Trapp v. Schuyler Construction
Decision Date | 20 December 1983 |
Parties | Kenneth TRAPP and Karen Trapp, Minors, etc., et al., Plaintiffs and Appellants, v. SCHUYLER CONSTRUCTION dba Regent Apartments, Defendant and Respondent. Civ. 68873. |
Court | California Court of Appeals Court of Appeals |
Reilly & Zell, and Arthur M. Reilly, Pasadena, for defendant and respondent.
This appeal is from an order of dismissal entered after the demurrer of respondent Schuyler Construction dba Regent Apartments to a first amended complaint was sustained without leave to amend.
Kenneth Trapp and Karen Trapp (hereinafter appellants), minors under 14 years of age, by Kenneth Trapp and Rose Trapp, their parents, allege in their first amended complaint for negligent infliction of emotional distress that they are the first cousins of Ian Glenn McSweaney, with whom they "had a very close emotional attatchment [sic]." It is further alleged that appellants and McSweaney
Appellants brought this action after sustaining "great emotional distrubance [sic] and shock and injury to their nervous system [sic], resulting in gastrointestinal disorders, head aches [sic], shock, anxiety, and loss of sleep," upon witnessing the drowning of McSweaney in a swimming pool located on respondent's property. It is alleged that the death resulted from respondent's negligence in maintaining the swimming pool and the swimming pool area.
Respondents demurred, asserting that the first amended complaint did not pass the guidelines to foreseeability of risk of emotional trauma established by the California Supreme Court in Dillon v. Legg (1968) 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912: (At pp. 740-741, 69 Cal.Rptr. 72, 441 P.2d 912.)
The trial court sustained respondent's demurrer without leave to amend and the action was dismissed. We affirm.
Did appellants state a cause of action for negligent infliction of emotional distress, based upon witnessing the death of a first cousin?
The existence of a cause of action for emotional trauma and physical injury resulting from witnessing the infliction of injury or death on a third party was first recognized by the California Supreme Court in Dillon v. Legg, supra, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912. In that case a mother recovered damages for the emotional distress she sustained when she witnessed a car strike and kill her minor child. The court enumerated the three elements necessary to establishing foreseeability, supra, and then stated: (Id., at p. 741, 69 Cal.Rptr. 72, 441 P.2d 912.)
In the instant case we are concerned with the third factor articulated by the Dillon court, "Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship." (Id., at p. 741, 69 Cal.Rptr. 72, 441 P.2d 912.)
The cases which have considered the Dillon guideline of foreseeability have generally construed it narrowly. It is clear that a "close relationship" does not include friends, housemates, or those standing in a "meaningful relationship." (Drew v. Drake (1980) 110 Cal.App.3d 555, 557, 168 Cal.Rptr. 65; see Kately v. Wilkinson (1983) 148 Cal.App.3d 576, 195 Cal.Rptr. 902.) The courts have limited reasonable foreseeability to those parties related by law to the victim. 1 (Kately v. Wilkinson, supra, 148 Cal.App.3d 576, 195 Cal.Rptr. 902; Drew v. Drake, supra, 110 Cal.App.3d 555, 168 Cal.Rptr. 65.)
In its discussion of foreseeability, the Dillon court stated: "... ...
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...the 'close relationship' guideline to include friends or housemates." (Id., at p. 557, 168 Cal.Rptr. 65.) Trapp v. Schuyler Construction (1983) 149 Cal.App.3d 1140, 197 Cal.Rptr. 411 and Kately v. Wilkinson (1983) 148 Cal.App.3d 576, 195 Cal.Rptr. 902 demonstrate strict adherence to Drew's ......
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...have refused to extend recovery to friends or distant relatives of the injured person. (See, e.g., Trapp v. Schuyler Construction (1983) 149 Cal.App.3d 1140, 1142-1143, 197 Cal.Rptr. 411 [recovery denied to first cousins who were frequent playmates]; Kately v. Wilkinson (1983) 148 Cal.App.3......
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...and unexpected. [Citation.]" (Kately v. Wilkinson (1983) 148 Cal.App.3d 576, 585, 195 Cal.Rptr. 902.) In Trapp v. Schuyler Construction (1983) 149 Cal.App.3d 1140, 197 Cal.Rptr. 411, the court also denied recovery to first cousins who had a close emotional attachment to the victim and also ......
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... ... Other inconsistent results are caused by this rigid, narrow construction of the second Dillon guidelines. For example, compare Justus v. Atchison (1977) 19 Cal.3d 564, 139 ... 558-559, 168 Cal.Rptr. 65.) 4 ... Trapp v. Schuyler Construction (1983) 149 Cal.App.3d 1140, 197 Cal.Rptr. 411 further illustrates how the ... ...
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