FREDIANI v. HAINES

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Court of Appeal, First District, Division 4, California.

Valerie FREDIANI, a Minor, etc., Plaintiffs and Appellants, v. Todd HAINES et al., Defendants and Respondents.

No. A037650.

Decided: December 31, 1987

Alan M. Caplan, Bushnell, Caplan & Fielding, San Francisco, for plaintiffs and appellants. Shelly A. Kramer, John L. Winingham, Winingham, Roberts, Fama & Thompson, San Francisco, Edward N. Schaefer, Dolores M. Donohoe, Gibbons, Lees, Schaefer & Edrington, Walnut Creek, for defendants and respondents.

Plaintiffs Bruce and Janice Frediani appeal from a judgment denying them recovery in an action for emotional distress damages arising out of an eye injury suffered by their daughter Valerie.   We hold that they failed to meet the requirement of contemporaneous observance as set forth in Dillon v. Legg (1968) 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912.   We also hold that they are not direct victims of the tortious activity as required in Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813.   Accordingly, we affirm.

I. FACTS AND PROCEDURAL HISTORY

Nine-year-old Valerie Frediani was playing with friends in the front yard of her home.   Her parents, Bruce and Janice Frediani, were inside.   Valerie was playing with a length of rubber tubing that had been fashioned into a “water weenie,” a kind of squirt gun.   In the course of play, the rubber tubing allegedly ruptured, striking Valerie in the left eye.   She lost the use of her left eye as a result of the impact.

Mr. Frediani was in the living room when he heard his daughter scream.   He described the scream as unlike any he had ever heard from her before.   When he rushed to the front door to investigate, he met Valerie.   Upon examination, he discovered that the bottom of her left eye was filled with blood.   At that time, Valerie's playmates informed Mr. Frediani that Valerie had been injured while playing with the “water weenie.”

Mrs. Frediani was napping at the time of the incident, but awoke to the sound of her daughter sobbing uncontrollably.   Valerie had gone to her own bedroom by the time Mrs. Frediani found her.   She discovered that Valerie had been injured with the surgical tubing either from Valerie, her two playmates, or from her own observation of the water toy lying on the ground.

Valerie's parents filed a complaint alleging that they suffered great emotional distress due to observing the consequences of the accident.   The Fredianis joined defendants Todd Haines, Carolyn Haines, Whitman's Hobby Center (retailers of the rubber tubing), and Airtronics (manufacturer of the rubber tubing) in an action for emotional distress damages.1  Defendants moved for summary judgment.   The court granted the motion, ruling that Mr. and Mrs. Frediani had failed to meet the contemporaneous requirement of Dillon, and that they were not direct victims as required by Molien.

II. ANALYSIS

A. The Dillon Standard Was Not Met.

Mr. and Mrs. Frediani base their emotional distress claims on two alternate theories.2  The first of these, the bystander theory, requires the presence of three factors set forth in Dillon v. Legg, supra, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912.   In Dillon, a mother sought damages for negligent infliction of emotional distress after witnessing her daughter being struck by a car, resulting in the child's death.   She was initially denied recovery at the trial court level.   By contrast, the daughter's infant sibling was awarded emotional distress damages.   The trial court distinguished between the mother and the sibling on the basis that the sibling had been in the “zone of danger” while the mother had not.

On appeal, the Supreme Court rejected a rule that would grant recovery to one and not to the other, noting:  “[W]e can hardly justify relief to the sister for trauma which she suffered upon apprehension of the child's death and yet deny it to the mother merely because of a happenstance that the sister was some few yards closer to the accident.   The instant case exposes the hopeless artificiality of the zone-of-danger rule.”  (Dillon v. Legg, supra, 68 Cal.2d at p. 733, 69 Cal.Rptr. 72, 441 P.2d 912.)   The court took note of Prosser's statement that “when a child is endangered, it is not beyond contemplation that its mother will be somewhere in the vicinity.”  (Citing Prosser, The Law of Torts (3d ed. 1964) p. 353.)   Having determined that a “[n]egligent driver who causes the death of a young child may reasonably expect that the mother will not be far distant and will upon witnessing the accident suffer emotional trauma,” (id. at p. 741, 69 Cal.Rptr. 72, 441 P.2d 912) the court went on to set forth three guidelines to aid in the determination of forseeability in such cases:  “(1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it;  (2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence;  (3) 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 pp. 740–741, 69 Cal.Rptr. 72, 441 P.2d 912.)

In the circumstances of this case, Mr. and Mrs. Frediani met the third guideline—that of close personal relationship.   Because we conclude that analysis of the second Dillon guideline (contemporaneous observance of the accident) is dispositive in this case, we need not consider the remaining issue of proximity.

Since the Dillon decision, “[a] steady flow of Court of Appeal cases have continued to strictly apply a contemporaneous sensory perception requirement of Dillon.”  (Hathaway v. Superior Court (1980) 112 Cal.App.3d 728, 734, 169 Cal.Rptr. 435.)   With the possible exception of Archibald v. Braverman (1969) 275 Cal.App.2d 253, 79 Cal.Rptr. 723, courts have generally held that “some type of sensory perception of the impact contemporaneous with the accident is necessary to meet the Dillon requirement.”  (Arauz v. Gerhardt (1977) 68 Cal.App.3d 937, 949, 137 Cal.Rptr. 619.)   Although the Archibald decision does not reflect the existence of a specific perception of the injury-producing event in that case, other cases have suggested that such circumstances can be inferred from the facts recited by the Court of Appeal.

In Archibald, a summary judgment for defendants was reversed when the Court of Appeal concluded that the mother of a boy severely injured in an accidental explosion had stated a prima facie case for recovery under Dillon, even though she had not seen the accident take place.   The mother admitted in pretrial discovery that she had not witnessed the explosion.   She had, however, arrived “within moments” of the accident.  (Archibald, supra, 275 Cal.App.2d at p. 256, 79 Cal.Rptr. 723.)   The appellate court noted that “the shock of seeing a child severely injured immediately after the tortious event may be just as profound as that experienced in witnessing the accident itself.   Consequently, the shock sustained by the mother herein was ‘contemporaneous' with the explosion so as to satisfy the ‘observance’ factor.”  (Ibid.)

However, later cases interpreting Archibald have suggested that the mother may have actually heard the explosion, thereby satisfying the sensory aspect of the second guideline in Dillon.  (Krouse v. Graham (1977) 19 Cal.3d 59, 76, 137 Cal.Rptr. 863, 562 P.2d 1022;  Justus v. Atchison (1977) 19 Cal.3d 564, 584, 139 Cal.Rptr. 97, 565 P.2d 122;  Hathaway v. Superior Court, supra, 112 Cal.App.3d 728, 734–735, 169 Cal.Rptr. 435;  Jansen v. Children's Hospital Medical Center (1973) 31 Cal.App.3d 22, 24, 106 Cal.Rptr. 883.)   Some courts have gone on to note that Mrs. Archibald, upon arriving at the scene, would have reconstructed the event mentally.  (Krouse v. Graham, supra, 19 Cal.3d 59, 76, 137 Cal.Rptr. 863, 562 P.2d 1022;  Nazaroff v. Superior Court (1978) 80 Cal.App.3d 553, 145 Cal.Rptr. 657;  Jansen v. Children's Hospital Medical Center, supra, 31 Cal.App.3d 22, 24, 106 Cal.Rptr. 883.)   Those cases allowing recovery under Dillon where there has been no visual perception of the accident itself have employed this “mental visualization analysis” to explain how the plaintiff learned of the accident (as opposed to the plaintiff learning of the accident from others).

In Krouse, the plaintiff did not see his wife struck by defendant's car, but “he fully perceived the fact that she had been so struck, for he knew her position an instant before the impact, observed defendant's vehicle approach her at a high speed on collision course, and realized that defendant's car must have struck her.”  (Krouse v. Graham, supra, 19 Cal.3d 59, 76, 137 Cal.Rptr. 863, 562 P.2d 1022.)   As a result, the Supreme Court held that “[Mr. Krouse] must be deemed a percipient witness to the impact causing [Mrs. Krouse's] catastrophic injuries.”  (Ibid.)

The court in Nazaroff v. Superior Court, supra, 80 Cal.App.3d 553, 145 Cal.Rptr. 657 expanded on the Krouse analysis.   It held that there were triable issues of fact as to whether the alleged emotional distress was proximately caused by the direct emotional impact from the contemporaneous observation of the immediate consequences resulting from the defendants' allegedly negligent conduct.  (Id. at p. 566, 145 Cal.Rptr. 657.)   In that case, a mother, while searching for her son, heard a neighbor shout “Its Danny” from a swimming pool area and arrived as her son was being pulled from the pool.   The child later died.

The mother filed an action against the owners of the pool for wrongful death, emotional distress and loss of consortium.   When the trial court granted a motion for summary judgment on the emotional distress claim, the mother petitioned the Court of Appeal for a writ of mandate.   The appellate court granted the petition, reasoning that “[t]he shout from the pool area may have permitted [the mother] to reconstruct the scene, as well as did Mrs. Archibald and Mr. Krouse.   Her knowledge of what may have occurred was derived from her own senses, and not from another's recital of an uncontemporaneous event.”   (Nazaroff v. Superior Court, supra, 80 Cal.App.3d at p. 566, 145 Cal.Rptr. 657.)

In the instant case, Mrs. Frediani was asleep at the time the accident took place.   She neither heard Valerie's scream nor in any way sensorially perceived the accident itself.   Mrs. Frediani heard Valerie crying as a result of the injury, and saw her daughter's damaged eye, but only after the accident had taken place.   Courts have generally interpreted “contemporaneous observance” to require presence at the scene of the accident, with the exception of Archibald.  (Ebarb v. Woodbridge Park Assn. (1985) 164 Cal.App.3d 781, 210 Cal.Rptr. 751 [not contemporaneous observance of the accident where sister viewed brother's body floating in a pool some twenty minutes after the accident];  Madigan v. City of Santa Ana (1983) 145 Cal.App.3d 607, 193 Cal.Rptr. 593 [not contemporaneous observance of the accident where parents viewed wreckage fifteen minutes after accident occurred];  Bohrer v. County of San Diego (1980) 104 Cal.App.3d 155, 163 Cal.Rptr. 419 [not contemporaneous observance of the accident where mother found body of daughter in advanced state of putrefaction];  Parsons v. Superior Court (1978) 81 Cal.App.3d 506, 146 Cal.Rptr. 495 [not contemporaneous observance of the accident where family members had been following defendant's car in which two daughters were riding and then observed defendant's wrecked car after rounding a bend in the road];  Arauz v. Gerhardt, supra, 68 Cal.App.3d 937, 137 Cal.Rptr. 619 [not contemporaneous observance of the accident where mother learned of an accident from another, and arrived on the scene two to five minutes after the accident].)  By comparison, in this case it is uncontroverted that Mrs. Frediani was not present when the accident occurred.   Unlike the mother in Archibald, it cannot be inferred from the facts in this case that she heard something that would somehow allow her to mentally reconstruct the accident.   As in Madigan v. City of Santa Ana, supra, 145 Cal.App.3d 607, 193 Cal.Rptr. 593 “there is no showing plaintiff[s] saw, heard, or otherwise sensorially perceived the event which produced the injury.”  (Id. at p. 611, 193 Cal.Rptr. 593.)

Mr. Frediani's situation is different from that of his wife's in that his perception of Valerie's scream occurred if not contemporaneously, then very nearly contemporaneously, with the occurrence of the accident.   In our view, however, his child's scream could not have helped him to mentally envision the injury-producing event.   In this way, Mr. Frediani's situation is distinguishable from that of Mrs. Archibald's, Mr. Krouse's, and Mrs. Nazaroff's.

 Finally, both Mr. and Mrs. Frediani learned of the accident from others.3  In Ochoa v. Superior Court (1985) 39 Cal.3d 159, 216 Cal.Rptr. 661, 703 P.2d 1, the court noted:  “It has been said that a distinction between distress caused by personal observation of the injury and by hearing of the tragedy from another is justified because compensation should be limited to abnormal life experiences which cause emotional distress.   While receiving news that a loved one has been injured or has died may cause emotional distress, it is the type of experience for which in a general way one is prepared, an experience which is common.   By contrast few persons are forced to witness the death or injury of a loved one or to suddenly come upon the scene without warning in situations where tortious conduct is involved.”  (Id. at p. 165, fn. 6, 216 Cal.Rptr. 661, 703 P.2d 1.)   Because the Fredianis were not witnesses to Valerie's injury causing accident in the broad sense of the second Dillon guideline, we hold that they are unable to recover damages for emotional distress under the bystander theory.

B. The Molien Standard Was Not Met.

Mr. and Mrs. Frediani alternatively contend that they have stated a cause of action for negligent infliction of emotional distress because they were “direct victims” of defendant's negligence within the meaning of Molien v. Kaiser Foundation Hospitals, supra, 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813.   There, Mr. Molien's wife was erroneously diagnosed as having an infectious social disease.   As a result of the misdiagnosis, tensions arose between husband and wife;  the wife became suspicious and accused Mr. Molien of extramarital affairs.   Their marriage broke up and dissolution proceedings were begun.

Mr. Molien then brought an action against the doctor and hospital for loss of consortium and emotional distress.   The trial court sustained general demurrers to both causes of action and the case was dismissed.   On appeal the Supreme Court distinguished Molien from Dillon on the ground that Mr. Molien was a foreseeable direct victim of the misdiagnosis.   The court explained that defendants knew Mr. Molien would learn of the diagnosis, as they advised Mrs. Molien to tell him.   Based on that factor and others, the court held that the demurrers had been improperly sustained and reversed.

 By contrast, Mr. and Mrs. Frediani have not stated a cause of action as direct victims of defendants' negligence.   Valerie Frediani was the only direct victim of any negligence here;  her parents were after-the-fact witnesses to the tragic loss of her sight.   Accordingly, we hold that the Fredianis have failed to state a claim under the direct victim theory of Molien.

The judgment is affirmed.

I respectfully dissent.

In this case we are required to interpret the sequelae of Dillon v. Legg (1968) 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912, a run of decisions which has been charitably described as “chaotic” (Nolan & Ursin:  Negligent Infliction of Emotional Distress:  Coherence Emerging from Chaos (1982) 33 Hastings L.J. 583, 597).   The rationale of the majority opinion is tied to an early zig of the Supreme Court which apparently mandates a conservative reading of the Dillon guidelines.  (See Justus v. Atchison (1977) 19 Cal.3d 564, 139 Cal.Rptr. 97, 565 P.2d 122.)   Under what I understand to be the rule for subordinate courts as enunciated in Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937, I follow the latest zag of the Supreme Court (Ochoa v. Superior Court (1985) 39 Cal.3d 159, 216 Cal.Rptr. 661, 703 P.2d 1).   That zag took place subsequent to the previous zig and unequivocally calls for application of the Dillon criteria “with some degree of flexibility.”  (Ochoa v. Superior Court, supra, at p. 168, 216 Cal.Rptr. 661, 703 P.2d 1.)

I. Decisional Backdrop

I begin with a somewhat less than catholic but nevertheless descriptive synopsis of the background case law.

In Dillon, California became the first American jurisdiction to hold that a parent who witnesses the negligent infliction of death or injury to his or her child may recover for the resulting emotional trauma and physical injury in cases where the parent does not fear imminent physical harm.   The touchstone of that analysis was foreseeability:  “Since the chief element in determining whether defendant owes a duty or an obligation to plaintiff is the foreseeability of the risk, that factor will be of prime concern in every case.   Because it is inherently intertwined with foreseeability such duty or obligation must necessarily be adjudicated only upon a case-by-case basis.”   (Dillon v. Legg, supra, 68 Cal.2d at p. 740, 69 Cal.Rptr. 72, 441 P.2d 912.)

Dillon's fame—at least within the judiciary and particularly I suspect among that overworked group which shoulders law and motion calendars—rests primarily not upon its unique spot in tort history but upon the guidelines enunciated to aid in ascertaining whether a cause of action has been stated in a particular case.   Thus Dillon instructs that “[i]n determining, ․ whether defendant should reasonably foresee the injury to plaintiff, or, in other terminology, whether defendant owes plaintiff a duty of due care, the courts will take into account such factors as the following:  (1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it.  (2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence.  (3) 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., 68 Cal.2d at pp. 740–741, 69 Cal.Rptr. 72, 441 P.2d 912.)

Since Dillon, the California Supreme Court has thrice taken the opportunity to discuss those guidelines.   On each occasion, the court's analysis was primarily directed to the second factor:  whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence.

First came the 1977 decision of Krouse v. Graham (1977) 19 Cal.3d 59, 137 Cal.Rptr. 863, 562 P.2d 1022, a case which pointed unmistakably to an expansive interpretation of Dillon.   There the plaintiff husband was sitting in the driver's seat of his parked car while his wife removed groceries from the back seat.   Defendant's car suddenly approached from the rear at high speed and struck and killed plaintiff's wife.   Plaintiff sought recovery for his physical injuries as well as for the emotional distress he suffered as a result of “his presence at the accident scene, and his perception of [his wife's] death.”  (Krouse v. Graham, supra, at p. 74, 137 Cal.Rptr. 863, 562 P.2d 1022.)

Defendant contended that no cause of action was proved because plaintiff husband admitted he did not actually see his wife being struck by defendant's car and did not immediately observe the effect of the impact upon her.   The high court rejected such requirements by pointing out that decisional law had placed limitations (“temporal limitations”) on Dillon 's requirement that the injury result “ ‘from the sensory and contemporaneous observance of the accident.’ ”  (Krouse v. Graham, supra, at p. 76, 137 Cal.Rptr. 863, 562 P.2d 1022.)   Particular reference was made to Archibald v. Braverman (1969) 275 Cal.App.2d 253, 79 Cal.Rptr. 723, which the Supreme Court described as a case in which the appellate court “extended recovery to the mother of an injured child who ‘did not actually witness the tort but viewed the child's injuries within moments after the occurrence of the injury-producing event.’  (Id., at p. 255, 79 Cal.Rptr. 723, italics added.)”   (Krouse v. Graham, supra, 19 Cal.3d at p. 76, 137 Cal.Rptr. 863, 562 P.2d 1022.)   The Supreme Court went on to specifically “confirm the propriety of the expression in Archibald, supra, that the Dillon requirement of ‘sensory and contemporaneous observance of the accident’ does not require a visual perception of the impact causing the death or injury.”  (Krouse v. Graham, supra, at p. 76, 137 Cal.Rptr. 863, 562 P.2d 1022, emphasis in original.)   The court then concluded “[i]n the matter before us, although [plaintiff] did not see [wife] struck by defendant's automobile, he fully perceived the fact that she had been so struck, for he knew her position an instant before the impact, observed defendant's vehicle approach her at a high speed on a collision course, and realized that defendant's car must have struck her.   Clearly, under such circumstances [plaintiff] must be deemed a percipient witness to the impact causing [wife's] catastrophic injuries.”  (Ibid., emphasis added.)

Less than three months later the high court returned to the problem and this time took an unmistakably more stringent reading of the same guideline by strictly interpreting the “contemporaneous observance” criterion.   In Justus v. Atchison, supra, 19 Cal.3d 564, 139 Cal.Rptr. 97, 565 P.2d 122, the court characterized Krouse as holding that “although the husband did not actually see his wife being struck by the defendant's car, he nevertheless perceived the event by other than visual means:  ․”  (Justus v. Atchison, supra, 19 Cal.3d at p. 583, 139 Cal.Rptr. 97, 565 P.2d 122.)   Thus, Justus established that a plaintiff must see, hear or otherwise sensorially and contemporaneously perceive the injury producing event in order to recover under Dillon.

Justus involved claims by fathers who suffered shock as a result of watching the negligent delivery of their stillborn infants.   In each case the plaintiff husband was present in the delivery room.   Each witnessed such events as “the manipulation of the fetus with forceps and by hand, ․ the emergency procedures performed ․ in connection with the attempted Caesarian section ․ the diminution of the fetal heart tones ․ the nurse's anxiety at her inability to monitor them, ․ the prolapsing of the umbilical cord of the fetus ․ and the pain and trauma of his wife.”  (Id., 19 Cal.3d at p. 584, 139 Cal.Rptr. 97, 565 P.2d 122.)   Each plaintiff husband was also present when the attending physician announced that the fetus had died.  (Ibid.)

The court held that these facts did not create a cause of action because the plaintiff husband's anxiety “did not ripen into the disabling shock which resulted from the death of the fetus until he was actually informed of that event by the doctor.”  (At p. 585, 139 Cal.Rptr. 97, 565 P.2d 122.)   In the court's view the plaintiff husband was a “passive spectator” who had no way of knowing that the fetus had died before the doctor told him so and thus concluded that the shock derived not from what he saw or heard during the delivery but from “what he was told after the fact.”  (Ibid.)  The court concluded that a shock caused by learning of the accident from others after its occurrence will not support a cause of action under Dillon.  (Justus v. Atchison, supra, 19 Cal.3d at p. 585, 139 Cal.Rptr. 97, 565 P.2d 122.)

Justus' press was not rapturous.   For example:  “If Justus guides California courts in future cases, the consequence may be that, in practice, California courts will not impose liability any more extensively than courts in zone-of-danger jurisdictions.”  (See Nolan & Ursin, op. cit. supra, at p. 597, 139 Cal.Rptr. 97, 565 P.2d 122.)

The latest and very different word from the California Supreme Court on the subject of liability to bystanders for the negligent infliction of emotional distress is the 1985 decision of Ochoa v. Superior Court, supra, 39 Cal.3d 159, 216 Cal.Rptr. 661, 703 P.2d 1.

In Ochoa, the plaintiffs were parents of a minor who died while confined in a juvenile facility.   Their cause of action for negligent infliction of emotional distress was premised upon the shock and trauma they experienced while witnessing the medical needs of their child being ignored by the facility's medical personnel.

On these facts, the Supreme Court concluded that a cause of action had been stated for each parent.   In order to do so, however, the court had to explicitly repudiate its earlier decision in Justus on two grounds:  (a) the requirement that the shock arise from a “ ‘sudden occurrence;’ ”  and (b) the implication that recovery by a plaintiff voluntarily at the scene of a traumatic event may be precluded.  (Ochoa v. Superior Court, supra, 39 Cal.3d at pp. 168–172, 216 Cal.Rptr. 661, 703 P.2d 1.)   The court cut each requirement out of the law without remorse.   The first was condemned as “a restriction [which] arbitrarily limits liability when there is a high degree of foreseeability of shock to the plaintiff and the shock flows from an abnormal event, and, as such, unduly frustrates the goal of compensation—the very purpose which the cause of action was meant to further.”  (At p. 168, 216 Cal.Rptr. 661, 703 P.2d 1.)   The second requirement was also banished to California's equivalent of internal exile with the following indictment:  “Such a requirement however undercuts the very foundation upon which the Dillon case rested.   We said in Dillon that a tortfeasor could be held liable for damages to a bystander parent because of the foreseeability that the parent of an endangered child would be ‘ “somewhere in the vicinity.” ’   [Citation.]  A distinction between the involuntary and voluntary presence of the close relative of the injured or dead person thus appears to relieve the defendant of liability for the very risk which should have been foreseen.   While in a proper case it may be said that a bystander assumed the risk of traumatic shock, we cannot say that in the ordinary course of events the voluntary or involuntary presence of the plaintiff should be a decisive factor in determining whether plaintiff has stated a Dillon cause of action.   To the extent that Justus makes a contrary suggestion, it is disapproved.”   (Ochoa v. Superior Court, supra, at p. 171, 216 Cal.Rptr. 661, 703 P.2d 1.)

For purposes of our analysis—especially because Ochoa is the latest ruling by the Supreme Court on the meaning of Dillon—it is important to note that the court took the occasion to review and restate the meaning of Dillon.   In doing so it reviewed only cases allowing recovery and remarked that they had “done so by applying the Dillon criteria with some degree of flexibility and for that reason are instructive.”  (Ochoa v. Superior Court, supra, 39 Cal.3d at p. 168, 216 Cal.Rptr. 661, 703 P.2d 1, emphasis added.)   The court then repeated and approved its holding in Krouse v. Graham, supra, 19 Cal.3d 59, 137 Cal.Rptr. 863, 562 P.2d 1022, and also discussed, approved and relied upon three decisions of the Court of Appeal:  Archibald v. Braverman, supra, 275 Cal.App.2d 253, 79 Cal.Rptr. 723 “(which we approved in Krouse ),” Nazaroff v. Superior Court (1978) 80 Cal.App.3d 553, 145 Cal.Rptr. 657, and Mobaldi v. Regents of University of California (1976) 55 Cal.App.3d 573, 127 Cal.Rptr. 720.  (Ochoa v. Superior Court, supra, 39 Cal.3d at pp. 168–169, 216 Cal.Rptr. 661, 703 P.2d 1.)

In approving for a second time the approach used in Archibald (“ ‘the shock of seeing a child severely injured immediately after the tortious event may be just as profound as that experienced in witnessing the accident itself,’ and that therefore the plaintiff had met the contemporaneous observance requirement of Dillon ․”) (Ochoa v. Superior Court, supra, at p. 169, 216 Cal.Rptr. 661, 703 P.2d 1, emphasis added)—the high court noted that a similar approach had been taken in Nazaroff.   Most significantly—at least to my reading—the Supreme Court added the following emphasis to their quotation of the Nazaroff holding “ ‘․ we must conclude that the record before the court demonstrates that there are triable issues of fact to carry to the jury as to whether the alleged physical harm to the mother resulted from an emotional shock proximately caused by the direct emotional impact from the contemporaneous observation of the immediate consequences of the defendants' negligent act, which was the proximate cause of the injury and death of her son․’  (Nazaroff v. Superior Court, supra, 80 Cal.App.3d at pp. 566–567, 145 Cal.Rptr. 657, italics added.)”  (Ochoa v. Superior Court, supra, 39 Cal.3d at p. 169, 216 Cal.Rptr. 661, 703 P.2d 1.)

II. This Case

On the basis of that background the present case must be approached.

A. The plaintiff father

The facts in this motion for summary judgment are undisputed.   Plaintiff father was in the living room of his residence when he heard his daughter scream for several seconds.   Within seconds he went through the front door and reached his child.   He saw that her eye was one-half to one-third full of blood.   His initial impression was that either water or the tubing (i.e., the Water Weenie) had hit her in the eye.   His daughter's playmates told him it was the Water Weenie that caused the injury.

Does that statement of the cruel reality meet the Dillon guideline:  “[w]hether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence”?  (Dillon v. Legg, supra, 68 Cal.2d at pp. 740–741, 69 Cal.Rptr. 72, 441 P.2d 912.)

The majority opinion finds that plaintiff father may not take his case to the jury because he did not witness the accident and “his child's scream could not have helped him to mentally envision the injury-producing event․”  (Majority opn., ante, p. 859.)

In my view, it is impossible to rule out plaintiff father's cause of action if one follows Archibald and Nazaroff.   And if I have not made my point clear, one should follow Archibald and Nazaroff as the former holding was approved twice by the California Supreme Court (in Krouse and Ochoa ), and the latter holding was approved, relied upon and emphasized by that court in Ochoa.   Unless this court ignores those guideposts, plaintiff father easily qualifies as the winner of a motion for summary judgment as he contemporaneously observed the immediate consequences of defendant's negligent act.

B. The plaintiff mother

It will be recalled that plaintiff mother was asleep at the time of the accident and was awakened by the sound of her child crying.   She immediately went to her daughter's bedroom where she found the sobbing child holding a towel over her eye.   She reached her child's side, according to her husband, only “minutes” after he himself had reached her.   Plaintiff mother removed the towel and saw blood “swirling around” in the child's eye.   She does not remember how or when she learned what caused the accident.

The majority opinion finds that plaintiff mother may not take her case to the jury because she was not present at the time of the accident.   But just like the mother in Archibald who appeared at the scene “within moments” of the accident, witnessed the child's injuries, and suffered shock as a result thereof, plaintiff mother should be allowed to repair to a jury.

C. Analysis of the majority opinion

The sole mention of Ochoa in the majority opinion is to footnote 6.  (See majority opn., ante, pp. 859–860.)   This is curious, for if one studies that footnote it becomes evident that it works to plaintiffs' favor not disfavor.

With respect to Mr. Ochoa, who visited his son once, the high court found that he could recover for the distress he suffered as a result of witnessing the neglect of his child's medical needs by the medical personnel, but he could not recover from the shock or distress he suffered as a result of what was related to him by Mrs. Ochoa.   In making this distinction the high court observed:  “While receiving news that a loved one has been injured or has died may cause emotional distress, it is the type of experience for which in a general way one is prepared, an experience which is common.   By contrast few persons are forced to witness the death or injury of a loved one or to suddenly come upon the scene without warning in situations where tortious conduct is involved.”   (Ochoa v. Superior Court, supra, 39 Cal.3d at p. 165, fn. 6, 216 Cal.Rptr. 661, 703 P.2d 1, emphasis added.)   As I read this language it clears the way for both plaintiff mother and plaintiff father to state a cause of action for shock and trauma they each experienced when they suddenly came upon the scene without warning to find their hysterical and obviously injured child.

In a like manner the majority opinion is unwilling to take Archibald at face value.   The Supreme Court in Ochoa was not so reluctant:  “Similarly in Archibald v. Braverman, supra, 275 Cal.App.2d 253, 79 Cal.Rptr. 723 (which we approved in Krouse ) the Court of Appeal held that a mother had stated a cause of action under Dillon even though she did not actually observe the tortious event.   In Archibald the mother came upon her child moments after he had been injured in an explosion.   The court observed that ‘the shock of seeing a child severely injured immediately after the tortious event may be just as profound as that experienced in witnessing the accident itself,’ and that therefore the plaintiff had met the contemporaneous observance requirement of Dillon.  [Citation.]”  (Ochoa v. Superior Court, supra, 39 Cal.3d at p. 169, 216 Cal.Rptr. 661, 703 P.2d 1.)

The majority opinion points out that some cases interpreting Archibald have suggested that the mother may have actually heard the explosion.  (See majority opn., ante, p. 858.)   That gloss on Archibald was first given in Jansen v. Children's Hospital Medical Center (1973) 31 Cal.App.3d 22, 106 Cal.Rptr. 883, where the Court of Appeal suggested that “it can be inferred that the mother heard the explosion, thus having a ‘sensory observance of it.’ ”  (Id. at p. 24, 106 Cal.Rptr. 883.)   Putting aside any quarrels with the propriety of drawing such an inference,1 it is obvious that the Jansen court itself found a sensory observance of the accident to be absolutely unnecessary to the recovery in Archibald.   Justice Draper explained it this way:  “In any event, it is clear that even a lay person, viewing the gory result, necessarily reconstructed mentally the precise brief event itself, and in Archibald, did so substantially contemporaneously with that event.”  (Jansen v. Children's Hospital Medical Center, supra, 31 Cal.App.3d at pp. 24–25, 106 Cal.Rptr. 883.) 2

Under the explicit rationale of Jansen a parent who comes on the scene of an injured child suffers shock not only from what he or she sees but from the obvious mental reconstruction he or she engages in on the spot but after the event.   Thus when Mrs. Archibald came upon the scene she then realized that a bomb had exploded in her child's arms;  similarly, Mr. Krouse knew what happened when he observed his wife after the accident.   So, too, the mother and father of Valerie Frediani.   An immediately contemporaneous observation of the consequences of a defendant's negligence is sufficient.   Any parent knows that.

I would therefore reverse the judgment and allow the claim of each parent for negligent infliction of emotional distress to be evaluated by a jury.

FOOTNOTES

1.   Valerie, through her parents, filed a complaint against the defendants alleging damages based on strict liability, negligence, and breach of warranty theories.

2.   At the outset, we note that the bystander theory of negligent infliction of emotional distress has been held to “apply equally to negligence, strict liability and warranty cases.”  (Shepard v. Superior Court (1977) 76 Cal.App.3d 16, 21, 142 Cal.Rptr. 612.)  Shepard was based on the principles expressed in Elmore v. American Motors Corp. (1969) 70 Cal.2d 578, 75 Cal.Rptr. 652, 451 P.2d 84, where our Supreme Court stated that “[i]f anything, bystanders should be entitled to greater protection than the consumer or user where injury to bystanders from the defect is reasonably forseeable.”  (Id. at p. 586, 75 Cal.Rptr. 652, 451 P.2d 84.)

3.   Mrs. Frediani contends that it is possible she learned of the accident from the evidence of the water toy lying on the ground, but she also concedes that she may have initially learned of the event from Valerie or her playmates.   Mr. Frediani stated that he learned of the injury from Valerie's playmates.

1.   The bare-bones evidentiary presentation in Archibald does not lend itself to support any inference regarding Mrs. Archibald's auditory perceptions of the explosion.The Archibald opinion sets forth the relevant allegations of the complaint as follows:  “․ that within moments of the actual explosion, the plaintiff appeared at the scene in an effort to render aid to her son;  upon observing her son's injuries, she suffered severe fright, shock, and mental illness requiring institutionalization.”  (At p. 255, 79 Cal.Rptr. 723.)   We are also told that, “the mother had admitted in pretrial discovery proceedings that she had not witnessed the explosion;  ․”  (Ibid.)From this recitation a casual reader is given no clue whatsoever as to whether Mrs. Archibald heard the explosion.   What is clear, however, is that her auditory perception of the explosion was simply irrelevant to the Archibald court.   Instead the pivotal factor was Mrs. Archibald's shock from witnessing her severely injured child within moments of the accident.  (Id. at p. 256, 79 Cal.Rptr. 723.)   Put another way, Mrs. Archibald would make it to a jury whether or not she actually heard the explosion.

2.   Thus, even if Jansen correctly reads Archibald to the effect that the parent heard the explosion, the broad Jansen rationale permits recovery so long as the distraught parent arrives at the scene within a short period of time and sees his or her child with an eye half full of blood.   To quote Jansen, “even a lay person, viewing the gory result, [would necessarily reconstruct] mentally the precise brief event itself, ․”  (Id., 31 Cal.App.3d at pp. 24–25, 106 Cal.Rptr. 883.)

SABRAW, Associate Justice.

ANDERSON, P.J., concur.