Elden v. Sheldon
Decision Date | 18 August 1988 |
Citation | 46 Cal.3d 267,758 P.2d 582,250 Cal.Rptr. 254 |
Court | California Supreme Court |
Parties | , 758 P.2d 582, 57 USLW 2143 Richard C. ELDEN, Plaintiff and Appellant, v. Robert Louis SHELDON et al., Defendants and Respondents. L.A. 32063. |
Dale G. Givner, Oxnard, and Alan B. De Filippi, as amici curiae on behalf of plaintiff and appellant.
Gilbert, Kelly, Crowley & Jennett, Patrick A. Mesisca, Jr., Los Angeles, and Peter J. Godfrey, Santa Ana, for defendants and respondents.
Terry W. Backus, Caroline B. Newcombe and Lord, Bissell & Brook, Los Angeles, as amici curiae on behalf of defendants and respondents.
Plaintiff Richard Elden appeals from a judgment of dismissal after the trial court sustained, without leave to amend, defendants' demurrer to his complaint alleging causes of action for negligent infliction of emotional distress and loss of consortium.
The issue presented is whether plaintiff, who witnessed the tortious injury and death of the person with whom he shared a cohabitant relationship allegedly akin to a marital relationship, may recover damages for loss of consortium and negligent infliction of emotional distress. We conclude that he may not.
The first issue is whether plaintiff can maintain a cause of action for negligent infliction of emotional distress based on the fact that he witnessed the injury to Eberling, his alleged de facto spouse.
In the landmark decision of Dillon v. Legg (1968) 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912, this court first held that a bystander who was not himself in danger of injury from an accident may recover damages for negligent infliction of emotional distress as the result of witnessing an accident in which another was injured by the defendant's negligence. There, a mother observed the fatal injury of her infant daughter, and she sought to recover damages for the shock and injury to her nervous system from the event. We held that absent overriding policy considerations, the chief element in determining whether defendant owes a duty to another is foreseeability of the risk, and that it was foreseeable the mother of a young child would be in the vicinity and would suffer serious emotional shock from witnessing an injury to her child.
We suggested three guidelines, based on the plaintiff's physical, temporal and relational proximity to the primary victim at the time of the accident, to determine whether liability was reasonably foreseeable: (Id. at pp. 740-741, 69 Cal.Rptr. 72, 441 P.2d 912.) We further advised that no "immutable rule" could replace a case-by-case determination of the foreseeability of serious mental distress to the plaintiff. 2
These guidelines have been applied with varying degrees of flexibility. Some courts have extended the Dillon holding to close relations who did not visually witness the injury-causing event and to those who arrived soon after impact. (See, e.g., Krouse v. Graham (1977) 19 Cal.3d 59, 76, 137 Cal.Rptr. 863, 562 P.2d 1022 [concluding These decisions have frequently been criticized for allowing recovery to turn on fortuitous circumstances, leading to harsh results. (Compare Hathaway v. Superior Court, supra, 112 Cal.App.3d 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 Intangible Injuries (1984) 35 Hastings L.J. 477, 483-487 (hereafter Unified Compensation Theory ); Nolan & Ursin, Negligent Infliction of Emotional Distress: Coherence Emerging from Chaos (1982) 33 Hastings L.J. 583, 585; Pearson, Liability to Bystanders for Negligently Inflicted Emotional Harm: A Comment on the Nature of Arbitrary Rules (1982) 34 U.Fla.L.Rev. 477.)
Dillon "does not require a visual perception of the impact causing ... the injury" so long as the plaintiff is a "percipient witness"]; Nazaroff v. Superior Court (1978) 80 Cal.App.3d 553, 563, 145 Cal.Rptr. 657 [ ]; Archibald v. Braverman (1969) 275 Cal.App.2d 253, 256, 79 Cal.Rptr. 723 [ ].) Others have denied recovery because plaintiff first learned of the injury [758 P.2d 584] from a third party, even though he was present or nearby when the injury-causing conduct occurred (see, e.g., Justus v. Atchison (1977) 19 Cal.3d 564, [46 Cal.3d 271] 584-585, 139 Cal.Rptr. 97, 565 P.2d 122 [ ]; Hathaway v. Superior Court (1980) 112 Cal.App.3d 728, 736, 169 Cal.Rptr. 435 [ ] ) or because the plaintiffs arrived at the scene of the accident a few minutes after it occurred (Parsons v. Superior Court (1978) 81 Cal.App.3d 506, 512, 146 Cal.Rptr. 495; Arauz v. Gerhardt (1977) 68 Cal.App.3d 937, 948, 137 Cal.Rptr. 619).
With regard to the third prong of the Dillon foreseeability test, i.e., whether the plaintiff and the victim were closely related, the cases have refused to extend recovery to friends or distant relatives of the injured person. (See, e.g., Trapp v. Schuyler Construction (1983) 149 Cal.App.3d 1140, 1142-1143, 197 Cal.Rptr. 411 [ ]; Kately v. Wilkinson (1983) 148 Cal.App.3d 576, 584-585, 195 Cal.Rptr. 902 [ ].)
However, a cause of action for emotional distress has been sanctioned on behalf of a spouse who was present when his wife was struck and killed by another vehicle ( Krouse v. Graham, supra, 19 Cal.3d 59, 74-78, 137 Cal.Rptr. 863, 562 P.2d 1022), where the primary victim was the plaintiff's sibling (see, e.g., Walker v. Clark Equipment Co. (Iowa 1982) 320 N.W.2d 561, 562-563); Rickey v. Chicago Transit Authority (1981) 101 Ill.App.3d 439, 57 Ill.Dec. 46, 49, 428 N.E.2d 596, 599) and where a grandchild shared a close relationship with the plaintiff grandparents (Genzer v. City of Mission (Tex.App.1983) 666 S.W.2d 116, 122).
A few cases have allowed recovery if the plaintiff and victim shared a relationship that was the functional and emotional equivalent of a nuclear family relationship. In Leong v. Takasaki (1974) 55 Hawaii 398, 520 P.2d 758, 766, a child successfully stated a cause of action for emotional distress after he witnessed an automobile strike his stepfather's mother, with whom he allegedly shared a very close relationship.
And in Mobaldi v. Regents of University of California (1976) 55 Cal.App.3d 573, 127 Cal.Rptr. 720 (disapproved on other grounds in Baxter v. Superior Court (1977) 19 Cal.3d 461, 466, fn. 4, 138 Cal.Rptr. 315, 563 P.2d 871), a foster mother was allowed to recover damages for emotional distress after she watched hospital personnel negligently administer a fatal dose of glucose solution to her foster child. Plaintiff held the child in her arms as he The Mobaldi court reasoned that it is "[t]he emotional attachments of the family relationship and not legal status [that] are ... relevant to foreseeability." (55 Cal.App.3d at p. 582, 127 Cal.Rptr. 720.) Although the plaintiff did not share a biological relationship with the child, their relationship possessed all the attributes of a natural parent-child relationship "except those flowing as a matter of law." ( Id. at p. 583, 127 Cal.Rptr. 720.) The child had lived under plaintiff's care for three years, since he was five months old. Plaintiff had attempted to formally adopt the child, only to be frustrated by a county policy against the adoption of seriously ill children. The child was baptized and given the surname of his foster parents. The fact that the plaintiff and child were "closely related" also was known to some personnel at the medical center, who referred to the two as "mother...
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