AGNEW WATSON v. COUNTY OF ALAMEDA (1994)

This case provides an opportunity to clarify the rule articulated by the majority opinion in Bell v. Macy's California (1989) 212 Cal.App.3d 1442, 261 Cal.Rptr. 447 (hereafter Bell ).   There we held that an unborn child is barred from tort recovery for harm derived from injury caused by an employer to the child's mother.  Bell established that the fetus's ability to recover under those circumstances was prevented by the Workers' Compensation Act (Lab.Code, § 3200 et seq.) (the Act).

In the case before us, the trial court sustained a demurrer without leave to amend as to causes of action brought on behalf of plaintiff's child.   The trial court based its decision on Bell.   Because we hold that Bell is factually distinguishable from the case at bench, we reverse.   In doing so, we articulate a limited area for potential fetal recovery.

FACTS AND PROCEDURE

 The pleadings allege ¹ that Leslie Agnew–Watson was employed by defendant Highland Hospital as a psychiatric nurse.   On May 28, 1991, Leslie was pregnant with her then unborn but viable child, Jeffrey.   On that date, while Leslie was on duty at the hospital, a dangerous patient violently kicked out at those providing treatment.   The blow struck Jeffrey through Leslie's abdominal wall causing him severe and permanent injury.

Jeffrey, appearing through his guardian ad litem, sued Highland Hospital and Leslie's co-employees Aileen Aragon and Audrey Bodell–Goldberg alleging they negligently failed to restrain and monitor the dangerous patient.   In addition, the complaint alleged that defendants failed to train hospital personnel to properly handle dangerous patients;  did not properly warn staff of dangerous patients;  and negligently allowed pregnant staff to work with dangerous patients, thus putting their unborn children at risk of direct injury.

Citing this court's decision in Bell, supra, 212 Cal.App.3d 1442, 261 Cal.Rptr. 447, the trial court sustained a demurrer to the causes of action alleged by Jeffrey against the public entity defendants and Leslie's co-employees on the ground that those causes of action were barred by the exclusive remedy provision of the Act.   This timely appeal followed.

DISCUSSION

 The law is settled that an injured worker's exclusive remedy is recovery under the Act when conditions of compensation exist.  (Lab.Code, §§ 3600, 3601;  Dixon v. Ford Motor Co. (1975) 53 Cal.App.3d 499, 502–503, 125 Cal.Rptr. 872.)   Injuries that arise out of and in the course of employment, and are proximately caused by the employment, fall under the Act.   (Ibid.)

Bell, supra, 212 Cal.App.3d 1442, 261 Cal.Rptr. 447 involved an injury to an employee and to her unborn child.   When Linda Marie Bell, a pregnant Macy's employee, developed severe abdominal pain while at work, she complained to a store nurse employed by Macy's.   Bell asked to see a doctor, but the nurse told her she did not need one.   Eventually, at the urging of Bell's husband, the nurse called an ambulance which arrived some 50 minutes after Bell first began to experience symptoms.   Bell was found to have suffered a ruptured uterus;  the baby was delivered by Caesarean section with significant brain damage and died 28 months later.   There was evidence that the nurse's delay in providing treatment to the mother for her uterine rupture resulted in significant injury to the baby.  (Id. at pp. 1446–1447, 261 Cal.Rptr. 447.)

Bell considered, as a case of first impression, “․ whether an unborn child is limited to the workers' compensation remedy when an employer's negligent conduct towards its employee causes injury to the fetus.”  (212 Cal.App.3d at p. 1447, 261 Cal.Rptr. 447, emphasis added.)   The court assumed for purposes of review that the failure to treat the mother promptly was negligence attributable to Macy's which caused injury to the child.  (Ibid.)

 Bell noted, as do we, that an unborn child may recover in tort for an intentional or negligent injury to that child.  (Bell, supra, 212 Cal.App.3d at p. 1451, 261 Cal.Rptr. 447;  Civ.Code, § 43.1; ² Scott v. McPheeters (1939) 33 Cal.App.2d 629, 92 P.2d 678;  see Annot. (1971) 40 A.L.R.3d 1222 [collecting cases].)

Notwithstanding this general ability of a child to recover, however, the Bell court went on to consider another line of cases that involved attempts by children or other relatives to recover for harm that flowed from an initial injury to an employee.   This line of cases held, under some circumstances, a third party's claim would fall under the sole remedy afforded by the workers' compensation system.  (Bell, supra, 212 Cal.App.3d at p. 1452, 261 Cal.Rptr. 447.)  Williams v. Schwartz (1976) 61 Cal.App.3d 628, 131 Cal.Rptr. 200 barred a wife's claim for emotional distress caused by seeing her husband killed in a job-related accident.   The Williams court found the wife's action derived from injuries sustained by the husband/employee in the course of his employment.   As a result, the court held her recovery was barred “by the broad pronouncement of the workers' compensation law that where the conditions of compensation exist, the employer's liability to pay compensation is ‘in lieu of any other liability whatsoever to any person․’  ( [Lab.Code,] § 3600.)”  (Id. at p. 634, 131 Cal.Rptr. 200.)

 Likewise, a spouse was found to have no independent civil action against the spouse's employer for loss of consortium or services resulting from injury to the employee spouse.  (Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 162–163, 233 Cal.Rptr. 308, 729 P.2d 743;  Williams v. State Compensation Ins. Fund (1975) 50 Cal.App.3d 116, 123, 123 Cal.Rptr. 812;  Gillespie v. Northridge Hosp. Foundation (1971) 20 Cal.App.3d 867, 98 Cal.Rptr. 134.)   When the injury to a relative derives from an employee injury, recovery is restricted by the Act.   The Bell court concluded that because the injury to Bell's child was a collateral consequence of the treatment to the mother/employee, tortious recovery was precluded.   (212 Cal.App.3d at p. 1453, 261 Cal.Rptr. 447.)

 In Bell and the cases to which it made reference, the injury to a third person flowed from injury to an employee.   The employee was injured in the first instance, and the derivative harm followed both temporally and causally.   At this pivotal juncture, the facts before us diverge from those in Bell.   Here, Jeffrey was directly injured.   This was not a situation in which his mother was injured and Jeffrey's injury resulted later from some intervention with the mother that had ultimate consequences for him.   Instead, Jeffrey was the object of a direct application of force.³  Legally, Jeffrey stands in the same position as any other member of the public directly injured as a result of hospital negligence.   It is beyond dispute that if the hospital had negligently allowed a nonemployee to stand in close proximity to a dangerous patient during treatment and the patient inflicted injury, the nonemployee could pursue tortious recovery.   The same is true for Jeffrey.

In Bell, recovery was barred because the child's injuries were the consequence of negligence toward Bell.   Here, recovery is allowed because Jeffrey himself was directly injured.   Our opinion is limited in scope and rests squarely on the distinction between direct and derivative injury.⁴  This ruling does not expand tort recovery to fetal injury derived from and dependent upon a compensable injury to an employee.   Instead, our opinion here speaks only to those rare situations in which a fetus is injured directly, without the medium of the mother's injury.

DISPOSITION

The order of the court below is reversed ⁵ and the matter remanded for further proceedings.   Costs to appellants.

I concur in the majority opinion to the extent it reverses the judgment.   However, instead of “clarifying” the decision in Bell v. Macy's California (1989) 212 Cal.App.3d 1442, 261 Cal.Rptr. 447 (Bell ), I would disavow that decision completely.   I believed Bell was wrong when it was first decided.  (Id. at pp. 1455–1458, 261 Cal.Rptr. 447 (conc. and dis. opn. of White, P.J.).)   Developments since Bell have only strengthened my belief.

The majority has distinguished Bell on the ground of causation (maj. opn., ante, at pp. 198–199).   In my view, however, causation does not determine whether an injury to a child “derives” from an injury to the employee mother.   Instead, I believe a third party action “derives” from an injury to an employee only where the third party must prove injury to the employee as one of the elements of his or her cause of action.   Consequently, I dissent from the majority opinion to the extent it reaffirms Bell.

Since Bell was decided in 1989, four out-of-state courts have considered the issue raised in that case.¹  Those courts have unanimously rejected Bell and its patently unfair result.²

In the first published opinion to appear after Bell, the Court of Appeal of Louisiana held that a child could maintain a tort action against his mother's employer where the child was injured in utero.   In that case the mother's make-shift desk collapsed, allegedly due to the employer's negligence, and an adding machine landed on the mother's abdomen, injuring the unborn child.   (Cushing v. Time Saver Stores, Inc. (La.App. 1 Cir.1989) 552 So.2d 730, 730–732.)   The defendant argued that the child's cause of action was barred by the exclusive remedy provision of Louisiana's Workers' Compensation Act because the injury to the child derived from the injury to the employee mother.   In rejecting this defense, the Louisiana court stated that the Louisiana Workers' Compensation Act itself “and all jurisprudence construing its various provisions ․ have been focused on injuries to employees, and resultant losses by them and certain of their family members, based on the injuries to the employees.   With regard to the losses of the family members, these might be economic, such as a loss of support ․ or they might be intangible, such as a loss of consortium․  However, these losses, while rightfully termed ‘separate and distinct’ and ‘independent’ from those injuries sustained by the employee, always hinged upon the injuries of the employee.   Because Dad or Mom suffered an injury, the family suffered a loss based on that injury.”  (Id. at pp. 731–732, emphasis in original.)   However, this was not true in the case before the Cushing court where “the employee's child has alleged injuries which are in no way derivative of the mother's injury.”  (Id. at p. 732.)

The next published case to address the issue was Thompson v. Pizza Hut of America, Inc. (N.D.Ill.1991) 767 F.Supp. 916.   In Thompson, the Federal District Court held in a diversity action that the Illinois Workers' Compensation Act does not bar a child from bringing suit against its mother's employer for fetal injuries which occurred while the mother was at work.   In that case the child was allegedly injured when its mother was exposed to carbon monoxide and other fumes over a three-day period when the workplace ventilation failed.   The mother complained to her employer of excessive heat, watery eyes, headaches and nausea.  (Id. at pp. 916–917.)   The Thompson court explicitly considered and rejected the majority position in Bell, and instead followed the Louisiana court's decision in Cushing.  (Thompson, supra, at pp. 918–919.)   The court noted that although Illinois courts had rejected common law claims by spouses and children of injured employees which are “based on the employee's injury,” in the case before the court the infant plaintiff was “bringing a claim based on his own injuries which occurred while in utero.”  (Id. at p. 918, emphasis in original.)   The Thompson court found this distinction critical and permitted the infant plaintiff to pursue a tort action against the employer.   (Id. at pp. 917, 919.)

The Alabama Supreme Court adopted the reasoning of Thompson in Namislo v. Akzo Chemicals, Inc. (Ala.1993) 620 So.2d 573.   In Namislo, the pregnant employee was exposed to mercury at work.   As a result of this exposure, both the employee and her subsequently born child (Amber) suffered from mercury poisoning.  (Id. at p. 574.)   Citing Thompson v. Pizza Hut of America, Inc., supra, 767 F.Supp. 916, the Alabama Supreme Court held that the exclusive remedy provision of the Alabama Workers' Compensation Act did not bar Amber's tort action against her mother's employer.   The court reasoned that “Amber's claims, like the claims of the plaintiff[ ] in ․ Thompson, do not arise from personal injury to ․ the employee, but are based on her own alleged personal injury.   Like the minor plaintiff in Thompson, Amber is not an employee, and her claims are not within the scope of the Alabama Workers' Compensation Act.”  (Namislo, supra, at p. 575.)

Most recently, the Colorado Court of Appeals rejected the majority position in Bell and recognized that parents of a child injured in utero while its mother was at work may bring a wrongful death action against the mother's employer.   In that case, the plaintiffs alleged the mother's employer forced her to exceed certain physician-imposed work limitations, resulting in the premature birth and consequent death of her child.  (Keefe v. Pizza Hut of America, Inc. (Colo.App.1993) 868 P.2d 1092.)   Although Colorado, like California, follows the derivative liability doctrine, the Colorado court noted that “the wrongful death claim is not derivative of an injury to an employee, but rather, that claim is derived from an injury to a third party, the employee's child.”  (Id. at p. 1094.)   The Colorado court specifically stated that it was “not persuaded by the reasoning of Bell v. Macy's California, supra, on which defendants rely․”  (Ibid.)

Although the majority's direct causation analysis might explain the result in Cushing, where the mother was struck in the abdomen, it cannot explain the results in Thompson, Namislo, or Keefe.   In the three latter cases, the unborn child was not injured through the “direct application of force” (maj. opn., ante, at p. 199).   In Thompson and Namislo the mother was exposed to a toxic substance which injured the unborn child.   In Keefe, the mother's overworked condition resulted in the death of the fetus.   It follows that the Cushing, Thompson, Namislo and Keefe courts focused on some factor other than direct causation to determine that the child's cause of action did not “derive” from an injury to the mother.   In my view, the key factor in each of those cases was that the injury to the mother was not a legal element of the child's cause of action.   In other words, the child could sue in tort because he or she was not required to plead and prove an injury to the mother as part of his or her cause of action.   This is not true in the usual third party claim for loss of consortium or economic damages where the claimant must prove an injury to the employee.

Thus, in Cushing, the Louisiana court drew a line between the economic or intangible losses suffered by family members that “hinged upon” or were “based on” or “arising out of” the employee's injuries—i.e., loss of support and loss of consortium—and the prenatal physical injury to the child itself.  (552 So.2d at pp. 731, 732, italics omitted.)   The Thompson court similarly emphasized the difference between claims “based on” or which “derive from” the employee's injury, such as loss of consortium, and those “based on [the child's] own injuries․”  (767 F.Supp. at p. 918, italics omitted.)

However put, the common thread in the out-of-state cases is that the derivative injury doctrine applies only where injury to the employee is a necessary element of the third party's cause of action.   California law is generally in accord on this point.   Before Bell, our courts held that the derivative injury doctrine applied in two types of situations:  (1) where a third party sues for emotional distress caused by witnessing an employee suffer a work-related injury (Williams v. Schwartz (1976) 61 Cal.App.3d 628, 630–632, 131 Cal.Rptr. 200 [wife saw husband suffer worksite injury];  and (2) where a family member sues for loss of consortium or services based on an employee's work-related injury.  (Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 162–163, 233 Cal.Rptr. 308, 729 P.2d 743;  Williams v. State Compensation Ins. Fund (1975) 50 Cal.App.3d 116, 123, 123 Cal.Rptr. 812;  Gillespie v. Northridge Hosp. Foundation (1971) 20 Cal.App.3d 867, 870, 98 Cal.Rptr. 134.)   In both types of cases, injury to the employee is a necessary element of the third party cause of action.³  In both cases, the third party claims are legally premised on the injury to the employee.

This is simply not the case where a child seeks compensation for his or her own prenatal physical injuries.   In fact, as the Bell majority acknowledged, there may be situations in which fetal injury will occur without injury to the mother.  (212 Cal.App.3d at p. 1453, fn. 6, 261 Cal.Rptr. 447.) ⁴  But even where a prenatal injury results from a workplace injury to the mother, the crux of the child's claim is the physical injury he or she has suffered independent of any injury to the mother.   It is not “based on” the mother's injury in the same way that a claim for loss of consortium or negligent infliction of emotional distress is legally “based on” that injury.

As the Second District recently observed in a related context, when a tort is committed against a pregnant woman “there are two identifiable beings within the zone of danger, each of whom is owed a duty of due care and each of whom can be directly injured.”  (Hegyes v. Unjian Enterprises, Inc. (1991) 234 Cal.App.3d 1103, 1122, 286 Cal.Rptr. 85;  see also Mark, supra, 22 Golden Gate L.Rev. at p. 687.)   The Bell majority ignores this basic fact, and instead relies on the medieval notion that the unborn child is inseparable from the mother.   I categorically reject that notion.

Although I cannot fully embrace the majority opinion, I applaud my colleagues for carving out the first of what I hope will be many exceptions to Bell.   Although I would have preferred to demolish that opinion outright, erosion may work as well, just more slowly.

FOOTNOTES

1.   In reviewing a judgment entered after the trial court sustains a demurrer without leave to amend, we assume the truth of all material facts properly pleaded.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58.)

2.   Formerly Civil Code section 29 (see Cal.Law Revision Com. com., 6 West's Ann.Civ.Code (1994 pocket pt.) § 43.1, p. 9).

3.   Jeffrey and his mother happened to be struck at the same time.   They were each injured independently, however, as might have happened had Jeffrey been standing beside his mother rather than reposing within her.   The case is factually similar to one in which a mother is shot and the bullet passes through her body and strikes the child hiding behind her.In a footnote, the Bell court states:  “[T]he fetus in utero is inseparable from its mother.   Any injury to it can only occur as the result of some condition affecting its mother.   When, as in the case at bench, the condition arises in the course of employment, the derivative injury doctrine would apply.”  (212 Cal.App.3d at p. 1453, fn. 6, 261 Cal.Rptr. 447.)   This language focuses on the derivative nature of the child's injury.   Not all harm to a child in utero necessarily flows from injury to the mother.   In limited circumstances, such as those before us, it is possible for a fetus and its mother to suffer independent harm at the same time.   Because we here conclude that Jeffrey's injury is separate, not derivative, from his mother's injury, the above language is not factually germane in this instance.

4.   This distinction may be clarified by comparing the facts in Bell with those at bench.   In Bell, the mother suffered an unfortunate physiological event.   The employer assumed a duty to treat the mother and did so negligently.   The delay in treating the mother's problem had derivative impact upon the child she carried.   Here, in contrast, the child alleged he suffered independent injury because the employer allowed him to be in a dangerous place without precaution or warning to an adult responsible for his care.

5.   We express no opinion regarding the immunity defenses alleged by the public institution defendants.

1.   At present, there are no published California cases which cite or discuss Bell with respect to the derivative liability issue.

2.   Both the majority and dissent in Bell recognized that the result in that case was unsatisfactory because the workers' compensation system provided no remedy for the injuries to the child.  (Bell, supra, 212 Cal.App.3d at p. 1455, fn. 7, 1458, 261 Cal.Rptr. 447 (conc. and dis. opn. of White, P.J.);   see also Mark, The Flip Side of Fetal Protection Policies:  Compensating Children Injured Through Parental Exposure to Reproductive Hazards in the Workplace (1992) 22 Golden Gate L.Rev. 673, 685, 686.)   As the Bell dissent put it:  “Neither the employer, the workers' compensation system, nor the employer's liability insurer now have an obligation to provide compensation for the injuries suffered by [the baby].   Although this may be the best of all possible worlds from the employer's perspective, it is the worst of all possible worlds for the parents who—caught in the gap between ordinary tort liability and the workers' compensation remedy—are left to fend for themselves.”  (212 Cal.App.3d at p. 1458, 261 Cal.Rptr. 447 (conc. and dis. opn. of White, P.J.).   Consequently, both the majority and the dissent called for a legislative response to this anomaly in the law.  (Id. at pp. 1455, fn. 1, 1458, 261 Cal.Rptr. 447 (conc. and dis. opn. of White, P.J.).)The Legislature in fact heeded our call and in 1991 both houses passed Assembly Bill No. 489 by a wide margin.  (Assem.Bill No. 489 (1991–1992 Reg.Sess.).)   As finally amended, Assembly Bill No. 489 provided that “where the intentional misconduct or negligence of an employer is the proximate cause of prenatal injury sustained by the biological child of an employee, an action at law for damages may be brought against the employer, by or on behalf of that child․”  (Assem.Bill No. 489, supra, § 1, as amended in the Sen. Aug. 29, 1991.)   The bill further specified that “[i]t is the intent of the Legislature that this act shall abrogate the holding in Bell v. Macy's California 212 Cal.App.3d 1442, 261 Cal.Rptr. 447, only to the extent that the decision states that prenatal injuries may, under certain circumstances, be governed by the law of workers' compensation.”  (Id., § 2.)   However, Governor Wilson vetoed Assembly Bill No. 489 on October 13, 1991.  (1 Assem.Final Hist. (1991–1992) p. 408.)

3.   “In Dillon v. Legg, the California Supreme Court established a right of recovery on the part of plaintiffs who suffer emotional trauma and physical injury from witnessing the negligent infliction of injury or death upon closely related third parties.”  (Williams v. Schwartz, supra, 61 Cal.App.3d at p. 630, fn. 2, 131 Cal.Rptr. 200, citation omitted, italics added;  see also Thing v. La Chusa (1989) 48 Cal.3d 644, 667–668, 257 Cal.Rptr. 865, 771 P.2d 814;  BAJI No. 12.83 (1992 rev.) (7th ed. pocket pt.) pp. 32–33.)   Similarly, loss of consortium “contemplates injury to the nonplaintiff spouse that is sufficiently serious and disabling to raise the inference that the conjugal relationship is more than superficially or temporarily impaired.”  (Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 932–933, 167 Cal.Rptr. 831, 616 P.2d 813, italics added;  see also BAJI No. 14.40 (1992 re-rev.) (7th ed. pocket pt.) pp. 92–93.)

4.   Although the present majority opinion does not directly address the issue, it appears my colleagues would also find an exception to Bell where the mother does not suffer a compensable injury.   As the majority at least implicitly notes, the workers' compensation remedy applies only where the employee sustains an injury (Lab.Code, §§ 3600, 3601.)  (Maj. opn., ante, at pp. 198, 199.)   Thus, in those cases where the fetus is injured, but the mother is not, the workers' compensation remedy could not apply and the child would be free to sue in tort.   This may occur, for example, where the workplace is contaminated with low level toxins or radiation.   Although those environmental factors may not injure the mother, they may damage the more vulnerable and rapidly dividing cells of the fetus.

CORRIGAN, Associate Justice.

CHIN, J., concurs.