Ra v. Superior Court

• Court: California Court of Appeals
• Writing for the Court: Perluss
• Citation: Ra v. Superior Court, 64 Cal.Rptr.3d 539, 154 Cal.App.4th 142 (Cal. App. 2007)
• Decision Date: 15 August 2007
• Docket Number: No. B197766.,B197766.
• Parties: Michelle RA et al., Petitioners, v. The SUPERIOR COURT of Los Angeles County, Respondent; Presidio International Inc., Real Party in Interest.

64 Cal.Rptr.3d 539

154 Cal.App.4th 142

Michelle RA et al., Petitioners, v. The SUPERIOR COURT of Los Angeles County, Respondent Presidio International Inc., Real Party in Interest.

No. B197766.

Court of Appeal, Second District, Division 7.

August 15, 2007.

Matthew C. Mickelson and Raymond Feldman, Los Angeles, for Petitioners.

No appearance for Respondent.

Bragg & Kuluva, Steven H. Yuster, Murchison & Cumming LLP and Edmund G. Farrell III, Los Angeles, for Real Party in Interest.

PERLUSS, P.J.

In Thing v. La Chusa (1989) 48 Cal.3d 644, 667, 257 Cal.Rptr. 865, 771 P.2d 814 (Thing), the Supreme Court held only "closely related percipient witnesses" may seek damages for emotional distress caused by observing the negligently inflicted injury of a third person and specifically limited recovery to a plaintiff who "is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim." (Id at p. 668, 257 Cal.Rptr. 865, 771 P.2d 814.)¹ Does the requirement of contemporary sensory awareness of the causal connection between the negligent conduct and the resulting injury limit recovery on a bystander claim to a plaintiff who clearly and distinctly perceived the injury being inflicted, or is recovery permitted for a plaintiff who was aware a traumatic event was occurring and believed it "more likely than not" her husband had been injured?

Michelle Ra was present in the retail store where her husband was seriously injured by a falling sign, knew his location in the store immediately before the accident, heard a loud crash emanate from that area and believed, as a result, it was "more likely than not" he had been injured, but did not know with reasonable certainty her husband had been hurt until she turned and saw him immediately thereafter. Because these facts, even if proved at trial, do not support a bystander claim, the trial court properly granted Presidio International Inc.'s motion for summary adjudication as to Ra's third cause of action for negligent infliction of emotion distress to a bystander; and we deny Ra's petition for writ of mandate directing the trial court to vacate its order granting the motion.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Accident

In October 2004 Ra and her husband, Dr. Phil Jae Ra, were shopping in an Armani Exchange in Old Town Pasadena. Ra was looking at merchandise in the women's section while her husband examined the men's sweater display some 10 to 15 feet away. Ra was not facing her husband when she heard "a loud bang." The sound caused Ra "to fear for my own safety and that of my husband." In fact, a large, overhead store sign had fallen, striking Dr. Ra on the head. After hearing the loud bang, Ra turned in the direction of the noise and saw her husband with his hand to his head, bending at the knees and apparently in pain. Ra did not see the sign strike her husband, nor did she notice the sign on the ground after looking at her husband and walking toward him.

2. The Ras' Lawsuit

In September 2005 Dr. Ra and Ra sued Presidio, which owns Armani Exchange, for premises liability; negligent infliction of emotional distress to a bystander as to Ra, with a related claim by Dr. Ra for loss of consortium; and negligent infliction of emotional distress as to Ra as a direct victim in the zone of danger, also with a loss of consortium claim by Dr. Ra. In interrogatory responses Ra asserted, as a result of Presidio's negligence, she had suffered severe emotional distress caused both by the fear she had experienced for her own and her husband's safety as she heard the loud bang and by her observations of her husband in pain immediately following the accident and in the subsequent weeks as her husband's continuing headaches curtailed his work as a dentist and his leisure activities. Within 10 days of the incident Ra suffered a miscarriage, which she also attributed to the emotional distress caused by the accident.

3. Presidio's Motion for Summary Adjudication on Ra's Bystander Claim

After conducting substantial discovery, on December 8, 2006 Presidio moved for summary adjudication as to Ra's bystander claim, arguing Ra's discovery responses established she was not aware of her husband's injuries at the time of the accident, but only learned afterward the overhead sign had fallen and struck him.² In deposition testimony submitted with Presidio's motion, Ra explained she was looking at the shelves in the women's section when she heard the loud sound and did not see the sign fall and strike her husband. In response to the question, "At that moment [you heard the sound], did you know your husband had been involved in any kind of accident; this is before you looked anywhere else?" Ra testified, "I was not sure if he was involved, but I knew the sound came from the direction—the part of the store he was in." In her response to a special interrogatory, Ra answered she "hearfd] a loud bang that caused me to fear for my own safety and that of my husband; immediately thereafter, in trying to see about the well-being of my husband ... I could see something was wrong...." However, because she was not looking down, but rather at her husband's head, Ra did not see the sign on the ground.

Presidio argued Ra's after-the-fact perception of her husband's injuries was insufficient as a matter of law for recovery on a bystander claim under Thing, which requires contemporaneous awareness of the; injury and the injury-causing event. (See Thing, supra, 48 Cal.3d at p. 667, 257 Cal.Rptr. 865, 771 P.2d 814 [articulating the necessary elements for recovery under a bystander claim].)

Ra opposed the motion, asserting that, in part, there was a triable issue of fact whether she was aware at the time she: heard the loud sound that her husband was being injured. In a declaration filed with her opposition papers Ra disputed the significance of the deposition testimony upon which Presidio relied to negate her contemporary awareness of Dr. Ra's injury and the injury-producing event: "If I had been asked to clarify at my deposition, I would have stated, and I hereby do state, that although I had some doubt, I believed more likely than not when I heard the loud bang in the Armani store on 10-1-04 that my husband was involved in an accident. I believed this because when I heard the loud bang, I knew the sound came from where I knew my husband was located. Confirming this belief or knowledge I had that my husband was probably involved in an accident, I then immediately turned to look at my husband." Ra argued a "reasonable fear of possible injury," not absolute certainty as Presidio suggested, was sufficient to establish the contemporaneous awareness element of a bystander claim.

On February 27, 2007 the trial court granted Presidio's motion for summary adjudication, finding the evidence submitted—Ra's deposition, special interrogatory responses and declaration—established she had not contemporaneously perceived the injury to her husband.³

4. The Petition for Writ of Mandate

Ra and Dr. Ra⁴ filed a petition for writ of mandate directing the trial court to vacate its order granting the motion for summary adjudication on the bystander claim and to enter a new and different order denying the motion.⁵ On March 29, 2007 we issued an order to show cause why the relief requested should not be granted and on April 20, 2007 stayed the trial on the Ras' remaining causes of action, then scheduled to begin on May 21, 2007.

CONTENTION

Ra contends evidence she knew where her husband was within the Armani Exchange store, heard a loud bang from that area and simultaneously knew it was "more likely than not" her husband had been injured by the event generating the sound is sufficient to establish the element of contemporary sensory awareness for a cause of action for negligent infliction of emotional distress to a bystander.

DISCUSSION

1. Standard of Review

We review the trial court's grant of summary judgment or summary adjudication de novo and decide independently whether the parties have met their respective burdens and whether facts not subject to triable dispute warrant judgment for the moving party or a determination a cause of action has no merit as a matter of law. (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348, 1 Cal.Rptr.3d 32, 71 P.3d 296; homes v. Hartford Financial Services Group, Inc. (2001) 88 Cal.App.4th 127, 131, 105 Cal.Rptr.2d 471; Code Civ. Proc, § 437c, subds. (c), (f)(1).)

2. Governing Law

In Thing, supra, 48 Cal.3d at pages 667, 257 Cal.Rptr. 865, 771 P.2d 814 to 668, the Supreme Court held to recover for negligent infliction of emotional distress as a bystander the plaintiff must plead and prove he or she "(1) is closely related to the injury victim; (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim; and (3) as a result suffers serious emotional distress— a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances." (Footnotes omitted.) The Thing Court expressly disapproved suggestions in prior cases that a negligent actor is liable to all those "who may have suffered emotional distress on viewing or learning about the injurious consequences of his conduct," rather than on viewing the injury-producing event itself. (Id. at p. 668, 257 Cal.Rptr. 865, 771 P.2d 814; Bird v. Saenz (2002) 28 Cal.4th 910, 915-916, 123 Cal.Rptr.2d 465, 51 P.3d 324 [describing Thing's three requirements as "mandatory" and "exclusive"].) "Greater certainty and a more reasonable limit on the exposure to liability for negligent conduct is possible by limiting the right to recover for negligently caused emotional distress to plaintiffs who personally and contemporaneously perceive the injury-producing event and its traumatic consequences." (Thing, at p. 666, 257 Cal.Rptr. 865, 771 P.2d 814; se...