Spates v. Dameron Hosp. Assn.

• Decision Date: 11 December 2003
• Docket Number: No. C043762.,C043762.
• Citation: 7 Cal.Rptr.3d 597,114 Cal.App.4th 208
• Court: California Court of Appeals Court of Appeals
• Parties: Bobbie Lee SPATES, Plaintiff and Appellant, v. DAMERON HOSPITAL ASSOCIATION, Defendant and Respondent.

7 Cal.Rptr.3d 597

114 Cal.App.4th 208

Bobbie Lee SPATES, Plaintiff and Appellant, v. DAMERON HOSPITAL ASSOCIATION, Defendant and Respondent.

No. C043762.

Court of Appeal, Third District.

December 11, 2003.

Stephen H. Cornet and Brenda C. Morrissey, Oakland, for Plaintiff and Appellant.

Kroloff, Belcher, Smart, Perry & Christopherson, Orlie L. Curtis, Stockton, and J. Douglas Van Sant, for Defendant and Respondent.

HULL, J.

Plaintiff appeals from a judgment of dismissal following an order granting defendant's motion for summary judgment. Plaintiff contends issues of fact remain on her claims stemming from defendant's failure to take reasonable steps to notify her of her mother's death. We affirm the judgment.

FACTS AND PROCEDURAL HISTORY

On review of an order granting summary judgment, we consider the evidence in the light most favorable to the opposing party. (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107, 252 Cal.Rptr. 122, 762 P.2d 46.)

Martha Morris (decedent) was a patient at Dameron Hospital in Stockton when at approximately 3:00 a.m., August 5, 2000, she died of congestive heart failure and diabetes mellitus. Since November 1998, decedent had been a resident of a nursing home facility operated by Beverly Health and Rehabilitation Services, Inc. (Beverly Manor), and had been taken to Dameron Hospital for treatment on more than one occasion during this period.

In November 1998, plaintiff Bobbie Lee Spates, who is decedent's daughter, provided Beverly Manor with information regarding decedent's burial insurance and instructions to have decedent's remains sent to Thompson Funeral Home.

In June 1999, plaintiff moved from the Stockton area to Richmond, California, where she resided with a friend. Plaintiff informed Beverly Manor of her new address in Richmond shortly after she moved.

Decedent was admitted to Dameron Hospital for treatment on November 11, 1999. Plaintiff went to the hospital on November 16 to visit her mother and, at the time, gave a nurse her new address and telephone number. This information was placed on a note on decedent's chart. This was plaintiff's last visit to decedent. There is no evidence that plaintiff had any further contact with Dameron Hospital between November 1999 and her mother's death in August 2000.

Following pronouncement of decedent's death, Gayla Hartman, a nurse at Dameron Hospital, looked on decedent's chart for emergency contact information and found plaintiff's name. She called the number on the chart. However, the address and telephone number listed were from plaintiff's prior Stockton residence. Hartman then called Beverly Manor to obtain the correct telephone number for plaintiff. She was given the number 948-6572. However, when Hartman called that number, she discovered it had been disconnected. Hartman did not look at any charts from decedent's prior visits to the hospital.

Decedent's remains were eventually turned over to the County Coroner and were cremated. Plaintiff's daughter sought to contact decedent on August 17, 2000, and learned of the death and cremation. Plaintiff then initiated this action against Dameron Hospital Association (Dameron), the operator of Dameron Hospital, and Beverly Manor, alleging negligent disposal of decedent's body, conversion and breach of fiduciary duty.

Dameron moved for summary judgment, arguing, among other things that it owed no duty to plaintiff with respect to the disposal of decedent's body. The trial court granted the motion. The court concluded that the complaint sought emotional distress damages and such relief is available only if there was a preexisting relationship between the parties. The court concluded that no such relationship existed between Dameron and plaintiff. The court further concluded that even if a duty existed, it required only a reasonable effort to locate next of kin, and Dameron made a reasonable effort as a matter of law. The court thereafter entered judgment of dismissal. Plaintiff's motion for a new trial was denied, and this appeal followed.

DISCUSSION

I Negligent Infliction of Emotional Distress

Plaintiff seeks to recover for emotional distress caused by the negligent disposal of decedent's remains. The complaint alleges that Dameron negligently interfered with plaintiff's right to dispose of decedent's body by failing to notify plaintiff of decedent's death, failing to carry out plaintiff's wishes with respect to funeral and burial services, failing to keep accurate records of plaintiff's current whereabouts and failing to use reasonable efforts to find plaintiff.

"The law of negligent infliction of emotional distress in California is typically analyzed ... by reference to two `theories' of recovery: the `bystander' theory and the `direct victim' theory.... [¶] ... [¶] ... `[T]he negligent causing of emotional distress is not an independent tort, but the tort of negligence.... The traditional elements of duty, breach of duty, causation, and damages apply. [¶] Whether a defendant owes a duty of care is a question of law." (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1071-1072, 9 Cal.Rptr.2d 615, 831 P.2d 1197.)

The bystander theory recognizes a duty in the limited class of cases where a plaintiff "(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 emotional distress beyond that which would be anticipated in a disinterested witness." (Thing v. La Chusa (1989) 48 Cal.3d 644, 647, 257 Cal.Rptr. 865, 771 P.2d 814.) Direct victim theory involves a duty owed directly to the plaintiff "that is assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of a relationship between the two." (Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 590, 257 Cal.Rptr. 98, 770 P.2d 278.)

This matter involves a direct victim claim. Plaintiff does not allege that she suffered emotional distress by witnessing negligent medical treatment of decedent. In granting Dameron's motion for summary judgment, the trial court indicated that "one cannot be a `direct victim' so as to recover emotional distress damages unless there is a preexisting relationship between the parties." The court concluded that no such relationship existed in this instance.

Plaintiff contends the relevant factors support imposition of a duty under the facts of this case. She argues that Dameron had a statutory duty to locate and notify her of decedent's death and that once Dameron undertook to locate decedent's next of kin, it assumed a duty to her.

Taking its cue from the trial court, Dameron contends there can be no duty to protect plaintiff against negligent infliction of emotional distress absent a preexisting relationship between Dameron and plaintiff. Dameron cites as support Krupnick v. Hartford Accident & Indemnity Co. (1994) 28 Cal.App.4th 185, 34 Cal.Rptr.2d 39, in which an injured party sued the tortfeasor's insurer for unfair settlement practices. In rejecting the claim, the Court of Appeal stated that in Burgess v. Superior Court, supra, 2 Cal.4th 1064, 9 Cal.Rptr.2d 615, 831 P.2d 1197, the Supreme Court provided a "simple, working definition of `direct victim'" that required "the presence of a preexisting relationship between the parties...." (Krupnick v. Hartford Accident & Indemnity Co., supra, 28 Cal.App.4th at p. 190, 34 Cal.Rptr.2d 39.) There was no such preexisting relationship between the injured party and the tortfeasor's insurer.

Dameron's reliance on Krupnick is misplaced. In neither Krupnick nor Burgess did the court say that a preexisting relationship is a sine qua non of a direct victim claim. In Burgess, the court stated: "[A] cause of action to recover damages for negligently inflicted emotional distress will lie, notwithstanding the criteria imposed upon recovery by bystanders, in cases where a duty arising from a preexisting relationship is negligently breached." (Burgess v. Superior Court, supra, 2 Cal.4th at p. 1074, 9 Cal.Rptr.2d 615, 831 P.2d 1197.) However, the court did not say that this is the only way such a claim may be established. On the contrary, the court cited Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc., supra, 48 Cal.3d at page 590, 257 Cal.Rptr. 98, 770 P.2d 278, where it had earlier stated that a direct victim claim may be premised on a duty that is (1) assumed by the defendant, (2) imposed as a matter of law, or (3) arises out of a relationship between the parties.

Dameron also cites Bro v. Glaser (1994) 22 Cal.App.4th 1398, 27 Cal.Rptr.2d 894, where the Court of Appeal announced a bright line rule for direct victim claims requiring two elements: (1) a preexisting relationship between the parties, and (2) outrageous conduct. (Id. at pp. 1416, 1440-1441, 27 Cal.Rptr.2d 894.) However, Bro v. Glaser has been uniformly criticized as straying from the guidelines established by the Supreme Court. (See Wooden v. Raveling (1998) 61 Cal.App.4th 1035, 1042, 71 Cal.Rptr.2d 891; Fluharty v. Fluharty (1997) 59 Cal.App.4th 484, 492, 69 Cal.Rptr.2d 244; Mercado v. Leong (1996) 43 Cal.App.4th 317, 327, 50 Cal.Rptr.2d 569.)

Dameron also relies on Aguirre-Alvarez v. Regents of University of California (1998) 67 Cal.App.4th 1058, 79 Cal.Rptr.2d 580, in which an individual who stole a car and was shot by police was taken to the defendant's hospital for treatment. (Id. at p. 1060, 79 Cal.Rptr.2d 580.) After the individual died, his body was turned over to the coroner, who disposed of it by cremation. (Id. at pp. 1061-1062, 79 Cal.Rptr.2d 580.) The decedent's family brought an action against the defendant for negligent infliction of emotional distress, and the trial court granted the defendant's motion for summary judgment. (Id. at p. 1062, 79 Cal.Rptr.2d 580.)

The Court of Appeal affirmed. On the question whether a special relationship existed...