Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc.

Decision Date10 April 1989
Docket NumberNo. S003030,S003030
Citation48 Cal.3d 583,257 Cal.Rptr. 98
CourtCalifornia Supreme Court
Parties, 770 P.2d 278 MARLENE F. et al., Plaintiffs and Appellants, v. AFFILIATED PSYCHIATRIC MEDICAL CLINIC, INC., et al., Defendants and Respondents. CHERYL G. et al., Plaintiffs and Appellants, v. AFFILIATED PSYCHIATRIC MEDICAL CLINIC, INC., et al., Defendants and Respondents.

Russell S. Kussman, Kussman & Whitehill, Steven B. Stevens and Gage, Mazursky, Schwartz, Angelo & Kussman, Los Angeles, for plaintiffs and appellants.

John G. Kerr, Haberfeld & Perlberger, Pasadena, Philip Hunter Thompson, Nelsen, Tang, Thompson, Pegue & Thornton, Los Angeles, John C. Kelly, Baker, Silberberg & Kenner, Marshall Silberberg, Santa Monica, R. Jeff Carlisle, Lynberg & Nelsen, David W. Groundwater and Kirtland & Packard, Los Angeles, for defendants and respondents.

ARGUELLES, * Justice.

Can the mother of a minor child state a claim for the negligent infliction of emotional distress against the psychotherapist who, consulted to treat both mother and son, sexually molested the boy? As, in the circumstances of this case, the therapist's conduct breached a duty of care owed her as well as her child, we hold she can.

FACTS 1

In the summer of 1980, the mothers of minor children Robert F., Phillip G., and Eric R. brought their sons to the Affiliated Psychiatric Medical Clinic, Inc., to obtain counseling for family emotional problems. The clinic assigned all three children to one of its employees, the same psychologist in each case, who began treating the mothers as well because he believed each child's psychological problems arose in part from difficulties in the relationship between mother and son.

In the spring of 1982, the boys' mothers discovered that the therapist had sexually molested their sons by fondling the boys' genitals and that he had engaged in other lewd conduct with the children. Each child was molested at the clinic offices, and Robert was also molested elsewhere.

The mothers confronted the owner and the clinical director of the clinic with this information. They were told that the therapist had done nothing "illegal" but that he would no longer be assigned minor patients. The therapist later wrote a letter of "explanation" to the parents, in which he stated he would no longer treat minor patients and would himself undergo psychotherapy.

The mothers of Robert and Phillip brought suit against the clinic, its owner, its clinical director, and the treating therapist for negligent infliction of emotional distress, alleging that the molestation of their sons had caused them serious mental and emotional suffering and further disruption of their family relationships. 2 The cause of action pled by Robert's mother, identical in all substantive respects to that of Phillip's mother, is set forth here verbatim, as the scope of the allegations is critical to our review of the matter.

"60. At all times herein mentioned, plaintiff MARLENE [F.] was the mother of minor plaintiff ROBERT [F.] MARLENE [F.] went to AFFILIATED in order to obtain psychological counselling for herself and her family, including her son ROBERT [F.]

"61. Defendant [therapist] knew that MARLENE [F.] was the mother of ROBERT [F.], and that she was concerned about his mental and emotional health. [The therapist] undertook to treat both MARLENE [F.] and ROBERT [F.] for their intra-family difficulties by providing psychotherapy to both plaintiffs. MARLENE [F.] was treated personally by [the therapist], and also provided consent to allow [him] to render psychotherapy to her son, ROBERT [F.] MARLENE [F.] was billed for [the therapist's] services to her and her son by AFFILIATED.

"62. By undertaking to treat both ROBERT [F.] and MARLENE [F.], [the therapist] had a duty of due care to both patients. He was aware of the relationship between the patients, and further believed that one of the problems in the family arose from the relationship between MARLENE [F.] and ROBERT [F.]

"63. Therefore, it was reasonably foreseeable and easily predictable that [the therapist's] battering and sexually molesting ROBERT [F.] would lead to serious emotional distress in MARLENE [F.] Because the risk of harm to MARLENE [F.] was reasonably foreseeable and easily predictable, defendants herein owed her a duty to exercise due care in diagnosing and treating her son, ROBERT [F.]

"64. Defendant [therapist] knew, or in the exercise of reasonable care, should have known, that his lewd and lascivious conduct toward ROBERT [F.] was likely to injure plaintiff MARLENE [F.] By committing lewd and lascivious acts upon the body of minor plaintiff ROBERT [F.], [the therapist] breached his duty of care to MARLENE [F.]

"65. [The other] [d]efendants ... knew, or in the exercise of reasonable care, should have known that their failure to properly investigate and supervise [the therapist] in order to prevent the acts and occurrences alleged and their failure to report and inform the proper persons and/or agencies, was likely to injure plaintiff MARLENE [F.] By failing to properly supervise and investigate defendant [therapist], and by failing to report and inform the proper persons and/or agencies, [these] defendants ... breached their duty of care to MARLENE [F.] Moreover, [these] defendants ... are liable for the actions of [the therapist], since [he] was their agent....

"66. As a direct and proximate result of the intentional and negligent acts and/or omissions of the defendants, and each of them, plaintiff MARLENE [F.] personally observed the mental, physical, and emotional injuries suffered by ROBERT [F.] at the time of the occurrences alleged herein, and thereafter; and as a further direct and proximate result of said acts and/or omissions, plaintiff MARLENE [F.] sustained serious and severe emotional disturbance and shock, and injury to her nervous system, all of which has caused, and continues to cause, and will cause in the future, serious mental and emotional suffering, as well as disruption in her intra-family relationship. These injuries are all to her general damage in an amount in excess of the minimum jurisdiction of this Court.

"67. As a further direct and proximate result of the negligent acts and/or omissions of the defendants, and each of them, plaintiff MARLENE [F.] was reasonably required to, and did, incur medical and incidental expenses for the examination, treatment, and care of the aforesaid injuries, the exact amount of which is unknown at this time. Plaintiff is informed and believes and thereon alleges that she in the future will be reasonably required to incur similar obligations. Plaintiff asks leave to amend this complaint to insert the amount of medical and incidental expenses incurred, and expected to be incurred by her as the result of these injuries, when such have been ascertained.

"68. The aforementioned acts and/or omissions of defendants were willful, wanton, malicious, oppressive and in conscious disregard of the rights and safety of others, and justify the awarding of exemplary and punitive damages."

All defendants successfully demurred to this cause of action. The Court of Appeal affirmed, acknowledging that the mothers had suffered from the mistreatment of their children but reasoning that they failed to state a claim under either the "bystander witness" theory of Dillon v. Legg (1968) 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 or the "direct victim" theory of Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813, because they were neither present at the time the torts were committed nor the actual targets of the therapist's unprofessional conduct. We granted review to determine whether the mothers of Robert and Phillip, although neither bystander witnesses nor the immediate objects of the tortious conduct, could state claims for the negligent infliction of emotional distress. 3

DISCUSSION

"[T]he negligent causing of emotional distress is not an independent tort but the tort of negligence...." (6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 838, p. 195.) "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 upon a weighing of policy considerations for and against imposition of liability." (Slaughter v. Legal Process & Courier Service (1984) 162 Cal.App.3d 1236, 1249, 209 Cal.Rptr. 189.)

In Dillon v. Legg, supra, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912, we held that a mother could recover from a negligent motorist for the emotional distress she suffered from witnessing the accident that caused the death of her child. Recognizing that foreseeability of the injury was but the threshold element in determining the existence of a duty of care, we identified a number of factors designed to limit the scope of the duty to "exclud[e] the remote and unexpected" and to specify the class of potential plaintiffs entitled to recover for the emotional distress occasioned by witnessing the injury of another. (Id. at pp. 740-741, 69 Cal.Rptr. 72, 441 P.2d 912.)

In Molien v. Kaiser Foundation Hospitals, supra, 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813, we held that a husband could recover from his wife's doctor for the emotional distress he suffered from the misdiagnosis of his wife as having syphilis and the advice that he be physically examined as well. Reasoning that the husband was a "direct victim" of the tort in view of the nature of the doctor's conduct, we held that defendants owed him a duty of care. 4 (Id. at p. 923, 167 Cal.Rptr. 831, 616 P.2d 813.)

As in Dillon v. Legg, supra, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912, we stressed certain inherently limiting factors, in particular that the doctor instructed the wife to tell her husband of the diagnosis and to advise him to be examined as well, and that the doctor's error...

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