendant was performing a caesarean section on plaintiff Donna Bro, "the left side of Plaintiff BRITTANY BRO's face was severely lacerated." The second was designed to recover for plaintiff parents' purely emotional distress, arising "[a]s a proximate result of Defendants['] negligent and careless presentation of newborn BRITTANY to Plaintiffs [who] ... observed their daughter BRITTANY with a laceration and bandage to her face and [thereby] suffered severe emotional distress." (Emphasis added.)

The record on appeal contains no appearances in the trial court by any of the defendants. However, the record does show that, about eight months after plaintiffs' complaint was filed, defendant gave notice of motion for summary adjudication of issues arising by reason of the second count, i.e., plaintiffs' count for purely emotional distress suffered because of the allegedly careless manner in which their newborn daughter was presented to them. The motion was made on the ground that "There is no triable issue of fact as to whether plaintiff KIM BRO can recover on a bystander theory of Negligent Infliction of Emotional Distress, and, accordingly, the Second Cause of Action as to KIM BRO [should be] dismissed with prejudice." A similar ground was also articulated as to plaintiff Donna Bro.

Defendant's supporting statement of material facts was compiled in light of his theory that plaintiffs did not qualify as traumatized family bystanders. In sum, the statement asserted that it was undisputed that each of plaintiff parents was seeking emotional distress damages "based upon the observance of the aftermath of [defendant's] alleged negligence." (Emphasis added.) In the instance of plaintiff father, the statement further asserted that he "was not aware that defendant DR. GLASER was causing injury to Brittany Bro at the time the injury was taking place."

In further support of his motion, defendant lodged the depositions of both plaintiff parents with the court. In his points and authorities, defendant quoted excerpts of both depositions. A fair summary of the critical events, as disclosed by these excerpts shows: 1) plaintiff mother's vision of the caesarean section procedure was screened, and she did not learn of the cut on Brittany's cheek until she (the mother) was in the recovery room; 2) it was in the recovery room that defendant told both parents, about half an hour after it happened, that the child's cheek had been cut during the delivery procedure; 3) although plaintiff Kim Bro was present during the caesarean section procedure, he likewise did not see the child's cheek cut; 4) up until the time defendant told the parents that he had cut their baby's face, the parents did not suspect that the delivery had involved a minor mishap.

In plaintiffs' opposition to the motion, defendant's response to a particular written interrogatory was cited; it stated, "admit that BRITTANY BRO sustained a small cut from the scalpel on her left cheek."

In their points and authorities, plaintiffs quoted certain paragraphs of their complaint to pinpoint the precise predicate for the cause of their emotional distress. Those paragraphs alleged: "On December 14, 1989, immediately after Plaintiff BRITTANY BRO's face was lacerated, Defendants and each of them negligently and carelessly presented the newborn BRITTANY BRO to Plaintiff[ ]s and parents KIM and DONNA BRO. At the time injured newborn BRITTANY BRO was presented to Plaintiff[ ]s KIM and DONNA BRO, BRITTANY BRO's face had been severely lacerated and bandaged by Defendants. [p] As a proximate result of Defendants' negligent and careless presentation of newborn BRITTANY to Plaintiffs and parents KIM and DONNA BRO, KIM and DONNA observed their daughter BRITTANY with a laceration and bandage to her face and suffered severe emotional distress." (Emphasis added.)

Based on these allegations, plaintiffs argued, in their opposition to the motion, that they were "direct victims" of defendant's negligent "presentation" and that their theory of liability was based on such status and not that of traumatized family bystanders. Again, plaintiffs noted a particular allegation in their complaint: "On December 14, 1989, immediately after Plaintiff BRITTANY BRO's face was lacerated, Defendant ... negligently and carelessly presented the newborn BRITTANY BRO to Plaintiff[ ]s." (Original emphasis.)

In plaintiffs' statement of disputed and undisputed facts, they limited their recitals to insisting that they were "alleging a Direct Victim Theory of recovery based upon the negligent presentation of BRITTANY BRO to KIM and DONNA BRO. Plaintiffs are not alleging a bystander theory of recovery." (Emphasis added.)

In his reply to plaintiffs' opposition to his motion, defendant cited to and quoted additional excerpts from plaintiffs' respective deposition testimony. In sum, they show: 1) the baby's face was bandaged when it was "presented" to plaintiffs; 2) the "presentation" occurred about five minutes after defendant related to plaintiffs that the baby's face had been cut; 3) ...