Ledger v. Tippitt, B-005211

Decision Date08 February 1985
Docket NumberB-005211
CourtCalifornia Court of Appeals Court of Appeals
PartiesJennifer LEDGER, Plaintiff and Appellant, v. Ronald William TIPPITT, Defendant and Respondent. Civ.

Henry J. Walsh, Jeffrey Bruce Held; Lawler & Ellis, Ventura, for defendant and respondent.

McMAHON, Associate Justice. *

The first cause of action for wrongful death was brought on behalf of Richard Arters III, the son of Richard Arters II. The second and third causes of action for loss of consortium and negligent infliction of mental distress, were brought by Jennifer Ledger, who enjoyed a "stable and significant" nonmarital relationship with Richard Arters II, the decedent. The demurrer to the second and third causes of action were sustained without leave to amend, and Jennifer Ledger appeals from the judgment of dismissal.

ISSUES PRESENTED

The appellant lived with the decedent for approximately two years and bore his child. Their plans to marry were twice frustrated due to circumstances beyond their control. Appellant witnessed her lover being stabbed, and he died in her arms. Does she have a cause of action for loss of consortium? Does she have a cause of

action for negligent infliction of emotional distress?

FACTS

Jennifer Ledger and Richard Arters II began cohabitating together in 1981, when Jennifer was 15- 1/2 years old and Richard was 19. They initially planned to be married on December 6, 1981, but, just prior to their wedding date, Richard was involved in a motorcycle accident. Jennifer nursed him back to health, and they then decided to go to Nevada to be married. Although Jennifer did obtain written authorization from her parents to be married to Richard, she only obtained a copy of her birth certificate, which allegedly was deemed insufficient under Nevada law. Frustrated again, they returned to California. Jennifer bore Richard's child, Richard Arters III, and they lived together as a family. Richard provided the sole support for Jennifer and their son.

On March 15, 1983, Richard Arters II, accompanied by his business partner, Jennifer and Richard Arters III, their infant son, were traveling to Ojai to submit an estimate on a landscaping project. Suddenly, a vehicle driven by respondent, Ronald W. Tippitt, encroached on Richard's lane causing Richard to take sudden evasive action to avoid a collision. The two vehicles ultimately came to a stop. Both drivers alighted and a verbal altercation ensued between Richard and respondent Tippitt.

Jennifer remained seated a few feet away in Richard's vehicle caring for their child, but where she could witness the events. Suddenly, and without warning, respondent Tippitt exhibited a knife and stabbed Richard in the chest. When Richard fell to the ground, Jennifer rushed to his aid. She kneeled by Richard, took him in her arms, and helplessly watched and cried as Richard, bleeding profusely, became comatose and slowly died, twenty minutes later.

DISCUSSION

Observing that the incidence of cohabitation without marriage in the United States increased by 800 percent between 1960 and 1970 (Butcher v. Superior Court (1983) 139 Cal.App.3d 58, 68, 188 Cal.Rptr. 503, citing comment, Consortium Rights of the Unmarried: Time for a Reappraisal (1981) 15 Family L.Q. 223, 224), and that the number of unmarried couples then tripled between 1970 and 1980--rising from 523,000 to 1,560,000 (In re Cummings (1982) 30 Cal.3d 870, 876, fn. 1, 180 Cal.Rptr. 826, 640 P.2d 1101 (dissenting op.), appellant urges us to allow her to recover for loss of consortium and negligent infliction of emotional distress.

Because these two issues appear to be intertwined with the rules relating to intentional infliction of emotional distress, and the statutory cause of action for wrongful death, we will compare each of these causes of action for guidance.

1. Wrongful Death

In an action for wrongful death, it is proper to instruct that a husband could recover reasonable compensation for loss of his wife's love, companionship, comfort, affection, society, solace or moral support, loss of enjoyment of sexual relations, or any loss of her physical assistance in the operation or maintenance of the home. Economic losses such as the lost earning capacity may also be recovered. (Krouse v. Graham (1977) 19 Cal.3d 59, 67-70, 137 Cal.Rptr. 863, 562 P.2d 1022; Canavin v. Pacific Southwest Airlines (1983) 148 Cal.App.3d 512, 527, 196 Cal.Rptr. 82.) Conversely, a wrongful death action must be contrasted with an action for negligent infliction of mental distress. Thus, in a wrongful death action, damages for mental and emotional distress, including grief and sorrow, may not be recovered. (Krouse v. Graham, supra, 19 Cal.3d at p. 72, 137 Cal.Rptr. 863, 562 P.2d 1022; Canavin v. Pacific Southwest Airlines, supra, 148 Cal.App.3d at pp. 519-520, 196 Cal.Rptr. 82.)

Wrongful death actions under California law are purely statutory. "Because it is a creature of statute, the cause of action for wrongful death 'exists only so While California will recognize common law marriages validly created in states which allow such marriages (Civ.Code, § 4104; Colbert v. Colbert (1946) 28 Cal.2d 276, 280, 169 P.2d 633; Etienne v. DKM Enterprises Inc. (1982) 136 Cal.App.3d 487, 490, 186 Cal.Rptr. 321), California law does not accept the doctrine of common law marriages between its own domiciliaries. (Norman v. Thomson (1898) 121 Cal. 620, 628, 54 P. 143; Estate of Abate (1958) 166 Cal.App.2d 282, 292, 333 P.2d 200; Estate of Edgett (1980) 111 Cal.App.3d 230, 232, 168 Cal.Rptr. 686.) As meretricious spouses are simply not recognized as "heirs" under section 377 of the Code of Civil Procedure, our wrongful death statute, they are not within the class of persons who may bring a wrongful death action. (Nieto v. City of Los Angeles (1982) 138 Cal.App.3d 464, 188 Cal.Rptr. 31; Garcia v. Douglas Aircraft Co., supra, 133 Cal.App.3d 890, 893, 184 Cal.Rptr. 390; Harrod v. Pacific Southwest Airlines (1981) 118 Cal.App.3d 155, 173 Cal.Rptr. 68.)

far and in favor of such person as the legislative power may declare.' ..." (Justus v. Atchison (1977) 19 Cal.3d 564, 575, 139 Cal.Rptr. 97, 565 P.2d 122, quoting Pritchard v. Whitney Estate Co. (1913) 164 Cal. 564, 568, 129 P. 989; see also Garcia v. Douglas Aircraft Co. (1982) 133 Cal.App.3d 890, 893, 184 Cal.Rptr. 390; Steed v. Imperial Airlines (1974) 12 Cal.3d 115, 119-121, 115 Cal.Rptr. 329, 524 P.2d 801.)

The Legislature has allowed "putative spouses" to bring an action for wrongful death. Section 377(b)(2) of the Code of Civil Procedure defines "putative spouse" as "... the surviving spouse of a void or voidable marriage who is found by the court to have believed in good faith that the marriage to the decedent was valid...." Under this statute, it has been held that the essence of a putative spouse is a good faith belief in the existence of a valid marriage, even if the marriage is not solemnized. (Wagner v. County of Imperial (1983) 145 Cal.App.3d 980, 982-983, 193 Cal.Rptr. 820; see Kunakoff v. Woods (1958) 166 Cal.App.2d 59, 61-62, 332 P.2d 773 (although the minister failed to file a record of the marriage, the wife lived with her husband for 30 years believing they were married).)

In this case, appellant does not contend that she is a putative spouse within the meaning of the wrongful death statute.

2. Loss of Consortium

The concept of consortium includes not only loss of support or services; it also embraces such elements as love, companionship, comfort, affection, society, sexual relations, the moral support each spouse gives the other through the triumph and despair of life, and the deprivation of a spouse's physical assistance in operating and maintaining the family home. (Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 405, 409, fn. 31, 115 Cal.Rptr. 765, 525 P.2d 669; Carlson v. Wald (1984) 151 Cal.App.3d 598, 602, 199 Cal.Rptr. 10.)

The loss of consortium does not require severe physical injury to the non-plaintiff spouse; certain psychological injuries can be no less severe and debilitating than physical injuries. (Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 933, 167 Cal.Rptr. 831, 616 P.2d 813.) Likewise, because the cause of action is for "loss or impairment" of the right to consortium (Rodriguez v. Bethlehem Steel Corp., supra, 12 Cal.3d 382, 409, 115 Cal.Rptr. 765, 525 P.2d 669), a diminution of a spouse's rights to consortium is compensable. (Carson v. Wald, supra, 151 Cal.App.3d 598, 602, 199 Cal.Rptr. 10.)

In California, a cause of action for loss of consortium exists in favor of a married spouse (Rodriguez v. Bethlehem Steel Corp., supra, 12 Cal.3d 382, 402-406, 115 Cal.Rptr. 765, 525 P.2d 669) and in favor of a common law marriage partner, if the claimant establishes that the common law marriage was validly created in a state which recognizes common law marriage. (Etienne v. DKM Enterprises, Inc., supra, 136 Cal.App.3d 487, 186 Cal.Rptr. 321 (by Tong v. Jocson (1977) 76 Cal.App.3d 603, 142 Cal.Rptr. 726 involved a situation where plaintiff and Gale became engaged in September 1973 and commenced living together on November 11, 1973. On February 20, 1974, they were involved in an automobile accident but they married on March 9, 1974. The court held that no cause of action for loss of consortium existed because they were not married at the time of the accident. The court reasoned that judicial recognition of a cause of action for loss of consortium must be "narrowly circumscribed," citing Borer v. American Airlines Inc., supra, 19 Cal.3d 441, 444, 138 Cal.Rptr. 302, 563 P.2d 858.

                implication).)   However, a child does not have a cause of action for loss of parental consortium (Borer v. American Airlines, Inc.  (1977) 19 Cal.3d 441, 138 Cal.Rptr. 302, 563 P.2d 858) and a parent has no cause of action
...

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