Coon v. Joseph

• Citation: 192 Cal.App.3d 1269,237 Cal.Rptr. 873
• Court: California Court of Appeals Court of Appeals
• Decision Date: 24 June 1987
• Parties: , 56 USLW 2068 Gary COON, Plaintiff and Appellant, v. Michael JOSEPH et al., Defendants and Respondents. A033089.

Page 873

237 Cal.Rptr. 873

192 Cal.App.3d 1269, 56 USLW 2068

Gary COON, Plaintiff and Appellant, v. Michael JOSEPH et al., Defendants and Respondents.

A033089.

Court of Appeal, First District, Division 3, California.

June 24, 1987.

Rehearing Denied July 22, 1987.

Review Denied Sept. 17, 1987.

German & Siggins, G. Michael German, Peter J. Siggins, Law Offices of G. Michael German, G. Michael German, San Francisco, for plaintiff and appellant.

George Agnost and Louise H. Renne, City Attys., Burk E. Delventhal, Randy Riddle, Deputy City Attys., San Francisco, for defendants and respondents.

SCOTT, Associate Justice.

Appellant Gary Coon (appellant) appeals from a judgment of dismissal following an order sustaining a demurrer without leave to amend to his complaint. By his complaint, he seeks recovery for emotional distress suffered as a witness to the alleged assault of an intimate male friend. We hold that he is not entitled to recover for negligent infliction of emotional distress as a matter of law because he fails to establish the "close relationship" requirement under Dillon v. Legg (1968) 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912. His complaint fails to allege facts sufficient to constitute any other cause of action, and we therefore affirm the judgment.

I Allegations of Complaint and Procedural History

For purposes of this appeal, we treat as true the allegations of the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58.) The complaint here alleges as follows. On September 23, 1984, in San Francisco, appellant and a male friend (Ervin) attempted to board a municipal bus of respondent City and County of San Francisco (City). Appellant had been living with his friend for a year, and they had an intimate, stable and "emotionally significant" relationship as "exclusive life partners." The bus driver, respondent Michael Joseph (bus driver), "denied [appellant] entry to the number 19 Polk bus, but allowed [Ervin] onto said bus." Bus driver, in full view and hearing of appellant, verbally abused Ervin and struck his face. When appellant observed the assault on his friend, he suffered great mental and emotional distress. The complaint alleges four causes of action: intentional infliction of emotional distress, negligent infliction of emotional distress, negligence, and violation of appellant's civil rights under Civil Code section 51.7.

Respondents City and bus driver demurred to the entirety of the complaint on the grounds that it failed to state any cause of action against them. After appellant's counsel advised the trial court that he elected not to amend the complaint, the court sustained the demurrer without leave to amend.

We conclude that none of the four causes of action allege facts sufficient to constitute any cause of action against respondents bus driver or City.

II Intentional Infliction of Emotional Distress

In Ochoa v. Superior Court (1985) 39 Cal.3d 159, 216 Cal.Rptr. 661, 703 P.2d 1, our Supreme Court explained the substantial hurdle a plaintiff, who is solely a witness to the injury of another, must overcome to withstand a demurrer to a claim for intentional infliction of emotional distress. There, plaintiffs were the parents of a minor who died while confined in a juvenile facility. The complaint alleged that plaintiffs experienced extreme mental and emotional distress when they visited their son after he fell ill with pneumonia. They saw him delirious, screaming in great pain and coughing up blood. The facility refused to allow them to take him to a private physician and forced his mother to leave him although he begged her to stay at his side. After several days he died. The trial court sustained a demurrer to plaintiffs' claims for intentional and negligent infliction of emotional distress. On appeal, the court held that although plaintiffs had stated a claim for negligent infliction of emotional distress, they had failed to state as a matter of law a claim for intentional infliction of emotional distress. The court emphasized that the two torts were completely distinct. (Id., at p. 165, fn. 5, 216 Cal.Rptr. 661, 703 P.2d 1.) Intentional infliction of emotional distress requires conduct which is especially calculated to cause and does cause the claimant mental distress of a very serious nature. (Ibid.) Although it was evident that defendants had caused plaintiffs untold distress, they had not acted with the purpose of causing them emotional distress. (Ibid.) The misconduct had been directed primarily at the decedent minor with plaintiffs looking on as helpless bystanders. (Id., at pp. 172-173, 216 Cal.Rptr. 661, 703 P.2d 1.) The fact that defendants' conduct had not been especially calculated to cause plaintiffs' distress was fatal to their claim.

The Ochoa court averred to a movement towards allowing recovery for the intentional tort by one who is not the direct victim in " 'the most extreme cases of violent attack, where there is some especial likelihood of fright or shock.' " (Ochoa v. Superior Court, supra, 39 Cal.3d at p. 165, fn. 5, 216 Cal.Rptr. 661, 703 P.2d 1, citing Prosser & Keeton on Torts (5th ed. 1984).) Delia S. v. Torres (1982) 134 Cal.App.3d 471, 184 Cal.Rptr. 787 constitutes one such rare exception. There, the court permitted recovery by the husband of a rape victim against the rapist, one of husband's friends, for intentional infliction of emotional distress. The court reasoned that the rape of one's wife, particularly by a friend, would inevitably result in such humiliation and profound emotional consequences for the husband so as to constitute a personal wrong against him. (Id., at p. 484, 184 Cal.Rptr. 787.)

Here, the complaint alleges that bus driver refused to allow appellant to board the bus and then abused Ervin. It does not allege that bus driver directed any abuse against appellant and therefore, under Ochoa, fails to allege conduct "especially calculated to cause" appellant severe distress. The circumstances in Delia S. are not present here--the bus driver's conduct did not constitute a personal wrong against appellant. His cause of action for the intentional infliction of emotional distress must therefore fail.

III Negligent Infliction of Emotional Distress

In Dillon v. Legg, supra, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912, our Supreme Court, in allowing recovery by a witness to an injury for negligent infliction of emotional distress, acknowledged the need "to limit the otherwise potentially infinite liability which would follow every negligent act...." (Id., at p. 739, 69 Cal.Rptr. 72, 441 P.2d 912.) Accordingly, the court set forth three factors determinative of whether a witness to an injury may recover for negligent infliction of emotional distress: (1) whether the person was located near the scene of the accident as contrasted with one who was a distance away from it; (2) whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence; (3) whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship. (Id., at pp. 740-741, 69 Cal.Rptr. 72, 441 P.2d 912.)

The third factor is the subject of this appeal: whether appellant has pleaded a sufficiently "close relationship" with Ervin to justify the imputing of foreseeability of the emotional distress to the respondent tortfeasors.

A sufficiently "close relationship" to warrant recovery exists between parent and child (Dillon v. Legg, supra, 68 Cal.2d at p. 741, 69 Cal.Rptr. 72, 441 P.2d 912; Ochoa v. Superior Court, supra, 39 Cal.3d at pp. 166-167, 216 Cal.Rptr. 661, 703 P.2d 1) and husband and wife (see Krouse v. Graham (1977) 19 Cal.3d 59, 74-75, 137 Cal.Rptr. 863, 562 P.2d 1022), and between a man and woman who have established a valid common-law marriage in a state which allows such marriages (Etienne v. DKM Enterprises, Inc. (1982) 136 Cal.App.3d 487, 490, 186 Cal.Rptr. 321 [by implication] ).

The consequences of the extension of a "close relationship" beyond the parent-child and husband-wife relationship have concerned legal scholars as well as the courts. Keeton and Prosser query: "If recovery is to be permitted, however, it is also clear that there must be some limitation. It would be an entirely unreasonable burden on all human activity if the defendant who has endangered one person were to be compelled to pay for the lacerated feelings of every other person disturbed by reason of it, including every bystander shocked at an accident, and every distant relative of the person injured, as well as all his friends." (Prosser & Keeton on Torts, supra, p. 366.)

With two exceptions, ¹ the Courts of Appeal have denied recovery in the absence of a husband-wife, parent-child, or grandchild-grandparent relationship. In Drew v. Drake (1980) 110 Cal.App.3d 555, 168 Cal.Rptr. 65, plaintiff sought damages for emotional distress upon observing the death in an auto accident of the man with whom she had lived for three years. The court denied plaintiff's claim because she had no legally recognized relationship with the decedent such as wife and husband or parent and child, and because there were no allegations that defendants knew or should have known of their relationship. The court noted: "No reported decision extends the 'close relationship' guideline to include friends or housemates." (Id., at p. 557, 168 Cal.Rptr. 65.)

Trapp v. Schuyler Construction (1983) 149 Cal.App.3d 1140, 197 Cal.Rptr. 411 and Kately v. Wilkinson (1983) 148 Cal.App.3d 576, 195 Cal.Rptr. 902 demonstrate strict adherence to Drew's limitations on "close relationship."

In Trapp, two minors sought recovery for negligent infliction of emotional distress after witnessing their cousin drown in a swimming pool located on the defendant's property. The...