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.

Page 254

250 Cal.Rptr. 254

46 Cal.3d 267, 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.

Supreme Court of California In Bank.

Aug. 18, 1988.

As Modified Sept. 19, 1988.

[46 Cal.3d 268] Michael L. Robins, Los Angeles, for plaintiff and appellant.

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.

MOSK, Justice.

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 facts pleaded are few and not in dispute. In December 1982, plaintiff and Linda Eberling were both involved in an automobile accident allegedly caused by defendant Sheldon's negligence. Plaintiff, a passenger in Eberling's car, sustained serious personal injuries. Eberling was thrown from the car and died a few hours later. Plaintiff filed an action against Sheldon and the owner of the automobile he was driving (defendants), alleging that at the time of the accident plaintiff had an "unmarried cohabitation relationship with the decedent ... which was both stable and significant and parallel to a marital relationship." The complaint set forth three causes of action. The first sought recovery for plaintiff's own injuries, the second for negligent infliction of emotional distress which he suffered as a result of witnessing the injury of his "de facto spouse," and in the third cause of action he sought recovery for loss of consortium. Defendants demurred to the last two causes of action on the ground that plaintiff was not legally married to Eberling at the time of the accident. The trial court sustained the demurrer without leave to amend and entered judgment of dismissal. ¹ Plaintiff appeals.

I. NEGLIGENT INFLICTION OF MENTAL DISTRESS

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: "(1) Whether plaintiff 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.) 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 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 [mother heard cry of rescuers after child fell into swimming pool and arrived on scene as child pulled from pool]; Archibald v. Braverman (1969) 275 Cal.App.2d 253, 256, 79 Cal.Rptr. 723 [mother appeared at scene of explosion within moments of its occurrence].) Others have denied recovery because plaintiff first learned of the injury 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, 584-585, 139 Cal.Rptr. 97, 565 P.2d 122 [emotional shock resulted not from direct perception, but from being informed "after the fact" that the fetus had died]; Hathaway v. Superior Court (1980) 112 Cal.App.3d 728, 736, 169 Cal.Rptr. 435 [parents saw son in "dying state" immediately following electrocution] ) 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).

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.)

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 [recovery denied to first cousins who were frequent playmates]; Kately v. Wilkinson (1983) 148 Cal.App.3d 576, 584-585, 195 Cal.Rptr. 902 [recovery denied to best girlfriends who alleged a relationship "akin to" natural sisters].)

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 went into convulsions and became comatose, suffering irreversible brain damage.

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...