Thing v. La Chusa

• Decision Date: 27 April 1989
• Court: California Supreme Court
• Parties: , 771 P.2d 814, 57 USLW 2671 Maria E. THING, Plaintiff and Appellant, v. James V. LA CHUSA et al., Defendants and Respondents. L.A. 32301.

Page 865

257 Cal.Rptr. 865

48 Cal.3d 644, 771 P.2d 814, 57 USLW 2671

Maria E. THING, Plaintiff and Appellant, v. James V. LA CHUSA et al., Defendants and Respondents.

L.A. 32301.

Supreme Court of California,

In Bank.

April 27, 1989.

[48 Cal.3d 646] McDougal, Meloche, Love & Eckis, Donald L. Meloche, El Cajon, and Patrick F. O'Connor, San Diego, for plaintiff and appellant.

Douglas K. deVries, Sacramento, Mart & deVries, Harvey Levine, Leonard Sacks, Encino, James McGrath, Glendale, Ian Herzog, Santa Monica, Browne Greene, Los Angeles, Don Caffray, Long Beach, Sanford Gage, Beverly Hills, Charles O'Reilly, Santa Monica, and Robert Steinberg as amici curiae, on behalf of plaintiff and appellant.

Gray, Cary, Ames & Frye, Marcelle E. Mihalla, William McCurine, Jr., Jeff L. [771 P.2d 815] Mangum and Marilyn L. Huff, San Diego, for defendants and respondents.

Fred J. Hiestand, Horvitz, Levy & Amerian, Ellis J. Horvitz, Peter Abrahams and Joan Wolff, Encino, as amici curiae, on behalf of defendants and respondents.

EAGLESON, Justice.

The narrow issue presented by the parties in this case is whether the Court of Appeal correctly held that a mother who did not [48 Cal.3d 647] witness an accident in which an automobile struck and injured her child may recover damages from the negligent driver for the emotional distress she suffered when she arrived at the accident scene. The more important question this issue poses for the court, however, is whether the "guidelines" enunciated by this court in Dillon v. Legg (1968) 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912, are adequate, or if they should be refined to create greater certainty in this area of the law.

Although terms of convenience identify the cause of action here as one for negligent infliction of emotional distress (NIED) and the plaintiff as a "bystander" ¹ rather than a "direct victim," the common law tort giving rise to plaintiffs' claim is negligence. (Dillon v. Legg, supra, 68 Cal.2d 728, 730, 69 Cal.Rptr. 72, 441 P.2d 912; Amaya v. Home Ice, Fuel & Supply Co. (1963) 59 Cal.2d 295, 314-315, 29 Cal.Rptr. 33, 379 P.2d 513.) It is in that context that we consider the appropriate application of the concept of "duty" in an area that has long divided this court--recognition of the right of persons, whose only injury is emotional distress, to recover damages when that distress is caused by knowledge of the injury to a third person caused by the defendant's negligence. Although we again find ourselves divided, we shall resolve some of the uncertainty over the parameters of the NIED action, uncertainty that has troubled lower courts, litigants, and, of course, insurers.

Upon doing so, we shall conclude that the societal benefits of certainty in the law, as well as traditional concepts of tort law, dictate limitation of bystander recovery of damages for emotional distress. In the absence of physical injury or impact to the plaintiff himself, damages for emotional distress should be recoverable only if the 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.

I

On December 8, 1980, John Thing, a minor, was injured when struck by an automobile operated by defendant James V. La Chusa. His mother, plaintiff Maria Thing, was nearby, but neither saw nor heard the accident. She became aware of the injury to her son when told by a daughter that John had been struck by a car. She rushed to the scene where she saw her bloody and unconscious child, whom she believed was dead, lying in the [48 Cal.3d 648] roadway. Maria sued defendants, alleging that she suffered great emotional disturbance, shock, and injury to her nervous system as a result of these events, and that the injury to John and emotional distress she suffered were proximately caused by defendants' negligence.

The trial court granted defendants' motion for summary judgment, ruling that, as a matter of law, Maria could not establish a claim for negligent infliction of emotional distress because she did not contemporaneously and sensorily perceive the accident. Although prior decisions applying the guidelines suggested by this court in Dillon v. Legg, supra, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912, compelled the ruling of the trial court, the Court of Appeal

reversed the judgment dismissing Maria's claim after considering the decision of this [771 P.2d 816] court in Ochoa v. Superior Court (1985) 39 Cal.3d 159, 216 Cal.Rptr. 661, 703 P.2d 1. The Court of Appeal reasoned that while Maria's argument, premised on Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813, that she was a direct victim of La Chusa's negligence, did not afford a basis for recovery, contemporaneous awareness of a sudden occurrence causing injury to her child was not a prerequisite to recovery under Dillon

We granted review to consider whether Ochoa supports the holding of the Court of Appeal. We here also further define and circumscribe the circumstances in which the right to such recovery exists. To do so it is once again necessary to return to basic principles of tort law.

II Emotional Distress as a Compensable Item of Damage in Intentional Torts

Although the theory of recovery in issue here is the tort of "negligence," recognition of emotional distress as a distinct item of damage for which recovery may be had even absent physical injury or impact is not limited to negligence actions. Indeed, recovery for intentional conduct that invades the individual's right to peace of mind was recognized long before such recovery was permitted in negligence actions. It is useful, therefore, to place emotional distress as a basis for a negligence action in perspective by briefly reviewing the development of common law recognition of a protectible interest in individual peace of mind--i.e., the right to be free from socially unacceptable conduct that seriously affects another's peace of mind.

The range of mental or emotional injury subsumed within the rubric "emotional distress" and for which damages are presently recoverable "includes fright, nervousness, grief, anxiety, worry, mortification, shock, [48 Cal.3d 649] humiliation and indignity, as well as physical pain." (Deevy v. Tassi (1942) 21 Cal.2d 109, 120, 130 P.2d 389.)

Express or implicit recognition that peace of mind warrants legal protection is found in recovery for emotional distress as an aggravation of damages sought under intentional tort theories. Initially, emotional distress was recognized simply as an item of damages in those actions. With few exceptions, causing mental distress did not itself create a right of action, and where mental distress alone exists the common law rarely permitted recovery of damages. (5 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 402, p. 483.)

Possibly the first exception to that limitation existed in recovery for assault. Assault is a tort which today recognizes the right of the individual to peace of mind, to live without fear of personal harm. "A civil action for assault is based upon an invasion of the right of a person to live without being put in fear of personal harm." (Lowry v. Standard Oil Co. (1944) 63 Cal.App.2d 1, 7, 146 P.2d 57.) It has been noted, however, that actions based on intentional conduct were originally authorized not in recognition of or to redress a right to mental tranquility, but to afford an alternate dispute resolution mechanism. Legal action was preferable to redress on the field of honor. (See Pearson, Liability to Bystanders for Negligently Inflicted Emotional Harm--A Comment on the Nature of Arbitrary Rules (1982) 34 U.Fla.L.Rev. 477, 486.)

Emotional distress is also an accepted item of damage that may be recovered in actions for abuse of process (Spellens v. Spellens (1957) 49 Cal.2d 210, 233, 317 P.2d 613); false imprisonment (Gill v. Epstein (1965) 62 Cal.2d 611, 618, 44 Cal.Rptr. 45, 401 P.2d 397); libel (Scott v. Times-Mirror Co. (1919) 181 Cal. 345, 365, 184 P. 672), and invasion of privacy. (Melvin v. Reid (1931) 112 Cal.App. 285, 297 P. 91.) Here, too, recovery has not been limited to circumstances in which the mental distress is an aggravation of a physical injury or impact.

Recognition of emotional distress as a compensable injury when caused by an intentional tort carried with it a judgment that the defendant's conduct was sufficiently

outrageous or unacceptable that an award of damages was justified to punish [771 P.2d 817] the tortfeasor and deter such conduct by others. This development led in turn to a focus on the nature of the defendant's conduct, rather than on identifying a traditional tort to justify recovery for infliction [48 Cal.3d 650] of emotional distress, and culminated in recognition of the tort now known as intentional infliction of emotional distress. ²

With recognition of intentional infliction of emotional distress as a discrete tort cause of action, this court accepted both freedom from emotional distress as an interest worthy of protection in its own right, and the proposition that it is possible to quantify and compensate for the invasion of that interest through an award of monetary damages even when the severity of the emotional distress is not manifested in physical symptoms. "If a cause of action is otherwise established, it is settled that damages may be given for mental suffering naturally ensuing from the acts complained of [citations], and in the case of many torts, such as assault, battery, false imprisonment, and defamation, mental suffering will frequently constitute the principal element of damages. [Citation.] In cases where mental suffering constitutes a major element of damages it is anomalous to deny recovery because the defendant's intentional misconduct...