Mobaldi v. Regents of University of California

• Citation: 55 Cal.App.3d 573,127 Cal.Rptr. 720
• Court: California Court of Appeals
• Decision Date: 23 February 1976
• Parties: John MOBALDI, also known as John Patrick Ramsburg Mobaldi, a minor, by and through his Guardians ad litem Patricia Ramsburg and Harry Ramsburg, Plaintiffs and Appellants, v. The BOARD OF REGENTS OF the UNIVERSITY OF CALIFORNIA, a Public Entity, et al., Defendants and Respondents. Civ. 45429.

Page 720

127 Cal.Rptr. 720

55 Cal.App.3d 573

John MOBALDI, also known as John Patrick Ramsburg Mobaldi, a minor, by and through his Guardians ad litem Patricia Ramsburg and Harry Ramsburg, Plaintiffs and Appellants, v. The BOARD OF REGENTS OF the UNIVERSITY OF CALIFORNIA, a Public Entity, et al., Defendants and Respondents.

Civ. 45429.

Court of Appeal, Second District, Division 1, California.

Feb. 23, 1976.

Edwin C. Martin, J., and Gerald H. B. Kane, Jr., Los Angeles, for plaintiffs and appellants.

Schell & Delamer, Fred B. Belanger and J. Thomas Hunsucker, Los Angeles, for defendants and respondents.

THOMPSON, Associate Justice.

This is an appeal from a judgment of dismissal after a demurrer was sustained to plaintiffs' complaint without leave to amend. It concerns primarily the construction of the guidelines of Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912, governing determination of foreseeability of emotional trauma through sensory perception of physical injury negligently inflicted upon another for the purpose of defining the negligent person's liability to the one emotionally traumatized. In particular, the case at bench involves the guideline requirements that: (1) the emotionally traumatized plaintiff be 'closely related' to the immediate victim of the defendant's negligence; and (2) the emotional trauma result from 'a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident.' (Dillon v. Legg, supra, 68 Cal.2d at p. 740, 69 Cal.Rptr. at p. 80, 441 P.2d at p. 920.)

We conclude that where, as here, the victim immediately injured and the plaintiff hold themselves out to the public as mother and child, the child is treated as a filial member of a foster mother's family, the child treats the foster mother as a mother, and the tortfeasor treats the two as mother and child, the relationship guideline is satisfied although the injured child is neither the natural nor adopted offspring of the emotionally traumatized foster mother. We conclude, also, that where, as here, the plaintiff perceives by sight and hearing the physical injury to another in her presence caused by the defendant's negligence, the guideline requirement of direct emotional impact from sensory and contemporaneous observation of the accident is satisfied, although the plaintiff may not be aware of the precise nature of the negligence.

Facts

The procedural posture of the case is unusual. After a demurrer was filed to plaintiffs' complaint, declarations of fact were filed by the parties and wisely considered by the trial court to determine the amendability of the complaint to state a cause of action in the event it was not legally sufficient as originally filed. Because the principal inquiry on this appeal is the propriety of trial court action sustaining the demurrer without leave to amend, we recite the facts as stated in plaintiffs' declarations on the theory that the complaint is amendable to allege those facts.

Plaintiffs Patricia and Harry Ramsburg are married. Motivated by her own experience as a foster child, Mrs. Ramsburg for several years had acted as a foster parent receiving compensation for her service. In March of 1970, John Patrick Mobaldi, then five months old, the child of an unwed mother, was placed by the Los Angeles County Department of Adoptions with the Ramsburgs as a foster child. John had been born with a severe kidney defect likely to result in his early death. He was a particularly attractive child in appearance and personality.

John quickly became integrated into the Ramsburg family and was treated as a family member equally with the Ramsburgs' natural children. The Ramsburgs attempted to adopt John but were frustrated in that effort by a county policy against adoption of seriously ill children. The Ramsburgs caused John to be baptized in their church, christening him 'John Patrick Mobaldi, Ramsburg.'

From birth, John was treated for his congenital kidney defect at the U.C.L.A. Medical Center. Initial reconstructive surgery was performed in June of 1972 and John's health improved greatly. By November of 1972, John was active and 'getting alone well.' Personnel of the Medical Center referred to John and Mrs. Ramsburg as mother and child, and that reference is constantly repeated in the medical records of the center.

On May 24, 1973, Mrs. Ramsburg took John to the U.C.L.A. Medical Center for tests. When John cried, 'Mommy, Mommy, I want you. I can't see you,' Mrs. Ramsburg, at the request of the attending physician, entered the room where the tests were being administered to calm John. She held John in her arms as an injection of glucose solution and dye was injected intravenously for the purpose of a pyelogram, an X-ray procedure designed to make the kidneys appear more clearly in the picture. The procedure calls for the dye to be injected as a part of a 5 percent glucose solution. By mistake, one of the physicians used a 50 percent mixture of glucose, a drastically unsafe solution. After injection commenced, all of the physicians left the room to examine X-rays taken to that point. The infusion was left running into John's vein.

While in Mrs. Ramsburg's arms, John began to breathe in a peculiar manner. Within a short time he became spastic and convulsant and finally comatose. Mrs. Ramsburg screamed. By the time the physicians returned to the room in response, John had received 150 cubic centimeters of the overstrength solution. As a result, he suffered irreversible brain damage and was made permanently blind and quadraplegic, severely retarded, subject to seizures, and generally comatose.

Her experience in witnessing the incident caused Mrs. Ramsburg to become severely depressed. She lost 40 pounds from May 23, 1973 through September of that year, suffered from insomnia, despair, and futility to the extent that she sometimes became bedridden. Mrs. Ramsburg has been treated by a psychiatrist and the prognosis for her full recovery is only fair.

Pleadings

The complaint which commenced the case at bench was filed on September 24, 1973. The first cause of action is alleged in professional negligence on behalf of John by the Ramsburgs as his guardians ad litem. The second cause of action seeks expenses of past and future care of John and damages for loss of his services and companionship. The third cause of action is asserted on behalf of Mrs. Ramsburg. It alleges the negligent infusion of the overstrength solution, Mrs. Ramsburg's presence while the solution was injected and the damage done, and the physical consequences of the resulting emotional distress to her. The third cause of action does not allege the detail of the relationship of John to the Ramsburg, family, asserting only that the Ramsburg's are the guardians (of the person) of John.

Defendants, the U.C.L.A. Medical Center and the attending physicians who are its agents, demurred to the second and third causes of action. Memoranda in opposition to the demurrer contain the additional information recited in our statement of facts. The demurrer was sustained without leave to amend. On March 27, 1974, John died so that the first cause of action alleged on his behalf alone was dismissed. Pursuant to Code of Civil Procedure section 581, subdivision (3), the second and third causes of action were dismissed because the demurrer to them had been sustained without leave to amend. This appeal followed.

Third Cause of Action--Dillon v. Legg

Before June of 1968, the result of the case at bench would have been clear cut. Since Mrs. Ramsburg seeks recovery for the results of emotional distress negligently inflicted upon her without an accompanying personal physical trauma where she herself was not within the zone of danger flowing from the defendants' conduct, the law of California until that time barred her recovery. (Amaya v. Home Ice, Fuel & Supply Co., 59 Cal.2d 295, 29 Cal.Rptr. 33, 379 P.2d 513.)

Dillon v. Legg, supra, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912, decided in June of 1968, changed the California law. There our Supreme Court considered the right to compensation of a mother who suffered emotional trauma and consequent physical injury from witnessing the negligently caused death of her child. The court recognized that the rule of Amaya v. Home Ice, Fuel & Supply, Co., supra, 59 Cal.2d 295, 29 Cal.Rptr. 33, 379 P.2d 513, decided by it five years earlier, denied recovery for negligently caused mental or emotional disturbance, and consequent illness, flowing from injury to a third person unless the plaintiff was himself within the zone of danger through fear for his own safety arising out of the same negligent act. It noted, also, that the Amaya rule was based upon a concept of a lack of duty which prevented recovery despite foreseeability of the emotional trauma and consequent injury. Rejecting the concepts of limited duty and zone of danger applied in Amaya, and the rationale for the concepts, our Supreme Court in Dillon overruled its earlier decision and held the mother could recover for her physical injuries occasioned by her emotional trauma.

The Amaya court had expressly considered the concept of duty as wholly separate from the concept of foreseeability of injury (59 Cal.2d at p. 308, 29 Cal.Rptr. 33, 379 P.2d 513) and treated it as a policy limitation upon recovery in tort (59 Cal.2d at p. 309, 29 Cal.Rptr. 33, 379 P.2d 513.) The court had adopted its policy of limitation of liability for negligently inflicted emotional distress on the theory that a general rule permitting recovery would open the way to fraudulent claims by reason of the 'difficult medical question . . . presented when it must be determined if emotional distress resulted in physical injury' (59 Cal.2d at p. 311, 29 Cal.Rptr. at p. 43, 379 P.2d at p. 523). Equally persuasive to the Amaya court were 'the problem of setting some limits to such liability' (59 Cal.2d at p. 312, 29 Cal.Rptr. at p. 43, ...