Nazaroff v. Superior Court

• Decision Date: 01 May 1978
• Citation: 145 Cal.Rptr. 657,80 Cal.App.3d 553
• Court: California Court of Appeals Court of Appeals
• Parties: Deborah NAZAROFF, Petitioner, v. The SUPERIOR COURT of the State of California IN AND FOR the COUNTY OF SANTA CRUZ, Respondent; Robert BECKER and Sylva Becker, Real Parties in Interest. Civ. 42014.

Page 657

145 Cal.Rptr. 657

80 Cal.App.3d 553

Deborah NAZAROFF, Petitioner, v. The SUPERIOR COURT of the State of California IN AND FOR the COUNTY OF SANTA CRUZ, Respondent;

Robert BECKER and Sylva Becker, Real Parties in Interest.

Civ. 42014.

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

May 1, 1978.

Hearing Denied June 29, 1978.

Rodney R. Atchison, Santa Cruz, for petitioner.

Grunsky, Pybrum, Skemp & Ebey, Watsonville, for real parties in interest.

SIMS, ^* Associate Justice.

By her petition for writ of mandate, petitioner, the mother of a three-year-old infant who died from the effects of near drowning in a swimming pool owned and controlled by real parties in interest, seeks to set aside an order of the trial court that granted the poolowners' motion for partial summary judgment on a cause of action in which she sought recovery for her physical injuries resulting from her emotional distress at witnessing her son being pulled from the swimming pool, and in participating in unavailing attempts to fully revive him. ¹ On review it is determined that triable issues of fact exist as to whether plaintiff is entitled to recover damages for physical injuries resulting from shock and emotional distress. The petition must be granted, and a peremptory writ of mandate will issue as prayed.

Since the mother's cause of action for wrongful death persists, there is no final judgment from which an appeal will lie. (See Vasquez v. Superior Court (1971) 4 Cal.3d 800, 806, 94 Cal.Rptr. 796, 484 P.2d 964; Field Research Corp. v. Superior Court (1969) 71 Cal.2d 110, 111, 77 Cal.Rptr. 243, 453 P.2d 747; and Mather v. Mather (1936) 5 Cal.2d 617, 618, 55 P.2d 1174. Cf. Justus v. Atchison (1977) 19 Cal.3d 564, 568, 139 Cal.Rptr. 97, 565 P.2d 122; Arauz v. Gerhardt (1977) 68 Cal.App.3d 937, 940-941, 137 Cal.Rptr. 619 and Archibald v. Braverman (1969) 275 Cal.App.2d 253, 254, 79 Cal.Rptr. 723.) Nevertheless, where an order bars a substantial portion of a plaintiff's case from being heard on the merits, a petition for writ of mandate to vacate that order may be maintained. (Vasquez v. Superior Court, supra, 4 Cal.3d 800, 807, 94 Cal.Rptr. 796, 484 P.2d 964; Field Research Corp. v. Superior Court, supra, 71 Cal.2d 110, 111, 77 Cal.Rptr. 243, 453 P.2d 747.) ²

The rules governing summary judgments are collated in Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 42 Cal.Rptr. 449, 398 P.2d 785. There the court concluded, "Thus, the trial court was justified in granting the motion here only if the declarations filed in support of it, strictly construed, contain facts sufficient to entitle the defendants to judgment, and those of the plaintiffs, liberally construed, show that there was no issue of fact to be tried." (62 Cal.2d at p. 417, 42 Cal.Rptr. at p. 452, 398 P.2d at p. 788. See also Vesely v. Sager (1971) 5 Cal.3d 153, 169, 95 Cal.Rptr. 623, 486 P.2d 151; Pettis v. General Tel. Co. (1967) 66 Cal.2d 503, 505, 58 Cal.Rptr. 316, 426 P.2d 884; Residents of Beverly Glen, Inc. v. City of Los Angeles (1973) 34 Cal.App.3d 117, 127-128, 109 Cal.Rptr. 724; Archibald v. Braverman, supra, 275 Cal.App.2d 253, 79 Cal.Rptr. 723, passim; and Thornton v. Victor Meat Co. (1968) 260 Cal.App.2d 452, 457-458, 67 Cal.Rptr. 887. Cf. Loma Portal Civic Club v. American Airlines, Inc. (1964) 61 Cal.2d 582, 588, 39 Cal.Rptr. 708, 394 P.2d 548; Arauz v. Gerhardt, supra, 68 Cal.App.3d 937, 940-941, 37 Cal.Rptr. 619, and Swaffield v. Universal Ecsco Co. (1969) 271 Cal.App.2d 147, 171-172, 76 Cal.Rptr. 680.)

In support of the allegations of the second cause of action in her complaint ³ petitioner filed the following declaration, "On July 8, 1976, I had been searching for my son DANIEL R. NAZAROFF, who had been missing for a short period of time. I had just walked by the home of ROBERT and SYLVA BECKER, and was standing in front of the property adjacent to the BECKER's home speaking with a neighbor about DANNY's whereabouts. Suddenly I heard a scream from ROBYN BECKER from her yard. She screamed just the words 'It's Danny'. I immediately had the dreadful knowledge that Danny had somehow gotten into the BECKER's swimming pool and that he was hurt. I was perhaps thirty feet away from the entrance to the BECKER's yard and pool when I heard the scream. I immediately ran toward the pool, and as I was running I saw a person I believed to be NANCY AKERS pulling DANNY from the pool. DANNY was still partly in and partly out of the pool. (P) By the time I arrived at the pool edge, NANCY AKERS had commenced mouth-to-mouth resuscitation. I immediately pushed her aside and commenced mouth-to-mouth resuscitation and heart thumping. . . ."

She also filed the declaration of the physician who attended her son for the three days preceding his death. It states in part: "DANIEL R. NAZAROFF suffered and died from the effects of near drowning, including severe hypoxia and broncho-pneumonia. (P) The etiology of hypoxia, developing as a result of fresh water near drowning, is such that each moment that the victim suffers a deprivation of oxygen contributes significantly to the hypoxia and ultimate brain damage or death. (P) In near drowning situations, the trauma consists of a continuing insult to the body, rather than a single event. In near drowning situations, when death is the result of hypoxia, the trauma continues until such time as adequate oxygenation has taken place to restore arterial blood gas and acid base levels."

The moving party relied upon extracts from the plaintiff's deposition which indicate that she missed her son and was searching for him in the neighborhood when she heard a cry and she ran and saw him as he was pulled up. She testified that the poolowner's daughter told her the boy was in the pool; but she apparently observed him because she further testified she reached him when he was just being put on the side of the pool. She also testified concerning her efforts to treat him with artificial resuscitation and heart massage. The defendants also filed declarations by the poolowner wife, who was not a percipient witness of the rescue, by her daughter, and by a woman who participated with the daughter in pulling the boy from the pool. It appears that the latter came to pick up the Becker girl for a baby sitting assignment, she observed something in the pool, and directed the girl's attention to it. It proved to be the Nazaroff boy. The Becker girl pulled the boy out of the pool and her companion began mouth-to-mouth resuscitation. According to them, the mother did not arrive until after the resuscitation attempt had begun, and according to the woman administering it, her arrival was three or four minutes later.

In Dillon v. Legg (1968) 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912, the majority opinion authored by Justice Tobriner opens with the following statement: "That the courts should allow recovery to a mother who suffers emotional trauma and physical injury from witnessing the infliction of death or injury to her child for which the tortfeasor is liable in negligence would appear to be a compelling proposition." (68 Cal.2d at p. 730, 69 Cal.Rptr. at p. 74, 441 P.2d at p. 914.) It states and refutes the arguments advanced in past American decisions which have barred the mother's recovery. It first points out, "This court in the past has rejected the argument that we must deny recovery upon a legitimate claim because other fraudulent ones may be urged." (Id., p. 735, 69 Cal.Rptr. p. 77, 441 P.2d p. 917; see pp. 735-739, 69 Cal.Rptr. 72, 441 P.2d 912.) The opinion then approaches the argument that to permit such recovery "would involve the courts in the hopeless task of defining the extent of the tortfeasor's liability," and it concludes: "The alleged inability to fix definitions for recovery on the different facts of future cases does not justify the denial of recovery on the specific facts of the instant case; in any event, proper guidelines can indicate the extent of liability for such future cases." (Id., pp. 730, 739, 69 Cal.Rptr. p. 79, 441 P.2d p. 919.)

The first statement under the foregoing postulates, reads, "In order to limit the otherwise potentially infinite liability which would follow every negligent act, the law of torts holds defendant amenable only for injuries to others which to defendant at the time were reasonably foreseeable." (Id., p. 739, 69 Cal.Rptr. p. 79, 441 P.2d p. 919.) If the opinion had stopped at that point, there would be no reason not to foresee that any parent who not only observed, but who only subsequently learned of an injury to an offspring, might suffer shock severe enough to cause substantial injury. (See Burke, J., dissenting, as quoted below.) The opinion, however, recognizing that "no immutable rule can establish the extent of that obligation for every circumstance of the future," prescribed guidelines for the resolution of such an issue. The court first prescribed that the right to recover was limited to shock which results in physical injury. (Id., p. 740, 69 Cal.Rptr. p. 80, 441 P.2d p. 920.) ⁴ It then stated, "In determining, in such a case, whether defendant should reasonably foresee the injury to plaintiff, or, in other terminology, whether defendant owes plaintiff a duty of due care, 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." (Id., pp. 740-741, 69 Cal.Rptr. p. 80, 441 P.2d p. 920.)

We are here concerned with the first and second factors. The opinion...