MILLER v. GONDRINGER (1984)

OPINION

Six year old Christie Le Cooper died as a result of injuries sustained while in the care of her baby sitter, Rodney E. Gondringer.   Catherine Ann Miller, her mother, sued Gondringer for wrongful death and medical expenses.   She also sought damages for negligent infliction of emotional distress, including punitive damages.¹  Gondringer demurred to the latter cause of action “[b]ecause plaintiff was not present at the time her child was allegedly injured by defendant, it is impossible for the plaintiff to ever state a cause of action for negligent infliction of emotional distress.”  (Emphasis in original.)   The trial court sustained the demurrer without leave to amend.

I

We accept as true the following facts alleged in the complaint (3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, § 800, p. 2413):  On November 20, 1982, Gondringer was babysitting Miller's daughter, Christie, at his residence.   Miller relied on Gondringer to care for and assure the safety of her daughter, and he therefore owed a duty to apprise her of Christie's physical condition.   Throughout the evening of November 20 and continuing through the next morning Gondringer repeatedly assured Miller by telephone, in response to her inquiries, the child was fine and Miller should not worry.   On November 21, at Miller's request, Gondringer returned the child to Miller's home, unconscious and severely bruised.   She was taken to a hospital where she died twelve days later.   Miller suffered severe emotional distress upon observing her daughter's condition and upon discovering Gondringer had lied to her.   Had she been informed of her daughter's injuries she would have been able to obtain timely medical treatment which might have saved the child's life.   Gondringer knew Miller would become emotionally distressed when she discovered her child's critical condition and the falsity of his assurances.   His actions were undertaken in conscious disregard of Miller's rights.

II

 In Dillon v. Legg (1968) 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912, our Supreme Court allowed a mother to recover for emotional trauma and physical injury suffered as a result of witnessing a car strike and kill her young child.   Acknowledging foreseeability of the risk of harm is of primary importance in determining the existence of a duty, the court enunciated three factors to be considered in making that determination:  “(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․  [¶ ] In light of these factors the court will determine whether the accident and harm was reasonably foreseeable.  [Such determination] contemplates that courts, on a case-to-case basis, analyzing all the circumstances, will decide what the ordinary man under such circumstances should reasonably have foreseen.”  (Dillon v. Legg, supra, at pp. 740–741, 69 Cal.Rptr. 72, 441 P.2d 912;  emphasis in original.)

Miller contends the trial court abused its discretion by mechanically applying the Dillon “bystander” guidelines rather than finding her to be a “direct victim” as enunciated in Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813.   In Molien our Supreme Court distinguished an injury to a “bystander,” as governed by Dillon, from an injury which is foreseeably directed toward the person asserting a claim for emotional distress, i.e., a direct victim.  (Molien, supra, at pp. 922–923, 167 Cal.Rptr. 831, 616 P.2d 813.)   There, a negligent misdiagnosis of syphilis was not only directed to the patient herself but to her husband as well.   “Defendants knew plaintiff husband would learn of the diagnosis as they instructed Mrs. Molien to so advise him.”  (Id., at p. 919, 167 Cal.Rptr. 831, 616 P.2d 813;  emphasis added.)   Further, “[b]ecause the disease is normally transmitted only by sexual relations, [and] it is rational to anticipate that both husband and wife would experience anxiety, suspicion, and hostility when confronted with what they had every reason to believe was reliable medical evidence of a particularly noxious infidelity” (id., at p. 923, 167 Cal.Rptr. 831, 616 P.2d 813), Mr. Molien was a direct victim of the defendant's tortious conduct.

In Wiggins v. Royale Convalescent Hospital (1984) 158 Cal.App.3d 914, 206 Cal.Rptr. 2,² we held a woman whose husband was injured while a patient in a convalescent hospital was not a direct victim of the hospital's negligence.  “Her emotional distress [was] derived solely from injuries to her husband.   By contrast, the tortious conduct of the Molien defendant was directed ‘to him [the plaintiff] as well as to his wife [citation].’ ”   (Id., at p. 918, 167 Cal.Rptr. 831, 616 P.2d 813;  emphasis in original.)   Similarly, Miller was not a direct victim of Gondringer's conduct.

Nor is Miller's position enhanced by our high court's pronouncement in Hedlund v. Superior Court (1983) 34 Cal.3d 695, 194 Cal.Rptr. 805, 669 P.2d 41.   The question in Hedlund was whether “a therapist who negligently fails to fulfill his duty to warn an identifiable potential victim that a patient has threatened violence may be liable not only to the person against whom the threat is made, but also to persons who may be injured if the threat is carried out․  The conclusion that a young child injured during a violent assault on his mother may state a cause of action under Tarasoff [v. Regents of University of California (1976) 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334] as a foreseeable and identifiable potential victim [was] compelled by Dillon v. Legg․”  (Hedlund, supra, at pp. 705–706, 194 Cal.Rptr. 805, 669 P.2d 41.)   Thus, in concluding a duty was owed to the child since it was foreseeable he would not be far distant from his mother and could suffer emotional trauma upon witnessing the incident, the court relied on the Dillon element of “sensory and contemporaneous observance”—a factor which is not present in the case before us.

The recent case of Accounts Adjustment Bureau v. Cooperman (1984) 158 Cal.App.3d 844, 204 Cal.Rptr. 881,³ reached an inconsistent result.   There, a malpractice claim against a psychologist was brought on behalf of a two-year-old child who had been negligently diagnosed as having DSMII non-psychotic organic brain syndrome 309.9.   It alleged “a proper diagnosis would reveal [the child] had a mild learning disability and was suffering from an adjustment reaction of childhood.”  (Id., at p. 846, 204 Cal.Rptr. 881.)   His parents alleged a separate cause of action against the psychologist for negligent infliction of emotional distress resulting from their discovery of the negligent diagnosis.⁴  A demurrer to the parents' cause of action was sustained without leave to amend and the matter was dismissed.   Relying on Molien, the court noted the complaint failed to allege any facts “relating to the serious nature of the misdiagnosis․  While a diagnosis of syphilis creates obvious emotional reactions, a diagnosis of a common cold creates no emotional reaction.   Where on the spectrum Joshua's diagnosis lies is not subject to common interpretation.”  (Id., at p. 848, 204 Cal.Rptr. 881.)   The court said, however, the trial court erred in not granting leave to amend since “it is possible that sufficient circumstances to constitute a cause of action could be pled.”  (Ibid.)  It continued:  “A negligent diagnosis of a child can, as a matter of law, cause serious emotional distress to a parent.   It would be pure fiction to believe that a negligent diagnosis of a two-year-old could not foreseeably cause parents serious emotional distress.   A two-year-old has no one but parents to be distressed.   Parents having sole responsibility for their child can be direct victims of their child's misdiagnosis.”  (Id., at pp. 848–849, 204 Cal.Rptr. 881.)

We decline to follow the Cooperman court's analysis.   While applying Molien 's “direct victim” concept, the Cooperman court seemingly ignored the fact that the Molien defendant's tortious conduct was directed to Mrs. Molien's husband as well as to her.   Mr. Molien was a direct victim, not because the doctor could foresee Mr. Molien (his patient's husband) might be distressed if a negligent misdiagnosis were given, but because the husband had a personal interest in the diagnosis.   As we said in Wiggins v. Royale Convalescent Hospital, supra, 158 Cal.App.3d at p. 918, 206 Cal.Rptr. 2, “Molien presented a complex question of tort liability where the nature of the misconduct made the plaintiff a ‘direct victim.’ ”  (Emphasis in original.)

It is without question a negligent diagnosis may adversely impact and emotionally upset family members;  however, that is not sufficient to sustain a cause of action for damages for their emotional distress.   To hold otherwise would allow an avalanche of claims by parents, spouses, guardians, and family members for distress that is certain to follow a negligent injury to a third party loved one.   Even though the emotional distress may be real and foreseeable, if it is incidental in nature it will not transform the plaintiff into a direct victim of the original negligent act.   Thus the risk of harm must not only be reasonably foreseeable, but must also be directed to the plaintiff as well as the victim to constitute a viable claim for damages.   We realize Cooperman holds only that a psychologist's misdiagnosis of a child may cause the parents emotional distress.   Nonetheless, we do not believe Dillon 's test of foreseeability, while contemplating a case-by-case adjudication of cases factually dissimilar to the bystander scenario, intended to create a cause of action for negligent infliction of emotional distress absent a direct link between the tortious conduct and the plaintiff.

III

 Even though Miller may not, as a matter of law, recover for negligent infliction of emotional distress, she has stated a cause of action for intentional infliction of emotional distress.  “ ‘In determining whether or not the complaint is sufficient, as against the demurrer, upon the ground that it does not state facts sufficient to constitute a cause of action, the rule is, that if upon a consideration of all the facts stated it appears that the plaintiff is entitled to any relief at the hands of the court against the defendants, the complaint will be held good, although the facts may not be clearly stated, or may be intermingled with a statement of other facts irrelevant to the cause of action shown, or although the plaintiff may demand relief to which he is not entitled under the facts alleged.’  [citation omitted]  In other words, ‘plaintiff need only plead facts showing that he may be entitled to some relief [citation].’  (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496 [86 Cal.Rptr. 88, 468 P.2d 216].)”  (Gruenberg v. Aetna Ins. Co. (1973) 9 Cal.3d 566, 572, 108 Cal.Rptr. 480, 510 P.2d 1032.)

The elements of the tort of intentional infliction of emotional distress include outrageous conduct by the defendant, intention to cause or reckless disregard of the probability of causing emotional distress, damages and causation.  (Newby v. Alto Riviera Apartments (1976) 60 Cal.App.3d 288, 296, 131 Cal.Rptr. 547;  4 Witkin, Summary of Cal.Law (2d ed. 1974) Torts, §§ 234, et seq., pp. 2515–2517.)  “ ‘Behavior may be considered outrageous if a defendant (1) abuses a relation or position which gives him power to damage the plaintiff's interest;  (2) knows the plaintiff is susceptible to injuries through mental distress;  or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress.  (Prosser, Law of Torts [4th ed. 1971] at pp. 57–58;  Rest.2d Torts, § 46, coms. e, f [fns. and citations omitted].)’ ”  (Agarwal v. Johnson (1979) 25 Cal.3d 932, 946, 160 Cal.Rptr. 141, 603 P.2d 58, quoting from Newby v. Alto Riviera Apartments, supra, 60 Cal.App.3d 288, 297, 131 Cal.Rptr. 547.)

The complaint alleges Miller suffered severe emotional distress upon observing her unconscious child when Gondringer returned the child to her home.   It also alleges Gondringer “in failing to warn [Miller] of the minor child's true medical condition, knew that [Miller] would suffer shock, severe anguish and emotional distress upon discovering the child's critical condition and the falsity of [his] assurances.”   Although the complaint does not designate the conduct as “outrageous,” it alleges “facts and circumstances which reasonably could lead the trier of fact to conclude [Gondringer's] conduct was extreme and outrageous, having a severe and traumatic effect upon [Miller's] emotional tranquility.”  (Alcorn v. Anbro Engineering, Inc., supra, 2 Cal.3d 493, 498, 86 Cal.Rptr. 88, 468 P.2d 216.)   In our view this is a case in which “the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’ ”   (Rest.2d Torts, § 46, com. d.)   Moreover, pleading of less outrageous conduct has been held sufficient.  (See, e.g., Golden v. Dungan, (1971) 20 Cal.App.3d 295, 305, 97 Cal.Rptr. 577;  process server knowingly and maliciously banging on door at midnight.)

 Further, we construe the allegation Gondringer “acted in conscious disregard for the rights and safety of [Miller]” as a claim he acted in reckless disregard of the probability of causing emotional distress.   It is also sufficient to support Miller's claim for punitive damages.⁵  The purpose of a complaint is to frame and limit the issues and to apprise the defendant of the basis upon which the plaintiff is seeking recovery.   (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 212, 197 Cal.Rptr. 783, 673 P.2d 660.)   Miller's allegation of Gondringer's disregard for her rights which impliedly included a right to rely on him to care for her child and apprise her of any problems or emergencies, adequately informs him of the basis upon which she is seeking punitive damages.  (See Civil Code § 3294, subds. (c) and (d).)

Let a peremptory writ of mandate issue directing respondent to vacate its order sustaining Gondringer's demurrer and enter a new and different order overruling the demurrer, on the ground the third cause of action states a cause of action for intentional infliction of emotional distress.

FOOTNOTES

1.   Miller's original complaint sought damages for wrongful death and medical expenses only.   Pursuant to stipulation of counsel she filed her first amended complaint to include a cause of action for negligent infliction of emotional distress.   Gondringer's demurrer to that cause of action was sustained with leave to amend, and Miller filed her second amended complaint which is the subject of this proceeding.   The term “complaint” as used herein refers to the second amended complaint.

2.   At the time we granted Miller's petition for an alternative writ of mandate, we had not yet decided Wiggins.   One of the then unresolved issues in Wiggins concerned a party's entitlement to emotional distress damages for negligent breach of contract.   Hence, although Miller neither pleaded a breach of contract nor raised the issue in her petition, we invited the parties to devote a portion of their supplemental briefs to the issues discussed in Wynn v. Monterey Club (1980) 111 Cal.App.3d 789, 168 Cal.Rptr. 878, and Windeler v. Scheers Jewelers (1970) 8 Cal.App.3d 844, 88 Cal.Rptr. 39.   Both parties acknowledge a plaintiff may recover damages for mental suffering caused by a breach of contract “[w]henever the terms of [the] contract relate to matters which concern the comfort, happiness, or personal welfare of one of the parties, or the subject matter of which is such as directly to affect or move the affection, self-esteem, or tender feelings of that party․”  (Windeler, supra at p. 851, 88 Cal.Rptr. 39 and Wynn, supra at p. 800, 168 Cal.Rptr. 878, both quoting from Westerfelt v. McCullough (1923) 68 Cal.App. 198, 208–209, 228 P. 734.)However, damages in Windeler were predicated upon “a special circumstance, known to the bailee, ․ that the subject of the parties' bailment agreement, certain old family jewelry, had a sentimental value far in excess of what might be called its market value.”  (Fuentes v. Perez (1977) 66 Cal.App.3d 163, 171, 136 Cal.Rptr. 275.)   We perceive no special circumstance here and are unpersuaded by Miller's attempts, albeit at our invitation, to pigeonhole the facts of this case into Windeler 's rationale.Nor does Wynn 's holding have any particular value to our case.   As we noted in Wiggins, the Wynn court hardly did anything more than acknowledge the plaintiff's entitlement to damages was governed by Civil Code section 3300.  (See Wiggins 158 Cal.App.3d at p. 920, 206 Cal.Rptr. 2.)

3.   Cooperman was decided during the interim period between the filing of briefs and oral argument.   At argument we asked counsel to comment on its applicability.

4.   The principal action was a suit for collection of fees for professional services.

5.   While this allegation was undoubtedly inserted in the complaint solely for purposes of stating a claim for punitive damages, it is also indicative of Miller's position vis-a-vis Gondringer's intention.

TROTTER, Presiding Justice.

WALLIN and CROSBY, JJ., concur.