Lawson v. Management Activities, Inc., No. G019872

CourtCalifornia Court of Appeals
Writing for the CourtBEDSWORTH; SONENSHINE
Citation69 Cal.App.4th 652,81 Cal.Rptr.2d 745
Parties, 99 Cal. Daily Op. Serv. 806, 99 Daily Journal D.A.R. 939 James LAWSON et al., Plaintiffs and Appellants, v. MANAGEMENT ACTIVITIES, INC., et al., Defendants and Respondents.
Decision Date27 January 1999
Docket NumberNo. G019872

Page 745

81 Cal.Rptr.2d 745
69 Cal.App.4th 652, 99 Cal. Daily Op. Serv. 806,
99 Daily Journal D.A.R. 939
James LAWSON et al., Plaintiffs and Appellants,
v.
MANAGEMENT ACTIVITIES, INC., et al., Defendants and Respondents.
No. G019872.
Court of Appeal, Fourth District, Division 3, California.
Jan. 27, 1999.

Page 746

[69 Cal.App.4th 654] Lisa R. Geraurd, Los Angeles, for Plaintiffs and Appellants.

Michaelis, Montanari & Johnson, Garry L. Montanari, Westlake Village, and Wesley S. Wenig, Woodland Hills, for Defendants and Respondents.

OPINION

SILLS, P.J.

Introduction and Facts

In December 1993, a group of employees at a Honda dealership in Santa Ana watched a corporate jet fall out of the sky. They feared the jet would crash into them. They feared injury from the ensuing explosion.

The jet didn't crash into them. Rather, it crashed into nearby ground. Despite their fears, the employees were among the first to arrive at the scene of the crash, to offer whatever assistance they could, and to observe the aftermath.

Page 747

The employees, led by James Lawson, later sued Management Development Corporation and several related entities, the owners and operators of the jet, for the "serious, substantial and enduring mental anguish" occasioned by the crash. The trial court dismissed the case after it sustained a demurrer without leave to amend and Lawson and his coworkers brought this appeal. 1

If this court were to apply the principles articulated in Bro v. Glaser (1994) 22 Cal.App.4th 1398, 27 Cal.Rptr.2d 894, Justice McDaniel's tour de force in the area of damages for emotional distress under a negligence theory (the reader should note we do not use the phrase "negligent infliction of emotional distress"), we might end this opinion right here with a summary affirmance.

To oversimplify the Bro opinion, emotional distress recovery in negligence falls into two categories, "direct victim" and "bystander" situations, depending on whether the plaintiff suffered emotional distress upon seeing someone else physically hurt--if so, then it is a "bystander" situation, if not, "direct victim." If the plaintiff claims direct victim status, Bro divines the [69 Cal.App.4th 655] requirement that there be both a preexisting consensual relationship between the parties (see e.g., Bro, supra, 22 Cal.App.4th at pp. 1416, 1427, 27 Cal.Rptr.2d 894) and the defendant's conduct reach a certain level of outrageousness (see e.g., id. at pp. 1434, 1438-1439, 1441, 27 Cal.Rptr.2d 894). In the case before us, there is no doubt that there was no preexisting relationship between the parties, much less a consensual one. Nothing comes close to outrageousness. Quite the opposite really: The reasonable inference from the complaint is that the captain of the jet courageously managed to avoid crashing into a populated area.

The plaintiffs, however, argue that their case cannot be shoehorned into the categories of "direct victim" or "bystander" because they feared for their own safety in those few horrific moments before the crash. And they point to a body of California case law, most recently relied on by the Ninth Circuit in another airplane crash case, In re Air Crash Disaster Near Cerritos, Cal. (9th Cir.1992) 973 F.2d 1490, to propound the rule that individuals who simply fear for their own safety because of a defendant's negligence may always recover for the ensuing emotional distress. 2 We also note that the recent decision in Wooden v. Raveling (1998) 61 Cal.App.4th 1035, 71 Cal.Rptr.2d 891 takes issue with both the preexisting relationship and outrageous conduct requirements articulated in Bro for "direct victim" cases based on fear for one's own safety. (See Wooden, supra, 61 Cal.App.4th at pp. 1038-1042, 71 Cal.Rptr.2d 891.)

We will not attempt, in this opinion, to articulate any great general rules for emotional distress cases--the Supreme Court will have its hands full when, if ever, it attempts to articulate one grand unified theory in the area. 3 We will only decide the case before us, though that requires that we respectfully decline to follow the Wooden decision to the degree that its facts--a car crash in which a literal bystander feared for her own safety--might be extrapolated to the airplane crash before us. Applying the standard seven-factor analysis by which our high court has traditionally ascertained duty in tort law, we hold that the duty of care imposed on airplane operators does not extend to the emotional distress suffered by physically untouched spectators of plane crashes, even spectators who, for a brief moment, reasonably fear for their own safety.

69 Cal.App.4th 656

Back to the Basics

One observation is necessary at the beginning of any case involving an emotional distress

Page 748

claim based on negligence. When courts use the acronym "NIED" for "negligent infliction of emotional distress" (and they commonly do) they are in danger of falling into a semantic trap. That is, the very fact that there is a handy acronym for an idea may lead, perhaps subconsciously, to giving that idea more credence than it deserves. Here, the danger is treating "negligent infliction of emotional distress" as an independent tort or, at least, an independent tort doctrine, with a life of its own.

For example, while the Wooden case was careful to recognize that "NIED is simply a species of negligence" (Wooden, supra, 61 Cal.App.4th at p. 1046, 71 Cal.Rptr.2d 891), the opinion also casually referred to the "NIED theory" (see id. at p. 1041, 71 Cal.Rptr.2d 891) as if the "NIED theory" were something already firmly established. At the outset we must remind ourselves that, however handy the acronym, as our Supreme Court has made abundantly clear, there is no such thing as the independent tort of negligent infliction of emotional distress. (E.g., Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984, 25 Cal.Rptr.2d 550, 863 P.2d 795 ["there is no independent tort of negligent infliction of emotional distress"]; Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072, 9 Cal.Rptr.2d 615, 831 P.2d 1197 ["We have repeatedly recognized '[t]he negligent causing of emotional distress is not an independent tort, but the tort of negligence.' "]; Christensen v. Superior Court (1991) 54 Cal.3d 868, 884, 2 Cal.Rptr.2d 79, 820 P.2d 181 ["Negligent infliction of emotional distress is not an independent tort.... "]; Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588, 257 Cal.Rptr. 98, 770 P.2d 278 [substantially same as Burgess ].) Indeed, civilized life would not be possible if there were such a tort. To borrow a phrase from Blake, if tort damages were available for anything which could foreseeably cause our fellow human beings emotional distress, then "who can stand?" No one, saint or sinner, can go through life without "negligently" inflicting emotional distress on others. (Cf. Fluharty v. Fluharty (1997) 59 Cal.App.4th 484, 495, 69 Cal.Rptr.2d 244 [making point that heartache and pain are inherent in certain human relationships].) 4

Instead of lumping emotional distress cases under one heading and then, like Einstein, searching for a grand consistent theory to reconcile the cases, [69 Cal.App.4th 657] it is more in keeping with the fact that NIED is not a separate doctrine to ask: What are the circumstances under which a plaintiff can recover damages for emotional distress as a matter of the law of negligence? It is true that the question, however phrased and whatever its permutations, requires more words than just "NIED," and therefore is more cumbersome to write. But at least the asking of it reminds us what we are dealing with. When the question is asked, a court is not likely to stray too far from the fundamentals of basic negligence law, that is, the "traditional elements of duty, breach of duty, causation, and damages." (See Burgess v. Superior Court, supra, 2 Cal.4th at p. 1072, 9 Cal.Rptr.2d 615, 831 P.2d 1197, quoting Marlene F., supra, 48 Cal.3d at p. 588, 257 Cal.Rptr. 98, 770 P.2d 278.)

The question before us, then, is not a mechanistic inquiry as to whether fear-for-own-safety cases fall under the rubric of "direct victim," "bystander" or perhaps a third legal category for "zone of danger" (as plaintiffs, understandably afraid that we might follow Bro, urge upon us). It is not a matter of simply pigeonholing our facts into some neat legal category. Rather, the fundamental question is whether the duty of care necessarily attendant upon operating an airplane extends as far as those who fear for their own safety in a crash, even though they remain literally untouched. 5

Page 749

On that score the answer is no. When this case is looked at in light of the seven factors traditionally used by our Supreme Court to determine the existence of a duty, the balance tips decidedly against liability. The traditional factors are (1) the foreseeability of harm to the plaintiff, (2) the degree of certainty that plaintiff suffered injury, (3) the closeness of the connection between the conduct and the injury suffered, (4) the moral blame attached to defendant's conduct, (5) the policy of preventing future harm, (6) the extent of the burden to the defendant, and (7) the consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved. (See Burgess, supra, 2 Cal.4th at pp. 1079-1080, 9 Cal.Rptr.2d 615, 831 P.2d 1197; Christensen, supra, 54 Cal.3d at pp. 885-886, 2 Cal.Rptr.2d 79, 820 P.2d 181; Biakanja v. Irving (1958) 49 Cal.2d 647, 650, 320 P.2d 16.)

The Seven Factors

As Bro pointed out, foreseeability is of limited usefulness in delineating duty in emotional distress cases. (See Bro, supra, 22 [69 Cal.App.4th 658] Cal.App.4th at p. 1413, 27 Cal.Rptr.2d 894; see also Thing v. La Chusa (1989) 48 Cal.3d 644, 663-664, 257 Cal.Rptr. 865, 771 P.2d 814 [noting that foreseeability alone is...

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35 practice notes
  • Hecimovich v. Encinal Sch. Parent Teacher Org., No. A130852.
    • United States
    • California Court of Appeals
    • February 9, 2012
    ...injuring hip and leg, leaving plaintiff suspended in air and causing emotional trauma]; ... Lawson v. Management Activities (1999) 69 Cal.App.4th 652, 656, 81 Cal.Rptr.2d 745 [policy of designating tort as negligent infliction of emotional distress often incorrectly results in its being tre......
  • Allison C. v. Advanced Educ. Services, No. E034358.
    • United States
    • California Court of Appeals
    • May 18, 2005
    ...Thing v. La Chusa (1989) 48 Cal.3d 644, 663-664, 257 Cal.Rptr. 865, 771 P.2d 814; Lawson v. Management Activities, Inc. (1999) 69 Cal.App.4th 652, 656, fn. 4, 81 Cal.Rptr.2d 745.) Phyllis P. contains no analysis of duty other than its reliance on Johnson and Molien. The only basis that it p......
  • Uhrich v. State Farm Fire & Cas. Co., No. C036415.
    • United States
    • California Court of Appeals
    • June 9, 2003
    ...can recover damages for emotional distress as a matter of the law of negligence? " (Lawson v. Management Activities, Inc. (1999) 69 Cal.App.4th 652, 656-657, 81 Cal.Rptr.2d 745.) The complaint alleged Lindseth breached the settlement by bringing an attorney to the mediation (which was forbi......
  • Delfino v. Agilent Technologies, Inc., No. H028993.
    • United States
    • California Court of Appeals
    • December 14, 2006
    ...can recover damages for emotional distress as a matter of the law of negligence?" (Lawson v. Management Activities, Inc., supra, 69 Cal.App.4th 652, 657, 81 Cal.Rptr.2d 745, original Using this analytical framework, we have established from our discussion of negligent supervision/retention ......
  • Request a trial to view additional results
35 cases
  • Hecimovich v. Encinal Sch. Parent Teacher Org., No. A130852.
    • United States
    • California Court of Appeals
    • February 9, 2012
    ...injuring hip and leg, leaving plaintiff suspended in air and causing emotional trauma]; ... Lawson v. Management Activities (1999) 69 Cal.App.4th 652, 656, 81 Cal.Rptr.2d 745 [policy of designating tort as negligent infliction of emotional distress often incorrectly results in its being tre......
  • Allison C. v. Advanced Educ. Services, No. E034358.
    • United States
    • California Court of Appeals
    • May 18, 2005
    ...Thing v. La Chusa (1989) 48 Cal.3d 644, 663-664, 257 Cal.Rptr. 865, 771 P.2d 814; Lawson v. Management Activities, Inc. (1999) 69 Cal.App.4th 652, 656, fn. 4, 81 Cal.Rptr.2d 745.) Phyllis P. contains no analysis of duty other than its reliance on Johnson and Molien. The only basis that it p......
  • Uhrich v. State Farm Fire & Cas. Co., No. C036415.
    • United States
    • California Court of Appeals
    • June 9, 2003
    ...can recover damages for emotional distress as a matter of the law of negligence? " (Lawson v. Management Activities, Inc. (1999) 69 Cal.App.4th 652, 656-657, 81 Cal.Rptr.2d 745.) The complaint alleged Lindseth breached the settlement by bringing an attorney to the mediation (which was forbi......
  • Delfino v. Agilent Technologies, Inc., No. H028993.
    • United States
    • California Court of Appeals
    • December 14, 2006
    ...can recover damages for emotional distress as a matter of the law of negligence?" (Lawson v. Management Activities, Inc., supra, 69 Cal.App.4th 652, 657, 81 Cal.Rptr.2d 745, original Using this analytical framework, we have established from our discussion of negligent supervision/retention ......
  • Request a trial to view additional results

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