ELDEN v. SHELDON (1985)

Plaintiff Richard Elden appeals from a judgment of dismissal entered after the trial court sustained without leave to amend the demurrer of defendants Robert Sheldon, et al. to his complaint asserting causes of action for negligent infliction of emotional distress and loss of consortium.

The substantive facts, as disclosed by plaintiff's pleadings, are easily stated.   At all relevant times, plaintiff was cohabiting with one Linda Marie Ebeling.   The couple was not married.   In December 1982, they were involved in a vehicular collision allegedly caused by defendant Sheldon's negligence.   Plaintiff, a passenger in Ebeling's car, purportedly sustained severe personal injuries and emotional trauma when he witnessed Ebeling being thrown from the automobile and killed.

In a complaint setting forth three causes of action, plaintiff sought to recover damages from defendants not only for his own physical injuries, but for negligent infliction of emotional distress and loss of consortium as well.   Defendants demurred to the latter two causes of action on the ground that plaintiff was not legally married to Ebeling at the time of the accident.   The trial court sustained the demurrers without leave to amend and entered a judgment of dismissal.   This appeal followed.¹

The issue simply stated is whether an unmarried cohabitant may maintain an action for loss of consortium or negligent infliction of emotional distress.   We conclude that he may not, and thus affirm the judgment of dismissal.

As to loss of consortium, plaintiff relies heavily, if not completely, on Butcher v. Superior Court (1983) 139 Cal.App.3d 58, 188 Cal.Rptr. 503.   In that case, the Fourth District Court of Appeal concluded that an unmarried cohabitant may sue for loss of consortium upon a showing that the non-marital relationship is both “stable and significant” and possesses the characteristics of a marriage.  (Id. 139 Cal.App.3d at pp. 70–71, 188 Cal.Rptr. 503.) ²

We respectfully decline to follow Butcher and instead, adhere to the long line of authority which confines recovery for loss of consortium to an injury which occurs within a legal marriage.³

Under the common law, a husband possessed enormous control over his wife and her property.   Concomitant with that right of control was his right to her services, society, and exclusive sexual attentions.   Modern law no longer recognizes a wife as something akin to her husband's chattel.   Instead it presupposes that either party to a marriage is entitled to expect not only financial support or services from the other but also comfort, companionship and sexual relations.   An injury to one spouse thus interfers with the other spouse's enjoyment of these benefits.

Prior to marriage, however, neither party has a legal right to expect any such benefits from the other.   Without marriage, an injury to one cohabitant does not interfere with a legally cognizable right of the other.

 Today, an action for loss of consortium is not founded on a husband's proprietary right in his wife, but, rather, on recognition of a right to recover for an injury to the marital entity.  (See Rodriquez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 115 Cal.Rptr. 765, 525 P.2d 669.)   The law is concerned with the protection of the “relational” interests of married persons and recognizes as an actional tort any interference, intentional or negligent, with the continuation of the relation of husband and wife.  (See Prosser, Law of Torts (4th ed. 1971) § 124, p. 873.)   The right of consortium therefore parallels the existence of the marital relationship and terminates at its dissolution by death or divorce.

Although some appellate courts, particularly in this state, have not hesitated to impose upon some unmarried parties, duties tantamount to marital obligations (see e.g. Marvin v. Marvin (1976) 18 Cal.3d 660, 134 Cal.Rptr. 815, 557 P.2d 106),⁴ public policy continues to grant preferential status to the relationship of husband and wife.   This policy has been legislatively reflected in the statutes governing the solemnization of marriage (Civ.Code, §§ 4100–4309), in the rule prohibiting common law marriages (Civ.Code, § 4100), and in the statutes defining the rights and responsibilities of husbands and wives toward each other and their children (Civ.Code, §§ 196–239, 5100–5138).

 Perhaps most indicative of the public policy in this area is the Legislature's continuing refusal to recognize unmarried cohabitants as “heirs” under the wrongful death statutes (Code Civ.Proc., § 377).   Loss of consortium is, of course, recoverable in a wrongful death action.  (Krouse v. Graham (1977) 19 Cal.3d 59, 69–70, 137 Cal.Rptr. 863, 562 P.2d 1022.)

Were we to recognize the right to bring an action for loss of consortium in a case such as this, we would, in effect, be circumventing the Legislature's clearly expressed intent to exclude unmarried cohabitants from the class of persons entitled to sue for wrongful death.   A vast majority of courts have found that such an exclusion is a reasonable limitation by the Legislature on a right it has created.

“The Legislature could reasonably conclude a relationship which the parties have chosen not to formalize by marriage lacks the necessary permanence to allow the survivor to recover damages for wrongful death—damages which look to the future and are intended to compensate for future loss.   In addition, an action based on a meretricious relationship presents greater problems of proof and dangers of fraudulent claims than an action by a spouse or putative spouse.   Finally, the exclusion of meretricious spouses is reasonably related to the state's legitimate interest in promoting marriage.”  (Harrod v. Pacific Southwest Airlines, supra, 118 Cal.App.3d at p. 158, 173 Cal.Rptr. 68;  see also Nieto v. City of Los Angeles (1982) 138 Cal.App.3d 464, 471–472, 188 Cal.Rptr. 31;  Garcia v. Douglas Aircraft Co., supra, 133 Cal.App.3d at pp. 894–895, 184 Cal.Rptr. 390;  Vogel v. Pan American World Airways, Inc. (S.D.N.Y.1978) 450 F.Supp. 224, 226.)

The same concerns which prompted the Legislature to exclude unmarried cohabitants from recovering under the wrongful death statutes are present here.   In the absence of legislation which grants to members of a nonmarital relationship the same benefits as those granted to spouses, no basis exists for extending to nonmarital relations the preferential status afforded to legally recognized marriages.  (Cf. Norman v. Unemployment Ins. Appeals Bd. (1983) 34 Cal.3d 1, 192 Cal.Rptr. 134, 663 P.2d 904.)   Any decision to extend to unmarried persons legal rights previously held only by married persons would necessitate identifying and weighing competing notions of public policy, social mores, and moral values.   Such a decision is best left to the Legislature.

As we see it, marriage is the only dependable means by which a relationship may be legally defined for purposes of determining loss of consortium.   The test articulated in Butcher requires the courts to decide on a case-by-case basis whether a relationship is “stable and significant.”   That standard is simply unworkable.

Marriage is that fine bright line by which the strength of a relationship may be tested.   It is not the function of this or any other court to sift through the myriad relationships of an injured party in order to determine which of those “near and dear” to the victim have suffered an injury proximately caused by tortious conduct.

As one court has so aptly observed, “Would the giving of an engagement ring qualify as creating a significant relationship?   If not, how long would the engagement have to exist?   Would ‘going steady’ be sufficient?   Is cohabitation sufficient?   If it is, how much cohabitation?   Would a simple ‘rent sharing’ do the trick?”  (Weaver v. G.D. Searle & Co. (N.D.Ala.1983) 558 F.Supp. 720, 723.)   The answer to all of these questions, of course, is that no one knows.

 Based upon the foregoing, we must conclude that an action for loss of consortium cannot be maintained unless the plaintiff was married to the injured person at the time of the accident.   To hold otherwise would be to adopt a vague, indefinite standard that would be incapable of just or predictable application.  (See also Lieding v. Commercial Diving Center (1983) 143 Cal.App.3d 72, 191 Cal.Rptr. 559;  Etienne v. DKM Enterprises, Inc. (1982) 136 Cal.App.3d 487, 186 Cal.Rptr. 321;  Tong v. Jocson (1977) 76 Cal.App.3d 603, 142 Cal.Rptr. 726;  Gillespie-Linton v. Miles (1984) 58 Md.App. 484, 473 A.2d 947;  Childers v. Shannon (1982) 183 N.J.Super. 591, 444 A.2d 1141.)

For similar reasons we also must reject plaintiff's contention that he is entitled to recover damages for negligent infliction of emotional distress.

Plaintiff's second cause of action alleged, inter alia, that “as a direct and proximate result of the contemporaneous observation of the immediate consequences of the negligent acts and conduct of Defendants which caused the injuries to, and death of, Linda Marie Ebeling, Plaintiff suffered an emotional shock and severe emotional distress resulting in physical harm and, as a direct and proximate result thereof, Plaintiff sustained damages․”

Defendants demurred, asserting that the second cause of action did not pass the three-part test of foreseeability established by the California Supreme Court in Dillon v. Legg (1968) 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912;  “(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.”  (Id. 68 Cal.2d at pp. 740–741, 69 Cal.Rptr. 72, 441 P.2d 912.)

The existence of a cause of action for emotional trauma and physical injury resulting from witnessing the infliction of injury or death of a third party first gained recognition in this state in Dillon.   In that case, a mother recovered damages for the emotional distress she sustained when she witnessed a car strike and kill her minor child.   The court enumerated the three elements necessary to establishing foreseeability, supra, and then stated:  “We are not now called upon to decide whether, in the absence or reduced weight of some of the above factors, we would conclude that the accident and injury were not reasonably foreseeable and that therefore defendant owed no duty of due care to plaintiff.   In future cases the courts will draw lines of demarcation upon facts more subtle than the compelling ones alleged in the complaint before us.”  (Id. 68 Cal.2d at p. 741, 69 Cal.Rptr. 72, 441 P.2d 912.)

In the case at bench we are concerned only with the third factor articulated in Dillon (i.e., “Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship”) since the first two are clearly satisfied by the allegations of the complaint.

 The cases which have considered the Dillon guideline of foreseeability have, for the most part, construed it narrowly.   From our reading of these cases it is clear that a “close relationship” does not include friends, housemates, or those engaged in a “meaningful relationship.”  (See Trapp v. Schuyler Construction (1983) 149 Cal.App.3d 1140, 1142, 197 Cal.Rptr. 411.)

In Drew v. Drake (1980) 110 Cal.App.3d 555, 168 Cal.Rptr. 65, the court addressed the issue now before us.   The appeal was also from a judgment entered on a demurrer sustained without leave to amend based upon the plaintiff's failure to state a cause of action for emotional distress.   As the result of an automobile accident the plaintiff witnessed the death of her lover with whom she had lived for some three years.   In affirming the dismissal the court aptly observed:  “Emotional distress to a spouse [Citation] or a parent [Citation] witnessing an injury to spouse or child meets the Dillon test because it is reasonably foreseeable that a person standing in such close relationship to the injured person may be present and suffer intense distress.   No reported decision extends the ‘close relationship’ guideline to include friends or housemates․  To allow persons standing in a ‘meaningful relationship’ (to use a contemporary colloquialism) to recover for emotional distress resulting in physical injury would abandon the Dillon requirement that ‘[t]he courts ․ mark out the areas of liability, excluding the remote and unexpected.’ ”  (Id., 110 Cal.App.3d at p. 557, 168 Cal.Rptr. 65.)

We agree with both the holding and rationale of Drew.   In its discussion of foreseeability, the Dillon court stated:  “Surely the negligent driver who causes the death of a young child may reasonably expect that the mother will not be far distant and will upon witnessing the accident suffer emotional trauma.   As Dean Prosser has stated:  ‘when a child is endangered, it is not beyond contemplation that its mother will be somewhere in the vicinity, and will suffer serious shock.’ ”  (Id., 68 Cal.2d at p. 741, 69 Cal.Rptr. 72, 441 P.2d 912)  As in Drew, we cannot say the same is true of the relationship among meretricious spouses.  (See also Kately v. Wilkinson (1983) 148 Cal.App.3d 576, 195 Cal.Rptr. 902.)

Relying upon 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, 466, 138 Cal.Rptr. 315, 563 P.2d 871, plaintiff nonetheless argues that the “close relationship” element of Dillon should be based on the degree of emotional attachment between the complainant and the victim and not legal status.   Taking issue with Drew, he further maintains that in contemporary society one who negligently causes a disabling injury to an adult may also reasonably expect that the injured person may be cohabiting with another without benefit of marriage.  (See also Butcher v. Superior Court, supra, 139 Cal.App.3d at p. 68, 188 Cal.Rptr. 503.)

In Mobaldi, a foster mother was allowed to recover for her emotional distress after observing hospital personnel negligently administer a fatal dose of glucose solution to her foster child.   The child, three and half years old at the time of the incident, had been in the plaintiff's care since he was five months old.   The court found that while the relationship of biological parent and child did not exist, the emotional bond between the plaintiff and the victim possessed all the incidents of a parent-child relationship “except those flowing as a matter of law.”  (Id., 55 Cal.App.3d at p. 583, 127 Cal.Rptr. 720.)

Unlike the instant case, the alleged tortfeasors in Mobaldi knew the nature of the relationship existing between the injured child and his foster parent.   On previous visits to the hospital, doctors and nurses alike referred to the plaintiff and the victim as mother and child, and that reference was constantly repeated in the hospital's records.   As far as the hospital was concerned, foreseeability turned upon the relationship of mother and child.   Here, in contrast, there was no family relationship and no allegation in the complaint that defendants knew or should have foreseen the kind of relationship existing between plaintiff and Ebeling at the time of the accident.

 Adhering to the rationale of Drew v. Drake, supra, we construe the “close relationship” guideline set forth in Dillon v. Legg as requiring at least a relationship which is legally cognizable.  (See also Kately v. Wilkinson, supra, 148 Cal.App.3d at p. 585, 195 Cal.Rptr. 902.)   Any other interpretation would result in an indefinite extension of liability for negligent infliction of emotional distress to every conceivable type of relationship.   Neither law nor logic would countenance such a result.   As has been pointed out elsewhere, not every loss can be made compensable in money damages, and legal causation must terminate at some point.  (Tong v. Jocson, supra, 76 Cal.App.3d at p. 605, 142 Cal.Rptr. 726.)

In every automobile accident it might be said that it is foreseeable that there would be a person in the vicinity who cared for the injured party and would be distressed at seeing him or her injured or killed.

On the other hand, an ever increasing scope of liability based on tenuous and inventive theories tends to drive up the cost of insurance and thus frustrate the salutary policy of the law of encouraging all drivers to carry liability insurance in order to compensate truly deserving victims of automobile accidents.

 Under the circumstances of this case, lawful marriage is an essential element of plaintiff's cause of action both for negligent infliction of emotional distress and for loss of consortium.   Since plaintiff and Ebeling were not married at the time of the accident, the trial court properly sustained defendants' demurrer without leave to amend.

The judgment of dismissal is affirmed.

FOOTNOTES

1.   After the trial court sustained defendants' demurrers without leave to amend, the parties settled the personal injury claims made by plaintiff in his first cause of action and stipulated to the entry of a judgment which preserved plaintiff's right to appeal from the dismissal of his causes of action for negligent infliction of emotional distress and loss of consortium.

2.   Tracking the language from Butcher, the complaint here alleged that, “Plaintiff had an unmarried cohabitation relationship with the decedent, Linda Marie Ebeling, which was both stable and significant and parallel to a marital relationship.”   Beyond this bare allegation, nothing in the complaint discloses the length of the relationship or any other factors which might tend to support the claim that the living arrangement was “stable and significant.”

3.   We note here that Division One of the First District Court of Appeal also declined to follow Butcher in a published decision rendered in 1983.   After the Supreme Court granted hearing in the case, however, the appeal was dismissed on motion of the parties.   As a result, Butcher remains the only published opinion in this state specifically addressing the issue now before us.

4.   Contrary to popular misconception, Marvin v. Marvin, supra, did nothing to legitimize the cohabitation of unmarried persons.   That case merely held that parties to a meretricious relationship have the same rights to enforce contracts and to assert their equitable interests in property acquired through their effort as do other unmarried persons.   Other cases have recognized the limitation of Marvin and have refused to find that a nonmarital relationship is the equivalent of a marriage.  (See Harrod v. Pacific Southwest Airlines (1981) 118 Cal.App.3d 155, 173 Cal.Rptr. 68;  Garcia v. Douglas Aircraft Co. (1982) 133 Cal.App.3d 890, 184 Cal.Rptr. 390.)

COMPTON, Associate Justice.

ROTH, P.J., and BEACH, J., concur.