HUGGINS v. LONGS DRUG STORES CALIFORNIA INC (1992)

OPINION

In this opinion we hold that a pharmacist's provision of incorrect dosage amounts for a prescription which the pharmacist knows or should know will be administered to an infant by the infant's parents constitutes negligent action directed at the parent caregivers, which may allow recovery of damages for negligent infliction of emotional distress.   Therefore, we will reverse the summary judgment entered against the parents as it was decided solely on the basis that the pharmacy owed no duty to them.

FACTUAL AND PROCEDURAL HISTORY

Appellants, Barbie and Robert Huggins, are the parents of Kodee, a child who at two months of age received an overdose of an antibiotic as a result of respondent pharmacy's negligence in providing instructions for medication dosage.¹

Kodee's pediatrician prescribed the antibiotic, Ceclor, for an ear infection on October 9, 1989.   His mother first administered Ceclor between 7 and 8 p.m. that evening;  she repeated the dose in the early morning on October 10.   She left for work at 6:30 a.m. and arrived home around 4 p.m.   Noticing that Kodee was “out of it,” she thought he was tired and that it was probably the medication.   Kodee was unresponsive and appeared to be in a very deep sleep.

Thereafter, on October 10, Barbie Huggins received a call from her mother, who told her that she had learned there had been a horrible mistake and that Kodee had received an overdose.   She instructed Barbie not to give the baby any more medicine.   Barbie Huggins then called her husband, Robert, leaving word of the mistake and that Kodee was being taken to the pediatrician.

The parents sued defendant pharmacy for damages for the negligent infliction of emotional distress.   In the complaint, the parents alleged that the pharmacy owed them a duty due to their relationship with the pharmacy.   The parents also alleged that they resided with the child, obtained medical treatment for him, and cared for him.

At her deposition Barbie answered affirmatively when asked if her emotional distress started after her own mother had called her and advised her that there had been an overdose.   However, in opposition to the motion, she submitted a declaration dated February 21, 1991, in which she stated that she observed her child's lethargy prior to knowing its cause, and she suspected that the medication caused it.   His lethargy worried her but “not a lot.”

Robert's declaration showed that his distress occurred after he learned that his son was receiving an overdose of Ceclor.

As to administration of the drug, Barbie Huggins stated in her declaration that she personally administered the drug October 9 and 10 but she was not sure if on the morning of October 10, she, her husband, or the day-care provider administered the medication;  she thought it was probably she or her husband.   She further declared that the pharmacist's mistake caused her to make her own son ill by administering the medication, and this shocked and grieved her.   She still worries about the future effects of the overdose.

Although Robert saw his wife administer the drug in a dose of two and one-half teaspoons, he could not say if he gave the drug to Kodee himself;  he did not recall ever doing so.

Ron Spolar, a pharmacist, stated at deposition that the dosage should have been half a teaspoon or two and one-half cc's rather than the two and one-half teaspoons on the prescription label.   He stated that a pharmacist always has the duty to verify the quantity of a drug in filling a prescription.

Following a motion for summary judgment alleging the failure of the parents “to establish the elements necessary to support a cause of action for negligent infliction of emotional distress,” the court granted the motion, concluding that the parents could not recover under a bystander theory (Dillon v. Legg (1968) 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912) because “there is no contemporaneous connection between the negligent act and the injury” and “[p]laintiffs cannot recover under a ‘direct victim’ theory as the duty not to be negligent is owed to their child.”

DISCUSSION

 Summary judgment

With limited exceptions, there is no discretion to be exercised by a trial court in considering a motion for summary judgment;  any error made is one of law, not of discretion.   In reviewing an order entered on summary judgment, the reviewing court employs the same process as the trial court in determining whether, as a matter of law, summary judgment is appropriate.  (Saldana v. Globe–Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1513–1515, 285 Cal.Rptr. 385.)   An appellate court independently reviews the declarations, reassessing the legal significance of the documents.   After identifying the issues framed by the pleadings, the court determines whether the moving party's showing has established facts which negate the opponent's claim and justify a judgment in the movant's favor.   In moving for a summary judgment, a defendant has the burden of establishing a complete defense to the plaintiff's action or conclusively negating a necessary element of the plaintiff's case and demonstrating that no material factual issue requires resolution by trial.   (Id. at p. 1515, 285 Cal.Rptr. 385.)   If a prima facie showing is made, then it must be determined whether the opposition demonstrates the existence of a triable, material factual issue.  (Id. at p. 1513, 285 Cal.Rptr. 385.)

 If the reason stated by the trial court for granting summary judgment is erroneous, a reviewing court will not disturb the ruling if the ruling itself is legally correct.   If the ruling is right upon any theory of the law applicable to the case, it must be sustained.  (Snider v. Snider (1962) 200 Cal.App.2d 741, 756, 19 Cal.Rptr. 709.)

The facts elicited in the motion and opposition thereto are not in material dispute.   Instead, we are presented here with the legal interpretation to be given those facts brought before the court.   Put another way, as a matter of law, given the undisputed facts, are the parents entitled to recover damages for negligent infliction of emotional distress (NIED) under either a bystander or direct victim theory?

 The bystander theory

 The law concerning what one must establish in order to recover for witnessing negligent infliction of injury upon another has undergone significant development in the last 25 years.   In Dillon v. Legg, supra, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 (Dillon), our Supreme Court permitted a parent to recover for emotional distress and physical injury resulting from witnessing the negligent infliction of injury upon her child.   The court held that the defendant owed a duty to the plaintiff because of foreseeability, but it set forth guidelines for recovery.   Among the guidelines set forth was whether or not the plaintiff's shock resulted from a direct emotional impact from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence.  (Id. at pp. 739–741, 69 Cal.Rptr. 72, 441 P.2d 912.)

After Dillon, a plethora of cases were decided which, rather than further defining, created more uncertainty regarding NIED.  (Thing v. La Chusa (1989) 48 Cal.3d 644, 656, 257 Cal.Rptr. 865, 771 P.2d 814.)

In Justus v. Atchison (1977) 19 Cal.3d 564, 585, 139 Cal.Rptr. 97, 565 P.2d 122, the court had occasion to consider a situation in which the injury (the death of a fetus before its birth) was hidden and the parent's shock resulted after being informed of the death.   The court observed that the parent's shock did not result from a direct emotional impact from sensory and contemporaneous observance of the accident, but rather occurred after learning of the accident from others;  recovery was denied.

In Ochoa v. Superior Court (1985) 39 Cal.3d 159, 216 Cal.Rptr. 661, 703 P.2d 1, the court permitted recovery for a mother who experienced emotional distress upon observing her son's medical needs being ignored by juvenile authorities when she visited him in custody prior to his death and requested medical treatment.   The court stressed the highly uncommon circumstance of being forced to watch the neglect of a patient's immediate medical needs by medical personnel and the mother's awareness that medical neglect was causing her son's injury.   Advocating the flexible application of Dillon criteria, the court ruled that where there is observation of the defendant's conduct and the child's injury and contemporaneous awareness that the defendant's conduct is causing harm to the child, recovery is permitted if it is clear that the defendants had every reason to foresee that the mother would be distressed by the conduct.  (Id. at p. 170, 216 Cal.Rptr. 661, 703 P.2d 1.)

If Ochoa seemed to endorse a flexible approach based on foreseeability, Thing v. La Chusa, supra, 48 Cal.3d 644, 257 Cal.Rptr. 865, 771 P.2d 814, dispelled that impression.   Although the narrow issue in Thing v. La Chusa was whether or not a mother who did not witness an automobile strike and injure her child could recover damages for emotional distress that she suffered when she arrived at the scene, the court expressly attempted to eliminate uncertainty in the law by defining the circumstances in which one may recover for negligent infliction of emotional distress.   It rejected an ad hoc or case-by-case foreseeability approach.  (Id. at pp. 663–664, 257 Cal.Rptr. 865, 771 P.2d 814.)   Although the court adverted to the possibility of arbitrary results in some cases, the court chose as determinative for recovery the impact of personally observing the injury-producing event and the event's character as an abnormal life experience.  (Id. at p. 666, 257 Cal.Rptr. 865, 771 P.2d 814.)   The court expressly noted that policy considerations do not support extending recovery to any larger class of plaintiffs.  (Ibid.)  It concluded that a parent may recover damages for emotional distress caused by observing the negligently inflicted injury to a child only if the plaintiff 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.  (Id. at pp. 667–668, 257 Cal.Rptr. 865, 771 P.2d 814.)

Appellate courts have applied the requirements stated in Thing v. La Chusa, supra, 48 Cal.3d 644, 257 Cal.Rptr. 865, 771 P.2d 814 (Thing).   In Golstein v. Superior Court (1990) 223 Cal.App.3d 1415, 273 Cal.Rptr. 270, the court considered whether or not parents of a child who was killed by a hospital's negligent overdose of radiation should be permitted to recover for the distress they suffered as they observed the child painfully deteriorate and die.   The court noted the difficulty of applying legal principles in cases involving injury-causing events which are invisible or which cannot be meaningfully understood by a layperson.  (Id. at pp. 1422–1425, 273 Cal.Rptr. 270.)   The court interpreted Thing to mean that a plaintiff must experience a contemporaneous sensory awareness of the causal connection between the negligent conduct and the resulting injury.   The court noted that otherwise the case could not be distinguished from any standard medical malpractice case in which the injury is witnessed by the plaintiff but the plaintiff does not see or meaningfully comprehend the actual injury-causing event.  (Id. at pp. 1427, fn. 3, 1427–1428, 273 Cal.Rptr. 270.)

Other courts have held that one who observes medical malpractice and thus observes an injury-producing event may not recover if not aware at the time that the victim is being injured by negligent conduct.  (Wright v. City of Los Angeles (1990) 219 Cal.App.3d 318, 350, 268 Cal.Rptr. 309, review den.;  Breazeal v. Henry Mayo Newhall Memorial Hospital (1991) 234 Cal.App.3d 1329, 1342, 286 Cal.Rptr. 207.)

In the present case, the depositions show that the parents did not suffer emotional distress because of the overdose until they learned of the overdose from third parties.   The mother stated in a declaration that she suspected or thought that it might have been the medication that caused the child to be drowsy or sleepy.   In evaluating motions for summary judgment, a court will consider all reasonable inferences to be drawn from the evidence.  (Code Civ.Proc., § 437c, subd. (c).)  However, even by construing the mother's declaration liberally, it may not be inferred that she knew that an overdose was causing the sleepiness.   It may be inferred that she thought that the medication was a factor in causing her son's sleepiness.   However, there is no basis for an inference that at that time she was aware or believed that the medication was being administered at an excess dosage or that the defendant or any other health care professional involved had engaged in negligent or substandard conduct that was causing injury.   A suspicion or a thought that the medication was a factor is several serial inferences away from a conclusion that at the time the child experienced lethargy, the lethargy was caused by an overdose.

 The policy statement formulated in Thing is clear.   An understanding perception of the injury-causing event is an essential component of Dillon recovery.   In the case of an event which cannot be perceived, distress recovery is not allowed.  (Golstein v. Superior Court, supra, 223 Cal.App.3d 1415, 1427, 273 Cal.Rptr. 270.)   It is abundantly clear that the undisputed facts do not support, but rather negate, the parents' bystander claims.

 Direct victim theory

 A much closer question is presented by the parents' alternative theory.   They contend that recovery is permissible under the “direct victim” theory first promulgated in Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813.   In that case, the misdiagnosis of a wife as having a sexually transmitted disease, where the doctor instructed the wife to inform her husband so that he could seek testing, was held to be directed at the husband as well as the wife.   The Supreme Court noted that the case was sufficiently factually dissimilar to the bystander scenario to reject a rote application of the Dillon guidelines.   Relying on the foreseeability of marital discord due to the nature of the disease as well as the doctor's affirmative advice to the patient to have the husband examined, the court concluded that there was a duty on the part of the physician extending to the husband to exercise due care in diagnosing the physical condition.  (27 Cal.3d at p. 923, 167 Cal.Rptr. 831, 616 P.2d 813.)

Concerned that Molien was being misinterpreted to place undue emphasis upon foreseeability, the Supreme Court later wrote, “Our decision did not, however, purport to create a cause of action for the negligent infliction of emotional distress based solely upon the foreseeability that serious emotional distress might result.”  (Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 589, 257 Cal.Rptr. 98, 770 P.2d 278.)   The court noted that NIED damages are recoverable when they result from the breach of a duty owed the plaintiff that is assumed by the defendant, imposed upon defendant as a matter of law, or arises out of a relationship between the two.  (Id. at p. 591, 257 Cal.Rptr. 98, 770 P.2d 278.)

The distinction between bystander and direct victim cases is found in the source of the duty owed by the defendant to the plaintiff.  (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072, 9 Cal.Rptr.2d 615, 831 P.2d 1197.)   In Burgess, our Supreme Court held that due to the unique relationship between a mother and child during pregnancy and childbirth, a mother could recover damages as a direct victim for emotional distress caused by the negligent delivery of her child.  (Id. at pp. 1076–1077, 9 Cal.Rptr.2d 615, 831 P.2d 1197.)   The court specifically noted the physician-patient relationship extended to the medical treatment given the fetus.   Having stated that, it became almost axiomatic that upon negligent injury to the fetus, the mother could recover for emotional distress caused by the breach of the duty to her.

The parents characterize the pharmacy's negligence as a breach of its duty to the “family unit” (i.e., child and mother and father), implicitly urging a broad interpretation of the Burgess facts and its holding.   The parents argue that the Huggins family unit was the direct victim just like the Burgess family unit.

The parents' argument in this respect is fatally flawed because the Supreme Court clearly did not characterize the Burgess plaintiffs as a family unit.   Recovery was permitted specifically because (1) the physician owed a duty of care to the mother because of a separately existing physician-patient relationship during childbirth and (2) the realities of childbirth extended equally to mother and fetus;  any treatment for the child necessarily implicated Burgess's participation since access to the child could only be accomplished with impact to her body.   Moreover, the inextricable and unique bond between mother and child carries with it a significant emotional relationship.  (Burgess v. Superior Court, supra, 2 Cal.4th at p. 1076, 9 Cal.Rptr.2d 615, 831 P.2d 1197.)

We also disagree with the parents that recovery is mandated by Kately v. Wilkinson (1983) 148 Cal.App.3d 576, 195 Cal.Rptr. 902, a case decided by this court.   In Kately, the plaintiff purchased a boat which had a defective steering mechanism from a boat dealer.   While plaintiff was pulling her daughter's best friend behind the boat on water skis, the boat's steering locked, causing the boat to circle around the skier, partially dismembering and eviscerating her.   She died in plaintiff's arms after being hauled from the water.

This court held that recovery on a direct victim theory was possible because the manufacturer and retailer “should reasonably have foreseen” that the mother, as the user and purchaser of the boat, would suffer emotional distress when the boat malfunctioned and killed or injured another person.  (148 Cal.App.3d at pp. 587–588, 195 Cal.Rptr. 902.)

We note several distinctions between Kately and the instant case.   Kately was a products liability case which was essentially decided on a foreseeability basis.   It was held to be foreseeable that a user of a boat would suffer emotional distress upon a malfunction of a steering mechanism which caused injury to another.   Even though the user was seen as a “primary and direct victim,” little emphasis was placed upon whom the negligence was “directed at.”

Given subsequent appellate and Supreme Court holdings, it is unlikely that Kately would be decided on such a foreseeability basis today.   As stated in Andalon v. Superior Court (1984) 162 Cal.App.3d 600, 609, 208 Cal.Rptr. 899:

“The inference suggested is that a ‘direct victim’ is a person whose emotional distress is a reasonably foreseeable consequence of the conduct of the defendant.   This does not provide criteria which delimit what counts as a reasonable foreseeability.   It leads into the quagmire of novel claims which the Supreme Court foresaw as an unacceptable consequence of a ‘pure’ foreseeability analysis․”  (Quoted in its entirety with approval in Thing v. La Chusa, supra, 48 Cal.3d at p. 659, 257 Cal.Rptr. 865, 771 P.2d 814.)

Equally important are the policy considerations articulated in Thing v. La Chusa, supra, 48 Cal.3d 644, 257 Cal.Rptr. 865, 771 P.2d 814 and Christensen v. Superior Court (1991) 54 Cal.3d 868, 2 Cal.Rptr.2d 79, 820 P.2d 181.   In Christensen, the Supreme Court acknowledged that public policy considerations are relevant in determining whether a plaintiff may be entitled to damages for emotional distress.  (54 Cal.3d at p. 885, 2 Cal.Rptr.2d 79, 820 P.2d 181.)   The court also iterated that “ ‘ “[L]egal duties are not discoverable facts of nature, but merely conclusory expressions that, in cases of a particular type, liability should be imposed for damage done.” ’ ”   (Ibid.)  Citing Elden v. Sheldon (1988) 46 Cal.3d 267, 250 Cal.Rptr. 254, 758 P.2d 582, the Supreme Court reiterated that public policy considerations include the burden on the courts in applying vague criteria and the importance of limiting the scope of liability for negligence.  (Thing, supra, 48 Cal.3d at p. 664, 257 Cal.Rptr. 865, 771 P.2d 814.)

Having thus distinguished certain authority cited by the parents, we now squarely address whether they qualify as direct victims.

Cases decided after Molien v. Kaiser Foundation Hospitals, supra, 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813 have established that to state a valid direct victim claim for NIED damages, the plaintiff must show such a relationship that the tort is to plaintiff him(her)self.  (Goodwin v. Reilley (1985) 176 Cal.App.3d 86, 97, 221 Cal.Rptr. 374.)

It is important to recognize that we are not addressing a situation in which wife's direct victim claim must be denied where defendant failed to care safely for her husband, resulting in a fall from his bed (Wiggins v. Royale Convalescent Hospital (1984) 158 Cal.App.3d 914, 206 Cal.Rptr. 2) or a case in which an illness was misdiagnosed (Kossel v. Superior Court (1986) 186 Cal.App.3d 1060, 1067–1068, 231 Cal.Rptr. 183 [denial of recovery by wife on direct victim theory] ).

Our case is also distinguishable from Schwarz v. Regents of University of California (1990) 226 Cal.App.3d 149, 276 Cal.Rptr. 470.   In Schwarz, the court held that a father failed to state a cause of action for recovery from the child's psychotherapist of damages resulting from the other parent's removal of the child from the country and concealment of his whereabouts with the psychotherapist's knowledge.   The court stated that the father was not a direct victim in the situation, even though the father had initiated the therapy and had actually met with the therapist to assist in the son's therapy.   The court held that the psychotherapist's negligent conduct was not by its very nature directed at, or intended to affect, the father;  rather, it was primarily directed at the child.  (At pp. 160–163, 276 Cal.Rptr. 470.)   The fact that there was some incidental benefit to the father or to his relationship with the child did not establish that the treatment was directed at or intended to affect the father's singular interests.   The aim of the treatment was to improve the child's mental health and resolve his problems, which would incidentally benefit the parents.  (At pp. 161–163, 276 Cal.Rptr. 470.)   The court also distinguished between negligent diagnosis and negligent treatment, noting that the parents' interest was more directly involved in cases involving negligent diagnosis.  (At pp. 165–166, 276 Cal.Rptr. 470.)   The court defined the father's interest as one of peace of mind and a concern for the performance of a contract.   Any injury flowing from negligent treatment would be largely derivative.  (At p. 166, 276 Cal.Rptr. 470.)   As recognized in Burgess v. Superior Court, supra, 2 Cal.4th at page 1075, footnote 7, 9 Cal.Rptr.2d 615, 831 P.2d 1197, the duty of the health care provider clearly ran to the child-patient.

The parents here contend the pharmacist, by providing the dosage amounts, assumed a duty to them because he knew or should have known they would have to administer the prescription to their infant son and would do so in accordance with his direction.

We agree.   Unlike the cases previously cited, the action of a pharmacist, in providing incorrect dosage under circumstances making it necessary for a caregiver to administer the medication, would constitute negligence directed at the caregiver who did so administer.

The duty of care assumed by pharmacists supplying prescriptions to those who are to administer them includes not only the provision of the correct medication but just as importantly the direction of the appropriate dosage to be administered.  (Cf. Christensen v. Superior Court, supra, 54 Cal.3d at pp. 890–891, 2 Cal.Rptr.2d 79, 820 P.2d 181.)

It would be ludicrous to argue that an infant of two months could either take the medication without help or could comprehend the misdirection of the dosage.   Therefore, under those circumstances, the negligent giving of instructions to the Huggins is, by its very nature, directed at the parents, rather than solely at the infant.

In Burgess v. Superior Court, supra, 2 Cal.4th 1064, 9 Cal.Rptr.2d 615, 831 P.2d 1197, the Supreme Court noted the “realities of pregnancy and childbirth” and that “any treatment for Joseph [the child] necessarily implicated Burgess's participation․”  (Id. at p. 1076, 9 Cal.Rptr.2d 615, 831 P.2d 1197.)

Analogously here, any “treatment” of Kodee would necessarily implicate the participation of the parents.   Their injuries are not merely derivative of Kodee's injuries but flow from their role as participants in his treatment.  (Cf. Andalon v. Superior Court, supra, 162 Cal.App.3d 600, 610–611, 208 Cal.Rptr. 899.)

It would take no stretch of the imagination to conclude that a close relative who administers a lethal dose of medication to a child would suffer extreme guilt and emotional distress upon becoming aware contemporaneously or after the fact that he or she was the purveyor of injury or death.   If grief and emotional distress are foreseeable where one witnesses the infliction of injury or death to his or her child as in Dillon v. Legg, supra, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912, could we say those feelings would be any less foreseeable or real when the plaintiff is the actual unwitting agent of destruction?   Of course not.   The pharmacy does not bother to argue the issue of foreseeability, but instead correctly notes that reliance on foreseeability alone results in an incomplete and insufficient analysis.  (Cf. Thing v. La Chusa, supra, 48 Cal.3d 644, 257 Cal.Rptr. 865, 771 P.2d 814.)

In the imposition of a duty, we must not overlook the relationship of the parties.   In this regard, a question is squarely presented.   Is there a special relationship between a pharmacist who labels a prescription for administration to an infant and the parent caregivers who purchase the prescription and rely on its directions?

In Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc., supra, 48 Cal.3d 583, 257 Cal.Rptr. 98, 770 P.2d 278, the court held that a psychotherapist who undertook to treat both a mother and her son had a duty to exercise due care to the mother and breached it by sexually molesting the son.   The court noted that recovery in Molien v. Kaiser Foundation Hospitals, supra, 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813, was not based on foreseeability alone, but rather was a result of a duty assumed by the defendant, imposed on the defendant as a matter of law, or arising out of a relationship between the two.  (Marlene F., supra, 48 Cal.3d at pp. 589–590, 257 Cal.Rptr. 98, 770 P.2d 278.)   As a professional, the psychiatrist was held to have foreseen that his conduct would directly injure and distress the mother as well as the son.  (Id. pp. 590–591, 257 Cal.Rptr. 98, 770 P.2d 278.)   In its discussion of the Molien case, the court also stated:  “By directing the husband be told of a diagnosis that foreseeably would disrupt the marital relationship and require the husband to be physically examined, the doctor assumed a duty to convey accurate information and the husband accordingly was a ‘direct victim’ of the doctor's negligence.”  (48 Cal.3d at p. 590, 257 Cal.Rptr. 98, 770 P.2d 278.)   In a footnote, the Marlene F. court added that the doctor in Molien might have had the duty to warn the husband even if he had not voluntarily assumed one since other jurisdictions have found the special relationship between doctor and patient alone sufficient to impose a duty to exercise reasonable care to prevent harm to others.   The court ended its commentary by noting that this issue need not be resolved “but it [the special relationship] may help to explain the underpinnings of the duty whose breach allowed the husband to recover for his emotional distress.”  (Id. at p. 590, fn. 5, 257 Cal.Rptr. 98, 770 P.2d 278.)

Our analysis is far from complete, however.   We must still satisfy certain public policy considerations.

In Thing v. La Chusa, supra, 48 Cal.3d 644, 257 Cal.Rptr. 865, 771 P.2d 814, the Supreme Court expressed its concern for the burgeoning employment of NIED recovery for intangible injuries.

“In order to avoid limitless liability out of all proportion to the degree of a defendant's negligence, and against which it is impossible to insure without imposing unacceptable costs on those among whom the risk is spread, the right to recover for negligently caused emotional distress must be limited.”  (48 Cal.3d at p. 664, 257 Cal.Rptr. 865, 771 P.2d 814.)

The court drew upon previously decided cases of Elden v. Sheldon, supra, 46 Cal.3d 267, 250 Cal.Rptr. 254, 758 P.2d 582 and Amaya v. Home Ice, Fuel & Supply Co. (1963) 59 Cal.2d 295, 29 Cal.Rptr. 33, 379 P.2d 513 to reiterate the need to balance the impact of arbitrary lines which deny recovery to some victims whose injury is very real against that of imposing liability out of proportion to culpability for negligent acts.  (Thing v. La Chusa, supra, 48 Cal.3d at p. 664, 257 Cal.Rptr. 865, 771 P.2d 814.)

Relying upon Ochoa v. Superior Court, supra, 39 Cal.3d 159, 216 Cal.Rptr. 661, 703 P.2d 1 for guidance, the Thing court noted that greater certainty and a more reasonable limit on the exposure to liability is possible by limiting recovery to persons who personally and contemporaneously perceive the injury-producing event.   Since Thing was a bystander case, the foregoing commentary was appropriately set forth in bystander terms.   The court then stated:

“Similar reasoning justifies limiting recovery to persons closely related by blood or marriage since, in common experience, it is more likely that they will suffer a greater degree of emotional distress than a disinterested witness to negligently caused pain and suffering or death.   Such limitations are indisputably arbitrary since it is foreseeable that in some cases unrelated persons have a relationship to the victim or are so affected by the traumatic event that they suffer equivalent emotional distress.   As we have observed, however, drawing arbitrary lines is unavoidable if we are to limit liability and establish meaningful rules for application by litigants and lower courts.”  (Thing v. La Chusa, supra, 48 Cal.3d at p. 666, 257 Cal.Rptr. 865, 771 P.2d 814.)

 As Thing and the cases cited therein make clear, policy considerations do not totally proscribe imposition of liability;  limitation, rather than abrogation, is the goal.   The key is the ability to fashion a balance of allowing recovery in certain circumstances without imposing unlimited liability out of proportion to negligent culpability.  (Thing v. La Chusa, supra, 48 Cal.3d at p. 664, 257 Cal.Rptr. 865, 771 P.2d 814.)   Application of such a balance is not only permissible but mandated by the facts of this case.

If we were to deny the possibility of recovery to the parents, we would be ignoring the foreseeability of harm to them, the degree of certainty that injury was sustained, the closeness of the connection between defendant's conduct and any injuries sustained, the moral blame attached to defendant's conduct and the policy of preventing future harm;  instead we would be giving undeserved weight to the burdens placed on the defendant and insurers.  (Cf. Preston v. Goldman (1986) 42 Cal.3d 108, 118, 227 Cal.Rptr. 817, 720 P.2d 476.)

We discern no public policy warranting insulation from liability of a pharmacist who provides instructions for a prescription intended for an infant and who negligently misstates the dosage, setting in motion a process which results in death or serious injury to the child.   Rather, we hold that a parent or close relative who, as a caregiver, relies upon the directions and administers the prescription should be allowed recovery under such circumstances.

The pharmacy's fear of an aggressive expansion of liability for NIED damages is unwarranted.   The conditions upon which recovery could be allowed are self-limiting and reasonably fashioned to balance the competing factors.  (Cf. Thing v. La Chusa, supra, 48 Cal.3d at p. 666, 257 Cal.Rptr. 865, 771 P.2d 814.)

Restriction of recovery to parents and close relatives is justified because, in common experience, it is more likely they will suffer a greater degree of emotional distress from negligently caused pain and suffering or death than others not so related.  (Cf. Drew v. Drake (1980) 110 Cal.App.3d 555, 557, 168 Cal.Rptr. 65.)

Further restrictions imposed by the requirement of knowledge on the part of the pharmacist and serious injury to the child are also justified.   In order to assume a duty to the parents, the pharmacist had to either know or be in a position that he should have known the medication was for administration to an infant or a person otherwise incapacitated.

Absent the requirement of knowledge of that specific purpose, liability for NIED damages would be imposed on the pharmacist, like any other retailer (as in Kately v. Wilkinson, supra, 148 Cal.App.3d 576, 195 Cal.Rptr. 902) to anyone in the chain of purchase.   For example, a parent, spouse, or other close relative who administers or hands over such a negligently labelled prescription to a capable child or adult would also be entitled to recover.   The policy reasons described above proscribe such extension.   Moreover, it is not clearly foreseeable that one would be administering a prescription to another who is capable of taking the prescription without assistance.

Finally, requiring serious injury or death to the loved one is appropriate and necessary.   To allow recovery to a person who merely learns after the fact about “what could have been” would lead to liability out of all proportion to the degree of fault.  (Cf. Christensen v. Superior Court, supra, 54 Cal.3d 868, 885, 2 Cal.Rptr.2d 79, 820 P.2d 181.)   Moreover, providing that recovery cannot be had unless the loved one suffers serious injury or death gives the assurance of actual damage in a caregiver situation such as this.   Most significantly, if there were no serious injury to the child, then it would not be reasonably foreseeable that one would suffer emotional distress upon learning of the misinstruction.²

 Having determined that, under the conditions set forth above, appellant would be entitled to recovery, we now address the correctness of the court's ruling on the motion for summary judgment.

Not unexpectedly, there were no declarations or other factual representations filed which addressed the issue of whether the pharmacist knew or should have known that the medication was going to be administered to an infant according to his instructions.   There was also no indication in the record as to the extent of injury suffered by the infant or even whether injury (beyond temporary lethargy) was suffered at all.³

Although it is undisputed that Barbie administered the medication, the record is ambiguous as to whether or not Robert Huggins also did.   In her deposition, Barbie Huggins stated that on one occasion, “it was probably either I or Bob that gave it to him.”   In Robert Huggins's deposition, he stated that he did not recall whether he administered the medication to his son.   The separate statement of undisputed facts filed by respondent in conjunction with its summary judgment motion does not address the issue of whether Robert Huggins administered the medicine.

Given the court's finding that as a matter of law recovery under the direct victim theory was not possible because no duty was owed to the parents for the pharmacy's negligent misdirection, these factual issues were not explored.   It is incumbent upon a defendant moving for summary judgment to negate conclusively a necessary element of plaintiff's case or establish a complete defense and thereby demonstrate that no triable material issue of fact remains.   Failure to do so requires that the motion be denied.  (Jacoves v. United Merchandising Corp. (1992) 5 Cal.App.4th 1318, 1334, 1992 WL 84399.)

In this case, the pharmacy failed to meet its burden;  accordingly, the summary judgment must be reversed.

Since we have determined that the court erred by granting summary judgment, pharmacy is no longer the prevailing party and the award of costs must be vacated.

DISPOSITION

The judgment is reversed.   Costs are awarded to appellants.

FOOTNOTES

1.   The child's case has been resolved by arbitration and is not before us.

2.   We purposefully distinguish injury to the loved one from injury to the NIED plaintiff.  Molien v. Kaiser Foundation Hospitals, supra, 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813 expressly held that physical injury to an NIED plaintiff is not essential to recovery of NIED damages.

3.   Counsel for the parents did state during oral argument that no serious injury was sustained by Kodee;  however, we are reluctant to rely on counsel's argument as a basis for our decision.   Such issue should be resolved by appropriate declarations in the trial court.

BUCKLEY, Associate Justice.

MARTIN, Acting P.J., and HARRIS, J., concur.