Hathaway v. Superior Court

• Decision Date: 26 November 1980
• Citation: 169 Cal.Rptr. 435,112 Cal.App.3d 728
• Court: California Court of Appeals Court of Appeals
• Parties: Gregory Lee HATHAWAY et al., Petitioners, v. The SUPERIOR COURT OF FRESNO COUNTY, Respondent; Frank HENDRIX, Real Party in Interest. Civ. 5648.

Page 435

169 Cal.Rptr. 435

112 Cal.App.3d 728

Gregory Lee HATHAWAY et al., Petitioners, v. The SUPERIOR COURT OF FRESNO COUNTY, Respondent Frank HENDRIX, Real Party in Interest.

Civ. 5648.

Court of Appeal, Fifth District, California.

Nov. 26, 1980.

Hearing Denied January 21, 1981.

Archbald & Spray, J. William McLafferty, Jr., and Ann G. Diener, Santa Barbara, for petitioners.

[112 Cal.App.3d 730] No appearance for respondent.

Dawson & Ninnis and Jeffrey H. Smith, Fresno, for real party in interest.

OPINION

GEO. A. BROWN, Presiding Justice.

Petitioners, Gregory Lee Hathaway and Laura Jane Hathaway, seek a peremptory writ directing the superior court to set aside its order granting a partial summary judgment to the real party in interest, Frank Hendrix.

Petitioners are the father and mother of Michael Hathaway, age six, deceased. They commenced the underlying action against real party in interest and others for wrongful death, and in the fifth cause of action of their complaint sought to state a cause of action against real party in interest and others upon the theory of negligently inflicted emotional distress resulting in physical injuries. The court below granted real party's motion for summary judgment on the fifth cause of action upon the ground that petitioners had not suffered emotional distress as a result of direct emotional impact from the sensory and contemporaneous observance of the accident which caused their son's death as contrasted with learning of the accident from others after its occurrence. We agree and deny the writ.

FACTS

Mr. Hathaway was the brother-in-law of Bill Clayton who rented his house from real party in interest. Hathaway and Clayton installed an evaporative cooler at the Clayton house. The cooler was installed and running by 2 p. m. They and their wives went into the house and were in the bedroom resting.

Petitioners' son, Michael, and another child, Randa, were outside playing hide and seek and also with the water hose. Mrs. Hathaway heard Michael make "a noise." Mrs. Hathaway described the noise as "ahhh." The noise was not like a scream or a cry and it did not alarm her. Shortly thereafter petitioners heard Randa say "Let go, Michael, let go." Mrs. Hathaway thought the children were playing and Randa was trying to get Michael to let go of the hose.

Petitioners and the Claytons went into the living room just after Randa yelled at Michael to "let go." There was no special reason, other than to continue their conversation in the living room. Petitioners and the Claytons had just gotten to the living room when Randa came into the house. Randa looked scared and said "something was wrong with Michael." Perhaps one minute had passed between the time Randa said "Let go, Michael" and when Randa came into the house to tell petitioners something was wrong. Mrs. Hathaway testified in her deposition: "It was just a matter of seconds or a minute. Because we had just left the bedroom and we was standing in the living room when she came in." "I don't know the exact time." "So I would say a minute or two." Mr. Hathaway had no estimate of the time period.

After Randa said something was wrong with their son, petitioners went outside. Michael was lying in a puddle of water by the cooler. Mr. Hathaway picked him up and laid him on some nearby grass. Petitioners, Mr. Clayton and a neighbor tried to revive Michael.

When he was discovered by petitioners Michael had a recognizable pulse. Mrs. Hathaway was not sure if he was breathing. Michael was gagging and spitting up. It was about 6 p. m.

The declarations of petitioners state Michael was electrocuted when he touched the cooler. Both parents watched efforts to save the boy's life and observed him in a "dying state." Michael died.

A doctor's declaration indicates that electrocution causes death because it interrupts the beating of the heart and the heart muscle itself is denied a blood supply. Depending upon the severity of the electrical shock the process can take time.

DISCUSSION

Petitioners argue that under the principles of the landmark case of Dillon v. Legg (1968) 68 Cal.2d 728, 740, 69 Cal.Rptr. 72, 441 P.2d 912, the issue of whether "shock resulted from a direct emotional impact upon (them) from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence" is one of fact and should not have been resolved upon the motion for summary judgment. (Code Civ.Proc., § 437c.)

In Dillon the court faced a factual situation where the mother of a child personally witnessed an accident in which the driver of a vehicle negligently allowed his vehicle to collide with the mother's child. The mother was not within the "zone-of-danger." The trial court granted judgment to the defendant on the pleadings. In contrast, the child's sister, who also observed the accident but was within the zone-of-danger, was able to maintain an action for emotional distress (with consequent bodily illness). The Dillon court stated:

"The case thus illustrates the fallacy of the rule that would deny recovery in the one situation and grant it in the other. In the first place, we 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." (68 Cal.2d at p. 733, 69 Cal.Rptr. 72, 441 P.2d 912.)

The court went on to hold that the mother's case could proceed, and the judgment of dismissal was reversed. (Id., at p. 748, 69 Cal.Rptr. 72, 441 P.2d 912.)

The Dillon court recognized the "potentially infinite liability" which could occur as a result of its decision, and in an effort to restrict that possibility set forth three criteria to apply in determining whether a defendant owes a plaintiff a duty of care. They are:

"(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 are here concerned only with the second requirement.

There have been two Supreme Court cases since Dillon and, except to the extent the sensory observation requirement has been extended by Krouse v. Graham (1977) 19 Cal.3d 59, 76, 137 Cal.Rptr. 863, 562 P.2d 1022, to include in the term "observance" a perception through any of the senses (not just a visual perception), that court and most of the appellate courts have applied rather strictly the requirement that the injury-producing event itself be observed.

Thus in Justus v. Atchison (1977) 19 Cal.3d 564, 139 Cal.Rptr. 97, 565 P.2d 122, the court affirmed a judgment of dismissal after the sustaining of a demurrer upon the ground the second requirement was not satisfied as a matter of law. In that case plaintiff husbands were in attendance in the hospital delivery room during child delivery by their wives and while watching the procedure were informed by the attending physician that the fetus had died. The deaths were caused by a prolapse of the umbilical cord.

As to each plaintiff the court observed:

"(E)ach complaint paints the following picture: the plaintiff husband witnessed certain disturbing developments in the delivery room, including expressions of concern by the medical staff and use of emergency procedures. Whether the described events constitute negligence is questionable, but they no doubt induced a growing sense of anxiety on the plaintiff's part. Yet his anxiety did not ripen into the disabling shock which resulted from the death of the fetus until he was actually informed of that event by the doctor; prior to that moment, as a passive spectator he had no way of knowing that the fetus had died. In short, the impact derived not from what he saw and heard during the attempted delivery, but from what he was told after the fact. As we have seen, however, a shock caused by 'learning of the accident from others after its occurrence' (68 Cal.2d at p. 741, (69 Cal.Rptr. at p. 80, 441 P.2d at p. 920)) will not support a cause of action under Dillon." (19 Cal.3d at p. 585, 139 Cal.Rptr. 97, 565 P.2d 122.)

The court further observed that:

"Here, although each plaintiff was in attendance at the death of the fetus, that event was by its very nature hidden from his contemporaneous perception: he could not see the injury to the victim as in Mobaldi (Mobaldi v. Board of Regents (1976) 55 Cal.App.3d 573, 127 Cal.Rptr. 720), nor could he otherwise sense it as in Archibald (Archibald v. Braverman (1969) 275 Cal.App.2d 253, 79 Cal.Rptr. 723) or Krouse (Krouse v. Graham, supra, 19 Cal.3d 59, 137 Cal.Rptr. 863, 562 P.2d 1022)." (19 Cal.3d at p. 584, 139 Cal.Rptr. 97, 565 P.2d 122.)

The other Supreme Court case is Krouse v. Graham, supra, 19 Cal.3d 59, 139 Cal.Rptr. 97, 565 P.2d 122. In that case, the plaintiff husband was sitting in the driver's seat of his parked car while his wife unloaded groceries from the back seat; the defendant's vehicle suddenly approached from the rear at a high speed, straddled the curb, and struck and killed his wife before colliding with the parked car. The court reaffirmed the strict requirement of Dillon that the injury-producing event be perceived and held that, although the husband did not actually see his wife being struck by the defendant's car, he nevertheless perceived the event by other than visual means: " he knew her position an instant before the impact, observed defendant's vehicle approach...