Frediani v. Haines

• Citation: 210 Cal.App.3d 1036,242 Cal.Rptr. 856
• Decision Date: 31 December 1987
• Docket Number: No. A037650,A037650
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 210 Cal.App.3d 1036 210 Cal.App.3d 1036, Prod.Liab.Rep. (CCH) P 11,693 Valerie FREDIANI, a Minor, etc., Plaintiffs and Appellants, v. Todd HAINES et al., Defendants and Respondents.

Page 856

242 Cal.Rptr. 856

Previously published at 210 Cal.App.3d 1036

210 Cal.App.3d 1036, Prod.Liab.Rep. (CCH) P 11,693

Valerie FREDIANI, a Minor, etc., Plaintiffs and Appellants, v. Todd HAINES et al., Defendants and Respondents.

No. A037650.

Court of Appeal, First District, Division 4, California.

Dec. 31, 1987.

As Modified Jan. 8, 1988.

Review Granted March 17, 1988.

Alan M. Caplan, Bushnell, Caplan & Fielding, San Francisco, for plaintiffs and appellants.

Shelly A. Kramer, John L. Winingham, Winingham, Roberts, Fama & Thompson, San Francisco, Edward N. Schaefer, Dolores M. Donohoe, Gibbons, Lees, Schaefer & Edrington, Walnut Creek, for defendants and respondents.

SABRAW, Associate Justice.

Plaintiffs Bruce and Janice Frediani appeal from a judgment denying them recovery in an action for emotional distress damages arising out of an eye injury suffered by their daughter Valerie. We hold that they failed to meet the requirement of contemporaneous observance as set forth in Dillon v. Legg (1968) 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912. We also hold that they are not direct victims of the tortious activity as required in Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813. Accordingly, we affirm.

I. FACTS AND PROCEDURAL HISTORY

Nine-year-old Valerie Frediani was playing with friends in the front yard of her home. Her parents, Bruce and Janice Frediani, were inside. Valerie was playing with a length of rubber tubing that had been fashioned into a "water weenie," a kind of squirt gun. In the course of play, the rubber tubing allegedly ruptured, striking Valerie in the left eye. She lost the use of her left eye as a result of the impact.

Mr. Frediani was in the living room when he heard his daughter scream. He described the scream as unlike any he had ever heard from her before. When he rushed to the front door to investigate, he met Valerie. Upon examination, he discovered that the bottom of her left eye was filled with blood. At that time, Valerie's playmates informed Mr. Frediani that Valerie had been injured while playing with the "water weenie."

Mrs. Frediani was napping at the time of the incident, but awoke to the sound of her daughter sobbing uncontrollably. Valerie had gone to her own bedroom by the time Mrs. Frediani found her. She discovered that Valerie had been injured with the surgical tubing either from Valerie, her two playmates, or from her own observation of the water toy lying on the ground.

Valerie's parents filed a complaint alleging that they suffered great emotional distress due to observing the consequences of the accident. The Fredianis joined defendants Todd Haines, Carolyn Haines, Whitman's Hobby Center (retailers of the rubber tubing), and Airtronics (manufacturer of the rubber tubing) in an action for emotional distress damages. ¹ Defendants moved for summary judgment. The court granted the motion, ruling that Mr. and Mrs. Frediani had failed to meet the contemporaneous requirement of Dillon, and that they were not direct victims as required by Molien.

II. ANALYSIS

A. The Dillon Standard Was Not Met.

Mr. and Mrs. Frediani base their emotional distress claims on two alternate theories. ² The first of these, the bystander theory, requires the presence of three factors set forth in Dillon v. Legg, supra, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912. In Dillon, a mother sought damages for negligent infliction of emotional distress after witnessing her daughter being struck by a car, resulting in the child's death. She was initially denied recovery at the trial court level. By contrast, the daughter's infant sibling was awarded emotional distress damages. The trial court distinguished between the mother and the sibling on the basis that the sibling had been in the "zone of danger" while the mother had not.

On appeal, the Supreme Court rejected a rule that would grant recovery to one and not to the other, noting: "[W]e can hardly justify relief to the sister for trauma which she suffered upon apprehension of the child's death and yet deny it to the mother merely because of a happenstance that the sister was some few yards closer to the accident. The instant case exposes the hopeless artificiality of the zone-of-danger rule." ( Dillon v. Legg, supra, 68 Cal.2d at p. 733, 69 Cal.Rptr. 72, 441 P.2d 912.) The court took note of Prosser's statement that "when a child is endangered, it is not beyond contemplation that its mother will be somewhere in the vicinity." (Citing Prosser, The Law of Torts (3d ed. 1964) p. 353.) Having determined that a "[n]egligent driver who causes the death of a young child may reasonably expect that the mother will not be far distant and will upon witnessing the accident suffer emotional trauma," ( id. at p. 741, 69 Cal.Rptr. 72, 441 P.2d 912) the court went on to set forth three guidelines to aid in the determination of forseeability in such cases: "(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.)

In the circumstances of this case, Mr. and Mrs. Frediani met the third guideline--that of close personal relationship. Because we conclude that analysis of the second Dillon guideline (contemporaneous observance of the accident) is dispositive in this case, we need not consider the remaining issue of proximity.

Since the Dillon decision, "[a] steady flow of Court of Appeal cases have continued to strictly apply a contemporaneous sensory perception requirement of Dillon." (Hathaway v. Superior Court (1980) 112 Cal.App.3d 728, 734, 169 Cal.Rptr. 435.) With the possible exception of Archibald v. Braverman (1969) 275 Cal.App.2d 253, 79 Cal.Rptr. 723, courts have generally held that "some type of sensory perception of the impact contemporaneous with the accident is necessary to meet the Dillon requirement." (Arauz v. Gerhardt (1977) 68 Cal.App.3d 937, 949, 137 Cal.Rptr. 619.) Although the Archibald decision does not reflect the existence of a specific perception of the injury-producing event in that case, other cases have suggested that such circumstances can be inferred from the facts recited by the Court of Appeal.

In Archibald, a summary judgment for defendants was reversed when the Court of Appeal concluded that the mother of a boy severely injured in an accidental explosion had stated a prima facie case for recovery under Dillon, even though she had not seen the accident take place. The mother admitted in pretrial discovery that she had not witnessed the explosion. She had, however, arrived "within moments" of the accident. ( Archibald, supra, 275 Cal.App.2d at p. 256, 79 Cal.Rptr. 723.) The appellate court noted that "the shock of seeing a child severely injured immediately after the tortious event may be just as profound as that experienced in witnessing the accident itself. Consequently, the shock sustained by the mother herein was 'contemporaneous' with the explosion so as to satisfy the 'observance' factor." (Ibid.)

However, later cases interpreting Archibald have suggested that the mother may have actually heard the explosion, thereby satisfying the sensory aspect of the second guideline in Dillon. (Krouse v. Graham (1977) 19 Cal.3d 59, 76, 137 Cal.Rptr. 863, 562 P.2d 1022; Justus v. Atchison (1977) 19 Cal.3d 564, 584, 139 Cal.Rptr. 97, 565 P.2d 122; Hathaway v. Superior Court, supra, 112 Cal.App.3d 728, 734-735, 169 Cal.Rptr. 435; Jansen v. Children's Hospital Medical Center (1973) 31 Cal.App.3d 22, 24, 106 Cal.Rptr. 883.) Some courts have gone on to note that Mrs. Archibald, upon arriving at the scene, would have reconstructed the event mentally. ( Krouse v. Graham, supra, 19 Cal.3d 59, 76, 137 Cal.Rptr. 863, 562 P.2d 1022; Nazaroff v. Superior Court (1978) 80 Cal.App.3d 553, 145 Cal.Rptr. 657; Jansen v. Children's Hospital Medical Center, supra, 31 Cal.App.3d 22, 24, 106 Cal.Rptr. 883.) Those cases allowing recovery under Dillon where there has been no visual perception of the accident itself have employed this "mental visualization analysis" to explain how the plaintiff learned of the accident (as opposed to the plaintiff learning of the accident from others).

In Krouse, the plaintiff did not see his wife struck by defendant's car, but "he fully perceived the fact that she had been so struck, for he knew her position an instant before the impact, observed defendant's vehicle approach her at a high speed on collision course, and realized that defendant's car must have struck her." ( Krouse v. Graham, supra, 19 Cal.3d 59, 76, 137 Cal.Rptr. 863, 562 P.2d 1022.) As a result, the Supreme Court held that "[Mr. Krouse] must be deemed a percipient witness to the impact causing [Mrs. Krouse's] catastrophic injuries." (Ibid.)

The court in Nazaroff v. Superior Court, supra, 80 Cal.App.3d 553, 145 Cal.Rptr. 657 expanded on the Krouse analysis. It held that there were triable issues of fact as to whether the alleged emotional distress was proximately caused by the direct emotional impact from the contemporaneous observation of the immediate consequences resulting from the defendants' allegedly negligent conduct. (Id. at p. 566, 145 Cal.Rptr. 657.) In that case, a mother, while searching for her son, heard a neighbor shout "Its Danny" from a swimming pool area and arrived as her son was being pulled from the pool. The child later died.

The mother filed an action against the owners of the pool for wrongful death, emotional distress and loss of consortium. When the trial court granted a motion for summary judgment...