Wooden v. Raveling

• Decision Date: 26 February 1998
• Docket Number: No. B114349,B114349
• Citation: 61 Cal.App.4th 1035,71 Cal.Rptr.2d 891
• Parties: , 98 Cal. Daily Op. Serv. 1415, 98 Daily Journal D.A.R. 1932 Maria Simmons WOODEN, Plaintiff and Appellant, v. George Henry RAVELING, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

Page 891

71 Cal.Rptr.2d 891

61 Cal.App.4th 1035, 98 Cal. Daily Op. Serv. 1415,

98 Daily Journal D.A.R. 1932

Maria Simmons WOODEN, Plaintiff and Appellant, v. George Henry RAVELING, Defendant and Respondent.

No. B114349.

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

Feb. 26, 1998.

Review Denied May 13, 1998.

Karlin and Karlin and Philip J. Karlin, Los Angeles, for Plaintiff and Appellant.

Fonda & Hilberman and David M. Samuels, Los Angeles, for Defendant and Respondent.

ZEBROWSKI, Associate Justice.

Plaintiff alleged as follows: Her real property (apparently her home) abuts a public street. Plaintiff was on her property (apparently in her front yard) when defendant drove his car in a negligent manner on the adjoining street. Defendant's car collided with a second car. The collision caused defendant's car to be propelled, at high speed, onto plaintiff's property "so that it appeared that [defendant's car] would strike plaintiff." Although plaintiff did not allege that defendant's car actually struck her (apparently it stopped short or missed), she did allege that she "was placed in fear of being severely injured or killed by [defendant's car]." Plaintiff further alleged that she "was injured in her health, strength, and activity, sustaining bodily injuries and shock and injury to her nervous system which has caused, and shall in the future cause her great mental and physical pain and suffering...." Plaintiff did not allege any specific physical injury.

Defendant demurred. The court sustained the demurrer without leave to amend. ¹ Both the demurrer and the ruling were based on Bro v. Glaser (1994) 22 Cal.App.4th 1398, 27 Cal.Rptr.2d 894. Bro proclaimed a new two-pronged test which Bro stated should be applied in all non-impact, non-injury, non-bystander negligent infliction of emotional distress (NIED) cases. The result in Bro seems correct in view of the particular facts of that case, but the two-pronged test announced in Bro is hopelessly inconsistent with the great weight of other authority, including several Supreme Court cases. The trial court was cited only to Bro, and not to the Supreme Court cases with which Bro is inconsistent. The trial court consequently followed Bro to sustain a demurrer which should have been overruled. We will reverse and remand with instructions to overrule defendant's demurrer and to order defendant to answer.

1. The background for Bro: "bystander" and "direct victim" cases.

Significant litigation has taken place regarding NIED, and at least two variants of the theory have been identified: "bystander" cases and "direct victim" cases. ²

"Bystander" cases are cases in which the plaintiff was not physically impacted or injured, but instead witnessed someone else being injured due to defendant's negligence. (See, e.g., 6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts § 841 et seq. [discussing Dillon v. Legg (1968) 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 and its progeny].) "Because in [bystander cases] the class of potential plaintiffs could be limitless, resulting in the imposition of liability out of all proportion to the culpability of the defendant, this court [the Supreme Court] has circumscribed the class of bystanders to whom a defendant owes a duty to avoid negligently inflicting emotional distress. These limits are ... as follows: '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.' [Citation.]" Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1073, 9 Cal.Rptr.2d 615, 831 P.2d 1197.

"Direct victim" cases are cases in which the plaintiff's claim of emotional distress is not based upon witnessing an injury to someone else, but rather is based upon the violation of a duty owed directly to the plaintiff. "[T]he label 'direct victim' arose to distinguish cases in which damages for serious emotional distress are sought as a result of a breach of duty owed 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.' [Citation] In these cases, the limits [on bystander cases, as quoted above] have no direct application. [Citations] Rather, well-settled principles of negligence are invoked to determine whether all elements of a cause of action, including duty, are present in a given case." (Burgess, supra, 2 Cal.4th 1064, 1073, 9 Cal.Rptr.2d 615, 831 P.2d 1197.)

In the instant case, plaintiff does not complain of witnessing an injury to another, but instead complains of being placed in fear of injury or death to herself personally. Plaintiff hence claims to be a direct victim of defendant's negligence.

2. The Bro case.

In Bro, the case upon which the trial court relied to sustain defendant's demurrer, a doctor nicked a baby's cheek with a scalpel during a cesarean delivery. Although it was established that the mishap was not malpractice, the parents claimed direct victim NIED arising from the manner in which the bandaged baby had later been "presented" to them. ³ Bro seized upon this scenario to publish a lengthy discourse on "direct victim" NIED claims which are not accompanied by physical harm.

Bro observed that "to recover damages for purely emotional distress in nonbystander cases, it is first necessary to be a direct victim. Thus, it is important if not imperative to seek the origins of the definition and to trace its evolution." (Bro, supra, 22 Cal.App.4th at p. 1407, 27 Cal.Rptr.2d 894.) Bro criticized the case which pioneered the direct victim concept, Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 [61 Cal.App.4th 1039] P.2d 813, for not providing a more complete definition of the term "direct victim." Bro was also highly critical of Molien for its "willingness to award money to a plaintiff, in a negligence case, where there had been no monetary loss suffered either by reason of physical injury or otherwise." Bro complained that "Molien launched the courts onto a wholly uncharted sea without bearings or distances for fixing 'a money award against one who unintentionally disturbs the mental tranquillity of another,"' and contended that Molien had "loosed the floodgates of liability for emotional distress without accompanying physical injury." (Bro, supra, 22 Cal.App.4th at p. 1410, 27 Cal.Rptr.2d 894.) Bro opined that "common sense and practical necessity would not tolerate unlimited access to the legal system to anyone seeking to recover money from another who had unintentionally disturbed only the former's mental tranquility." (Ibid.) Bro thus embarked on a search for limitations on the direct victim NIED tort. Bro purported to find the first limitation it was seeking in Burgess v. Superior Court, supra, 2 Cal.4th 1064, 1074, 9 Cal.Rptr.2d 615, 831 P.2d 1197.

In Burgess, the Supreme Court initially states that the duty supporting a "direct victim" NIED case can have three alternative origins: (1) it can be a duty assumed by defendant, or (2) it can be a duty imposed on defendant by law, or (3) it can be a duty arising out of a preexisting relationship between defendant and plaintiff. (Id. at 1073, 9 Cal.Rptr.2d 615, 831 P.2d 1197; see also Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 590, 257 Cal.Rptr. 98, 770 P.2d 278 [stating same three potential origins for defendant's duty in direct victim NIED cases].) Later, however, Burgess discusses only a preexisting relationship as the origin for defendant's duty, stating that these "principles ... are sound: (1) damages for negligently inflicted emotional distress may be recovered in the absence of physical injury or impact, and (2) 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. [Citations] In fact, it is this later principle which defines the phrase 'direct victim.' That label signifies nothing more." (Burgess, supra, 2 Cal.4th at p. 1074, 9 Cal.Rptr.2d 615, 831 P.2d 1197.)

Burgess involved a claim by a mother against her obstetrician for emotional distress resulting from injuries to the woman's child during delivery. The Supreme Court found that the obstetrician owed a duty to the woman because of their preexisting doctor-patient relationship. It was the breach of this duty that supported the NIED claim in Burgess. Given the context of Burgess, the reason for the Supreme Court's focus on preexisting relationship as the source of the defendant doctor's duty is apparent. Those were the facts of Burgess. Nowhere does Burgess expressly state that a preexisting relationship is the only possible origin for the necessary duty. To the contrary, Burgess identified three possible sources for the necessary duty, including a duty imposed by law. Even in its focus on a preexisting relationship as giving rise to a duty supporting an NIED claim, Burgess cites Marlene F., supra, 48 Cal.3d 583, 590, 257 Cal.Rptr. 98, 770 P.2d 278, which expressly lists three possible origins (duty imposed by law, duty assumed by defendant, duty arising from preexisting relationship).

Burgess, however, does contain the language that the "later principle" (the principle that an NIED claim can be based on the breach of a duty arising out of a preexisting relationship) "defines the phrase 'direct victim,' " and that the label "direct victim" "signifies nothing more." (Burgess, supra, 2 Cal.4th at p. 1074, 9 Cal.Rptr.2d 615, 831 P.2d 1197.) This language, taken out of context and...