NEVELS v. YEAGER

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

Mary NEVELS, Plaintiff and Appellant, v. Ralph William YEAGER, et al., Defendants and Respondents.

Civ. 69772.

Decided: February 22, 1984

Good & Novack and Ned Good, Pasadena, for plaintiff and appellant. Gilbert, Kelly, Crowley & Jennett, William D. Jennett, Patrick A. Mesisca, Jr., and Peter J. Godfrey, Los Angeles, for defendants and respondents.

Mary Nevels appeals a summary judgment granted to respondents, Ralph Yeager and Hoffman Brothers Packing Company.   She sued to recover damages for suffering the negligent infliction of emotional distress caused by “witnessing” her daughter's injury in an automobile accident.1

Respondent, Ralph Yeager, an employee of Hoffman Brothers, ran a stop sign at the intersection of Baseline Road and the Citrus Avenue off ramp of the 210 Freeway in Azusa.   His truck broadsided the Pinto in which appellant's 13-year-old daughter Michelle and her 18-year-old daughter Julia were passengers.   Appellant was at home three-quarters of a mile away when the accident occurred.   The driver of the Pinto called appellant's residence within five minutes of the accident and told Donald Cook, a friend who answered the telephone, that he had been in a “bad accident.”   In response to this information, appellant rushed to the scene of the accident;  she arrived within 10 minutes of its occurrence.   There she saw her daughter Michelle lying in the street “with blood coming from her nose and her ears and she was screaming and screaming and screaming.   Her hair was full of blood and blood was everywhere.   Two paramedics were working on her.”

As a result of the accident, Michelle has two holes in the dura of her brain.   Her hearing and sight are adversely affected by seeping brain fluid.   The brain damage has also caused lack of coordination, difficulty in focusing her eyes, memory lapses, and other physical discomforts.   Additionally, she sustained a fractured skull and clavicle.

Appellant alleged, in her first amended complaint, her parental relationship with Michelle and that she witnessed her daughter's “accident, injuries and damages” which proximately caused appellant physical and mental injury.

Respondents made a motion for summary judgment against appellant or, in the alternative, for summary adjudication of issues without substantial controversy.   The basis of the motion was the fact that appellant did not contemporaneously observe the accident, and consequently, she failed to meet the criteria of Dillon v. Legg (1968) 68 Cal.2d 728, 740–741, 69 Cal.Rptr. 72, 441 P.2d 912.

I

Appellant contends that “every Defendant has a duty to exercise ordinary care to refrain from inflicting severe emotional injuries upon a parent, child, or spouse if the severe emotional injuries are caused by the prompt, even though not simultaneous, witnessing of serious injuries and the witnessing of the prolonged suffering of that victim's child, spouse or parent.”  (Emphasis in original.)

 For the reasons hereinafter set forth, we have concluded that the trial court erred in holding that no triable issue of fact was presented by appellant.

Our analysis necessarily begins with Dillon v. Legg, supra, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912.   That case determined that a mother who witnessed her child's death could recover from the tortfeasor for the emotional distress she suffered.   Justice Tobriner dissected the legal concept of “duty” and established guidelines for determining the existence of a duty in these cases:

“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.   We cannot now predetermine defendant's obligation in every situation by a fixed category;  no immutable rule can establish the extent of that obligation for every circumstance of the future.   We can, however, define guidelines which will aid in the resolution of such an issue as the instant one.

“We note, first, that we deal here with a case in which plaintiff suffered a shock which resulted in physical injury and we confine our ruling to that case.   In determining, in such a case, 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.

“The evaluation of these factors will indicate the degree of the defendant's foreseeability:  obviously defendant is more likely to foresee that a mother who observes an accident affecting her child will suffer harm than to foretell that a stranger witness will do so.   Similarly, the degree of foreseeability of the third person's injury is far greater in the case of his contemporaneous observance of the accident than that in which he subsequently learns of it.   The defendant is more likely to foresee that shock to the nearby, witnessing mother will cause physical harm than to anticipate that someone distant from the accident will suffer more than a temporary emotional reaction.   All these elements, of course, shade into each other;  the fixing of obligation, intimately tied into the facts, depends upon each case.”  (Dillon v. Legg, supra, 68 Cal.2d at pp. 740–741, 69 Cal.Rptr. 72, 441 P.2d 912.)

In Archibald v. Braverman (1969) 275 Cal.App.2d 253, 79 Cal.Rptr. 723, the plaintiff witnessed her son's severe injuries within moments of the gunpowder explosion which caused them.   The court applied the Dillon guidelines and concluded that the mother's not having witnessed the accident itself would not preclude her from recovery.   Summary judgment for defendants was reversed.   The Archibald court stated:

“While the complaint does not reflect where the plaintiff was when she received word of the tragedy, she appeared at the scene within moments after its occurrence.   A tortfeasor who causes injury to a child may reasonably expect that the mother will not be far distant and will, upon witnessing the event, suffer emotional trauma.  (Dillon v. Legg, supra, 68 Cal.2d 728, 741, 69 Cal.Rptr. 72, 441 P.2d 912.)   Consequently, the mother, having witnessed the injuries within moments after the explosion at a time when she was attempting to render aid, fulfilled the ‘nearness' requirement in terms of distance as well as time.

“The issue then arises whether the ‘observance’ factor requires that the plaintiff witness the tortious act.   A plaintiff claiming damages for emotional trauma as a result of injury to a third party must either be present at the time of the accident (Dillon v. Legg, supra, 68 Cal.2d 728, 740–741, 69 Cal.Rptr. 72, 441 P.2d 912) or the shock sustained by the plaintiff must be fairly contemporaneous with the accident rather than follow when the plaintiff is informed of the whole matter at a later date.  (Prosser, Law of Torts (3d ed. 1964) p. 354.)   Manifestly, 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.”  (Archibald v. Braverman, supra, 275 Cal.App.2d at p. 256, 79 Cal.Rptr. 723.)

Ten years ago, this court held in Powers v. Sissoev (1974) 39 Cal.App.3d 865, 114 Cal.Rptr. 868, that a mother who witnessed her daughter's injuries at the hospital 30 to 60 minutes after the accident could not sustain a cause of action for her emotional distress.   We recognized that “the [Dillon ] rule allowing recovery for emotional shock and its after effect is not necessarily limited to the narrow facts involved in that case.”  (Id., at p. 873, 114 Cal.Rptr. 868.)   Nevertheless, we declined to apply Dillon “where the shock ․ resulted from seeing the daughter 30 to 60 minutes after the accident and thereafter under circumstances not materially different from those undergone by every parent whose child has been injured in a nonobserved and antecedent accident.”  (Id., at p. 874, 114 Cal.Rptr. 868.)

Here, appellant's shock is materially different from that suffered by every parent of an injured child.   While appellant did not observe the accident itself, she arrived at the scene quickly enough to see her daughter's bloody injuries, hear her screams, and observe the wreckage of the car and truck.   We agree with Archibald that seeing a child in these circumstances is just as profoundly shocking as witnessing the accident itself.   We do not read Dillon to unwaiveringly require both the mother's presence and her contemporaneous perception of the accident.   If both were absolute requirements for recovery, they would not have been mentioned separately since a contemporaneous perception of the accident would, in fact, require the parent's presence at the scene.2

It is clear that Dillon intended to determine the foreseeability of risk in this type of tort on a “case-by-case” basis.   Justice Tobriner specifically rejected the application of “immutable rules,” and did not propose the three “guidelines” as dogma.3  The majority of subsequent decisions have nonetheless applied these guidelines with a Draconian adherence to form over substance:  Hathaway v. Superior Court (1980) 112 Cal.App.3d 728, 169 Cal.Rptr. 435 (parents heard their child outside make an “ahhh” noise, as he was electrocuted;  they watched the child die but did not visually perceive the electrocution);  Parsons v. Superior Court (1978) 81 Cal.App.3d 506, 146 Cal.Rptr. 495 (parents following a car in which their daughters were riding rounded a curve and came upon the wreckage of the car in which their daughters were dying);  Arauz v. Gerhardt (1977) 68 Cal.App.3d 937, 137 Cal.Rptr. 619 (mother arrived at the accident within five minutes;  her son was sitting or standing on the curb and the nature of his injuries was disputed).  Arauz and Parsons distinguished Archibald on the grounds that, in the latter case, the mother heard the gunpowder explosion.

In Krouse v. Graham (1977) 19 Cal.3d 59, 76, 137 Cal.Rptr. 863, 562 P.2d 1022, the California Supreme Court affirmed “the propriety of the expression in Archibald ․ 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.”   In that case, a husband inside a car did not see his wife being run down behind the car, but “he fully perceived the fact that she had been so struck.”  (Ibid.)

In Nazaroff v. Superior Court (1978) 80 Cal.App.3d 553, 145 Cal.Rptr. 657, it was held that triable issues of fact existed as to whether a mother's injuries were caused by the emotional shock of observing the immediate consequences of defendant's negligence.   The mother was looking for her three-year-old son.   She heard a neighbor scream, “ ‘ “It's Danny.”  [She] immediately had the dreadful knowledge that Danny had somehow gotten into the Beckers swimming pool and that he was hurt.’ ”  (Id., at p. 559, 145 Cal.Rptr. 657.)   She ran to the pool and saw a neighbor pulling Danny out.   By the time she arrived, Danny was receiving mouth-to-mouth resuscitation.   Three days later Danny died.   The court noted that Dillon “was not creating parameters but merely guidelines.”  (At p. 562, 145 Cal.Rptr. 657.)   The court recognized the difficulty of reconciling Archibald with Arauz, but relied on the distinction made in Jansen v. Children's Hospital Medical Center (1973) 31 Cal.App.3d 22, 106 Cal.Rptr. 883, that, in Archibald, the mother heard the explosion.4  The Nazaroff court further stated:

“ ‘․  “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.” ’   [Citation.]  That analysis is buttressed by Krouse, where the reference quoted above, by its emphasis on ‘visual,’ suggests that there was an auditory perception in Archibald.

“Unless we accept that distinction, it is difficult to understand why Mrs. Arauz, who allegedly saw blood all over her son's face and head and his jacket and part of his shoes, could not reconstruct the event as well as Mrs. Archibald was deemed to have done in her case.   Nor can we say what the decision might be if the mother arrived at the scene to find her son under the vehicle which had struck him.   The analysis of the cases in Justus does not resolve the dilemma.  Archibald is described as follows:  ‘․ “within moments” after the child was seriously injured in an explosion his mother appeared on the scene and saw his bleeding and maimed body.   The court held that the shock she suffered was essentially contemporaneous with the accident itself.’  (19 Cal.3d at p. 582, 139 Cal.Rptr. 97, 565 P.2d 122.)  Arauz is classified as an application of the rule that there is no recovery for shock not contemporaneous with the accident, or for shock from circumstances undergone by every parent whose child has been injured in an nonobserved and antecedent accident, or for shock from knowledge of an unobserved tort, particularly in the absence of any sensory perception of the impact.  (Id., at pp. 583–584, 139 Cal.Rptr. 97, 565 P.2d 122.)   It is also referred to as a case where the shocked relative learns of the accident from others after its occurrence.

“On balance, and in the light of all of the criteria reviewed above, 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․  We cannot say as a matter of law that the injuries resulting from defendants' negligence were not still being experienced at the time the mother first observed her son.”  (Nazaroff v. Superior Court, supra, 80 Cal.App.3d at pp. 566–567, 145 Cal.Rptr. 657.)

In a recent case, Madigan v. City of Santa Ana (1983) 145 Cal.App.3d 607, 193 Cal.Rptr. 593, a parent and stepparent arrived at the accident scene 15 minutes after the accident occurred.   They observed the damaged cars and knew that their son was in the Volkswagen.   The ambulance, police and fire engines were there;  the parents were told that all occupants of the Volkswagen had been killed.   The court held that Dillon precluded a cause of action by the parent and stepparent for the negligent infliction of emotional distress.   It stated that “[t]he rule of Dillon as applied in all subsequent cases requires some sensory and contemporaneous observance of the accident.   That is clearly absent here;  there is no showing plaintiffs saw, heard or otherwise sensorially perceived the event which produced the injury.   To expand the clear requirements of Dillon would without question begin ‘a first excursion into the “fantastic realm of infinite liability,” ’ so ominously predicted by the dissent in Dillon.  [Citation.]”  (Madigan v. City of Santa Ana, supra, 145 Cal.App.3d at p. 611, 193 Cal.Rptr. 593.)

We note that the majority opinion in Dillon specifically rejected the claim that a meritorious cause of action should go unrecognized for fear of opening the “floodgates of litigation.”   In Madigan, the Dillon guidelines become “requirements.”   Such rigidity is antithetical to our interpretation of Dillon and to our concept of foreseeability.

 Foreseeability is a question of fact for the trier of fact unless the undisputed facts provide no basis for a reasonable difference of opinion.   (Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49, 56, 192 Cal.Rptr. 857, 665 P.2d 947.)   When the facts alleged support a reasonable difference of opinion as to whether respondents should have foreseen appellant's emotional distress, the issue of foreseeability is a triable issue of fact.   When a triable issue of fact exists, it is error for a trial court to grant summary judgment.  (Code Civ.Proc., § 437c;  Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 417, 42 Cal.Rptr. 449, 398 P.2d 785.)

Here, appellant was only three-quarters of a mile from the scene of this neighborhood accident involving grievous injury to her 13-year-old child.   Her perception of the accident was substantially contemporaneous.   It cannot be said as a matter of law that her appearance at the scene of the accident would not be foreseeable.

 Clearly, to have some consistency in these cases we must abandon such meaningless distinctions as “having heard the sound,” as being determinative of liability;  especially where even this tenuous line of reasoning has been so erratically applied.   Instead, we must return reason to the Dillon guidelines and conclude that, when a close relative arrives at the scene of an accident soon after its occurrence, so that the scene is substantially as it was at the instant of the accident and sees the victim, who has suffered severe injury with all its attendant gore, and suffers shock therefrom, that relative has experienced shock contemporaneous with the accident.5

We appreciate the desire of other courts to chart a narrow course in allowing recovery for bystander torts.   We also heed Dillon's admonition that a legitimate claim should not be denied for fear of future fraudulent demands.   Applying the guidelines in Dillon according to the foreseeability principle intended, we find that appellant has presented a triable issue of fact.

The judgment is reversed.

FOOTNOTES

1.   The trial court severed the mother's cause of action from her daughter's complaint for personal injury prior to granting summary judgment.

2.   A parent's presence at the scene did not, on the other hand, necessarily imply a contemporaneous sensory perception of the tort.  (See Justus v. Atchison (1977) 19 Cal.3d 564, 139 Cal.Rptr. 97, 565 P.2d 122.)

3.   “We are not now called upon to decide whether, in the absence or reduced weight of some of the above factors, we would conclude that the accident and injury were not reasonably foreseeable and that therefore defendant owed no duty of due care to plaintiff.   In future cases the courts will draw lines of demarcation upon facts more subtle than the compelling ones alleged in the complaint before us.”  (Dillon v. Legg, supra, 68 Cal.2d at p. 741, 69 Cal.Rptr. 72, 441 P.2d 912.)

4.   This does not reconcile Hathaway v. Superior Court, supra, where the parents heard their son being electrocuted.

5.   Having applied this rule to the facts before us, it is not necessary that we address the “direct victim” concept proposed by appellant, and therefore we need not, and do not, discuss Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813, and Sesma v. Cueto (1982) 129 Cal.App.3d 108, 181 Cal.Rptr. 12.)

WOODS, Presiding Justice.

KINGSLEY and McCLOSKY, JJ., concur.