Fluharty v. Fluharty

• Decision Date: 21 November 1997
• Docket Number: No. C021772,C021772
• Citation: Fluharty v. Fluharty, 69 Cal.Rptr.2d 244, 59 Cal.App.4th 484 (Cal. App. 1997)
• Court: California Court of Appeals
• Parties: , 97 Cal. Daily Op. Serv. 8857, 97 Cal. Daily Op. Serv. 8902, 97 Daily Journal D.A.R. 14,283 William FLUHARTY, Plaintiff and Appellant, v. Jack FLUHARTY, Defendant and Respondent.

Page 244

69 Cal.Rptr.2d 244

59 Cal.App.4th 484, 97 Cal. Daily Op. Serv. 8857,

97 Cal. Daily Op. Serv. 8902,

97 Daily Journal D.A.R. 14,283

William FLUHARTY, Plaintiff and Appellant, v.Jack FLUHARTY, Defendant and Respondent.

No. C021772.

Court of Appeal, Third District, California.

Nov. 21, 1997.

As Modified on Denial of Rehearing Dec. 16, 1997.

Review Denied March 18, 1998.

John C. Schaller, Chico, for Plaintiff and Appellant.

Larry B. Moss, Mark D. Norcross, Moss & Enochian, Redding, for Defendant and Respondent.

PUGLIA, Presiding Justice.

"The life of the law has not been logic: it has been experience."(Oliver Wendell Holmes, Jr., The Common Law (1881) 1.)There are occasions in the course of judicial decision making when it becomes necessary to stand athwart the relentless march of logic and shout, "Enough already!!"The decision in this case, in which plaintiff seeks to recover from his father for emotional distress allegedly occasioned by his father's attempted suicide, is one of those occasions.

Plaintiff initiated this action against his father(defendant), to recover for emotional distress negligently inflicted by defendant who, immediately after he had murdered his wife (plaintiff's mother), notified plaintiff of what he had done, advised plaintiff that he intended to take his own life and, when plaintiff appeared on the scene, attempted suicide in the presence of plaintiff, who successfully intervened.Following a number of pretrial rulings narrowing plaintiff's claims, the court conducted a bench trial and entered judgment for defendant.Plaintiff appeals.We shall affirm.

I

On the evening of July 14, 1992, defendant killed his wife.He then telephoned plaintiff and declared: " 'I just blew your mother's head off and I am going to blow my head off.' "Plaintiff and his wife immediately drove the short distance to defendant's home and found defendant in the driveway "with a shotgun pointed [at] his chin, and the butt on the ground with [a] stick in the trigger mechanism area."Plaintiff observed his mother in a parked car "slumped over from the driver's side to the passenger's side, with no face."Plaintiff asked defendant if he was going to kill himself in front of his son and daughter-in-law and defendant responded: " 'You're God damn right I am.I'm not going to jail.' "Plaintiff pleaded with defendant not to shoot himself.He kept talking to defendant and edged closer.When defendant was distracted, plaintiff"lunged for the gun."They wrestled for control of the weapon and it discharged, very slightly injuring plaintiff's wife.Defendant was subdued and taken into custody.He was later convicted of murdering his wife and sentenced to prison.As a result of the July 14 incident, plaintiff alleged he developed post traumatic stress disorder.

Plaintiff and his siblings settled a wrongful death claim against defendant for the death of their mother.Thereafter, plaintiff and his wife initiated this action.Defendant moved to strike all claims relating to plaintiff's observation of his mother's corpse and defendant's attempted suicide, contending such matters are not properly cognizable on a claim for negligent infliction of emotional distress.The court granted the motion.Plaintiff and his wife thereafter filed an amended complaint based essentially on the same factual allegations but seeking recovery on the basis of their status as rescuers.Defendant again moved to strike on the same basis as before, and the court granted the motion.

In his second amended complaint, plaintiff sought to recover for assault and battery and negligent infliction of emotional distress on the theory he was both a "bystander" and a "direct victim."¹It was alleged the emotional distress was occasioned by the injury to plaintiff's wife and the struggle over the shotgun.

Given its pretrial rulings, the court at trial refused to consider matters relating to the death of plaintiff's mother or defendant's attempted suicide.The court rejected the remaining claims as not supported by the evidence.The court specifically concluded there had been no assault or battery and, while plaintiff is in the class of persons to whom defendant owes a duty not to inflict emotional distress, defendant's conduct was not sufficiently "outrageous" to be actionable.

On appeal plaintiff attacks the rejection of his claims both at trial and in pretrial rulings.

II

Before addressing plaintiff's contentions, we point out what this case is not about.This is not a wrongful death action regarding the murder of plaintiff's mother.That claim was settled by plaintiff and his siblings.There is also no claim by plaintiff's wife either for physical injury or emotional distress.Her claims were resolved prior to judgment and she has not appealed.Finally, the trial court found plaintiff suffered no physical injury, and this finding is not challenged on appeal.

Theories of recovery for emotional distress lead into an analytic quagmire.The California Supreme Court has undertaken to clarify this area of the law:

"The law of negligent infliction of emotional distress in California is typically analyzed ... by reference to two 'theories' of recovery: the 'bystander' theory and the 'direct victim' theory....[p]We have repeatedly recognized that '[t]he negligent causing of emotional distress is not an independent tort, but the tort of negligence.The traditional elements of duty, breach of duty, causation, and damages apply.[p] Whether a defendant owes a duty of care is a question of law.Its existence depends upon the foreseeability of the risk and a weighing of policy considerations for and against imposition of liability.'

"The distinction between the 'bystander' and 'direct victim'cases is found in the source of the duty owed by the defendant to the plaintiff.The 'bystander'cases, commencing with Dillon v. Legg(1968)68 Cal.2d 728[69 Cal.Rptr. 72, 441 P.2d 912], and culminating in Thing [v. La Chusa ] 48 Cal.3d 644, 257 Cal.Rptr. 865, 771 P.2d 814, address 'the question of duty in circumstances in which a plaintiff seeks to recover damages as a percipient witness to the injury of another.'These cases'all arise in the context of physical injury or emotional distress caused by the negligent conduct of a defendant with whom the plaintiff had no preexisting relationship, and to whom the defendant had not previously assumed a duty of care beyond that owed to the public in general.'In other words, bystander liability is premised upon a defendant's violation of a duty not to negligently cause emotional distress to people who observe conduct which causes harm to another.

"Because in such cases the class of potential plaintiffs could be limitless, resulting in the imposition of liability out of all proportion to the culpability of the defendant, this court has circumscribed the class of bystanders to whom a defendant owes a duty to avoid negligently inflicting emotional distress.These limits are set forth in Thing as follows: 'In the absence of physical injury or impact to the plaintiff himself, damages for emotional distress should be recoverable only if the plaintiff: (1) is closely related to the injury victim, (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim and (3) as a result suffers emotional distress beyond that which would be anticipated in a disinterested witness.'

"In contrast, the label 'direct victim' arose to distinguish cases in which damages for serious emotional distress are sought as a result of a breach of duty owed the plaintiff that is 'assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of a relationship between the two.'In these cases, the limits set forth in Thing, supra, 48 Cal.3d 644, 257 Cal.Rptr. 865, 771 P.2d 814, have no direct application.Rather, well-settled principles of negligence are invoked to determine whether all elements of a cause of action, including duty, are present in a given case.

"Much of the confusion in applying rules for bystander and direct victim recovery to the facts of specific cases can be traced to this court's decision in Molien [v. Kaiser Foundation Hosp.(1980)27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813], which first used the 'direct victim' label.In that case, we answered in the affirmative the question of whether, in the context of a negligence action, damages may be recovered for serious emotional distress unaccompanied by physical injury.

"In so holding, we found that a hospital and a doctor owed a duty directly to the husband of a patient, who had been diagnosed incorrectly by the doctor as having syphilis and had been told to so advise her husband in order that he could receive testing and, if necessary, treatment.We reasoned that the risk of harm to the husband was reasonably foreseeable and that the 'alleged tortious conduct of the defendant was directed to him as well as to his wife.'Under such circumstances we deemed the husband to be a 'direct victim' and found the criteria for bystander recovery not to be controlling.

"The broad language of the Molien decision, coupled with its perceived failure to establish criteria for characterizing a plaintiff as a 'direct victim' rather than a 'bystander,' has subjected Molien to criticism from various sources, including this court.The great weight of this criticism has centered upon the perception that Molien introduced a new method for determining the existence of a duty, limited only by the concept of foreseeability.To the extent that Molien, supra, 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813, stands for this proposition, it should not be relied upon and its discussion of duty is limited to its facts.As recognized in Thing, '[I]t is clear that foreseeability of the injury alone is not a useful "guideline" or a meaningful restriction on the scope of [an action for...