THING v. LaCHUSA (1986)

Maria E. Thing was in the kitchen fixing dinner.   Her son John A. Thing (Johnny) was playing outside with his little brothers.   Maria was seated at the kitchen table drinking coffee.   Some of the children came into the house.   Johnny stayed outside.   Maria sent her daughter Veronica to call Johnny indoors.   Veronica returned to the kitchen and said, “They hit Johnny.”   Maria ran from the kitchen to the front yard.   A crowd of people were in the street.   She pushed her way through the group and saw Johnny lying in the street, blood coming from his left arm.   Help arrived and Maria rode in the ambulance that took Johnny to the hospital for treatment of his serious injuries.

Johnny's guardian sued the owners of the car and the driver, two public entities, a property owner and a utility company for damages for Johnny's injuries.   Maria sued those defendants for damages for negligent infliction of emotional distress.

James V. LaChusa, driver of the car, Cleason LaChusa and Roberta LaChusa, his parents, and LaChusa Dental Labs, his employer (collectively LaChusas) moved for summary judgment on Maria's cause of action for negligent infliction of emotional distress.   The court granted the motion “because [Maria] did not contemporaneously and sensorily perceive the subject accident and therefore cannot legally establish a claim for negligent infliction of emotional distress.” ¹

Maria appeals.   We reverse.

I

We first determine appealability.   The appeal is from the order granting LaChusas' motion for summary judgment.   That order is not appealable.   However, we shall consider the appeal as being from a judgment dismissing Maria's cause of action.   Johnny's causes of action are not affected by the summary judgment dismissing Maria from the lawsuit.   Should the case go to trial as to Johnny, two judgments would result, the first as to Maria and the second as to Johnny's causes of action.  Code of Civil Procedure 2 section 437c, subdivision (j) anticipates this possibility:

“Except where a separate judgment may properly be awarded in the action, no final judgment shall be entered on a motion for summary judgment prior to the termination of the action, but the final judgment shall, in addition to any matters determined in the action, award judgment as established by the summary proceeding herein provided for.”

As to cases within this exception, the trial court may enter an appealable partial summary judgment before the trial of the remaining issues.  (6 Witkin, Cal.Procedure (3d ed.1985) Proceedings Without Trial, § 313, p. 608.)

 A separate judgment may be entered for one or more of several defendants (§ 578) and a court may render judgment against one or more defendants leaving the action to proceed against the others, whenever a separate judgment is proper (§ 579).   Where permissive joinder of plaintiffs and defendants are allowed as here (§§ 378, 379), several judgments may be entered.  (7 Witkin, Cal.Procedure, supra, Judgment, § 39, pp. 479–480.)

Accordingly, the appeal, as we construe it, is properly before us.³

II

Maria contends the court erred in failing to evaluate and balance the elements involved in fixing liability for negligent infliction of emotional distress as required by Dillon v. Legg (1968) 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912.   There, a mother saw a car strike her infant daughter who died from the injuries.   The mother sued the driver for negligent infliction of emotional distress.   The court reversed a judgment entered on the pleadings dismissing that cause of action, holding the emotional trauma and physical injury suffered by the mother is compensable where infliction of such harm is reasonably foreseeable.   Noting the chief element of duty is foreseeability of the risk, the court held such duty must necessarily be adjudicated on a case-by-case basis and offered guidelines:

“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 728 at pp. 740–741, 69 Cal.Rptr. 72, 441 P.2d 912.)

Maria claims the trial court here misused and misinterpreted the Dillon guidelines.   She concedes she did not see or hear the accident and she did not visually or audibly perceive the impact of the car upon Johnny.   She contends instead the kitchen was in close proximity to the accident and she arrived at the scene moments afterward upon learning from Veronica that Johnny was hit.

Maria contends her proximity to the scene and her view of her son lying injured in the street together with Veronica's comment, “They hit Johnny,” is sufficient to bring her within the ambit of Dillon foreseeability.   Maria says the Dillon elements must be viewed as a whole in a continuum:  the child outdoors at play;  the impact;  Veronica's shout, “They hit Johnny;”  her rush from the house;  the gathering crowd;  the boy unconscious on the pavement;  the puddling blood;  arrival of the ambulance;  her trip with Johnny in the ambulance to the hospital.   Maria says the totality of these circumstances compel the conclusion Dillon elements are here shaded one into the other to constitute a contemporaneous observation of the accident.

Should Dillon bar her claim, Maria argues she is a direct victim entitled to recovery under Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813.

LaChusas, on the other hand, read Dillon and subsequent cases as requiring Maria to plead and to prove a contemporaneous, sensory perception of the accident;  as Maria admits she did not see or hear the impact of the car hitting Johnny, LaChusas argue the grant of summary judgment was correct.

III

We dispose of the Molien matter first.   There, defendants made an erroneous diagnosis of syphilis and advised the wife so diagnosed to tell her husband to be examined.   The court held the tortious conduct of the defendants was directed at the husband as well as the wife (Molien, supra, 27 Cal.3d 916 at p. 923), 167 Cal.Rptr. 831, 616 P.2d 813.  Ochoa v. Superior Court (1985) 39 Cal.3d 159, 173, 216 Cal.Rptr. 661, 703 P.2d 1, rejects Maria's contention:

“Plaintiffs here have not stated a cause of action as direct victims of defendants' negligence.   In Molien, defendant's misdiagnosis was, by its very nature directed at both the wife and the husband.   The wife was asked to tell her husband of the diagnosis and the husband was required to submit to tests.   By contrast, here the defendants' negligence in the instant case was directed primarily at the decedent, with Mrs. Ochoa looking on as a helpless bystander as the tragedy of her son's demise unfolded before her.   While she was a foreseeable plaintiff to whom the defendants owed a duty of care pursuant to our holding in Dillon, the duty owed was owed to her as a percipient witness, not as a direct victim of negligence.”  (Id. at pp. 172–173, 167 Cal.Rptr. 831, 616 P.2d 813.)

Maria's contention stands, if at all, on Dillon's leg.

IV

The problems of the application of Dillon guidelines were pointed out by Justice Burke in his dissent:

“Next, how ‘near’ must the plaintiff have been to the scene of the accident, and how ‘soon’ must shock have been felt?   Indeed, what is the magic in the plaintiff's being actually present?   Is the shock any less real if the mother does not know of the accident until her injured child is brought into her home?   On the other hand, is it any less real if the mother is physically present at the scene but is nevertheless unaware of the danger or injury to her child until after the accident has occurred?   No answers to these questions are to be found in today's majority opinion.   Our trial courts, however, will not so easily escape the burden of distinguishing between litigants on the basis of such artificial and unpredictable distinctions.”  (Dillon v. Legg, supra, 68 Cal.2d 728 at pp. 749–750, 69 Cal.Rptr. 72, 441 P.2d 912 [dis.opn. of Burke, J.].)

As with the court in Nazaroff v. Superior Court (1978) 80 Cal.App.3d 553, 562, 216 Cal.Rptr. 661, 703 P.2d 1, this case presents us with the burden foreseen by Justice Burke.

Since Dillon, the Supreme Court and the courts of appeal have applied the guidelines in varying circumstances.  Dillon's three mentioned elements—(1) nearness to the scene, (2) a sensory and contemporaneous observance of the accident as contrasted to learning of the accident from others after occurrence, and (3) relationship between the plaintiff and the victim—continue to give difficulty.   In Nazaroff, a three-year-old child wandered off, fell into a neighbor's swimming pool and died from the effects of near drowning.   His mother, while searching for him, walked by the neighbor's house and heard a scream, “It's Danny.”   She ran some 30 feet to the pool and while running saw Danny being pulled from the pool.   She pushed aside a person giving Danny mouth-to-mouth resuscitation and took over efforts to save him.

Reversing summary judgment for the defendant pool owners, Nazaroff reviewed the guidelines as applied over the ten years since Dillon.   Based on review of cases since Dillon and its analysis of Dillon elements on the facts before it, Nazaroff concluded failure to see or hear the accident resulting in injury or death to a close relative does not bar a cause of action for negligent infliction of emotional distress resulting from “the contemporaneous observation of the immediate consequences of the defendants' negligent act, which was the proximate cause of the injury and death․”  (Id. at p. 566, 145 Cal.Rptr. 657.)

Similarly, in Archibald v. Braverman (1969) 275 Cal.App.2d 253, 79 Cal.Rptr. 723, a boy was maimed by a gunpowder explosion and the court found the “contemporaneous” requirement satisfied because the mother was nearby and was at the scene immediately after the injury.

Ebarb v. Woodbridge Park Assn. (1985) 164 Cal.App.3d 781, 210 Cal.Rptr. 751 affirmed a grant of summary judgment to defendants sued for negligent infliction of emotional distress.   Tommy drowned in a condominium pool when his arm became jammed in a drain.   His sister, walking toward home, saw a fire truck driving toward the condominium complex, knew something was wrong and later was told Tommy was dead.   Some 20 minutes afterward, she saw Tommy's body floating in the pool.

“Inga urges us to adopt a broad interpretation of the word ‘contemporaneous.’   She contends that a ‘contemporaneous' observance ‘need not necessarily be instantaneous or simultaneous with the event, but rather occur in that general period of time.’   By that theory, she argues, one who observes the immediate consequences of the ‘event’ may recover.   [¶]  We note initially that Inga has chosen the word ‘event,’ which she argues includes not only the accident itself but also the consequences thereof.   That terminology is too broad;  the Dillon court used the term ‘accident,’ and the cases have uniformly held that that term refers to the moment of the injury caused by the defendant's negligence.”  (Id. at pp. 784–785, 210 Cal.Rptr. 751.)

The court declined to expand Dillon's bystander requirement to include a family member “who witnesses the result or the effects of an accident and not the accident itself.”  (Id. at p. 783, 210 Cal.Rptr. 751.)  Ebarb distinguishes Nazaroff and Archibald, stating in those cases there were triable issues of fact as to when the mother arrived at the scene and what she observed.

Ochoa v. Superior Court, supra, 39 Cal.3d 159, 216 Cal.Rptr. 661, 703 P.2d 1, decided in July 1985 after Ebarb, addressed the second Dillon element and held the parents of a 13–year-old boy committed to juvenile hall who witnessed his pain and suffering from misdiagnosed and negligent medical treatment stated a cause of action for negligent infliction of emotional distress though they did not witness his death.  Ochoa holds the injury to the child need not be the result of a “brief and sudden occurrence viewed contemporaneously” by the parents and notes the sudden occurrence doctrine is an unwarranted restriction on Dillon guidelines.  (Id. at pp. 167, 168, 216 Cal.Rptr. 661, 703 P.2d 1.)   In reaching this result, the Supreme Court reviewed earlier cases allowing recovery where the plaintiff close relative did not actually observe the tortious event but the totality of the circumstances meet the contemporaneous observance requirement.  (Krouse v. Graham (1977) 19 Cal.3d 59, 74–75, 137 Cal.Rptr. 863, 562 P.2d 1022 [husband seated in car did not see other car rear-end his vehicle, injuring wife who was unloading groceries from trunk];  Archibald v. Braverman, supra, 275 Cal.App.2d 253, 79 Cal.Rptr. 723 [immediately following explosion, mother sees mangled son];  Nazaroff v. Superior Court, supra, 80 Cal.App.3d 553, 145 Cal.Rptr. 657 [mother sees drowning boy pulled from pool];  Mobaldi v. Regents of University of California (1976) 55 Cal.App.3d 573, 127 Cal.Rptr. 720, disapproved on other grounds in Baxter v. Superior Court (1977) 19 Cal.3d 461, 138 Cal.Rptr. 315, 563 P.2d 871 [mother held boy in arms during injection of mistakenly deadly solution and while child became spastic, convulsant and comatose].)  The Supreme Court review of these holdings suggests approval of the Nazaroff view of Dillon guidelines, which we repeat here:

“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.  (See BAJI No. 12.83, [fn. 6, at p. 565].)  The shout from the pool area may have permitted her to reconstruct the scene, as well as did Mrs. Archibald and Mr. Krouse.   Her knowledge of what had occurred was derived from her own senses, and not from another's recital of an uncontemporaneous event.   Drowning, or near drowning, though initiated by an immersion, is not an instantaneous occurrence.   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.   The evidence is conflicting as to the time of and the circumstances existing at her arrival.   She must, of course, establish that she suffered physical injury, and that the physical injury resulted from an emotional shock suffered at the original discovery of her son's plight, contemporaneously with the receipt of his injury, and not from the subsequent realization of the irreversible progress of that injury and her ensuing grief and sorrow on his death.”  (Nazaroff, supra, at pp. 566–567, 145 Cal.Rptr. 657, emphasis added.)

Budavari v. Barry (1986) 176 Cal.App.3d 849, 222 Cal.Rptr. 446, decided January 1986, rejected a wife's claim for negligent infliction of emotional distress arising out of failure of physicians to investigate a lung lesion which led to her husband's cancer death three years later as the failure to detect or to treat the cancer was not an event which could be witnessed.⁴

The waters are murky.   Resolution of the issue here depends on whether the declarations before the court constitute a contemporaneous observation by Maria of the immediate consequences of the driver's negligent conduct.  (Nazaroff, supra, 80 Cal.App.3d 553 at p. 566, 145 Cal.Rptr. 657.)

 The declarations do not spell out time intervals.   Maria heard the children, including Johnny, at play.   She did not hear anything for some five or ten minutes before she sent Veronica to call Johnny.   We do not know the time lapse from the dispatch of Veronica to her return to the kitchen.   A neighbor declared Johnny was walking his bicycle into the street when he was hit by the car.   Maria's rush from the kitchen and view of the accident arguably permitted a reconstruction of the accident derived from her own observations.   We conclude on the record before us there are triable issues of fact for the jury whether the physical harm to Maria resulted from an emotional shock proximately caused from her contemporaneous observation of the immediate consequences of the driver's negligence, i.e., the car hitting Johnny.  (Nazaroff v. Superior Court, supra, 80 Cal.App.3d 553 at p. 566, 145 Cal.Rptr. 657.)

V

The judgment entered on the grant of the summary judgment dismissing Maria's cause of action for negligent infliction of emotional distress is reversed.

I concur in the result reached by the majority.

I

In the years following Dillon v. Legg (1968) 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912, the law surrounding liability for negligent infliction of emotional distress has cast about on a case-by-case basis attempting to define its limits.   Analysis, however, reveals we have created a body of law that has no clear consistency or guidelines.   Most of the difficulty has rested with attempting to define what is meant by “contemporaneous observation” of the event causing the injury.   At this writing, the gamut runs from requiring direct sensory observation, to arriving at the scene in time to mentally “reconstruct” the event.   The former is too strict a construction.   The latter standard is impossible to apply.

A great deal of the mischief has been caused by the misleading and confusing verbiage currently sprinkled about in case law.   The bottom line, however, is that a cause of action will lie where (1) a foreseeable plaintiff was a “percipient witness” to the accident or event causing injury, and (2) there is a perceived connection between the defendant's conduct and the injury.   I would define “percipient witness” in that phrase's accepted usage, i.e., an individual who is in a position to perceive either the commission or immediate consequences of the accident or injury.

With an express “percipient witness standard”, the law would at least have a common language and analytical framework.   Such a standard has support in existing law, which permits recovery where there has been direct sensory observation of the event or its immediate aftermath.   See Krouse v. Graham (1977) 19 Cal.3d 59, 137 Cal.Rptr. 863, 562 P.2d 1022 (visual perception of accident unnecessary);  Mobaldi v. Regents of University of California (1976) 55 Cal.App.3d 573, 127 Cal.Rptr. 720 (disapproved on other grounds);  Baxter v. Superior Court (1977) 19 Cal.3d 461, 138 Cal.Rptr. 315, 563 P.2d 871 (direct observation of direct results of harm inflicted);  Austin v. Regents of University of California (1979) 89 Cal.App.3d 354, 152 Cal.Rptr. 420 (medical personnel refused plaintiff's delivery room requests to deliver his unborn child from deceased wife;  then plaintiff, by feeling wife's body, felt child die);  Nazaroff v. Superior Court (1978) 80 Cal.App.3d 553, 145 Cal.Rptr. 657;  (mother witnessed child, a drowning victim, pulled from defendant's swimming pool;  the child died several days later);  Archibald v. Braverman (1969) 275 Cal.App.2d 253, 79 Cal.Rptr. 723 (mother of child arrived at scene of explosion moments after occurrence).

Recovery has not been allowed when there was no perception of the accident or injury and the complainant did not arrive at scene, or where, although death was observed, plaintiff was not aware of any causal connection between defendant's conduct and the injury.   See Justus v. Atchison (1977) 19 Cal.3d 564, 139 Cal.Rptr. 97, 565 P.2d 122 (husband observed death of unborn fetus but was unaware defendant caused the injury);  Deboe v. Horn (1971) 16 Cal.App.3d 221, 94 Cal.Rptr. 77 (wife not at scene of auto accident, did not see results of accident until arrival at emergency room);  Powers v. Sissoev (1974) 39 Cal.App.3d 865, 114 Cal.Rptr. 868 (mother did not see child until 30–60 minutes after accident);  Hoyem v. Manhattan Beach City Sch. Dist. (1978) 22 Cal.3d 508, 150 Cal.Rptr. 1, 585 P.2d 851 (mother arrived at hospital several hours after accident);  Ebarb v. Woodbridge Park Assn. (1985) 164 Cal.App.3d 781, 210 Cal.Rptr. 751 (mother arrived at scene 20 minutes after drowning occurred);  Budavari v. Barry (1986) 176 Cal.App.3d 849, 222 Cal.Rptr. 446 (no recovery where physicians failed to investigate lung lesion which led to cancer death three years later, “cancer can't be witnessed”).

In this case, there is a factual issue as to whether Maria was a percipient witness to the accident inasmuch as she arrived at the scene very soon after the accident and observed her son injured in the street.   Under current law, it cannot be said she is to be denied recovery because she did not see, hear or otherwise perceive the actual accident or injury.   Case law permits the cause of action if she witnessed the immediate consequences of the event itself.   It is a question of fact whether she did, and hence I would reverse the judgment below.

I cannot go so far as to agree with the majority's opinion that liability exists if the plaintiff has been able to “reconstruct” the accident or injury.   Such a standard is impossible to apply, and its practical effect would extend liability far beyond existing limitations.

II

The record below is devoid of any indication as to when Maria became aware the defendant's conduct caused the injury.   However, defendant below did not allege there was a lack of contemporaneous awareness that he caused the accident.   The motion for summary judgment went only to the question of whether Maria's observations were “contemporaneous” to the accident.   No challenge was made to what contemporaneous knowledge she may or may not have had regarding defendant's conduct.   Since the record is devoid of evidence of this factor, and there was a failure to challenge that element of recovery, summary judgment cannot be granted on the ground there is no evidence of contemporaneous awareness.  (Southern Pac. Co. v. Pittsburgh-Des Moines Steel Co. (1969) 272 Cal.App.2d 809, 810–811, 77 Cal.Rptr. 748;  IT Corp. v. Superior Court (1978) 83 Cal.App.3d 443, 452, 147 Cal.Rptr. 828.)

FOOTNOTES

1.   Defendant County of San Diego filed a like motion adopting the papers filed by LaChusa.   The notice of appeal refers to the order entered nunc pro tunc May 13, 1985, granting the motion as to the LaChusas only.   The County makes no appearance here.

FN2. All statutory references are to the Code of Civil Procedure unless otherwise specified..  FN2. All statutory references are to the Code of Civil Procedure unless otherwise specified.

3.   Maria's earlier petition for a writ of mandate to set aside the order granting summary judgment was denied by us without prejudice to raising the issue on appeal (No. D003176, filed June 12, 1985).

4.   Budavari in footnote 8 on page 855, 222 Cal.Rptr. 446, notes three cases are pending in the Supreme Court involving negligence causing emotional distress to bystanders, including Nevels v. Yeager (L.A. 31901, hg. granted Apr. 26, 1984), which involves claim of accident victim's parent who arrives at scene within ten minutes.

BUTLER, Associate Justice.

WIENER, Acting P.J., concurs.