Ochoa v. Superior Court, S.F. 24637

• Court: United States State Supreme Court (California)
• Writing for the Court: BROUSSARD; GRODIN; BIRD
• Citation: 216 Cal.Rptr. 661,703 P.2d 1,39 Cal.3d 159
• Parties: , 703 P.2d 1, 54 USLW 2107 Gloria OCHOA et al., Petitioners, v. The SUPERIOR COURT of Santa Clara County, Respondent; COUNTY OF SANTA CLARA et al., Real Parties in Interest.
• Decision Date: 29 July 1985
• Docket Number: S.F. 24637

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216 Cal.Rptr. 661 39 Cal.3d 159, 703 P.2d 1, 54 USLW 2107 Gloria OCHOA et al., Petitioners,
v.
The SUPERIOR COURT of Santa Clara County, Respondent;
COUNTY OF SANTA CLARA et al., Real Parties in Interest. S.F. 24637. Supreme Court of California,
In Bank. July 29, 1985.

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[703 P.2d 2] [39 Cal.3d 162] Jessie Serna, San Jose, for petitioners.

Robert E. Cartwright, San Francisco, Leonard Sacks, Encino, Victoria J. De Goff, Berkeley, Wylie A. Aitken, Santa Ana, Harlan Arnold, Beverly Hills, Glen T. Bashore, North Fork, Ray Bourhis, San Francisco, Richard D. Bridgman, Oakland, Edwin Train Caldwell, San Francisco, David S. Casey, Jr., San Diego, Douglas K. de Vries, Sacramento, H. Greig Fowler, San Francisco, Sanford M. Gage, Beverly Hills, Ian Herzog, Los Angeles, G. Dana Hobart, Marina Del Rey, Stanley K. Jacobs, Los Angeles, Harvey R. Levine, San Diego, John C. McCarthy, Claremont, Timothy W. Peach, San Bernardino, Joseph Posner, Robert H. Sulnick, Los Angeles, John M. Van Dyke, Fullerton, Arne Werchick, Sausalito, and Stephen I. Zetterberg, Claremont, as amici curiae on behalf of petitioner.

Hassard, Bonnington, Rogers & Huber, William B. Sturgeon, Brock D. Phillips, San [703 P.2d 3] Francisco, Morgan, Morgan, Towery, Morgan

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& Spector, James E. Towery, Rankin, Oneal, Center, Luckhardt, Marlais, Lund & Hinshaw, David H. Ryan and Edward A. Hinshaw, San Jose, for real parties in interest.

BROUSSARD, Justice.

Facts

This proceeding arises out of the tragic death of 13-year-old Rudy Ochoa on March 26, 1981. The petitioners (plaintiffs), Raul and Gloria Ochoa, are the surviving parents of Rudy Ochoa. The real parties in interest (defendants) are the County of Santa Clara and four alleged agents and employees of the county. ¹ The complaint ² states that on February 19, [39 Cal.3d 163] 1981, Rudy was admitted to the custody of Santa Clara County juvenile hall. On March 23, 1981, he became ill with an apparent cold. On March 23 and 24, he went to the infirmary for care and treatment. Rudy's parents visited him on March 24. They saw that he was "extremely ill" and was holding his left side in an attempt to relieve severe pain. Rudy told his parents that he felt very sick and that he had been told that he had a "bug." Gloria Ochoa thereafter spoke with juvenile hall authorities and expressed concern that her son was not receiving the necessary treatment. The juvenile hall authorities attempted to reassure her about her son's condition. Both parents experienced extreme mental and emotional distress upon seeing their son's illness and pain and continued to be distressed thereafter.

On March 25, 1981, Rudy was admitted to the juvenile hall infirmary. He was eventually diagnosed as having bilateral pneumonia and had a temperature of 105 degrees. When Mrs. Ochoa visited her son in the infirmary, he was very pale, and looked dehydrated. His skin was clammy and sweaty. He appeared to be going into convulsions and was hallucinating during most of his mother's visit. When he was lucid he complained of feeling very sick and of feeling pain. Mrs. Ochoa was "very distressed and concerned" and requested that she be allowed to take her sick child to her own physician. She told the authorities that she would cooperate in any way necessary so long as Rudy could be seen by the family physician. Mrs. Ochoa was then seen by one of the defendants, Stanley Lourdeaux, M.D., and was told that her son only had the flu and that he should be left in the infirmary. Rudy repeatedly asked his mother to take him to a private doctor. After repeating her requests that her son be seen by the family doctor, Mrs. Ochoa was told that she would have to wait until the following morning to discuss the problem with the probation officer. Dr. Lourdeaux then advised Mrs. Ochoa that her son would be given a penicillin shot. ³

Mrs. Ochoa then returned to her son's bedside to find him complaining of excruciating pain under his left rib cage. When she attempted to comfort him, his side was tender to touch. She spoke with the nurses on duty and requested that her son be released to her private doctor "even if handcuffed." The nurses denied her request. Mrs. Ochoa gave the nurses her telephone number and asked that she be called immediately if Rudy got worse and told them that she wished to be kept informed of his condition.

[703 P.2d 4] After her conversation with the nurses, Mrs. Ochoa returned and began to apply

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cold compresses in order to bring his fever down. At one point she was told by infirmary personnel to leave. She did not comply with this [39 Cal.3d 164] request, however, and continued to attend to her child by applying cold water compresses and by attempting to reassure him. Rudy continuously asked her not to leave him. While she was with him, she tried to roll him over on his side. Rudy yelled and screamed, complaining of excruciating pain in his chest area, and asked her to summon the doctor and tell him about the pain. The doctor was called but did not examine Rudy while Mrs. Ochoa was present. Throughout this entire period the child was vomiting and unable to retain any fluids. He was also observed by infirmary personnel coughing up blood.

The authorities again insisted that Mrs. Ochoa leave her son. "[S]he bent down to kiss him and [he] clasped her tightly and pleaded that she [stay] because he was so sick." She attempted to reassure Rudy, telling him that the doctor had assured her he would tend to him. Mrs. Ochoa was then required to leave her son's room. She returned to Dr. Lourdeaux and again pleaded that her son be allowed to be treated by the family physician and removed from the facility for that purpose. During all of this Mrs. Ochoa "experienced extreme mental and emotional distress." She was distressed because of her son's condition and because it appeared that her child's medical needs were being ignored. Mrs. Ochoa never again saw her son alive.

The complaint also alleges that Rudy Ochoa was seen by the attending physician, Dr. Lourdeaux, only once on Tuesday, March 24, 1981, and on only one occasion at approximately 10:30 a.m. on Wednesday, March 25, 1981. After this, no physician examined him until he died at approximately 1:05 a.m. on Thursday, March 26, 1981.

Finally, the complaint alleges that Rudy was never transferred to the intensive care unit of any hospital facility, that no X-rays were taken despite the repeated communications of pain and distress below the rib cage, particularly on the left side, and that no blood or urine tests were performed.

Procedural History

Plaintiffs' complaint set forth nine causes of action. Defendants demurred and the trial court sustained the demurrers to counts five through nine without leave to amend. Plaintiffs then sought a writ of mandate to compel the court to set aside the order sustaining the defendants' demurrers to the fifth, sixth, eighth and ninth causes of action. ⁴

39 Cal.3d 165

I

Plaintiffs first contend that they have stated a cause of action for negligent infliction of emotional distress under our decision in Dillon v. Legg (1968) 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912. ⁵ An

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[703 P.2d 5] examination of Dillon and subsequent cases compels the conclusion that plaintiffs have stated a cause of action for negligent infliction of emotional distress. ⁶

[39 Cal.3d 166] In Dillon we became the first American jurisdiction to hold that a parent who witnesses the negligent infliction of death or injury on her child may recover from the resulting emotional trauma and physical injury in cases where the parent does not fear imminent physical harm. In so doing we rejected the "hopeless artificiality" of the rule requiring that the plaintiff be fearful for his or her own personal safety in order to recover. The touchstone of our analysis in Dillon was foreseeability. "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 upon a case-by-case basis." (68 Cal.2d at p. 740, 69 Cal.Rptr. 72, 441 P.2d 912.)

Dillon also provided guidelines to aid in ascertaining whether a cause of action was stated in a particular case. "In determining ... 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.

"The evaluation of these factors will indicate the degree of the defendant's foreseeability: obviously defendant is more likely to foresee that a mother who observes an accident affecting her child will suffer harm than to foretell that a stranger witness will do so. Similarly, the degree of foreseeability of the third person's injury is far greater in the case of his contemporaneous observance of the accident than that in which he subsequently learns of it. The [703 P.2d 6] defendant is more likely to foresee that shock to the nearby, witnessing mother will cause physical harm than to anticipate that

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someone distant from the accident will suffer more than a temporary emotional reaction. All these elements, of course, shade into each other; the fixing of obligation, intimately tied into the facts, depends upon each case." (Id., at pp....