Martin By and Through Martin v. U.S.

• Decision Date: 28 January 1993
• Docket Number: 92-15611 and 92-15593,Nos. 92-15322,s. 92-15322
• Citation: 984 F.2d 1033
• Parties: Jennifer MARTIN; Elizabeth Martin, By and Through their Guardian ad Litem, Vikki MARTIN; and Vikki Martin, individually, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee. Jennifer MARTIN; Elizabeth Martin, By and Through their Guardian ad Litem, Vikki MARTIN; and Vikki Martin, individually, Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1033

984 F.2d 1033

Jennifer MARTIN; Elizabeth Martin, By and Through their

Guardian ad Litem, Vikki MARTIN; and Vikki

Martin, individually, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

Jennifer MARTIN; Elizabeth Martin, By and Through their

Guardian ad Litem, Vikki MARTIN; and Vikki

Martin, individually, Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant.

Nos. 92-15322, 92-15611 and 92-15593.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Dec. 15, 1992.

Decided Jan. 28, 1993.

Don E. Bailey, Carnes & Bailey, San Francisco, CA, for plaintiffs-appellants-cross-appellees.

Henry D. Gabriel, U.S. Dept. of Justice, Washington, DC, for defendant-appellee-cross-appellant.

Appeal from the United States District Court for the Northern District of California.

Before: GOODWIN, O'SCANNLAIN, and RYMER, Circuit Judges.

RYMER, Circuit Judge:

Jennifer Martin was abducted and raped while on an outing from a day care center operated by the government. ¹ Her sister, Elizabeth, was also on the outing and was aware that Jennifer had disappeared. Elizabeth and the children's mother, Vikki, learned what had happened to Jennifer after Jennifer had been found by the police. All three brought suit under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) & 2671-80.

Vikki and Elizabeth appeal the summary judgment entered on their claims for negligent infliction of emotional distress. The district court held in a reported opinion, Martin By and Through Martin v. United States, 779 F.Supp. 1242 (N.D.Cal.1991), that no duty of care to avoid negligently inflicting emotional distress was owed to the mother or sister, who were neither "bystanders" nor "direct victims" of the government's negligence in supervising Jennifer. We agree with the district court that summary judgment on both claims is proper.

Jennifer's claim for negligent supervision went to trial, and she was awarded $200,000 in economic damages and $600,000 in non-economic damages. The United States cross-appeals from the district court's decision that the Fair Responsibility Act, California Civil Code §§ 1431.1-1431.5 (Proposition 51), abrogating the rule of joint and several liability for non-economic damages and mandating that tortfeasors will be liable in relation to their percentage of fault, does not apply to Jennifer's action because intentional conduct was involved. The district court's opinion does not consider Weidenfeller v. Star & Garter, 1 Cal.App. 4th 1, 2 Cal.Rptr.2d 14 (1991), which held that § 1431.2 applies to actions in which one tortfeasor acts intentionally and the other negligently. Because we are not convinced the California Supreme Court would hold otherwise, the district court should follow Weidenfeller.

We have jurisdiction, 28 U.S.C. §§ 1291 & 1346(b), and affirm in part and reverse in part.

I

Jennifer Martin, a six-year old girl, her seven-year old sister Elizabeth, and seven other children were taken on an outing to Monterey Veterans Memorial Park while they were under the supervision of Sal Maene, an employee of the United States and then director of the Presidio of Monterey Youth Center. Jennifer became separated from the group on account of Maene's negligence. Some of the children, possibly including Elizabeth, saw Jennifer behind a recreational vehicle. Maene saw the RV drive away. All of the children, including Elizabeth, looked for Jennifer but after ten minutes Maene called off the search, communicated his concern about Jennifer to the children, and took them all to the police station where he reported that Jennifer was missing.

While the group was waiting at the station, Jennifer was brought in. ² She was rigid and apprehensive, on the verge of tears, with her shoulders turned in, her fists clenched, and her body covered with mud. Maene then took the other children back to the Center.

When Vikki arrived at the Center to pick up her daughters, Elizabeth came out screaming that Jennifer was at the police station and they would not let her go. This is the first Vikki knew of anything happening to Jennifer. Elizabeth returned to the police station with her mother.

Jennifer, Elizabeth, and Vikki sued the United States under the Federal Tort Claims Act. Jennifer's claim was for the negligent supervision which allowed her to become separated, abducted and raped. Vikki seeks recovery for negligent infliction of emotional distress on the theory that the Youth Center undertook to supervise and care for her daughters, and failed to do so by permitting Jennifer to become separated and by causing Elizabeth to participate in the search and become aware of the injury to Jennifer. Elizabeth also seeks recovery for negligent infliction of emotional distress in that she became aware that her younger sister had disappeared, participated in the search, and learned that her sister had been abducted and assaulted.

The district court granted the government's motion for summary judgment on the second and third claims, concluding that Vikki could not maintain her action because the government's negligent supervision of Jennifer was conduct directed at Jennifer, not Vikki; and that Elizabeth could not pursue hers because she also was not a direct victim of the negligence, nor had she shown the contemporaneous and sensory perception of the abduction and rape of her sister required for bystander liability. After trial on the merits of Jennifer's claim, the district court awarded $200,000 in economic damages and $600,000 in non-economic damages.

Vikki and Elizabeth appeal the summary judgments; the United States does not appeal the district court's finding of liability in favor of Jennifer or the amount of damages, but challenges its failure to apply California Civil Code § 1431.2.

II

We review a grant of summary judgment de novo. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir.1989), cert. denied, 496 U.S. 937, 110 S.Ct. 3217, 110 L.Ed.2d 664 (1990). We determine, viewing the evidence in the light most favorable to the non-moving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Fu-Kong Tzung v. State Farm Fire & Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir.1989).

III

Vikki and Elizabeth contend that the district court misapplied California law concerning liability for negligent infliction of emotional distress under the "bystander" rule of Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 (1968), as to Elizabeth, and under the "direct victim" rule of Molien v. Kaiser Found. Hospitals, 27 Cal.3d 916, 923, 167 Cal.Rptr. 831, 616 P.2d 813 (1980), as to both Elizabeth and Vikki.

A

Elizabeth argues that there is a special relationship between young children and those who undertake their care and supervision such that Elizabeth was a direct victim of Maene's negligent supervision of Jennifer. Vikki argues that because she had entrusted the care of Jennifer and Elizabeth to Maene, he stood in loco parentis and owed a duty directly to her so that she, too, was a direct victim of his negligent supervision. They contend that the district court erred in failing to recognize that the direct victim rule is applicable whenever the defendant breaches a duty of care owed directly to the plaintiff, contrary to Burgess v. Superior Ct., 2 Cal.4th 1064, 1074, 9 Cal.Rptr.2d 615, 831 P.2d 1197 (1992) (duty may be assumed by the defendant, be imposed on the defendant as a matter of law, or may arise from a relationship between the defendant and the plaintiff), Christensen v. Superior Court, 54 Cal.3d 868, 2 Cal.Rptr.2d 79, 820 P.2d 181 (1991), Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc., 48 Cal.3d 583, 257 Cal.Rptr. 98, 770 P.2d 278 (1989), and Molien v. Kaiser Found. Hospitals, 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813 (1980).

Without repeating the district court's comprehensive analysis of California authority, we agree with its conclusion that Maene's negligent supervision of Jennifer was directed at Jennifer, not at Vikki or Elizabeth. There is no question the day care center owed a duty to Elizabeth and Jennifer not to supervise them negligently; Jennifer recovered on this theory. But Elizabeth's argument that by virtue of a special relationship between young children and supervisors, the supervisor has a duty to all children under his care not to let harm occur to any of them that causes emotional distress to one of them, lacks support in California law. By the same token, as the district court held, Vikki's claim that she is entitled to recovery under the direct victim rule because she was Jennifer and Elizabeth's mother and Maene owed her a duty not to supervise her children negligently goes beyond any duty heretofore recognized by California courts.

In Burgess the court found that a doctor has a duty to a mother to prevent harm to her child during childbirth, since there was a preexisting physician-patient relationship with the mother during childbirth, and any treatment for the fetus could only be accomplished with the mother's consent and with impact to her body. Christensen held that a person who provides funeral services has a duty to close relatives of the deceased, for whose benefit the funeral or related services take place, which is breached when the remains are outrageously mishandled. In Marlene F. a psychotherapist who was treating both mother and son for relationship problems violated a duty of care to the mother by molesting the son. And in Molien, the doctor who misdiagnosed a patient as having syphilis and who affirmatively acted to have that misdiagnosis, together with a recommendation to seek treatment, communicated to the patient's spouse, breached a duty of care to the spouse. In each of these direct victim cases, the defendant's negligent conduct was directed at the plaintiff as well as the injured party. When, however,...