Martinez v. County of Los Angeles

Decision Date28 October 1986
Citation186 Cal.App.3d 884,231 Cal.Rptr. 96
CourtCalifornia Court of Appeals Court of Appeals
PartiesLazaro MARTINEZ, Sr., et al., Plaintiffs and Appellants, v. COUNTY OF LOS ANGELES, Defendant and Respondent. B015574.
Manuel Hidalgo and Robert J. Jagiello, Los Angeles, for plaintiffs and appellants

Golman and von Bolschwing, Sausalito, Bonne, Jones, Bridges, Mueller & O'Keefe, Los Angeles, Greines, Martin, Stein & Richland, Martin Stein and Timothy T. Coates, Beverly Hills, for defendant and respondent.

LILLIE, Presiding Justice.

Plaintiffs Lazaro Martinez, Sr. and Rosalba Martinez appeal from a judgment of dismissal entered against them and in favor of defendant County of Los Angeles upon order sustaining defendant's demurrer to the second and third causes of action of the first amended complaint without leave to amend. 1

I PLEADINGS

The minor and his parents sued the County and two physicians for medical malpractice and negligence. This appeal concerns only the third cause of action of the parents of minor plaintiff. The following are allegations of the first amended complaint, which we accept as true. (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496, 86 Cal.Rptr. 88, 468 P.2d 216.)

First Cause of Action

The first cause of action is one for medical malpractice brought solely by minor plaintiff Lazaro Martinez, Jr. It alleges the following: Rosalba Martinez, pregnant with the minor plaintiff, entered Los Angeles County/University of Southern California Medical Center where defendants "so carelessly and negligently examined, diagnosed, prognosed, cared for, treated and operated on the body and person of plaintiff, and his mother ... so as to proximately cause the injuries and damage to [minor] plaintiff"; that as a proximate result of defendants' negligence, minor plaintiff sustained permanent neurological damage, cerebral palsy, and other internal injuries; that as a result of said injuries, minor plaintiff will never be able to function as a productive member of society; that minor plaintiff has sustained permanent and special damages for medical care, hospitalization, nursing care, prosthetic appliances, physical, occupational and psychological therapy, and housekeeping care and treatment; that defendants breached their fiduciary duty to plaintiff and his mother by failing to disclose to them their acts of negligence such that at no time prior to September 24, 1984, were they aware of the conduct of defendants or that such conduct was negligent; that Rosalba Martinez asked the treating doctors why her child was in the condition he is, and she was told " 'that's the way the baby was born,' that they knew that the heart stopped but did not know why." Minor plaintiff further alleged that to cover up their negligence, defendants dictated no summary of their procedures employed on the mother, no nurses notes were prepared regarding her treatment during the critical periods, and the fetal monitor strip was not properly maintained and hence lost; that none of the defendants informed plaintiff or his mother or father that "the child's condition was due to their negligent conduct in improperly administering pitocin, improperly failing to diagnose the condition of plaintiff Rosalba Martinez, as a diabetic, improperly performing an amniocentesis test, and delaying a Cesarean section until a point in time after the fetal heart tones disappeared."

Second Cause of Action

The second cause of action, asserted by minor as well as his parents, incorporates all of the allegations in the first cause of action, and further alleges negligence in the selection, review, and evaluation by the County of the other defendants staff members, which negligence caused injury to minor plaintiff. The ruling sustaining demurrer to this cause of action is not here challenged. 2

Third Cause of Action

The third cause of action for negligence brought solely by minor's parents incorporates the allegations of the first and second causes of action. They allege that as a result of the negligent care and treatment of minor plaintiff by defendants, they have been "caused to suffer emotional distress, anxiety, and an inability to conduct the normal routine activities of their life [sic ]": that their lives have been totally restructured in the following respects: as the child lacks coordination, they must attend to him constantly to avoid injury to him; the child cries unceasingly unless administered to; they must attend to his breathing problems throughout the night; they are confined to their home and cannot participate in church, recreational or family matters because of the need to pay constant attention to the needs and demands of their brain damaged child; Rosalba Martinez is unable to attend to her housework duties, to the needs of the other children, or to the obligations of her marital relationship due to the need to pay constant attention to minor plaintiff. Rosalba and Lazaro Martinez, Sr. further allege that their lives have been totally restructured, and for the balance of their normal life span, they will be required to restructure their lives in order to attend to the needs of their severely brain damaged and retarded child, which retardation and brain damage was caused by defendants' negligence; as a result of the emotional distress, anxiety and mental suffering which they have experienced and will experience for the balance of their natural lives, they are entitled to compensatory damages; that Rosalba Martinez, a housewife, and Lazaro Martinez, Sr., a musician, have been prevented from attending to their occupations and have lost earnings and will thereby lose future earnings.

The County demurred to the second and third causes of action asserted by Rosalba and Lazaro Martinez, Sr. on the ground that they failed to state causes of action. It is from the judgment of dismissal entered upon the order sustaining the demurrer without leave to amend that they appeal.

II THIRD CAUSE OF ACTION

(NEGLIGENCE)

Here, the Martinez parents seek damages for emotional distress, for having "to restructure their lives" to care for minor plaintiff and for loss of personal future earnings. All of these damages are alleged to have resulted from the necessity to care for the minor who through the negligence of defendants is brain damaged and retarded.

"The tort of negligent infliction of emotional distress is a variation of the tort of negligence. 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.) Dillon v. Legg (1968) 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912, first recognized a cause of action for emotional distress to a parent caused by witnessing the tortious death of or injury to his/her child. In doing so, the court rejected the rule that required the plaintiff be fearful for his or her own personal safety in order to recover. "Since the chief element in determining whether defendant owes a duty or an obligation to plaintiff is the foreseeability of the risk, that factor will be of prime concern in every case. Because it is inherently intertwined with foreseeability such duty or obligation must necessarily be adjudicated only on a case-by-case basis." (Dillon v. Legg, supra, 68 Cal.2d 728, 740, 69 Cal.Rptr. 72, 441 P.2d 912; accord Parent plaintiffs herein do not claim to have stated a cause of action under Dillon, and have not done so because of the absence of allegations that their emotional distress resulted from perceiving "the defendant's conduct and the child's injury and a contemporaneous awareness the defendant's conduct or lack thereof was causing harm to the child." (Ochoa v. Superior Court, supra, 39 Cal.3d 159, 170, 216 Cal.Rptr. 661, 703 P.2d 1.) Indeed, in paragraph 29 of the first cause of action, incorporated by reference into the parents' cause of action for emotional distress, they allege: "At no time prior to September 24, 1984, were the plaintiffs aware of the conduct of defendants, and each of them, which caused the harm suffered by said plaintiffs, or that said conduct was negligent."

                Ochoa v. Superior Court (1985) 39 Cal.3d 159, 166, 216 Cal.Rptr. 661, 703 P.2d 1.)   In Dillon the court held that a mother who witnessed her young child struck and killed by an automobile could bring an action for the physical pain and suffering she sustained from the fright and shock of the event.  The court found that the legal requirements of "duty" and "foreseeability" were met by the facts alleged (Dillon, supra, 68 Cal.2d at p. 741, 69 Cal.Rptr. 72, 441 P.2d 912);  however, in order to "limit the otherwise potentially infinite liability which would follow every negligent act," (p. 739, 69 Cal.Rptr. 72, 441 P.2d 912) and to define guidelines to aid in ascertaining whether a duty of care existed, the court stated:  " ... the courts will take into account such factors as the following:  (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."  (68 Cal.2d at pp. 740-741, 69 Cal.Rptr. 72, 441 P.2d 912.)
                

Rather, relying on Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813, parent plaintiffs contend they were direct victims of defendant's conduct. In...

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