Parsons v. Superior Court

• Decision Date: 01 June 1978
• Citation: 146 Cal.Rptr. 495,81 Cal.App.3d 506
• Court: California Court of Appeals Court of Appeals
• Parties: , 5 A.L.R.4th 826 Vaughn Andrew PARSONS, aka Andy Parsons, Vip Chrysler, V. A. Parsons and Doris S. Parsons, Petitioners, v. SUPERIOR COURT of the State of California FOR the COUNTY OF MONTEREY, Respondent; Morgan FLAGG, Claire Flagg, John Patrick Flagg, and Mary Claire Flagg, a minor, by Morgan Flagg, her guardian ad litem, Real Parties In interest. Civ. 43486.

Page 495

146 Cal.Rptr. 495

81 Cal.App.3d 506, 5 A.L.R.4th 826

Vaughn Andrew PARSONS, aka Andy Parsons, Vip Chrysler, V. A. Parsons and Doris S. Parsons, Petitioners, v. SUPERIOR COURT of the State of California FOR the COUNTY OF MONTEREY, Respondent Morgan FLAGG, Claire Flagg, John Patrick Flagg, and Mary Claire Flagg, a minor, by Morgan Flagg, her guardian ad litem, Real Parties In interest.

Civ. 43486.

Court of Appeal, First District, Division 2, California.

June 1, 1978.

Hearing Denied July 27, 1978.

Holbrook, Van Noy & Lankes, Richard E. Holbrook, Salinas, for petitioners.

Hoge, Fenton, Jones & Appel, Inc. by Charles R. Keller, Monterey, for real parties in interest.

TAYLOR, Presiding Justice.

Petitioners, defendants in an action for wrongful death and for physical injuries for emotional distress, moved for summary judgment on the second cause of action on the ground that real parties, plaintiffs in the action, did not state a cause of action for physical injuries for emotional distress in accordance with Dillon v. Legg (1968) 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912. Respondent court denied the motion. Petitioners seek mandate, contending that the motion should have been granted because the facts were undisputed and the law establishes their right to the relief which the court refused (Whitney's at the Beach v. Superior Court (1970) 3 Cal.App.3d 258, 265, 83 Cal.Rptr. 237).

The facts disclosed in the affidavits are as follows: On November 26, 1976, real parties, Morgan Flagg and Claire Flagg, along with their three daughters and a son, attended a brunch in Carmel. Present at the brunch was petitioner, Vaughn Andrew Parsons, one of the defendants in this action. At the brunch, the deceased daughters, Lori Ruth Flagg and Kerri Louise Flagg, sought and obtained permission from their father to ride home with petitioner Parsons and thereafter left the brunch in an automobile driven by Parsons. Real parties, Morgan Flagg and Claire Flagg, accompanied by their remaining daughter, Mary Claire Flagg, and son, John Patrick Flagg, followed in the Flagg automobile.

Upon rounding a curve, real parties came upon the wreckage of the Parsons automobile, knowing instantly that their close family members were within and either dead or dying. The father left his car and reached the wreckage wherein lay his daughters before the dust had settled. In answer to interrogatories, he stated: "I don't know when the accident happened, since I didn't actually see the car go out of control and hit the pole, but it could not have been more than a few moments before we drove on the scene." It was admitted that real parties neither saw nor heard the accident take place.

In Dillon v. Legg, supra, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912, the court upheld a cause of action for physical injuries flowing from a mother's emotional trauma in witnessing the death of her child. The court suggested that the cause of action should be sustained whenever the injury was reasonably foreseeable, "excluding the remote and unexpected" (p. 741, 69 Cal.Rptr. 72, 441 P.2d 912). In order to limit the "otherwise potentially infinite liability" which might flow from every negligent act, the court listed the factors to be considered in determining reasonable foreseeability and whether the defendant owed the plaintiff a duty of due care. They are: "(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." (Pp. 740-741, 69 Cal.Rptr. at p. 80, 441 P.2d at p. 920.)

Petitioners contend that the uncontradicted facts show that real parties arrived on the scene after the accident had happened and that since real parties neither saw nor heard any part of the accident take place, the Dillon requirement of a "direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident" has not been met.

Real parties contend that their cause of action is sustainable upon the authority of Archibald v. Braverman (1969), 275 Cal.App.2d 253, 79 Cal.Rptr. 723. In Archibald, recovery under the Dillon rule was extended to a situation where the mother of a child injured in an explosion did not actually witness the tort but viewed the child's injuries within moments after the occurrence of the injury-producing event. Archibald has been cited in a number of cases. In the first, Deboe v. Horn (1971), 16 Cal.App.3d 221, 94 Cal.Rptr. 77, the court refused to extend recovery to a wife, who did not witness the accident, but was advised of its occurrence by others and thereafter viewed her paralyzed husband in the emergency room of the hospital. In Jansen v. Children's Hospital Medical Center (1973), 31 Cal.App.3d 22, 106 Cal.Rptr. 883, the Dillon rule was held inapplicable to a situation where a mother witnessed her child's painful death in a hospital. Death was due to a negligent diagnosis. The court concluded that the "event causing injury to the child must itself be one which can be the subject of sensory perception." (P. 24, 106 Cal.Rptr. p. 885; emphasis added.) The court distinguished Archibald, noting that "There it can be inferred that the mother heard the explosion, thus having a 'sensory observance of it.' In any event, it is clear that even a lay person, viewing the gory result, necessarily reconstructed mentally the precise brief event itself, and in Archibald, did so substantially contemporaneously with that event." (Pp. 24-25, 106 Cal.Rptr. p. 885; emphasis added.)

In Krouse v. Graham (1977), 19 Cal.3d 59, 76, 187 Cal.Rptr. 863, 872, 562 P.2d 1022, 1031, the court confirmed "the propriety of the expression in Archibald, supra, that the Dillon requirement of 'sensory and contemporaneous observance of the accident' does not require a visual perception of the impact causing the death or injury." In that case, the court held that although the husband did not see his wife struck by defendant's automobile, he fully perceived the fact that she had been so struck "for he knew her position an instant before the impact, observed defendant's vehicle approach her at a high speed on a collision course, and realized that defendant's car must have struck her." The court held that under such circumstances, husband "must be deemed a percipient witness to the impact causing (wife's) catastrophic injuries." (Emphasis added.)

In Arauz v. Gerhardt (1977), 68 Cal.App.3d 937, 137 Cal.Rptr. 619, the court, after noting the Krouse statement that visual perception of the impact causing the death or injury was not essential, nevertheless...