BALLINGER v. PALM SPRINGS AERIAL TRAMWAY

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

David BALLINGER et al., Plaintiffs and Appellants, v. PALM SPRINGS AERIAL TRAMWAY et al., Defendants and Respondents.

No. E006050.

Decided: May 17, 1990

Simke, Chodos, Silberfeld & Anteau, Inc., Roman M. Silberfeld and Steven R. Maher, Los Angeles, for plaintiffs and appellants. Smith & Peckham, Charles A. Peckham and Harry C. Carpelan, San Bernardino, for defendants and respondents James Ellis, P.E., Aerial Engineering, Inc., and Superior Tramway, Inc. Hancock, Rothert & Bunshoft, Paul D. Nelson, Paul S. Rosenlund and Peter J. Koenig, San Francisco, for defendants and respondents Mt. San Jacinto Winter Park Authority and State of Cal.

OPINION

 In this case, we hold that a plaintiff who suffers emotional distress arising from fear for his own safety caused by a defendant's negligence need not establish either physical injury to himself or a close familial relationship with a third person who was physically injured by said negligence.

Plaintiffs filed suit against eleven defendants for injuries arising out of an accident on the Palm Springs Aerial Tramway during which one of the passengers was killed.   The trial court granted summary judgment in favor of five defendants and plaintiffs appeal.   We affirm the summary judgment in favor of Superior Tramway, Inc. but reverse as to the other defendants.

FACTS

On June 23, 1984, plaintiffs were among fifty passengers on the descending trip of one of the tramway's cars when a portion of the tramway system, apparently a component of a shock-absorbing bumper, fell through the glass roof of the car.   The component hit one of the passengers, Elaine Tseko, who subsequently died as result of the injuries she sustained in the accident.   The tram was stopped for approximately ten minutes and then completed its trip.   Plaintiffs, who are not related to Elaine Tseko and who did not suffer any physical injury during the accident, filed suit alleging causes of action for dangerous condition of public property against the State of California (the State) and the Mt. San Jacinto Winter Park Authority (the Park Authority) and, as against the remaining defendants, negligence, express warranty, implied warranty, strict liability and negligent failure to warn.

Defendants James Ellis (Ellis) and Aerial Engineering, Inc. (Aerial) brought a motion for summary adjudication of issues directed to the third, fourth and fifth causes of action for express warranty, implied warranty and strict liability, respectively, on the grounds that they had rendered professional services rather than a product and therefore were not liable on these counts.   Plaintiffs do not contest the summary adjudication rendered on these counts.

Defendant Superior Tramway, Inc. (Superior Tramway) also filed a motion for summary judgment as to all counts on the grounds that it had not manufactured any parts in use on the tramway at the time of the accident.   As we will explain in greater detail subsequently in this opinion, plaintiffs appeal from the summary judgment rendered in favor of Superior Tramway on the grounds that the trial court abused its discretion in not continuing the hearing on this motion to allow plaintiffs to conduct additional discovery.

Ellis and Aerial then filed an additional motion for summary judgment directed to the remaining negligence counts.   In this motion, these defendants contended there was no liability as plaintiffs had not sustained any physical injuries and had no family or social relationship with the decedent.   The State and the Park Authority joined in this motion.   In support of the motion, defendants filed a separate statement of undisputed facts as set forth below:

“[1.] Plaintiffs BALLINGER and DIDIER's complaint alleges in the second and sixth causes of action negligence against these Defendants, and alleges physical injuries to and medical treatment of Plaintiffs․

“[2.] Plaintiff BALLINGER did not suffer physical injury or incur medical treatment for any physical injury as a result of the accident of June 23, 1984․

“[3.] Plaintiff DIDIER did not suffer physical injuries, and did not incur medical treatment for any physical injuries as a result of the accident of June 23, 1984․

“[4.] Plaintiffs BALLINGER and DIDIER claim emotional trauma from having witnessed the injuries to ELAINE TSEKO, and worrying that it could have been them․

“[5.] Plaintiff BALLINGER has no familial, marital, or adoptive relationship to decedent ELAINE TSEKO or Plaintiff PAUL TSEKO․

“[6.] Plaintiff DIDIER has no familial, marital, or adoptive relationship to decedent ELAINE TSEKO or Plaintiff PAUL TSEKO․

“[7.] Plaintiffs BALLINGER and DIDIER had no friendship or acquaintance with decedent ELAINE TSEKO or Plaintiff PAUL TSEKO․”

As evidence to support the motion, defendants attached plaintiffs' answers to interrogatories.   In the answers, both plaintiffs provided lengthy descriptions of the nightmares, flashbacks and fears they have suffered since the incident.   Neither one had consulted a health care provider for any injuries.   They also acknowledged they had no relationship of any kind to the decedent.

Plaintiffs, in opposition to the motion, filed a separate statement of undisputed facts in which they disputed defendants' facts nos. 2 and 3 regarding physical injuries and admitted as being undisputed facts nos. 4, 5, 6, and 7.   As evidence in opposition to the motion, plaintiffs also relied on their answers to interrogatories.   The court granted summary judgment and plaintiffs appeal.

I

NEGLIGENCE

 When reviewing summary judgment, we independently analyze the construction and effect of the supporting and opposing papers.  (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064, 225 Cal.Rptr. 203.)   In so doing, we apply the same analysis required of the trial court.  (Code Civ.Proc., § 437c;  AARTS Productions, Inc. v. Crocker National Bank, supra, 179 Cal.App.3d at pp. 1064–1065, 225 Cal.Rptr. 203.)   When the defendant moves for summary judgment, he must either disprove at least one essential element of every cause of action or prove an affirmative defense that would bar every cause of action in the complaint.   (Conn v. National Can Corp. (1981) 124 Cal.App.3d 630, 637–639, 177 Cal.Rptr. 445.)

 If any triable issue of fact exists, it is error for the trial court to grant a motion for summary judgment.  (Schrimscher v. Bryson (1976) 58 Cal.App.3d 660, 663, 130 Cal.Rptr. 125.)   Because of the drastic nature of the procedure, all doubts should be resolved in favor of the party opposing the motion.  (Powell v. Standard Brands Paint Co. (1985) 166 Cal.App.3d 357, 362, 212 Cal.Rptr. 395.)1

Defendants Ellis and Aerial argue that the undisputed evidence before the trial court consisting of plaintiffs' answers to interrogatories was that plaintiffs' emotional injuries were caused by witnessing the injury to Elaine Tseko and were not caused by the plaintiffs' fear for their own safety and, therefore, absent a close familial relationship with the decedent, plaintiffs cannot recover for their emotional distress.   The answers to which defendants refer recite in detail the trauma from which plaintiffs presently suffer as a result of the accident but do not expressly state whether the trauma is solely the result of seeing Elaine Tseko injured or whether it was caused by being trapped in a tram car on the side of a mountain with a piece of the tram system crashing through the glass roof.2

While the answers to interrogatories raise an inference that the source of plaintiffs' emotional distress was witnessing Elaine Tseko's injuries, it can also be inferred from the answers that plaintiffs' trauma was caused by fear for their own safety.   Such inferences derive from references in the answers to the plaintiffs' fear of being in enclosed areas or suspended high above the ground such as on a ski lift.   While the trial court is required to consider all reasonable inferences deducible from the evidence, it cannot grant summary judgment when the inferences are contradicted by other reasonable inferences which raise a triable issue of fact.  (Code Civ.Proc., § 437c, subd. (c).)  Here the conflicting inferences regarding the source of plaintiffs' trauma raised by plaintiffs' answers to interrogatories demonstrate a triable issue of fact precluding the grant of summary judgment.3

The State and the Park Authority take a different approach on appeal and contend simply that plaintiffs cannot recover for negligent infliction of emotional distress absent a close familial relationship with the decedent and rely on Dillon v. Legg (1968) 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 and Thing v. La Chusa (1989) 48 Cal.3d 644, 257 Cal.Rptr. 865, 771 P.2d 814.   As we explain, however, Dillon and La Chusa have no application to the case before us.

 It has long been recognized that one may recover for injuries resulting from fear for one's own safety created by defendant's negligent conduct.   (Lindley v. Knowlton (1918) 179 Cal. 298, 176 P. 440;  Webb v. Francis J. Lewald Coal Co. (1931) 214 Cal. 182, 4 P.2d 532.) 4  Just shortly before Dillon, the California Supreme Court reaffirmed the rule that one who is within the zone of danger and who suffers emotional trauma or distress because of fear for their own safety could maintain an action against the defendant.  (Amaya v. Home Ice, Fuel & Supply Co. (1963) 59 Cal.2d 295, 299–300, 29 Cal.Rptr. 33, 379 P.2d 513, overruled in Dillon v. Legg (1968) 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912.)   The court refused, however, to extend a defendant's liability to those outside the zone of danger, i.e., bystanders, who suffer emotional distress from witnessing injuries inflicted on a third person, indicating that the factors commonly used in determining the existence of a duty weigh against imposition of a duty in that context.   (Id., 59 Cal.2d at pp. 310–315, 29 Cal.Rptr. 33, 379 P.2d 513.)

In Dillon, the court re-examined the “bystander” situation and determined that whether the duty of duty care should be extended to provide liability to a plaintiff who suffers emotional distress from witnessing the injury to a third person depends on factors such as whether the plaintiff was located near the scene of the accident;  whether the shock resulted from the sensory and contemporaneous observance of the accident as opposed to the shock from learning about the accident from others and whether the plaintiff and the victim were closely related.  (Dillon v. Legg, supra, 68 Cal.2d at pp. 740–741, 69 Cal.Rptr. 72, 441 P.2d 912.)   Accordingly, in Dillon, the court abandoned the “zone of danger” requirement as a limitation on a defendant's potential liability and held that the defendant's duty extended not only to those within the “zone of danger” but to those who witnessed the injury to a third person if it was reasonably foreseeable the bystander would suffer emotional distress.  Amaya was overruled to the extent it was inconsistent with the holding in Dillon.  (Id., at p. 748, 69 Cal.Rptr. 72, 441 P.2d 912.)

The purpose of Dillon was to allow persons who previously had not been entitled to recover against a negligent party to maintain an action if their injuries were reasonably foreseeable.   Nothing in the opinion suggests that one who, prior to Dillon, could maintain an action, i.e., one whose emotional distress stemmed from fear for their own safety, was now precluded from doing so unless he established a close relationship with a third person who was physically injured by defendant.   Had the Supreme Court intended such a result it could have expressly overruled Amaya and its predecessors in their entirety.   Accordingly, we do not read Dillon to have eliminated the “zone of danger” entirely but only to the extent it limited a defendant's potential liability and the class of potential plaintiffs.

After Dillon, as explained by the court in La Chusa, the appellate courts struggled with and differed over the proper application of the Dillon guidelines, resulting in an ever widening sphere of potential liability.   In La Chusa, the court restated the Dillon guidelines and set them as finite requirements for recovery, holding that “a plaintiff may recover damages for emotional distress caused by observing the negligently inflicted injury of a third person if, but only if, said 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 serious emotional distress—a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances.”  (Thing v. La Chusa, supra, 48 Cal.3d at pp. 667–668, 257 Cal.Rptr. 865, 771 P.2d 814, emphasis added.)   Upon a complete reading of the opinion, it is apparent that the rules set forth in La Chusa were designed to eliminate the potentially unending liability which had resulted from the erosion and, in some cases the complete abandonment, of the Dillon guidelines in the years since Dillon.   Again, nothing in that opinion suggests that a plaintiff who suffers emotional injuries because of fear for their own safety could not recover for their injuries unless someone closely related to the plaintiff is physically injured in the plaintiff's presence.   Accordingly, we find that the “zone of danger” rule is still viable and authorizes plaintiffs' action in this case.

It can also be argued that plaintiffs are “direct victims” under Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813.   In Molien, the California Supreme Court determined that because the husband was a direct victim of the doctor's misdiagnosis, injury to him was reasonably foreseeable and the Dillon guidelines were not applicable.   As noted by the court in La Chusa, the “direct victim” language in Molien only added to the confusion after Dillon and the “immediate effect of the decision ․ was to permit some persons who had no prior relationship with the defendant that gave rise to a duty, who did not suffer physical injury as a result of emotional distress, who did not observe the negligent conduct, and who had not been at or near the scene of the negligent act to recover for emotional distress on a pure foreseeability-of-the-injury basis.”  (Thing v. La Chusa, supra, 48 Cal.3d at pp. 658–659, 257 Cal.Rptr. 865, 771 P.2d 814, emphasis added.)   Accordingly, the “direct victim” language of Molien was limited “to situations in which the defendant's negligence is ‘by its very nature directed at’ the plaintiff.”  (Thing v. La Chusa, supra, 48 Cal.3d at p. 660, 257 Cal.Rptr. 865, 771 P.2d 814, quoting Ochoa v. Superior Court (1985) 39 Cal.3d 159, 172, 216 Cal.Rptr. 661, 703 P.2d 1.)

 Here there can be no doubt that defendants, all of whom participated in some manner in the construction, operation and maintenance of the tramway system, had the duty to insure that the tramway operated safely and that their duty to avoid injury extended to all passengers on the tramway.   (Civ.Code, § 2100:  common carrier is held to a high degree of care to its passengers;  6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, §§ 948–949, pp. 332–334:  duty of a manufacturer or supplier of goods to exercise due care extends to anyone to whom a risk of harm could be foreseen and to those persons who could be endangered by the probable use of the goods.)   Similarly, there can be no question that defendants' negligence which resulted in a piece of the tramway system crashing through the glass roof of the tram car was “by its very nature directed at” all passengers in the tram car, including plaintiffs.   It was reasonably foreseeable that even those passengers who were not physically hit by pieces of glass and were not physically injured would suffer severe emotional distress from the experience.   Thus, plaintiffs qualify as “direct victims” under the Molien rationale as well.

As an alternative ground in support of the summary judgment, defendants contend that plaintiffs cannot recover for emotional distress unless they also have physical injuries.   Under the “zone of danger” rule as affirmed in Amaya, a plaintiff could recover for emotional distress arising from fear for one's own safety if and only if the plaintiff also sustained physical injury either contemporaneously with or as a consequence of the emotional distress.   The requirement of a physical injury was eliminated, however, in Molien v. Kaiser Foundation Hospitals, supra, 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813.   As the court noted, “[t]he primary justification for the requirement of physical injury appears to be that it serves as a screening device to minimize a presumed risk of feigned injuries and false claims.”   (Id., at p. 925, 167 Cal.Rptr. 831, 616 P.2d 813.)   Noting that “the attempted distinction between physical and psychological injury merely clouds the issue” and that “[t]he essential question is one of proof,” the court, in Molien, held that a cause of action for negligent infliction of serious emotional distress could be maintained even in the absence of a physical injury.  (Id., at pp. 929–930, 167 Cal.Rptr. 831, 616 P.2d 813.)   In the context of a summary judgment motion, plaintiffs' answers to interrogatories were sufficient to create a triable issue of fact as to the existence of serious emotional distress.  (Slaughter v. Legal Process & Courier Service (1984) 162 Cal.App.3d 1236, 1250–1251, 209 Cal.Rptr. 189.)   The summary judgment in favor of defendants Ellis, Aerial, the State and the Park Authority on the first, second and sixth causes of actions must be reversed.

II–III***

DISPOSITION

The judgment in favor of Superior Tramway is affirmed.   The judgment in favor of the State, the Park Authority, Ellis and Aerial on the first, second and sixth causes of actions is reversed.

Plaintiffs shall recover their costs incurred on appeal which are attributable to the summary judgments in favor of the State, the Park Authority, Ellis and Aerial from those defendants.   Defendant Superior Tramway shall recover its costs on appeal.

I concur in the portion of the majority's holding affirming the summary judgment in favor of Superior Tramway, and respectfully dissent from the portion of the majority's holding reversing the summary judgment in favor of the other four defendants.

The majority opinion announces at the outset, “․ we hold that a plaintiff who suffers emotional distress arising from fear for his own safety caused by a defendant's negligence need not [in order to recover] establish either physical injury to himself or a close familial relationship with a third person who was physically injured by said negligence.”   This is an astounding pronouncement and, in my view, represents the most drastic enlargement of tort liability in casualty cases since such liability evolved under the common law about one hundred and seventy years ago.   Despite such enlargement, no policy reasons are given for this holding.

Moreover, with reference to this particular case, reversal by the majority represents an unsupportable disposition for three separate and distinct reasons.   First, plaintiffs' opposition to Ellis and Aerial's motion for summary judgment on the negligence counts in the trial court, as well as their position on appeal adopted by the majority, imports a theory of relief not presented by plaintiffs' own pleadings.   As a consequence, with respect to the issues of fact actually raised by the pleadings, plaintiffs did not present to the trial court any evidence to raise a triable issue of fact, and so the motion for summary judgment was properly granted.

Second, even accepting as true the evidence presented by plaintiffs with respect to the emotional distress which they have experienced since witnessing the death of Elaine Tseko, the authorities marshalled by the majority, when fully analyzed and correctly applied, do not support the holding above quoted.   In sum, as a legal proposition, such holding does not reflect a proper application of Molien v. Kaiser Foundation Hospitals, 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813.

Third, viewing the majority's holding as undertaking to extend liability for negligence into a salient where it has never before been recognized, such extension is indefensible on public policy grounds.   Historically, the purpose of the tort law has been to compensate innocent persons for their economic losses inflicted by the carelessness of others.   More recently, a further purpose of the tort law has evolved to compensate innocent persons for their non-economic, emotional distress inflicted by the carelessness of others in those rare instances where the collective conscience of society compels it.   This case is not such an instance.

I

In Fireman's Fund Ins. Co. v. City of Turlock, 170 Cal.App.3d 988, 216 Cal.Rptr. 796, Justice Best made a cogent observation about the task of evaluating the propriety of a summary judgment, an observation often overlooked.   He said, “․ to be granted summary judgment the moving party's supporting papers must be sufficient to sustain a judgment in his favor.   When the defendant is the moving party, his task is to negate completely an essential element of plaintiff's case or to establish a complete defense.   [Citation.]  This task is limited to addressing those issues or theories of liability raised in plaintiff's complaint.   The papers filed by the party opposing summary judgment must also be directed to the issues raised by the complaint;  therefore the opposing papers may not create issues outside of the pleadings.  [Citations.]  (Id., at p. 994, 216 Cal.Rptr. 796, emphasis added.)

Contrary to the limitation last noted in the quotation above, plaintiff in opposing the motion undertook to address an issue not raised by the pleadings.   They have taken a similar position on appeal, and that position has been adopted by the majority.

Plaintiffs' complaint was cast in six counts.   However, the motion which led to the summary judgments here challenged was directed at issues present in only three of the counts, i.e., those charging dangerous condition of property, negligence, and negligent failure to warn.   The key charging allegations in each of these three counts are identical.   In Count I, they are found in paragraphs 11 and 12.   In count II, they are found in paragraphs 23 and 24, where the language used is exactly the same as that used in paragraphs 11 and 12.   In Count VI, the allegations of Count II are all incorporated by reference.

It is instructive to note the actual language used in these charging allegations.   Paragraph 11 of Count I reads:  “As the direct and proximate result of the acts of the defendants, and each of them, plaintiffs were hurt and injured in their health, strength and activity suffering injuries to body and shock and injuries to the nervous system and person, all of which injuries have caused and continue to cause plaintiffs great mental, physical, and nervous pain and suffering, all to their general damage in an amount in excess of the jurisdictional minimum of this Court.”   Paragraph 12 of Count I reads:  “As a further direct and proximate result of the acts of the defendants, and each of them, plaintiffs were required to and did employ physicians and surgeons to treat and care for plaintiffs and plaintiffs did incur medical and incidental expenses thereby.   Plaintiffs are informed and believe and thereon allege that they will be required to incur medical and incidental expenses for a period of time in the future.   Plaintiffs will seek leave of Court to amend this Complaint to set forth the exact amount of all such medical and incidental expenses when the same have been ascertained.”

In Count II, the alleged negligence and breach of duty were alleged in paragraphs 21 and 22.   Paragraph 21 reads:  “The defendants, and each of them, so negligently, carelessly, and wrongfully designed, manufactured, assembled, installed, inspected, supplied, sold, repaired, leased and rented said product and the component parts thereof, as so to cause said product to be defective, dangerous, and unsafe for its intended use and purpose.”   Paragraph 22 reads:  “On or about June 23, 1984, while said tramway was in use in the County of Riverside, State of California, said tramway, tram cars, and the component parts thereof, failed to operate properly.   As a proximate result thereof, a part of the tramway car was caused to crash through the skylight of the tramway car causing the injuries hereinabove described.”   Then in Count II “(Negligence)” follow paragraphs 23 and 24 which were composed in precisely the same language as used in paragraphs 11 and 12, above quoted.

Prima facie, this was a garden variety, personal injury complaint containing none of the language of the kind used in Vanoni v. Western Airlines, 247 Cal.App.2d 793, 56 Cal.Rptr. 115, where the plaintiffs in graphic terms alleged that defendant had “so carelessly and negligently maintained, owned, operated and controlled the aforesaid aircraft so as to lead plaintiffs ․ to believe that said aircraft was in mechanical trouble, and further led plaintiffs ․ to believe that said aircraft was going to crash ․” (Id., at p. 794, 56 Cal.Rptr. 115.)   In Vanoni, plaintiffs further alleged that the experience here noted had caused “great grievous mutual suffering, anguish, and anxiety and ․ severe shock to his nerves and nervous system ․” (Id., at p. 794, 56 Cal.Rptr. 115, emphasis in original.)   A general demurrer was sustained in the trial court, and, in reversing, the appellate court held that the last quoted language was sufficient to allege a physical injury.   In this connection, the court observed (as of 1967) that “[i]t seems to be the law that there can be no recovery for emotional distress ․ unaccompanied by physical harm arising from acts which are solely negligent in nature.”  (Id., at p. 795, 56 Cal.Rptr. 115.)

The reference to Vanoni is pertinent here, for despite the garden variety pleading of a personal injury cause of action, plaintiffs, in their opposition to the motion for summary judgment and on appeal, attempted nevertheless to cast their factual evidentiary showing in a “zone of danger” i.e., Vanoni context, notwithstanding that they had experienced no personal injuries and notwithstanding that they had not pleaded a “zone of danger” cause of action.   In sum, the point here, regardless of whether a physical injury is now necessary in pleading a cause of action based on negligently caused fear for plaintiffs' own safety, the pleadings here did not contain any such allegations.

Based on the City of Turlock holding, defendants were entitled to prevail on their motion for summary judgment because they succeeded in negating an essential element of plaintiffs' case, i.e., by showing per force of plaintiff's answers to interrogatories that they had sustained no physical injuries, even though plaintiffs had pleaded in their complaint that they had been “hurt and injured in their health, strength and activity․”

II

Even accepting for purpose of discussion, notwithstanding the City of Turlock holding which prescribes that the factual issues presented by a motion for summary judgment are defined by the pleadings, that a plaintiff opposing a motion can add additional theories of action in opposing the motion, the new theory proposed here and adopted by the majority is itself legally unsupportable by the authorities cited.

The majority adopts plaintiffs' contention, even though they were not physically injured in the accident and did not have a close relationship with the victim, as required under the “bystander” rationale in Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912, that they are, nevertheless, entitled to recover damages for negligence under the “direct victim” holding in Molien v. Kaiser Foundation Hospitals, supra, 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813.   This is so, the argument goes, because plaintiffs, in common with all the passengers in the tram car at the time of the accident, were in the “zone of danger” created by defendants' negligence.   However, the “direct victim” rationale pronounced in Molien places absolutely no reliance on the zone-of-danger concept, and cannot logically be extended to include that concept.

Turning to the relevant authorities, the seminal zone-of-danger case is Cook v. Maier (1939) 33 Cal.App.2d 581, 92 P.2d 434.   In Cook, the court rejected the impact rule in favor of the zone-of-danger rule, and held that a plaintiff who had been within 15 feet of a negligently-operated automobile and thus had feared for her own safety could recover in damages for physical injuries sustained as the result of her fright and shock, even though there had been no bodily contact.

Thereafter, in Amaya v. Home Ice, Fuel & Supply Co., 59 Cal.2d 295, 29 Cal.Rptr. 33, 379 P.2d 513, the California Supreme Court refused to abandon the zone-of-danger requirement in a “bystander” situation.   In Amaya, the plaintiff had alleged that she had suffered fright and shock and consequent physical illness when she had observed a truck negligently operated by the defendant strike and run over her infant son.   Because the fright and shock had resulted from her fear for the safety of the child and not as a result of her fear for her own safety, the court refused to permit recovery.

Five years after Amaya, the California Supreme Court, in Dillon v. Legg, supra, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912, overruled Amaya and abandoned the requirement of plaintiff's presence in the zone of danger as one of the elements of liability in a bystander case.   The plaintiff in Dillon had alleged she had suffered emotional trauma and physical injury as a result of witnessing a vehicle, negligently operated by the defendant, strike her infant daughter, but she had not alleged she had feared for her own safety because of being within the zone of danger.   The court held that the plaintiff could recover from the negligent defendant if:  (1) she had been near the scene of the accident;  (2) she had observed the accident, and (3) she had been closely related to the victim.  (Id., at pp. 740–741, 69 Cal.Rptr. 72, 441 P.2d 912.)   The court imposed the foregoing guidelines “[i]n order to limit the otherwise potentially infinite liability which would follow every negligent act, [and to hold the] defendant amenable only for injuries to others which to defendant at the time were reasonably foreseeable.”  (Id., at p. 739, 69 Cal.Rptr. 72, 441 P.2d 912.)   Such foreseeability was present in its case, the court said, because “[s]urely the negligent 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.)

Finally, in Molien v. Kaiser Foundation Hospitals, supra, 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813, the California Supreme Court eliminated the physical injury and percipient witness requirements of Dillon in a very limited set of circumstances.   The Molien court held that a plaintiff who had alleged that he had suffered extreme emotional distress as a result of the negligent diagnosis that his wife had syphilis could recover damages, because he was “a direct victim of the assertedly negligent act” (id., at p. 923, 167 Cal.Rptr. 831, 616 P.2d 813), and “the risk of harm to plaintiff was reasonably foreseeable to defendants.   It is easily predictable that an erroneous diagnosis of syphilis and its probable source would produce marital discord and resultant emotional distress to a married patient's spouse.”  (Id.)

In the case here, the majority adopts plaintiffs' argument that they, like the plaintiff in Molien, are direct victims of defendants' negligence, because “[it] is unquestionably foreseeable that if a negligently designed, manufactured, or maintained piece of equipment crashes through the roof of a tram car while suspended thousands of feet in the air, that any and all passengers will fear for their own safety and will suffer severe emotional distress.   Considering the circumstances, this would hold true even if no one [had] been physically injured.   However, the fact that a passenger was, indeed, killed, only serves to increase and amplify the other passengers' emotional distress and fear for their own safety.”  (Original emphasis on “own”;  other emphasis added.)

However, the majority has missed the point made in Molien.   Although Molien “[did not] establish[ ] criteria for characterizing a plaintiff as a ‘direct victim’ ” (Thing v. La Chusa (1989) 48 Cal.3d 644, 658, 257 Cal.Rptr. 865, 771 P.2d 814), the cause of Molien's injury was the negligent diagnosis of his wife, i.e. he was a direct victim because of his relationship to the primary victim.   Significantly, the second paragraph of the opinion recites, in relevant part:  “plaintiff asks us to decide whether he may recover for negligently inflicted emotional distress ․ occasioned by emotional injury to his wife.”  (Molien v. Kaiser Foundation Hospitals, supra, 27 Cal.3d 916, 918–919, 167 Cal.Rptr. 831, 616 P.2d 813, emphasis added.)   Moreover, the reason Molien was allowed to recover was because it was “easily predictable” that an erroneous diagnosis of his wife would produce emotional distress in him.   In sum, without the negligent diagnosis of Molien's wife, i.e. without the primary victim, Molien would not in turn have suffered the emotional distress.

Here, plaintiffs argue, and the majority agrees, that the primary victim, Elaine Tseko, is unnecessary, because it was “unquestionably foreseeable that ․ any and all passengers” would fear for their own safety and would suffer emotional distress when the vagrant item of equipment crashed through the roof of the car.   However, this is a misuse of the term “foreseeable.”   As the Supreme Court pointed out in Molien, it had used a foreseeability analysis in Dillon “ ‘[i]n order to limit the otherwise potentially infinite liability which would follow every negligent act.’ ”  (Molien v. Kaiser Foundation Hospitals, supra, 27 Cal.3d 916, 922, 167 Cal.Rptr. 831, 616 P.2d 813, emphasis added.)

In the case here, however, plaintiffs and the majority are using a foreseeability analysis in order to avoid limiting defendants' potential liability to all the passengers on the tram car, irrespective of their relationships to the victim.   On this basis, to rely, by analogy, on one of the consequences of a recent natural catastrophy, under plaintiffs' theory anyone who was on the portion of the Nimitz Freeway in Oakland when it collapsed on October 17, 1989, and was not physically injured as a result of the collapse would nevertheless have a cause of action for emotional distress against any assertedly negligent defendant, because the plaintiff witnessed the physical trauma of others while being exposed to the risk of his or her own injuries.   However, nothing in the law or public policy mandates such a result;  moreover, reason and common sense dictate if not compel otherwise.

The majority asserts that Dillon has “no application to the case before us.”   However, the majority would allow plaintiffs to recover under Molien, which is a Dillon-type case.   As the court noted in Molien, Dillon “is apposite, but not controlling.”  (Molien v. Kaiser Foundation Hospitals, supra, 27 Cal.3d 916, 921, 167 Cal.Rptr. 831, 616 P.2d 813.)   Dillon is apposite because the event which triggered the emotional distress of the plaintiffs in both cases was the injury to a closely-related third person.  Dillon was not controlling in Molien, because the plaintiff in Dillon was a percipient witness to the injury, whereas the plaintiff in Molien was not such a witness, the fact being that there was no event of physical trauma in Molien to witness.

In the case here, Molien is neither apposite nor controlling.   This is because the event which triggered plaintiffs' emotional distress was not the injury to a closely-related third person.  (“Both decisions [Dillon and Molien ] had looked to the relationships of the parties to find foreseeability of the injury and thus a ‘duty to the plaintiff.’ ”  (Thing v. La Chusa, 48 Cal.3d 644, 658, 257 Cal.Rptr. 865, 771 P.2d 814.)   Nor are the pre-Dillon zone-of-danger cases (Cook and Amaya) relevant to the case here (and plaintiffs do not contend otherwise), because in those cases the plaintiffs' emotional distress had resulted in physical injury, and in the case here plaintiffs did not produce the slightest shred of evidence that they had sustained physical injury.1

In view of the foregoing analysis, Ellis and Aerial (and the State, the Park Authority and the Tramway, which had all joined in Ellis and Aerial's motion), did not, as a matter of law, owe a duty of care to plaintiffs, with reference to the contended risk of emotional distress, and, therefore, were entitled to summary judgment on the respective negligence counts against them.   Stated in other terms, if plaintiffs had undertaken to plead the cause of action they argued at the motion for summary judgment, it would have been vulnerable to a general demurrer.

III

Historically, the purpose for seeking legal redress in the courts has been to recover money damages to compensate for economic, i.e. out-of-pocket, loss.   The evolution of a cause of action based on negligence coincided with the advent of the Industrial Revolution and the development of railroads, when collisions between members of the public and the many new contrivances greatly increased.   These collisions often resulted in serious if not disabling injuries with attendant medical expenses and loss of wages.   Such losses became the measure of damages in negligence cases, plus an amorphous figure awarded for so-called pain and suffering.

More recently, compensation has been allowed to plaintiffs in tort actions when they have suffered no monetary or economic loss.   The most frequent illustration is found in wrongful death cases.   When a breadwinner is killed because of the defendant's negligence, the survivors have clearly suffered an economic loss.   However, when the decedent is a small child, there is no such loss suffered by the surviving family members;  nevertheless, it is now widely accepted that there is a cause of action for the wrongful death of a nonbreadwinner, vested in the surviving family members.

Another class of cases where tort recovery is allowed without the presence of economic loss involves morticians.   In such a case, decided by this division, Allen v. Jones, 104 Cal.App.3d 207, 163 Cal.Rptr. 445, the mortician lost the ashes of the decedent after cremation, and the surviving family members were allowed to recover general damages for their emotional distress.

Four months after Allen was decided, the California Supreme Court issued Molien, which is in the same general category.   More specifically, Molien, like Allen, was marked by unique circumstances involving a familial relationship between the plaintiff and the victim of the negligence.   The Molien court reasoned that the plaintiff could state a cause of action for negligent infliction of emotional distress without accompanying physical injury, because it was foreseeable that the negligent examination of the plaintiff's wife would elicit serious emotional responses in him.

In sum, as a policy matter, the collective conscience of society now accepts recovery for emotional distress without accompanying physical injury in those unique classes of cases where there is a familial relationship between the plaintiff and another person either injured, killed or the independent victim of other negligence.

This common element, i.e., a familial tie in the cases noted, leads to the inquiry, “what is the compelling policy reason to compensate a person for his or her purely emotional distress where he or she has suffered no economic loss and also where there is no familial connection to anyone otherwise involved in the alleged, distress-causing event?”   In my view there is no policy justification for awarding compensation in such a case.

Here, for example, it serves absolutely no meaningful or compelling societal purpose to compensate the plaintiffs, regardless of how unpleasant the experience may have been for them.   If it be argued that allowing such a recovery would tend to make the tramway operators more careful, that purpose has already been served by allowing recovery to the survivors of Elaine Tseko for her wrongful death.

Moreover, there are compelling policy reasons why the plaintiffs here should not be compensated.   Two such reasons were articulated recently by the California Supreme Court in Elden v. Sheldon, 46 Cal.3d 267, 250 Cal.Rptr. 254, 758 P.2d 582.   In Elden, the plaintiff, while a passenger in an automobile, was injured in an accident in which his so-called cohabitant, the driver, was killed.   In the action later brought against the adverse driver, the plaintiff sought to recover damages for the emotional distress which resulted from his witnessing the injury to his de facto spouse.   The trial court's dismissal of that part of the action based on a general demurrer was affirmed by the Supreme Court.

Had the decedent and the plaintiff been married, he would have been entitled to recover for his emotional distress, assuming the negligence of defendant could have been proved as the proximate cause of death.   However, without the familial relationship, plaintiff's theory of recovery was rejected.

Justice Mosk, who authored Molien, in writing for the 6 to 1 majority in Elden, stated, “It may well be ․ that emotional trauma suffered by a partner ․ from injury to his [cohabitant] cannot be characterized as ‘unexpected or remote.’   Nevertheless ․ [¶] [a]lthough Dillon stresses foreseeability of the risk as the ‘chief element in determining whether defendant owes a duty to ․ plaintiff’ (68 Cal.2d at p. 740, 69 Cal.Rptr. 72, 441 P.2d 912), it recognizes that policy considerations may dictate a cause of action should not be sanctioned no matter how foreseeable the risk.  [Fn. omitted.]   This proposition is self-evident.   It is manifest, for example, that a mother will suffer severe emotional trauma from the death or serious injury of her child in an accident whether or not she is present at the scene.   The same would often be true of very close friends.   Yet recovery of damages for such trauma is not allowed [citations] for the sound reason that the consequences of a negligent act must be limited in order to avoid an intolerable burden on society.”  (Elden v. Sheldon, supra, 46 Cal.3d 267, 273–274, 250 Cal.Rptr. 254, 758 P.2d 582, emphasis added.)

As we have noted, under the majority's holding here, an intolerable burden would be imposed on the occurrence of a wide-spread disaster involving great numbers of people who were physically injured, as well as many others who were neither physically injured nor closely related to those who were physically injured, but who were emotionally distressed because they were in the zone of danger.

Another policy reason for the result reached in Elden was that “[t]he allowance of a cause of action in the circumstances of this case would impose a difficult burden on the courts.   It would require a court to inquire into the relationship of the partners to determine whether the ‘emotional attachments of the family relationship’ existed between the parties [citation] and whether the relationship was ‘stable and significant’ [citation].   In Norman v. Unemployment Ins. Appeals Board, supra, 34 Cal.3d 1, 8–10, 192 Cal.Rptr. 134, 663 P.2d 904, we commented on the ‘difficult problems of proof’ involved in determining whether a relationship is equivalent to a marriage.”  (Id., 46 Cal.3d at pp. 275–276, 250 Cal.Rptr. 254, 758 P.2d 582.)

So it is here.   It is fair to observe that what, subjectively, may distress one person will not distress another.   Thus, if the holding of the majority were to become the law of this state, it would result in difficult problems of proof as well as in selective recoveries among several people who were in a zone of danger but where all did not suffer emotional distress.

In sum, as to this reason for my view that the result reached by the majority is indefensible, while it may have been foreseeable that plaintiffs would experience emotional distress as a result of witnessing Elaine Tseko's injuries, and, arguendo, fearing for their own safety, such foreseeability is not enough to provide a predicate for liability.   The historical reality is that both the advent and the extensions of liability for negligence have uniformly been countenanced by the courts for strictly policy reasons.   In the case here, the majority has suggested no policy reasons for the drastic extension of such liability which their holding represents.   Accordingly, there is no legal justification for extending liability in the manner announced.

For each and all of the reasons stated above, I would affirm the summary judgment in its entirety.

FOOTNOTES

1.   The dissent contends that summary judgment was properly granted because plaintiffs' opposition to the motion for summary judgment and their position on appeal “imports a theory of relief not presented by plaintiffs' own pleadings” in that plaintiffs pled “a garden variety, personal injury complaint.”   We disagree.   In their complaint, plaintiffs allege they “were passengers aboard the tramway when a part of the tramway broke loose and crashed through the skylight of the tram car causing physical and emotional injuries as hereinbelow described.”   They also allege that as result of defendants' negligence, they suffered “injuries to body and shock and injuries to the nervous system and person, all of which injuries have caused and continue to cause plaintiffs great mental, physical, and nervous pain and suffering.”   We find this sufficient to raise the issue of emotional injuries.   Moreover, defendants at no time in the trial court objected to plaintiffs' evidence of emotional distress as being outside the pleadings.   Rather defendants' attack has been that absent either a physical injury or a close relationship with an injured third person, plaintiffs could not recover for their emotional injury.

2.   BALLINGER:“6.2 Today I have mental fears and nightmares of the accident.   I get constant daily flashbacks of the accident, while driving, watching television, walking or just about any time during my awake hours.   I have acute claustrophobia and fear in elevators, airplanes, and buses.   Flashbacks are common.   I have constant fear/claustrophobia in or around enclosures.“My mind continues to dwell and think about the ‘what-if? syndrome.’  (What if that would have been me?   Or my friend Jackie?   Or one of my daughters since my daughters and I have been on that tram several times in the past prior to the accident.)“I have not been snow skiing since the accident for fear of being caught up on the cable systems in the mountains.   Shortly after the accident I began using a hypnosis psychological tape recording to put me to sleep at night.   I have also conversed on the telephone each week to Jacqueline Didier since the accident, and feel I am over-dependent on her understanding my trauma and fears since the accident.   I have called her constantly and I cannot bear to think of not talking to her for comfort and understanding.“Jacqueline and I have met each June 22nd or 23rd to share how fortunate we are, and to give thanks to God that we were spared our lives, and to pray for the woman's family that was also involved in the tram accident with us.“I live from moment to moment as this might be to [sic] much for me to handle.   I also have very acute fears while I am driving through any tunnel.   As far as getting into a cable car or suspended type of vehicle, that would be out of the question.   There was flying plexi-glass everywhere at the time of the accident.   I do not recall whether I was struck by any of the plexi-glass but I was showered with Mrs. Tseko's blood.”DIDIER:“6.2 The accident has caused me to have abnormal concern for the safety of people that I care about.   I have turned down many ski trips because I won't go on a ski lift (it's to similar too a tram [sic] ), and I don't want to be around one.   I won't ride in a small plane because I don't like the feeling of being closed in and helpless up in the sky.   And, needless to say, I will never ride on a tram again.   I worry that it could have been my friend David that had been killed, or what if it had been me.   Or even if that had been my sister, had she been on the tram.   I try to force such thoughts from my head because they cause me a great deal of pain.   I have unpleasant flashbacks of the accident.   I grieve excessively for victims of any tragedy I hear about on the news, in the papers, etc.   I had terrifying nightmares in which I would look into a mirror and see blood all over my face the first week after the accident, probably as a result of having blood sprayed all over me at the time of the accident.”

3.   Nor does the fact that plaintiffs admitted fact no. 4 contained in defendants' separate statement of undisputed facts support the summary judgment.   Defendants' fact no. 4 was that plaintiffs “claim emotional trauma from having witnessed the injuries to ELAINE TSEKO, and worrying that it could have been them.”   While we imagine that in drafting this separate statement of undisputed facts, defendants were referring to the plaintiffs' present worries, the statement is ambiguous as to time and could also refer to the trauma plaintiffs felt at the time of the incident.   As all doubts are to be resolved in favor of the party opposing the motion for summary judgment, we construe this statement of fact against the moving parties.  (Powell v. Standard Brands Paint Co., supra, 166 Cal.App.3d at p. 362, 212 Cal.Rptr. 395.)

4.   At the time of Lindley and Webb, in order to recover for emotional distress, however, plaintiff was required to establish either contemporaneous physical injury or physical injury as a consequence of the emotional distress.   We discuss this aspect later in our opinion.

FOOTNOTE.   See footnote *, ante.

1.   Despite this lack of evidence, and despite plaintiffs' declared “non-reliance” on the zone-of-danger cases, the majority yet states that “the ‘zone of danger’ rule is still viable and authorizes plaintiffs' action in this case.”   However, even if the zone-of-danger rule is still viable, it does not support plaintiffs' theory here.

HOLLENHORST, Acting Presiding Justice.

DABNEY, J., concurs.