*1 рsychological physical. But this we must as well in. exercise persuasion great not to confused: intellectual care become ’’ equivalent not the of coercion. require police does not officers remain
Miranda mute upon a declination to defendant’s make statement or to rights. “Interrogation” exercise his constitutional inquiry proscribed, and an to determine whether a defendant rights fully being his after informed desires to waive of them interrogation. is not an judgment of trial
I affirm the court. J.,
McComb, concurred. No. 7816. 21, 1968.] Bank. June [Sac. al., M. et MARGERY DILLON and Appellants, Plaintiffs LEGG, DAVID Respondent. LUTHER Defendant and *2 Hefner, Hefner and James Bradford, Cross, & Archie Dahl Wopdside Appellants. M. Plaintiffs George McKone, Bullen Bullen, Erich & McGregor, Respondent. McKinley Defendant and C. William TOBRINER, J. That thecourts should allow physical injury emotional trauma and who suffers a mother witnessing death or child infliction of to her from negligence appear is liable tortfeasor for which the *3 points proposition. out, As Prosser “All compelling to be feelings in favor ordinary are of her human [the mother’s] duty negligent defendant. If a to her against action the. recognizable dаnger, be in some then requires that she herself endangered, it that when a child properly been said it contemplation that its mother will be somewhere beyond is not (Prosser, Law vicinity, serious shock.” and will suffer in the 1964) p. 353.) (3d ed. Torts of decisions have barred the Nevertheless, past American right Refusing to take her recovery. the mother the mother’s position ground on an their jury, courts these ease to “duty” of the required of due care alleged of a absence state, turn, they must Duty, the mother. tortfeasor to duty work imposition express public policy; the here and claims it invite fraudulent it would disaster because defining hopeless in the task courts would involve the they say, liability. substance, tortfeasor’s extent liability impossible, being denial liability definition alternative. realistic dangers neither of the feared that have concluded We justice upon natural which the frustration of the excuses the past we point out that in the We shall mother’s claim rests. deny recovery rejected argument that we should legitimate claim because other fraudulent ones explain alleged inability urged. shall further that We rеcovery different facts of future fix definitions for on the specific justify eases does not the denial on the any event, proper guidelines case; facts the instant can indicate the extent for such future cases. plaintiff’s1 alleged In the instant case first cause of action September 27, 1964, that on or about defendant drove his southerly Bluegrass automobile direction on Road near County its intersection with Clover Lane of Sacra- mento, plaintiff’s and at that daughter, time infant Erin Lee lawfully Dillon, Bluegrass complaint crossed Road. The fur- alleged negligent operation ther that defendant’s of his vehi- cle caused it to “collide with the deceased Erin Lee Dillon resulting injuries to decedent proximately which resulted (Complaint, p. her death.” 3.) Plaintiff, as the mother of brought decedent, compensation an action for for the loss. Plaintiff’s second alleged cause of action she, Margery that Dillon, M. “was in proximity close . to the . . collision and personally witnessed said collision.” alleged She further that “because of negligence proxi- defendants . . . and as a mate сause thereof . . great [sic] . sustained emo- tional disturbance and shock injury to her nervous system” which great physical caused her pain and mental suffering. Plaintiff’s third alleged cause of action Cheryl Dillon, another daughter, infant proximity “in close to the . . . collision personally witnessed said collision.” Because of the negligence, Cheryl Dillon great “sustained emotional dis- turbance and shock and injury to her system” nervous which great physical caused her pain and mental and suffer- ing.
On December 1965, defendant, after he had filed his answer, judgment moved for on pleadings, contending that “No cause of action is stated in allegation plaintiff sustained emotional distress, fright or shock induced by apprehension negligently danger caused injury or the witnessing of negligently caused person. to a third *4 1For singular convenience, plaintiff will be used in the to denote although joined mother, a minor sister as plaintiff.
732 Ice, Co.,
Amaya Supply Fuel & 59 295 Home Cal.2d [29 Cal.Rptr. (1963). 33, child, P.2d Even where a sister 513] object plaintiff’s apprehension spouse or is the no cause alleges p. complaint unless the stated, action fright plaintiff distress, or shock emotiоnal suffered safety. Moore, as a result his own Reed v. of fear for page (Italics Cal.App.2d [319 80].” granted judgment pleadings added.) court on the against action, count, the mother’s the second cause of count, the third cause of action. denied it as to the sister’s Mar court, further, The gery dismissed the second cause of action. appealed judgment. mother, M. from that Dillon, the place Thereafter, January proceedings further on took Cheryl action, as the third cause Dillon’s claim for witnessing emotional ‘1 sister’s death while trauma from her ’’ watching lawfully Bluegrass her sister cross Road. summary judgment Defendant on this count. moved for opposition plaintiff of one contended that the declaration deposition her McKinley disclosed that Mrs. Dillon testified at rolling car Erin noted that when she saw the over she Cheryl deposition Cheryl curb, that the was on the but submit- Dillon contradicts such statements. Plaintiff therefore ted defendant are con- that “Since the declarations filed testimony of tradictory testimony in the contained Cheryl Mrs. Dillon a matter of law that does not establish as danger had fear for her own was not in the or Dillon zone must plaintiff respectfully the motion safety, submits that ’’ denied. summary judgment on the The court denied the motion for Cheryl pretrial order ground third that the cause on precluded apparently the motion it. The trial sustained court judgment pleadings cause as to the on the on the second danger and zone of mother because she was within the involving Cheryl that motion as to third cause denied possibility she within such zone of because us danger safety. Thus before for her own we have feared flow- dramatically illustrates the difference result case that ing alleged requirement that a cannot from the witnessing death of a emotional trauma in recover for safety for her own child or sister unless she also feared physical impact. actually within the zone she was because Amaya posture differs from that of of this case Supply (1963) Ice, Fuel & Co. Cal.2d Home “fright involved or ner- Cal.Rptr. 33, 513], 379 P.2d which *5 (with solely illness) consequent bodily vous induced shock apprehension danger negligently . of . . caused presents person” complaint to the here the a third because admittedly emotionally mother, claim traumatized who of the of danger, was not within zone as contrasted with that the may of thus sister, the who within it. The ease illus- teen recovery in fallacy deny trates the of the that would the rule grant In place, one situation the first we it in the other. hardly justify can relief for trauma which she to the sister upon apprehension yet deny suffered child’s the death and of happenstance it merely the of a that the mother because yards sister accident. The instant was some few closer to the hopeless exposes artificiality case zone-of-danger the of the upon place, zone-of-danger rule. In the second rest the rule rejected impact when we have the rule becomes even less impact defensible. have, necessary We held indeed, that is not recovery (Cook for (1939) Cal.App.2d 581, Maier 434]). concept zone-of-danger must, then, inev- itably collapse only requirement because the reason the of presence in that zone lies in the fact that it one within will danger impact. fear threshold, then, point of At the thе incongruity rejection the any of the rules which plaintiff’s recovery must rest. note, outset, We further at the that has defendant interposed the defense contributory negligence that the of the mother, sister, child contributed to the accident. If such defense sustained and defendant found not liable negligence contributory death of the child because of the mother, child, sister or we do believe that the mother or sister should recover for the emotional they allegedly trauma which suffered. the absence of the primary liability child, tortfeasor for the death of the ground independent secondary we for no for an liability see injuries parties. claims for third The basis for adjudicated such liability claims must be the and fault of defendant; liability and fault must be the foundation for duty parties tortfeasor’s who, due care to third aas consequence negligence, of such sustain emotional trauma. concept analysis which, an duty,
We turn then to stated, ground rejection has we have furnished the for - Normally simple claims one. such as the instant facts ' plaintiff’s complaint would establish a cause of action: the complaint alleges (1) negli- his defendant drove car proximate plaintiff gently, as a result of which suffered physical injury. jury of these Proof facts ato leads to indeed, showing represents damages; example type classic of accident with which the law
negligence designed been deal. must assertion that nevertheless be denied “duty” plaintiff “begs because defendant no bears question—whether plaintiff’s essential interests are enti- legal protection against the tled to defendant’s conduct. . . . [duty] conclusion, is a It shorthand statement of rather analysis . . recog- than an aid to nized in itself. But it should be . ‘duty’ itself, is not sacrosanct but expression of the of those policy sum total considerations of particular say which lead the that the enti- law *6 protection.” (Prosser, pp. Torts, tled Law of to 332- 333.) history concept duty
The of discloses the of itself that it deep-rooted legal is not an old and hut a device of doctrine century designed the half to latter of the nineteenth curtail propensities juries the feared “It of toward liberal awards. ‘duty’ forgotten got must not bе very purpose that into our law the combatting of what then feared to be a was dangerous prevalent among (perhaps especially delusion juries untempered popular by imbued with notions of fairness might judicial viz., paramount the law counte- policy), that legal (Fleming, An nance for all foreseeable harm.” redress p. to (1967) Introduction the Law of Torts court-imposed Indeed, the on of restrictions idea dramatically by concept “duty” means of the contrasted legal system society.2 In preceding with the the of feudal society, responsibility enclosed feudal actor the bore regard damage was at fault he without whether he inflicted to “duty” injured person. Thus, time, at that or owed to the duty the defendant all the owed a to world to conduct himself 2" liability gradual development The of the law in matter of civil Holdsworth the ample with and the late is discussed traced Sir William History learning lucidity Law, pp. English vol. and in his say seq., process it that the et of evolution has been from the and and not here rehearsed. Suffice to be need every peril principle man acts at his principle consequences that a is liable for all the of his acts to the only infringe subject obligation the man’s freedom action is formerly any duty emphasis on was of care owes to others. The which he injury question fell within the case the whether the sustained and actions; emphasis.now accepted the of common-law classes one injury person act has on the conduct whose .occasioned of. ’’ (Read negligent. question characterized as is whether it can be 156, 171.) Co., (1947) Lyons A.C. Ltd. J. & may causing his It well that the fellows. be without imposed society impera- an feudal physical contraction of the safety corresponding procurable for maximum tive responsibility upon its members. absolute solidity Revolution, Industrial Avhichcracked The up expan- society opened wide and areas of feudal sion, new legal concepts. competitive- changed as the ubav Just sphere figuratively out of ness the economic broke the walls through it the rule community, of the feudal so broke of strict liability. place it strict negligence introduced the theory an lie if aсtion for would duty plaintiff. defendant breached a which he As owed Q.B. (1893) Esher said in Lord Le Lievre v. Gould negligent pleases 497: “A man is as entitled be as he ’’ duty them. the whole if no towards world he owes pointed We have century concept this out that late 19th duty, applied instant situation, to the has led courts to liability. deny negation duty We have noted that this ema- nates from the twin fears that courts flooded an will be with onslaught (1) fraudulent and indefinable claims. We point why shall out justified. Avethink neither fear This rejected argument 1. court past in the deny must recovery upon legitimate claim because other urged. ones fraudulent “duty” denial the instant situation rests prime hypothesis that allowance of action lead to successful (See, assertion of e.g., fraudulent claims. Warrington Waube v. Wis. N.W. 497].) apparently juries, rationale assumes that con- expert fronted testimony, irreconcilable medical Avillbe *7 distinguish unable to the deceitful from the bona fide. The argument only per denying concludes that a se rule the entire potentially class of claims prob- raises this administrative lem3 danger. can avoid this In argument the first instance, proceeds from the a doubtful assumption.
factual possibilities Whatever fraudulent physical injury spectators claims of by disinterested of an accident, question a case, certainly issue in this we argument 3To extent this shades into the contention that such experience claims should be denied because otherwise a courts litigation,” responsible point “flood out that courts are for deal ing merits, many; with cases on their whether there be few suits or society’s merely pressing of a existence claims show's need multitude of legal for redress. 736
cannot
that a
sees her child killed will
doubt
mother who
physical injury
sufficiently
suffer
from shock. “It seems
obvi-
danger or harm her
ous that the shock of mother at
child
may
(Prosser,
injury.”
real and a
Law of
be both a
serious
p. 353.)
Torts,
half-century ago
recognized
Over a
this court
the likelihood
fright
that such
and
physical injury.
fear would cause
In
Ry.
Sloane
Southern
(1896)
668,
Co.
111 Cal.
California
680
320,
P.
32
193],
judgment
L.R.A.
we affirmed a
for
[44
damages
alleged physical injury resulting
for a
who
from
knowledge
saying:
mental suffering,
general
“It
is a matter of
fright
that an
exposure
attack of sudden
or an
peril
produced
complete
imminent
change
individuals a
system,
their nervous
physically
rendered one who was
strong
vigorous
weak and timid.” Since no one can seri
ously question
grief
that fear
likely
one’s child is as
physical injury
cause
well-being,
as concern over one’s own
rejection
clearly
fraudulent claims
contention
Sloane
applies here.
instance,
fundamentally,
the second
and more
possibility
may prompt recovery
that fraudulent
assertions
rejection
isolated
justify
cases does not
a wholesale
entire class
claims
potentiality
in which that
arises.
permitting
“contention that the rule
the maintenance of
impractical
argu
action would be
administer ...
but an
incapable
performing
ment
the courts are
their
appointed
premise
tasks,
frequently
which has
been
rejected.” (Emden
(1948)
Cal.App.2d
v. Vitz
“
696].)
may
put
that unfounded claims
[198
[F]ear
forward,
fact,
result
in erroneous conclusions of
ought
impose legal
not to
us
influence
limitations as to the
permissible
prove.” (Owens
nature of the facts that it is
Liverpool Corp.
“Certainly
K.B.
it is a
very questionable position
take, that
for a court to
because of
possibility
encouraging
compensation
fictitious
claims
actually
should be denied those
injury
suffered
who
serious
through
negligence
(Orlo
of another.”
v. Con
402],
necticut Co.
Conn.
A.2d
See
Goodhart, The Shock Cases and
Risk (1953)
also
Area
Damages
Fright
14, 23; Throckmorton,
L.Rev.
Modern
260, 276.)
(1921) 34 Harv.L.Rev.
analogous
possibility
On issue of whether
of collu-
justified
per
in intrafamily
sive fraud
tort actions
se rule
denying
cases,
recovery in all such
this court held that the
*8
plaintiffs
prevail
alleged
interests of
should
meritorious
over
Upholding
administrative difficulties.
the claim of a minor
child in that
“The
situation we said:
interest of the
in
child
personal injury
freedom from
caused
the tortious conduct
outweigh
danger
others
sufficient to
of fraud
.
.
fact
greater opportu
collusion.
.
that there
[T]he
nity
fraud
in
class
or collusion
one
of cases than
another
closing
does not warrant courts of
in
door
law
to all cases
depend upon
efficacy
of that class. Courts must
of the
judicial processes to ferret out the meritorious from the
particular
in
(Emery
Emery
fraudulent
eases.”
(1955)
v.
421,
Klein,
218];
Cal.2d
see
Klein v.
also
[289
(1962)
58 Cal.2d
Cal.Rptr. 102,
695-696
376 P.2d
[26
70].)
possibility
escape
will
some fraud
detection does
judicial
justify
responsibility
abdication of the
damages
award
for sound
if it is
claims:
“to be conceded that
procedural
our
system for the ascertainment
truth is inade
quate to
,
defeat fraudulent claims . . .
the result is a virtual
acknowledgment
justice
that the
in
courts are unable to render
respect
England
(Chiuchiolo
to them.”
v. New
Wholesale
Tailors
540].)
84 N.H.
A.
[150
Indubitably juries
constantly
courts,
and trial
called
distinguish
the frivolous from the substantial and the
fraudulent from the
reach
meritorious,
some erroneous results.
judicial
But
fallibility,
process,
inherent in the
offers no
substituting
case-by-case
reason for
for the
resolution
causes an artificial and indefensible barrier. Courts not
compromise
responsibility
their basic
to decide the merits of
public’s
each
individually
destroy
case
but
confidence
by using
them
broad
broom
“administrative
con
sweep away
venience” to
claims a number of which
class of
admittedly
are
The mere assertion that fraud is
meritorious.
possibility
possible,
degree
“a
exists to some
all
[that]
(Klein Klein, supra,
695),
cases”
58 Cal.2d
does not
prove
principles
present necessity to
abandon
neutral
proximate
foreseeability,
consequential injury that
cause and
govern
generally
tort law.
Indeed,
problem
fraudulent claim
we doubt that the
substantially
pronounced
in the ease of a mother
more
claiming physical
resulting
seeing
froln
her child
right
killed than
other areas of tort law which
damages
recover
is well established
California. For exam-
pie,
plaintiff claiming
safety
that fear
his
own
resulted
physical injury
recognized
a well
makes out
case for recove
ry.4 (Lindley
440] ;
Knowlton
179 Cal.
P.
*9
Webb
Francis
214
(1931)
v.
J. Lewald Coal Co.
182
Cal.
[4
(1967)
P.2d
Airlines
532,
675] ;
77 A.L.R.
Vanoni v. Western
Cal.App.2d
Cal.Rptr.
damages
247
115].) Moreover,
793 [56
are
suffering,”
type
injury,
for
of
allowed
“mental
on the
objective
whole,
proof
physical
less
than
amenable to
injury
injury
aggravation
be
here;
involved
the mental
can
of,
“parasitic to,”
(Sloane
an established tort.
v. Southern
Ry.
Acadia, California,
Co., supra,
668;
111 Cal.
California
Cal.Rptr.
Ltd.
686,
v. Herbert
353
(1960)
mathematical In terms conduct money injury tortious suffered matching award to process as fixing injury, well cannot be as the extent of perfect. case of the tavern- Undoubtedly, since ancient ever keeper cast an successfully ’s wife who the hatchet avoided Moreover, layman for We pensable others; themselves, Eeview deny threatened with ing (Of. recovery fear ([Hambrook 4California’s jurisprudence. from shock concur for it 2 self-contradictory mother Harper such a for shock otherwise, herself also on the it is and the with v. Stokes presents at ruling incongruоus if she speculative & rule or for her children 'would without ’ ’ ’ page from Judge Magruder’s some James, injurious honest must suffers Bros., 1039: the witnessed legalistic strong argument plaintiffs impact, appear The Law of Torts plaintiff's issue parties and somewhat impact shock from fear for '1 [1925] Once abstractions whether the incomprehensible; it will unwilling 1 K.B. accepting the view that a death of her fear observation falsely easy for the same recover be discreditable revolting for 141, 158-159]), parent to do claim (1956) justify his agree for her own own so will be for the courts to was shocked own to sanction bodily rule 49 daughter. it with § 16.15, p. safety Harvard safety and to indefensible. harm Atkin, any system to fear feared penalized. recovery through is com To the result hinge Law L.J. rely for for (I W de S, irate customer de S et ux Y.B. iii, Edw. f. pl. argued plaintiffs’ 60 (1348)), defendants have claims might from emotional trauma well be fraudulent. adjudication Yet cannot let the difficulties of frustrate the principle remedy every that there be a for wrong. substantial alleged inability 2. The recovery on the definitions fix for cases justify does not denial facts different of future spеcific on the case; any event, the instant facts of proper guidelines can indicate the extent cases. future In order to limit the potentially otherwise infinite lia bility which every negligent act, would follow the law of torts holds injuries defendant amenable to others which to defendant reasonably time were foreseeable. In the “overriding absence of policy considerations .. . foreseeability of risk . . . primary importance [is]
establishing the
duty.”
element
(Grafton
v. Mollica
Cal.App.2d
Cal.Rptr.
also
See
306].
McEvoy v. American Pool Corp. (1948)
brought disturbance by emotional on principles general Under by defendant’s conduct. if defendant should foresee in such a ease had should be fright injury in enough substantial a severe to cause shock or within Plaintiff then be person normally constituted. way plaintiffs the same very much аre risk the zone of persons, third or forces of danger acts of is extended whom things responses (where are these fore- nature, seeable).” (2 Harper their own Torts, Law James, & 1035-1036; omitted.)5 pp. fns. determining whether defendant the chief element Since plaintiff foreseeability obligation to duty or an
owes prime every case. risk, factor will be concern of the foreseeability inherently intertwined with it is Because necessarily adjudicated only obligation must duty or predetermine defendant’s case-by-case We cannot now basis. a obligation category; no immuta- every by a fixed situation obligation every of that the extent can establish ble rule guidelines can, however, define future. We circumstance an issue as the instant resolution of such aid which will one. case in which first, here with a note, that we deal We physical
plaintiff a shock resulted suffered which determining, in ruling case. In to that confine our reasonably should foresee case, such injury whether defendant whether defend plaintiff, terminology, in other or, care, will take into plaintiff duty of due the courts ant owes following: Whether account such factors as as contrasted with near the of the accident was located scene away the shock a distance from it. Whether one who was impact upon plaintiff from resulted from a direct emotional accident, contemporaneous sensory observance of the danger to the cannot he restricted 5The of the zone properly concept injury; physical the area of it must encompass area of those exposed *11 injury. that no distinc to emotional hold courts, today, those exposed injury flowing injury and emotional tion he between physical can drawn light injury; knowl of modern medical in the indeed, from the physical awarding edge, result, be indefensible. As a such distinction would any injury witnessing or death, another’s shock recovery upon for emotional danger is in the zone of who a line between plaintiff cannot draw we danger of in the zone who is and the plaintiff impact physical guidelines within the set forth one, emotional impact. infra, the other. that of is as much compelled learning as contrasted with of the accident from others after plaintiff its occurrence. closely Whether and the victim were related, as contrasted with an absence of relation- ship presence relationship. or the a distant degree
The evaluation of these factors will indicate the foreseeability: obviously the defendant’s is more defendant likely that to foresee a mother who observes an accident affect- ing stranger her child will suffer harm than to foretell that a witness Similarly, degree foreseeability will do so. person’s injury greater third far of his case contemporaneous observance of the accident than that which subsequently he learns of it. The is more defendant likely nearby, witnessing to foresee that to the shock mother physical will anticipate cause harm than dis- someone tant from the temporary accident will suffer than more a emo- tional reaction. All elements, course, these shade into each fixing other-; intimately of obligation, facts, tied into the depends upon each ease. light
In of these factors the court will determine whether reasonably accident and harm was foreseeable. Such foreseeability reasonable par does not turn on whether the plaintiff ticular actuality as an would have in individual contemplates foreseen loss; the exact accident and it courts, on basis, analyzing circumstances, all case-to-case will ordinary decide what the man under such circumstances reasonably should have foreseen. The courts thus mark out the liability, areas excluding unexpected. the remote and presence ease, the instant of all the above factors alleged prima indicates that a sufficient Surely negligent facie case. driver who causes the death of young may reasonably expect child that the mother will not upon be far witnessing distant and will the accident suffer emotional trauma. As Dean Prosser has stated: “when child is endangered, beyond contemplation it is not that its mother vicinity, will be somewhere and will suffer serious (Prosser, shock.” p. The Law Torts, at See also 353. 2 Harper James, Torts, supra, p. & The Law of upon whether, We are not uoav to decidе called in-the weight absence or factors, reduced of some of the above would conclude that the accident and were rea- sonably foreseeable therefore defendant owed no duty plaintiff. of due care In future cases the courts will draw lines of demarcation facts more subtle than the alleged compelling complaint ones in before us.
742 drawn, analogous past, situations, in courts the have general applying guidelines liability,
the limits of such specific those forth facts cases. As above set to the of the examples process history of that of definition we set forth the persons “open cases, rulings of car” the on the negligence privity in draft- not of contract for defendant’s ing instruments, decisions intentional infliction of the on the English cases, some illus- injury, emotional the modern adjudicate specific us. opinions before trative the issue predicated ability liability limit on tests of courts to upon foreseeability by the largely is well illustrated based “open prototype against the is the suit car” cases. The case plaintiff by third damаge caused a owner of a vehicle for party vehicle because of the owner’s who can commandeer the Ham keys In Richardson v. leaving carelessness in inside. the liability 269], posited on (1955) 44 P.2d we Cal.2d 772 [285 a “foreseeable risk of the intermeddling” bulldozer because of owner of a noting great danger (p. 776), especially the special temptation presented it bulldozer created and the Hergenrether East, supra, 61 parties. Similarly, in v. to third upheld a owner on the 440, Cal.2d we truck (p. “greater 444) potentiality foreseeable risk” basis of possible danger vehicle, the time for because of the persons type fre unattended, which quent and the who it was neighborhood in which it was left. liability. These led decisions have to untrammeled Eather, applying held foreseeability test, have the courts although leaving key automobile, the mere act of in an may possibly it will be foreseeable risk that the car raise stolen, property injury does not increase risk to other liability: does not warrant if she could hence “[e]ven theft, foreseen the she had no reason believe that Stanley incompetent (Richards v. thief would be an driver.” (1954) 60, 23].) short, 43 Cal.2d 66 P.2d In “each ease [271 must be considered on its facts whether own to determine justifies that the foreseeable toto the conclusion [situation] imposed risk unreasonable, of harm and that defendant duty owner charge of a vehicle has a to third one persons subjecting plaintiffs from the class of the to refrain (Hergenrether East, them to such risk.” v. 61 Cal.2d England (1965) 440, Mapes 238 445; see also Produce Co. Wright Cal.App.2d Cal.Rptr. Murray (1958) ; [47 506] 166 Cal.App.2d 111].) P.2d [333 involving liability cases, those category In another privity person with whom he was not to a third a tortfeasor draftmanship legal negligent document, of contract for injured right party compen recognized we have guidelines for the determination future sation and out set Hamm 56 Cal.2d Cal. In Lucas v. [15 eases. applied attorney rule Rptr. 821, 685], P.2d this to an thereby causing damage to will, a defective who drew Irving third-party beneficiary. (See Biakanja v. also intended 1358].) 65 A.L.R.2d 49 Cal.2d sanctioning recovery caused intentional *13 infliction of mental court did not defer to the distress, this argument liability imposed that should not be because of the possible liability. difficulty delimiting future the area of urged recovery Defendants if that were to be allowed for distress, intentional infliction of emotional actions soon would upon every personal forthcoming based insult or minor indignity. We said: “That administrative difficulties do not justify the of denial relief for serious invasions of mental and tranquility emotional by recognizing is demonstrated the cases right (State privacy." the of Rubbish Collectors Assn. v. Siliznoff, supra, rejected 330, 338.) Cal.2d Wc the conten- recovery tion “that physical injury to allow in the of absence open will the door litiga- to unfounded claims and a of flood tion, requirement and physical that the that injury there be necessary to insure that serious mental suffering actually (State occurred" Siliznoff, supra, Rubbish Collectors Assn. 338). Cal.2d argument Indeed, the point “there is no at which such stop" actions plausible today no more than when it Wright was advanced Winterbottom 10 M. & W. History exposed 111. fallacy the of claim the privity abolition of enterprise liability cases would lead to “the most and outrageous absurd consequences, to which I can forward, (р. 114). see no limit" taking giant step another imposing product liability tort, we were not spectre inability halted the setting pre-judge every future ease. The of boundaries that doctrine makes the problem fixing lines of Emitation appear, by compari- here son, widening almost miniscule. The liabiEty the area of possibility encouragement of of unfounded and products claims undefinable field sweeping; we deal comparatively here with a isolated and unusual situa- tion. We do not believe that the fear that we cannot success- adjudicate fully sort, pursuant future cases this to
suggested guidelines, recovery should bar in an otherwise meritorious cause. impelled inability The of an to fix boundaries has not fear England deny recovery courts emotional trauma by witnessing
caused the death or of another due to negligence. holdings defendant’s set forth the We some English merely cases to demonstrate that courts can formulate apply liability. limitations Bros., supra, Hambrook case, v. Stokes first classic rejected argument K.B. should be possible difficulty. In Ham- denied because of administrativе parked top brook the defendant’s servant left a truck at the steep engine running. and narrow street with the pregnant deceased, woman, had walked with children on her way point they their to school to where turned onto parked. street where the truck was Because driver did not proper precautions, take down the hill the truck started itself Although and struck one children. she herself was danger, never in runaway the mother saw the truck and greatly safety feared Upon for the of her inquiry children. she found that one of the children had seriously injured; been several months later both the mother and foetus were dead. jury The trial court directed the that the father’s suit for loss of services could succeed if the death were caused safety, appel- the mother’s fear for her own but the late court held that the could recover even if the fear brought for the children about her demise. *14 Paced holding with the contention that their would increase possible the number of suits and foment claims, fraudulent “ quoted passage: Lord Justice Atkin sorry this ‘I should be adopt to a rule which grounds would bar all suсh claims on of success of policy alone, prevent possible and in order to unrighteous groundless actions. Such a course involves the denial of redress in cases, meritorious it necessarily implies degree a certain distrust, which I share, do not capacity legal get tribunals at the truth this class ’ ” (Hambrook Bros., supra, of claim. v. Stokes quoting from Dulieu v. Kennedy, J.) White and Sons [1901] K.B. 669, 681, opinion application
In a recent rule, English of the Hambrook permitted court recovery by developed a widow of man who psychoneurotic symptoms harrowing severe as a result of experiences, involving personal safety, serving his not while gruesome a rescuer at train wreck. The court stated that W.L.R. 429, shock. “ ‘test of ’ ” (Chadwick opinion by quoting Denning, L.J.) for' shock is from British King Railways foreseeability Phillips Board [1953] injury by [1967] Q.B. Fleming Professor John Law, Hall, of the School of Boalt University of California, analysis develop- in a careful English ment subject, explains, law on this first “It evident, course, that, denying the extent of redress certain negligently kinds harm, inflicted the law is effect withholding protective corresponding its mantle from may accordingly human infringed interests that be with impunity. equiva- refuse a remedy To for nervous shock is the lent guarding refusing to an individual’s accede claim for safe- security. saying his emotional It is also the same as ‘duty’ that there is no owed care to exercise reasonable avoid inflicting type injury. Although longer this of loss or no quite as particular context, fashionable this the same idea can also, finally, expressed by asserting damage be that such or, ‘too remote’ what amounts thing, same negligence defendant’s ‘proximate was not its cause’.” (Fleming, An (1967) p. Introduction to Law of Torts n explaining English After that certain manipulated cases approaches doctrinal “to subserve purposes” ulterior granting recovery in some denying situations and it in others, Fleming long-delayed states that “a change in attitude perhaps be discerned in the latest decision the Court of Appeal v. Sanderson [Boardman W.L.R. (C.A.)], which sustained a father’s claim for a mental shock upon hearing he suffered boy the screams of his when the under the wheel of the caught latter’s foot negligently was defendant’s ear just alighted from which father and son had garage. inside a service Neither did the father fear for his safety own nor did he so much as even see the accident. Indeed, the claimant was prototype not even female—the plaintiff in being these cases exclusively almost concerned pregnancy injuries. with Yet the court considered it sufficient say duty that a boy owednot to the but also to his relatives, near who, knowledge, to the defendant’s were on premises within likely earshot and to come the scene if injury befell him. It remains to be seen whether this slight relaxation, may be, might as it eventually not extended to though relatives’ whose presence, actually yet known, was prevailing accordance with the foreseeable *15 injuries.” physical customarily applied to for. .claims test An (Italics omitted.) (Fleming, Introduction original; fn. 54.) p. Torts, at to the Law of English marked areas of lia- courts have likewise out injuries unex- bility, excluding are remote and those English pected. distinguished court has held that the Thus a resulting physical injury bystander from shock of a casual present unusual fright upon witnessing an accident would so a directed an event as tо warrant and hence unforeseeable vehicle, even verdict though careless, “The driver of a car or for defendant. ordinary to assume that the is entitled fre- to endure such quenter the streets has sufficient fortitude expected occur incidents them, injuries from time time be sight including noise of a collision and negligent others, and is not be considered phlegm.” possess customary towards one who does not Young (Italics added.) (Bourhill A.C. Thankerton), 101 pp. (Lord see, id. at (Lord Porter); (Lord (Lord MacMillan), and 107 (Lord Bussell), 104 Q.B. 442.) Phillips, supra, King Wright) ; good why general Thus reason we see no rules of concepts law, including negligence, proximate tort foreseeability, long applied cause, types to all other govern injury, Any ques the case now should not before us. justly by cause raises “will be solved most tions that the applying principles duty negligence, general and . . . which at mechanical rules thumb are variance with these (2 principles good.” Harper James, harm do than & more supra, p. 1039; omitted.) Torts, fn. “The Law of refusal general particular apply rules nothing actions for this these kind physical injury justiсe.” short of denial of Damages Fright, supra, 34 (Throckmorton, Harv.L.Rev. omitted.) 260, 277; fn. history In short, develop eases does not show logical changes ment rule but rather a series of of a Upon argument abandonments. in each situation that the Maginot onslaught courts draw a Line to withstand an variety postures. claims, false the cases have assumed a At they first insisted there be no for emotional (Amaya Ice, Supply Co., Fuel trauma at all. supra, v. Home & dissenting opinion by Peters, J., p. 59 Cal.2d gave Retreating position, they 9.) from this relief for such fn. (Id. physical impact p. trauma if occurred. 325 fn. They requirement physical impact then abandoned but *16 safety (Amaya v. victim fear for her own insisted that the 295), holding Ice, Co., supra, 59 Supply & Cal.2d Home Fuel safety for her children’s could recover for fear that a mother personal fear for herself. simultaneously if she entertained 298.)6 They that (Lindley Knowlton, supra, 179 stated Cal. (Reed v. danger” need the “zone mother be 80]). Cal.App.2d 43, The final Moore 47 [319 sister, anomaly in which the who would the instant case be recovery accident, granted she observed because mоther, distant, far danger,” not was in the “zone of but recovery. would be barred from exposes positions The abandonment of these successive contrary recovery
weakness artificial abstractions which bar general suggested, rules. As the commentators problem application principles of the should be solved exceptions Legal of tort, not the creation of to them. history exceptions, created shows that artificial islands legal usually process work, from not the fear that the will do time, not reality and, withstand the waves of descend into oblivion. expose explained recovery will not We have that here litigation. that
the courts to false claims or a flood of The test proper we have forth will resolution future set aid Indeed, general principles eases. of tort law are acknowl edged successfully . work in all cases of emotional other trauma. Yet for some artificial reason this delimitation lia
bility alleged egregious to be unworkable the most case of them all: the mother’s emotional trauma at the witnessed stop dеath of point, her child. If we at this however, we must necessarily reject question merely recovery here, and not but viability judicial process ascertaining for Lindley 165-pound chimpanzee plaintiff's 6In had entered house and children, recognized attacked her that concern for her own whom she it. rescued from The court safety the concern of the mother for the of the children as well as safety fright. could have contributed to her It states: ‘‘While, course, chiefly Lindley greatly perhaps Mrs. con nothing- testimony cerned for her . . . children there is to indicate ’' safety. (P. that she was not concerned for her own As a basis for plaintiff's urged reversal verdict defendant that the court should have jury recovery.may fright instructed the produced that "no be had on account of by apprehended danger person.” peril to a third court affirmed, saying impossible" that the circumstances made "it that she should have been devoid of fear for herself” the instruction properly refused. the court was therefor Hence substance sustained recovery fears, arising fright those from based combination the mother for the children as well as for herself. fear of inconsist it is To the extent itself. conduct tortious Amaya v. overrule ruling here, therefore with ent our 295. Co., 59 Cal.2d Supply &Fuel Home Ice an out- this state to chain deny would be To claim no current century which can 19th moded rule of the captivity an inde- compels our good reason credence. No orthodoxy. fensible judgment is reversed. Most, J., Sullivan, J., concurred.
Peters, J., forth in TRAYNOR, C. J. I dissentfor the reasons set Ice, Supply Amaya Fuel & 59 Cal.2d v. Some Co. opinion Cal.Rptr. 33, 513], my 297-315 379 P.2d [29 correctly decided and should be overruled. case was Amaya v. court, in BURKE, As recently J. as 1963 this *17 Co., Cal.Rptr. 33, Ice, Supply & Home Fuel Cal.2d rejected thoroughly expressly 513], 379 P.2d studied and predi proposition (pp. 298-299) that tort (with fright consequent bodily ill cated on nervous shock or ness) solely by plaintiff’s apprehension negli induced danger gently person. caused or to third As related Amaya plaintiff opinion, in our there was the mother of a 17- boy by truck; accordingly month-old who saw him struck ruling necessarily our included all mothers of small children injured. being Amaya today who observe them Yet this court’s by opinion decisiоn is overruled which disdains discus pertinent policy history sion whatever of the and law Amaya. painstakingly in set forth arguments Every today’s opinion in one of the advanced by rejected, expressly by considered this court and or fair was implication, Amaya.1 Further, Amaya points (p. in as out jurisdiction Cal.2d), every country in of 59 this that had point up at ruled on the the decisions to that time issue upholding nonliability. were unanimous in the rule discovered, single jurisdic- So far as has been appellate contrary tion has an court ruled to the since Amaya general 1ln trial court sustained a demurrer to the com plaint reversed, Appeal and dismissed the action. The Court of and its opinion pronounced majority, opinion the doctrine that revived n (See .1.31.) (Cal.App.) .Cal.Rptr. Upon--petition .this, here.. . .court Our granted thereby a.hearing, nullifying Appeal opinion."' .-the Court iof opinion affirmed the trial court. . Amaya.2 attempt today’s majority "no But make opinion—as apparently they buttress their could not—to law, say on result with citations of cases based American Instead, offered two nothing of we arе California. English (Hambrook v. applying Hambrook case cases the 1925 rejected Stokes Bros. approved by any jurisdiction Cal.2d), Amaya (pp. which, [1925] already K.B. 303-304 141), in this stated has not been whose country. [fn. 4], ruling followed or 313, of 59 expressly majority, obviously recognizing they are now embarking upon a first excursion into the “fantastic realm of liability” (Amaya, infinite p. 315 of 59 Cal.2d), undertake provide “guidelines” so-called for the future. But not withstanding “guidelines” pur the limitations which these port impose, expect pressure upon it reasonable our trial courts to rulings make their future conform to the spirit elasticity proclaimed by majority. new
Moreover,
majority’s “guidelines” {ante, pp.
740-741)
simply
are
suggested
a restatement of those
earlier
Profes
(Prosser,
(2d ed.,
182)
1955) p.
they
sor Prosser
Torts
already
expressly rejected
been
discussed and
this court in
Amaya (pp. 312-313). Upon analysis,
seeming certainty
their
evaporates
inexplicable
into arbitrariness, and
distinctions
appear.3
Amaya-.
As we asked in
plaintiff
What if the
honestly mistaken in believing
person
the third
to be in
danger
injured?
seriously
person
or to be
What if the third
had assumed the risk involved? How “close” must the rela
tionship
plaintiff
be between the
person? I.e.,
the third
person
if
plaintiff’s
what
the third
was the
niece or
beloved
nephew, grandparent, fiancé,
lifelong friend,
more dear to
family?
her
Next,
than
how “near”
immediate
recovery:
expressly
2The courts of two states have
denied
see Barber v.
(wife
Pollock
the house an
must the have been to the scene of accident, how “soon” must shock have been felt? Indeed,"what is the magic plaintiff’s in the being actually present? Is the shock any less real if the mother does not know of the accident until injured her brought child is into her home? On the other hand, is it less if present real mother is physically the scene but nevertheless danger unaware of the injury or to her child until after the accident occurred? No answers questions to these today’s to opin- are be found in majority ion. Our trial courts, however, easily escape will not so distinguishing burden such litigants between on the basis of unpredictable artificial and distinctions. Further, again contrary assertions of the majority (ante, pp. 732-733), fallacy incongruity appears no or in the rule permitting recovery physical to one within the danger zone of impact, for trauma suffered from fear of but denying person impact it ato outside that zone. The feared must merely oneself, objective tobe and it must be an fear—not imaginative that of- an excessively plaintiff. or timid pointed As leading out v. Warrington ease of Waube (1935) 216 Wis. 612-613 497], thing N.W. “It is one [258 say put as to peril physical those who are impact, impact is physical immaterial if by is caused shock arising peril. from the It is the holding foundation of cases this liberal ruling, person affrighted that the sustaining shock actually put peril physical impact, and under these conditions it was physi- considered immaterial that the impact cal did quite thing materialize. It is say another physical those who out of danger are the field through impact shall legally protected right have a free from emotional peril distress occasioned others, when that distress in physical impairment.” (Italics results added.) Thus, plaintiff’s California’s rule that a reasonable fear for his safety compensable own presents argument neither for the same rule danger as to others, fear for nor a of recov- ery plaintiff’s based on the claims false of fear for himself.4 4Contrary majority (ante, pp. 746-747), the assertion of the no Cali fornia ease has held that “a mother could recover fear for her chil safety simultaneously personal dren’s self.” As if she entertained a feаr for her correctly Amaya (p. Cal.2d), Lindley stated 440], Knowlton be Cal. P. [176 held predicated upon fright consequent plaintiff’s illness induced safety, plaintiff may reasonable fear for her own even when also have safety correctly feared Amaya (p. 302), of her children. And as likewise stated holding Cal.App.2d Reed v. Moore 80], danger was that a wife who was outside the zone of *19 (ante, 735) majority p. that “The of the assertion physical impair [i.e., ‘duty’ in instant situation denial of the by appre resulting distress occasioned from emotional ment upon prime hypothesis peril the of rests the hension of others] would lead to successful such an action that allowance of (italics added) is claims,’’ contro assertion of fraudulent Warring support. (Waube by very verted ton, supra, the ease cited on 603, 613.) Instead of reliance 216 Wis. say in hypothesis,” had this to “prime Wisconsin court the question be to this cannot reached Waube: “The answer entirely disposed solely by it can be logic, nor is it clear that reasonably ought defendant by a consideration of what the wrong. The consequence of his answer anticipated a to social by balancing the interests involved must be reached plaintiff’s duty and order to ascertain how far defendant’s is expediently It our con right may justly and be extended. justly expediently be they clusion that can neither nor physical injuries by any recovery sustained extended to range ordinary physical peril as a one out of result danger. witnessing consequences the shock of another’s Such extraordinary, event, viewed after the so unusual and are subject not others highway a user of the said to to be management his by unreasonable risk of them the careless imposed by Furthermore, liability vehicle. such doctrine wholly proportion culpability negligent is out of tort-feasor, put an unreasonable burden users open way highway, claims, fraudulent enter a stopping just point.” field that no sensible (p. Amaya 59 Cal.2d), As this court declared in 315 of good Waube the court there that proportion sense the conclusion ‘1 imposed by wholly liability such a doctrine out of culpability negligent tort-feasor”; of the further, every person might permit who adversely con lingering feel some effect the defendant’s us realm of duct would throw into “the fantastic infinite present liability.” opinion in the majority Yet case injustice simply omits either mention or discuss the to Cali flowing disproportionate such a exten fornia defendants from liability—an injustice plainly their sion of which constituted “prime rejection sought hypothesis” tjut injured could witnessed a collision which her husband Lindley holds, suggests, plaintiff Neither nor Meed or even recover. may safety" for the of another if she can establish recover for fear danger. was in the zone she herself imposed by plaintiffs in Amaya. Waube (See and in Jelley (N.H. 1968) also citing LaFlame 728, 730, A.2d approval with following this ground of decision expressed Amaya.) in Watibe Additionally, majority explain fail to their bare asser- {ante, p.
tion 733) that contributory negligence of Erin will any recovery defeat mother and sister.5 The *20 familiar unquestioned and heretofore principle is that relationships parent and child or of husband and inwife themselves no basis imputation of contributory furnish negligence. (Within, Summary of Cal. Torts, Law p. 1542; Torts, Rest.2d principle § Is this now § abrogated in so, ruling Cаlifornia? If it is a extending far beyond particular the confines of the issue now us, before reaches potentially negligence every plain- action in which the tiffs are members of family. the same appears It light me that today’s majority opinion the matter at issue should be commended to the atten- tion Legislature years of this elapsed state. Five Amaya decision, during since our body which that has not change undertaken to the law we there declared. We presume, therefore, that the limitations liability there comport affirmed legislative with views. alleged But if all tortfeasors, including California motorists, home and other property governmental owners, and entities, are now be concept potentially faced with the liability beyond infinite relationship culpability, rational surely to their then point Legislature been reached at which the should recon- subject and sider the entire allow all affected interests to be heard.
I judgment. would affirmthe McComb,J., concurred. majority opinion enlighten 5Neither does the us as how the contribu
tory negligence assertedly (a) plaintiff (b) plaintiff of either sister mother will any recovery by defeat the other.