VASQUEZ GONZALEZ v. STEWART (1986)

In Dillon v. Legg (1968) 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 the California Supreme Court established guidelines governing the determination of liability for negligently inflicted emotional distress suffered by a bystander who witnessed an injury to another person.   The plaintiff-bystander's right to recover depends upon “such factors as ․ (1) Whether the 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.”   (At pp. 740–741, 69 Cal.Rptr. 72, 441 P.2d 912.)

The question here is whether plaintiffs satisfy the third Dillon criterion.   Specifically, can three minor grandchildren, not in the legal custody of their grandmother, bring this action for the negligent infliction of emotional distress caused by seeing their grandmother hit by a car driven by the defendant?   The trial court ruled that plaintiffs could not and granted the defendant's motion for summary judgment.   We conclude otherwise and grant the plaintiffs' petition for a writ of mandate directing the trial court to vacate its order and to reinstate the plaintiffs' causes of action.

Factual and Procedural Background

The facts may be briefly stated as follows: ¹

Margarita Gonzalez, a 67 year old widow was on a weekend shopping trip with her daughter and three minor grandchildren, ages 16, 13 and 10.   As Mrs. Gonzalez crossed the street she was struck by a car driven by Mrs. Stewart, thrown over the hood of the car and onto the street, causing her severe injury.   Her daughter and three grandchildren sitting in their parked car saw the accident.

Mrs. Gonzalez spends virtually all of her time with her children and grandchildren.   She lives from time to time with both her adult daughters.   At the time of the accident she was living with the daughter and one of the grandchildren who saw her injured.

The three grandchildren filed this action against Mrs. Stewart seeking damages for the emotional distress they suffered in witnessing the incident.

Discussion

Dillon has generated voluminous commentary ² and inconsistent precedent.   Its interpretation goes beyond semantics.   At issue is whether there can be a rational and fair limitation of the class of plaintiffs to avoid a potentially infinite number of claimants for damages for negligently inflicted emotional distress caused by seeing another injured.   The financial repercussions are enormous on those—ultimately the public—who must bear the cost.

The Dillon court's efforts to limit liability by focusing on the element of foreseeability has been only marginally successful.   We wholeheartedly agree with Justice Grodin's recent observation that there are “numerous questions concerning the application of the Dillon guidelines which have proved troublesome to the lower courts and which ․ [the California Supreme Court] must, sooner or later, confront and resolve.”  (Ochoa v. Superior Court (1985) 39 Cal.3d 159, 178, 216 Cal.Rptr. 661, 703 P.2d 1, conc. opn. of Grodin, J.)   Implicit in Justice Grodin's comments is the recognition that any distinctions which are drawn are essentially arbitrary and seemingly unfair.   It is difficult, if not impossible, to rationally distinguish the pain of a parent who sees his child injured, from his distress when he learns of the injury sometime afterward.   Or to attempt to distinguish a parent's pain from that of an uncle, aunt or, as here, a grandchild.   However, it is not our role to reexamine the basis for Dillon.   The parties' respective policy arguments here tend to overlook our place in the judicial pecking order.   We are an intermediate appellate court.   We are bound by stare decisis and the mandate of Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 20 Cal.Rptr. 321, 369 P.2d 937.   Even if we were personally uncomfortable with Dillon 's slippery slope and where it takes us, we nonetheless are bound by its holding as our high court has construed it.   Within this intellectual frame we examine precedent recognizing that our determination of plaintiffs' standing here turns on the question of foreseeability which “must necessarily be adjudicated only upon a case-by-case basis.”  Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 923, 167 Cal.Rptr. 831, 616 P.2d 813 quoting from Dillon, 68 Cal.2d at p. 740, 69 Cal.Rptr. 72, 441 P.2d 912.

If our decision were dependent on the number of cases which have taken a narrow view of the Dillon guidelines instead of a more permissive one, we would affirm the judgment.  Kately v. Wilkinson (1983) 148 Cal.App.3d 576, 195 Cal.Rptr. 902 examined several cases where the second Dillon guideline was in issue and concluded that the “strict construction of [that] guideline ․ persuades us that the third [Dillon ] guideline should be equally strictly construed.”  (At p. 583, 195 Cal.Rptr. 902.)  Kately then denied recovery to plaintiffs who were close friends, but not related by blood or marriage.  (At p. 583, 195 Cal.Rptr. 902.)

Until very recently only two cases took a more expansive view.  Mobaldi v. Regents of University of California (1976) 55 Cal.App.3d 573, 127 Cal.Rptr. 720 held the relationship of foster mother and foster child was sufficient to permit recovery.  Ledger v. Tippitt (1985) 164 Cal.App.3d 625, 210 Cal.Rptr. 814 permitted an unmarried mother living with the father of her child to recover for emotional injuries caused by observing an assault on the father which caused his death.   Whether a “meaningful other” or de facto spouse will be able to sue for the negligent infliction of emotional distress is still an open question in spite of Drew v. Drake (1980) 110 Cal.App.3d 555, 168 Cal.Rptr. 65 in light of the California Supreme Court's grant of review in Elden v. Sheldon 164 Cal.App.3d 745, 210 Cal.Rptr. 755, review granted April 25, 1985.

The most recent expression of opinion on how far Dillon should be extended is in Kriventsov v. San Rafael Taxicabs, Inc. (1986) 186 Cal.App.3d 1445, 229 Cal.Rptr. 768.   There the court held an uncle had standing to sue for the emotional and physical harm resulting from his seeing the hit and run death of his nephew.   The court concluded the relationship between an uncle and his nephew was alleged to be “a close, warm and loving relationship analogous to that of a parent and child” and thus satisfied Dillon 's close relationship guideline.   The resulting harm was reasonably foreseeable.

We share the Kriventsov court's view on the significance of the extended family and the role that family should play in our society.  “The membership of many family units extends beyond parents and children to grandparents, stepparents, aunts and uncles, all of whom may be expected to have assumed responsibilities for child rearing and the attendant emotional relationships with children that normally accompany such circumstances.   When a child is negligently injured or killed it is reasonably foreseeable that any of these family members will be equally as near as the mothers in Dillon and Archibald v. Braverman (1969) 275 Cal.App.2d 253, 79 Cal.Rptr. 723, and may suffer similar harm.”  (Id., emphasis supplied.)

The California Supreme Court's decision in Ochoa v. Superior Court, supra, 39 Cal.3d 159, 216 Cal.Rptr. 661, 703 P.2d 1, approves a more flexible approach to the Dillon guidelines.  Ochoa examined Dillon 's contemporaneous observation requirement and permitted recovery to a mother present while her child was neglected and ultimately died in a juvenile hall infirmary.   The court favorably discussed the line of cases which have applied the Dillon factors flexibly to permit recovery based on reasonable foreseeability of damages.  (At p. 169, 216 Cal.Rptr. 661, 703 P.2d 1.)  Ochoa cited Archibald v. Braverman, supra, 275 Cal.App.2d 253, 79 Cal.Rptr. 723, Nazaroff v. Superior Court, 80 Cal.App.3d 553, 145 Cal.Rptr. 657 and Mobaldi v. Regents of University of California, supra, 55 Cal.App.3d 573, 127 Cal.Rptr. 720, all of which Kately rejected, concluding they were outnumbered by those decisions taking a more rigid analytic approach.   (Kately, 148 Cal.App.3d at pp. 582–583, 195 Cal.Rptr. 902.)   Thus Ochoa buttresses our conclusion by placing its imprimatur upon the less rigid analysis to this problem.

In summary, governed by precedent and directed to decide the question of foreseeability on a “case-by-case basis” we conclude the record before us establishes a sufficiently close relationship between these three grandchildren and their grandmother to permit the grandchildren to bring this action for damages for the emotional distress that they allegedly suffered when they witnessed their grandmother's accident and resultant injuries.

Disposition

Let a writ of mandate issue directing the trial court to vacate its order granting partial summary judgment of plaintiffs' causes of action and to reinstate these claims.   Real Party to bear all costs for this writ proceeding.

FOOTNOTES

1.   The court decided the issue before us as a matter of law.   We therefore state the facts taken from the pleadings and depositions in the light most favorable to plaintiffs.   Whether plaintiffs will be able to prove these facts at trial is an entirely different matter.

2.   See Diamond, Dillon v. Legg Revisited:  Toward a Unified Theory of Compensating Bystanders and Relatives for Intangible Injuries (1984) 35 Hastings L.J., 477;  Nolan and Ursin, Negligent Infliction of Emotional Distress:  Coherence Emerging From Chaos (1982) 33 Hastings L.J. 583;  Note:  Limiting Liability for the Negligent Infliction of Emotional Distress:  The “Bystander Recovery” Cases (1981) 54 So.Cal.L.Rev. 847 and Miller, The Scope of Liability for Negligent Infliction of Emotional Distress:  Making the “Punishment Fit the Crime” (1979) 1 Hawaii L.Rev. 1.

WIENER, Acting Presiding Justice.

WORK and BUTLER, JJ., concur.