Lead Opinion
Thаt the courts should allow recovery to a mother who suffers emotional trauma and physical injury from witnessing the infliction of death or injury to her child for which the tortfeasor is liable in negligence would appear to be a compelling proposition. As Prosser points out, “All ordinary human feelings are in favor of her [the mother’s] action against the. negligent defendant. If a duty to her requires that she herself be in some recognizable danger, then it has properly been said that when a child is endangered, it is not beyond contemplation that its mother will be somewhere in the vicinity, and will suffer serious shock.” (Prosser, Law of Torts (3d ed. 1964) p. 353.)
Nevertheless, past American decisions have barred the mother’s recovery. Refusing the mother the right to take her ease to the jury, these courts ground their position on an alleged absence of a required “duty” of due care of the tortfeasor to the mother. Duty, in turn, they state, must express public policy; the imposition of duty here would work disaster because it would invite fraudulent claims and it would involve the courts in the hopeless tаsk of defining the extent of the tortfeasor’s liability. In substance, they say, definition of liability being impossible, denial of liability is the only realistic alternative.
We have concluded that neither of the feared dangers
In the instant case plaintiff’s
Plaintiff’s second cause of action alleged that she, Margery M. Dillon, “was in close proximity to the . . . collision and personally witnessed said collision.” She further alleged that “because of the negligence of defendants . . . and as a proximate cause [sic] thereof plaintiff . . . sustained great emotional disturbance and shock and injury to her nervous system” which caused her great physical and mental pain and suffering.
Plaintiff’s third cause of action alleged that Cheryl Dillon, another infant daughter, was “in close proximity to the . . . collision and personally witnessed said collision.” Because of the negligence, Cheryl Dillon “sustained great emotional disturbance and shock and injury to her nervous system” which caused her great physical and mental pain and suffering.
On December 22, 1965, defendant, after he had filed his answer, mоved for judgment on the pleadings, contending that “No cause of action is stated in that allegation that plaintiff sustained emotional distress, fright or shock induced by apprehension of negligently caused danger or injury or the witnessing of negligently caused injury to a third person.
Thereafter, on January 26, further proceedings took place as to the third cause of action, Cheryl Dillon’s claim for emotional trauma from witnessing her sister’s death while ‘1 watching her sister lawfully cross Bluegrass Road. ’ ’
Defendant moved fоr summary judgment on this count. In opposition plaintiff contended that the declaration of one McKinley disclosed that Mrs. Dillon testified at her deposition that when she saw the car rolling over Erin she noted that Cheryl was on the curb, but that the deposition of Cheryl Dillon contradicts such statements. Plaintiff therefore submitted that “Since the declarations filed by defendant are contradictory and the testimony contained in the testimony of Mrs. Dillon does not establish as a matter of law that Cheryl Dillon was not in the zone of danger or had fear for her own safety, plaintiff respectfully submits that the motion must be denied. ’ ’
The court denied the motion for summary judgment on the third cause as to Cheryl on the ground that the pretrial order precluded it. The trial court apparently sustained the motion for judgment on the pleadings on the second cause as to the mother because she was not within the zone of danger and denied that motion as to the third cause involving Cheryl because of the possibility that she was within such zone of danger or feared for her own safety. Thus we have before us a case that dramatically illustrates the difference in result flowing from the alleged requirement that a plaintiff cannot recover for emotional trauma in witnessing the death of a child or sister unless she also feared for her own safety because she was actually within the zone of physical impact.
The posture of this case differs from that of Amaya v. Home Ice, Fuel & Supply Co. (1963)
We further note, at the outset, that defendant has interposed the defense that the contributory negligence of the mother, the sister, and the child contributed to the accident. If any such defense is sustained and defendant found not liable for the death of the child because of the contributory negligence of the mother, sister or child, we do not believe that the mother or sister should recover for the emotional trauma which they allegedly suffered. In the absence of the primary liаbility of the tortfeasor for the death of the child, we see no ground for an independent and secondary liability for claims for injuries by third parties. The basis for such claims must be the adjudicated liability and fault of defendant; that liability and fault must be the foundation for the tortfeasor’s duty of due care to third parties who, as a consequence of such negligence, sustain emotional trauma.
We turn then to an analysis of the concept of duty, which, as we have stated, has furnished the ground for the rejection - of such claims as the instant one. Normally the simple facts of ' plaintiff’s complaint would establish a cause of action: the complaint alleges that defendant drove his car (1) negligently, as a (2) proximate result of which plaintiff suffered
The assertion that liability must nevertheless be denied because defendant bears no “duty” to plaintiff “begs the essential question—whether the plaintiff’s interests are entitled to legal protection against the defendant’s conduct. . . . It [duty] is a shorthand statement of a conclusion, rather than an aid to analysis in itself. . . . But it should be recognized that ‘duty’ is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.” (Prosser, Law of Torts, supra, at pp. 332-333.)
The history of the concept of duty in itself discloses that it is not an old and deep-rooted doctrine hut a legal device of the latter half of the nineteenth century designed to curtail the feared propensities of juries toward liberal awards. “It must not be forgotten that ‘duty’ got into our law for the very purpose of combatting what was then feared to be a dangerous delusion (perhaps especially prevalent among juries imbued with popular notions of fairness untempered by paramount judicial policy), viz., that the law might countenance legal redress for all foreseeablе harm.” (Fleming, An Introduction to the Law of Torts (1967) p. 47.)
Indeed, the idea of court-imposed restrictions on recovery by means of the concept of “duty” contrasted dramatically with the preceding legal system of feudal society.
The Industrial Revolution, Avhich cracked the solidity of the feudal society and opened up wide and new areas of expansion, changed the legal concepts. Just as the ubav competitiveness in the economic sphere figuratively broke out of the walls of the feudal community, so it broke through the rule of strict liability. In the place of strict liability it introduced the theory that an action for negligence would lie only if the defendant breached a duty which he owed to plaintiff. As Lord Esher said in Le Lievre v. Gould (1893) 1 Q.B. 491, 497: “A man is entitled to be as negligent as he pleases towards the whole world if he owes no duty to them. ’ ’
We have pointed out that this late 19th century concept of duty, as applied to the instant situation, has led the courts to deny liability. We have noted that this negation of duty emanates from the twin fears that courts will be flooded with an onslaught of (1) fraudulent and (2) indefinable claims. We shall point out why Ave think neither fear justified.
1. This court in the past has rejected the argument that we must deny recovery upon a legitimate claim because other fraudulent ones may be urged.
The denial of “duty” in the instant situation rests upon the prime hypothesis that allowance of such an action would lead to successful assertion of fraudulent claims. (See, e.g., Waube v. Warrington (1935)
In the first instance, the argument proceeds from a doubtful factual assumption. Whatever the possibilities of fraudulent claims of physical injury by disinterested spectators of an accident, a question not in issue in this case, we certainly
Over a half-century ago this court recognized the likelihood that such fright and fear would cause physical injury. In Sloane v. Southern California Ry. Co. (1896)
In the second instance, and more fundamentally, the possibility that fraudulent assertions may prompt recovery in isolated cases does not justify a wholesale rejection of the entire class of claims in which that potentiality arises. The “contention that the rule permitting the maintenance of the action would be impractical to administer ... is but an argument that the courts are incapable of performing their appointed tasks, a premise which has frequently been rejected.” (Emden v. Vitz (1948)
On the analogous issue of whether the possibility of collusive fraud in intrafamily tort actions justified a per se rule denying recovery in all such cases, this court held that the
The possibility that some fraud will escape detection does not justify an abdication of the judicial responsibility to award damages for sound claims: if it is “to be conceded that our procedural system for the ascertainment of truth is inadequate to defeat fraudulent claims . . . , the result is a virtual acknowledgment that the courts are unable to render justice in respect to them.” (Chiuchiolo v. New England Wholesale Tailors (1930)
Indubitably juries and trial courts, constantly called upon to distinguish the frivolous from the substantial and the fraudulent from the meritorious, reach some erroneous results. But such fallibility, inherent in the judicial process, offers no reason for substituting for the case-by-case resolution of causes an artificial and indefensible barrier. Courts not only compromise their basic responsibility to decide the merits of each case individually but destroy the public’s confidence in them by using the broad broom of “administrative convenience” to sweep away a class of claims a number of which are admittedly meritorious. The mere assertion that fraud is possible, “a possibility [that] exists to some degree in all cases” (Klein v. Klein, supra,
Indeed, we doubt that the problem of the fraudulent claim is substantially more pronounced in the ease of a mother claiming physical injury resulting froln seeing her child killed than in other areas of tort law in which the right to recover damages is well established in California. For exam-
In sum, the application of tort law- can never be a matter of mathematical precision. In terms of characterizing conduct as tortious and matching a money award to the injury suffered as well as in fixing the extent of injury, the process cannot be perfect. Undoubtedly, ever since the ancient case of the tavern-keeper ’s wife who successfully avoided the hatchet cast by an
2. The alleged inability to fix definitions for recovery on the different facts of future cases does not justify the denial of recovery on the specific facts of the instant case; in any event, proper guidelines can indicate the extent of liability for such future cases.
In order to limit the otherwise potentially infinite liability which would follow every negligent act, the law of torts holds defendant amenable only for injuries to others which to defendant at the time were reasonably foreseeable.
In the absence of “overriding policy considerations . . . foreseeability of risk [is] of . . . primary importance in establishing the element of duty.” (Grafton v. Mollica (1965)
Harper and James state the prevailing view. The obligation turns on whether “the offending conduct foreseeably involved unreasonably great risk of harm to the interests of someone other than the actor. . . . [T]he obligation to refrain from . . . particular conduct is owed only to those who are foresee-ably endangered by the conduct and only with respect to those risks or hazards whose likelihood made the conduct unreasonably dangerous. Duty, in other words, is measured by the scope of the risk which negligent conduct foreseеably entails.” (2 Harper & James, The Law of Torts, supra, at p. 1018; fns. omitted.)
This foreseeable risk may be of two types. The first class involves actual physical impact. A second type of risk
Since the chief element in determining whether defendant owes a duty or an obligation to plaintiff is the foreseeability of the risk, that factor will be of prime concern in every case. Because it is inherently intertwined with foreseeability such duty or obligation must necеssarily be adjudicated only upon a case-by-case basis. We cannot now predetermine defendant’s obligation in every situation by a fixed category; no immutable rule can establish the extent of that obligation for every circumstance of the future. We can, however, define guidelines which will aid in the resolution of such an issue as the instant one.
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,
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 ease.
In light of these factors the cоurt will determine whether the accident and harm was reasonably foreseeable. Such reasonable foreseeability does not turn on whether the particular plaintiff as an individual would have in actuality foreseen the exact accident and loss; it contemplates that courts, on a case-to-case basis, analyzing all the circumstances, will decide what the ordinary man under such circumstances should reasonably have foreseen. The courts thus mark out the areas of liability, excluding the remote and unexpected.
In the instant ease, the presence of all the above factors indicates that plaintiff has alleged a sufficient prima facie case. 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.” (Prosser, The Law of Torts, supra, at p. 353. See also 2 Harper & James, The Law of Torts, supra, at p. 1039.)
We are not uoav 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.
The ability of courts to limit liability predicated on tests largely based upon foreseeability is well illustrated by the “open car” cases. The prototype case is the suit against the owner of a vehicle for damage caused plaintiff by a third party who can commandeer the vehicle because of the owner’s carelessness in leaving the keys inside. In Richardson v. Ham (1955)
These decisions have not led to untrammeled liability. Eather, applying the foreseeability test, the courts have held that the mere act of leaving a key in an automobile, although it may possibly raise a foreseeable risk that the car will be stolen, does not increase the risk of injury to other property and hence does not warrant liability: “[e]ven if she could have foreseen the theft, she had no reason to believe that the thief would be an incompetent driver.” (Richards v. Stanley (1954)
In another category of cases, those involving the liability of a tortfeasor to a third person with whom he was not in privity
In sanctioning recovery for injury causеd by intentional infliction of mental distress, this court did not defer to the argument that liability should not be imposed because of the possible future difficulty in delimiting the area of liability. Defendants urged that if recovery were to be allowed for intentional infliction of emotional distress, actions would soon be forthcoming based upon every minor personal insult or indignity. We said: “That administrative difficulties do not justify the denial of relief for serious invasions of mental and emotional tranquility is demonstrated by the cases recognizing the right of privacy." (State Rubbish Collectors Assn. v. Siliznoff, supra,
Indeed, the argument that “there is no point at which such actions would stop" is no more plausible today than when it was advanced in Winterbottom v. Wright (1842) 10 M. & W. 109, 111. History has exposed the fallacy of the claim that abolition of privity in enterprise liability cases would lead to “the mоst absurd and outrageous consequences, to which I can see no limit" (p. 114). In taking another giant step forward, in imposing product liability in tort, we were not halted by the spectre of an inability to pre-judge every future ease. The setting of boundaries upon that doctrine makes the problem of fixing lines of Emitation here appear, by comparison, almost miniscule. The widening of the area of liabiEty and the possibility of the encouragement of unfounded and undefinable claims in the products liability field was sweeping; here we deal with a comparatively isolated and unusual situation. We do not believe that the fear that we cannot successfully adjudicate future cases of this sort, pursuant to the
The fear of an inability to fix boundaries has not impelled the courts of England to deny recovery for emotional trauma caused by witnessing the death or injury of another due to defendant’s negligence. We set forth the holdings of some English cases merely to demonstrate that courts can formulate and apply such limitations of liability.
The first and classic case, Hambrook v. Stokes Bros., supra, 1 K.B. 141, rejected the argument that recovery should be denied because of possible administrative difficulty. In Ham-brook the defendant’s servant left a truck parked at the top of a steep and narrow street with the engine running. The deceased, a pregnant woman, had walked with her children on their way to school to the point where they turned onto the street where the truck was parked. Because the driver did not take proper precautions, the truck started itself down the hill and struck one of the children. Although she herself was never in danger, the mother saw the runaway truck and feared greatly for the safety of her children. Upon inquiry she found that one of the children had been seriously injured; several months later both the mother and the foetus were dead. The trial court directed the jury that the father’s suit for loss of services could succeed only if the death were caused by the mother’s fear for her own safety, but the appellate court held that the plaintiff could recover even if the fear for the children brought about her demise.
Paced with the contention that their holding would increase the number of suits and foment possible fraudulent claims, Lord Justice Atkin quoted this passage: “ ‘I should be sorry to adopt a rule which would bar all such claims on grounds of policy alone, and in order to prevent the possible success of unrighteous or groundless actions. Such a course involves the denial of redress in meritorious cases, and it necessarily implies a certain degree of distrust, which I do not share, in the capacity of legal tribunals to get at the truth in this class of claim. ’ ” (Hambrook v. Stokes Bros., supra, quoting from Dulieu v. White and Sons [1901] 2 K.B. 669, 681, opinion by Kennedy, J.)
In a recent application of the Hambrook rule, an English court permitted recovery by a widow of a man who developed severe psychoneurotic symptoms as a result of harrowing experiences, not involving his personal safety, while serving as a rescuer at a gruesome train wreck. The court stated that
Professor John Fleming of the School of Law, Boalt Hall, University of California, in a careful analysis of the development of English law on this subject, first explains, “It is evident, of cоurse, that, to the extent of denying redress for certain kinds of negligently inflicted harm, the law is in effect withholding its protective mantle from corresponding human interests that may accordingly be infringed with impunity. To refuse a remedy for nervous shock is the equivalent of refusing to accede to an individual’s claim for safeguarding his emotional security. It is also the same as saying that there is no ‘duty’ owed to exercise reasonable care to avoid inflicting this type of loss or injury. Although no longer quite as fashionable in this particular context, the same idea can also, finally, be expressed by asserting that such damage is ‘too remote’ or, what amounts to the same thing, that the defendant’s negligence was not its ‘proximate cause’.” (Fleming, An Introduction to the Law of Torts (1967) p. 46.) ■
After explaining that certain English cases manipulated doctrinal approaches “to subserve ulterior purposes” in granting recovery in some situations and denying it in others, Fleming states that “a long-delayed change in attitude may perhaps be discerned in the latest decision by the Court of Appеal [Boardman v. Sanderson (1964) 1 W.L.R. 1317 (C.A.)], which sustained a father’s claim for a mental shock he suffered upon hearing the screams of his boy when the latter’s foot was negligently caught under the wheel of the defendant’s ear from which father and son had just alighted inside a service garage. Neither did the father fear for his own safety nor did he so much as even see the accident. Indeed, the claimant was not even a female—the prototype plaintiff in these cases being almost exclusively concerned with pregnancy injuries. Yet the court considered it sufficient to say that a duty was owed not only to the boy but also to his near relatives, who, to the defendant’s knowledge, were on the premises within earshot and likely to come upon the scene if any injury befell him. It remains to be seen whether this relaxation, slight as it may be, might not eventually be extended to relatives’ whose presence, though not actually known, was yet foreseeable in accordance with the prevailing
The English courts have likewise marked out areas of liability, excluding those injuries that are remote and unеxpected. Thus a distinguished English court has held that the physical injury of a casual bystander resulting from shock or fright upon witnessing an accident would present so unusual and hence unforeseeable an event as to warrant a directed verdict for defendant. “The driver of a car or vehicle, even though careless, is entitled to assume that the ordinary frequenter of the streets has sufficient fortitude to endure such incidents as may from time to time be expected to occur in them, including the noise of a collision and the sight of injuries to others, and is not to be considered negligent towards one who does not possess the customary phlegm.” (Italics added.) (Bourhill v. Young (1943) A.C. 92, 117 (Lord Porter); see, id. at pp. 98 (Lord Thankerton), 101 (Lord Bussell), 104 (Lord MacMillan), and 107 (Lord Wright) ; King v. Phillips, supra, 1 Q.B. 429, 442.)
Thus we see no good reason why the general rules of tort law, including the concepts of negligence, proximate cause, and foreseeability, long applied to all other types of injury, should not govern the case now before us. Any questions that the cause raises “will be solved most justly by applying general principles of duty and negligence, and . . . mechanical rules of thumb which are at variance with these principles do more harm than good.” (2 Harper & James, The Law of Torts, supra, p. 1039; fn. omitted.) “The refusal to apply these general rules to actions for this particular kind of physical injury is nothing short of a denial of justice.” (Throckmorton, Damages for Fright, supra, 34 Harv.L.Rev. 260, 277; fn. omitted.)
In short, the history of the eases does not show the development of a logical rule but rather a series of changes and abandonments. Upon the argument in each situation that the courts draw a Maginot Line to withstand an onslaught of false claims, the cases have assumed a variety of postures. At first they insisted that there be no recovery for emotional trauma at all. (Amaya v. Home Ice, Fuel & Supply Co., supra,
The successive abandonment of these positions exposes the weakness of artificial abstractions which bar recovery contrary to the general rules. As the commentators have suggested, the problem should be solved by the application of the principles of tort, not by the creation of exceptions to them. Legal history shows that artificial islands of exceptions, created from the fear that the legal process will not work, usually do not withstand the waves of reality and, in time, descend into oblivion.
We have explained that recovery here will not expose the courts to false claims or a flood of litigation. The test that we have set forth will aid in the proper resolution of future eases. Indeed, the general principles of tort law are acknowledged . to work successfully in all other cases of emotional trauma.
Yet for some artificial reasоn this delimitation of liability is alleged to be unworkable in the most egregious case of them all: the mother’s emotional trauma at the witnessed death of her child. If we stop at this point, however, we must necessarily question and reject not merely recovery here, but the viability of the judicial process for ascertaining liability
To deny recovery would be to chain this state to an outmoded rule of the 19th century which can claim no current credence. No good reason compels our captivity to an indefensible orthodoxy.
The judgment is reversed.
Peters, J., Most, J., and Sullivan, J., concurred.
Notes
For convenience, plaintiff will be used in the singular to denote the mother, although a minor sister is joined as plaintiff.
"The gradual development of the law in the matter of civil liability is discussed and traced by the late Sir William Holdsworth with ample learning and lucidity in his History of English Law, vol. 8, pp. 446 et seq., and need not here be rehearsed. Suffice it to say that the process of evolution has been from the principle that every man acts аt his peril and is liable for all the consequences of his acts to the principle that a man’s freedom of action is subject only to the obligation not to infringe any duty of care which he owes to others. The emphasis formerly was on the injury sustained and the question was whether the case fell within one of the accepted classes of common-law actions; the emphasis.now is on the conduct of. the person whose act has .occasioned the injury and the question is whether it can be characterized as negligent. ’ ’ (Read v. J. Lyons & Co., Ltd. (1947) A.C. 156, 171.)
To the extent that this argument shades into the contention that such claims should be denied because otherwise courts would experience a “flood of litigation,” we point out that courts are responsible for dealing with cases on their merits, whether there be few suits or many; the existence of a multitude of claims merely show's society’s pressing need for legal redress.
California’s rule that plaintiff's fear for his own safety is compensable also presents a strong argument for the same rule as to fear for othеrs; otherwise, some plaintiffs will falsely claim to have feared for themselves, and the honest parties unwilling to do so will be penalized. (Of. 2 Harper & James, The Law of Torts (1956) § 16.15, p. 961.) Moreover, it is incongruous and somewhat revolting to sanction recovery for the mother if she suffers shock from fear for her own safety and to deny it for shock from the witnessed death of her own daughter. To the layman such a ruling must appear incomprehensible; for the courts to rely upon self-contradictory legalistic abstractions to justify it is indefensible. We concur with Judge Magruder’s observation in 49 Harvard Law Eeview 1033, at page 1039: '1 Once accepting the view that a plaintiff threatened with an injurious impact may recover for bodily harm resulting from shock without impact, it is easy to agree with Atkin, L.J. ([Hambrook v. Stokes Bros., [1925] 1 K.B. 141, 158-159]), that to hinge recovery on the speculative issue whether the parent was shocked through fear for herself or for her children 'would be discreditable to any system of jurisprudence. ’ ’ ’
The concept of the zone of danger cannot properly he restricted to the area оf those exposed to physical injury; it must encompass the area of those exposed to emotional injury. The courts, today, hold that no distinction can he drawn between physical injury and emotional injury flowing from the physical injury; indeed, in the light of modern medical knowledge, any such distinction would be indefensible. As a result, in awarding recovery for emotional shock upon witnessing another’s injury or death, we cannot draw a line between the plaintiff who is in the zone of danger of physical impact and the plaintiff who is in the zone of danger of emotional impact. The recovery of the one, within the guidelines set forth infra, is as much compelled as that of the other.
In Lindley a 165-pound chimpanzee had entered plaintiff's house and attacked her children, whom she rescued from it. The court recognized that the concern of the mother for the safety of the children as well as concern for her own safety could have contributed to her fright. It states: ‘ ‘ While, of course, Mrs. Lindley was greatly and perhaps chiefly concerned for her children . . . there is nothing- in the testimony to indicate that she was not concerned for her own safety. ’' (P. 302.) As a basis for reversal of plaintiff's verdict defendant urged that the court should have instructed the jury that "no recovery.may be had on account of fright produced by apprehended danger or peril to a third person.” The court affirmed, saying that the circumstances made "it impossible" that she should have been devoid of fear for herself” and that the instruction was therefor properly refused. Hence the court in substance sustained recovery for fright based upon a combination of fears, those arising from fear of the mother for the children as well as for herself.
Dissenting Opinion
I dissent for the reasons set forth in Amaya v. Some Ice, Fuel & Supply Co. (1963)
As recently as 1963 this court, in Amaya v. Home Ice, Fuel & Supply Co.,
Every one of the arguments advanced in today’s opinion was considered by this court and rejected, expressly or by fair implication, in Amaya.
So far as has been discovered, in not a single such jurisdiction has an appellate court ruled to the contrary since
The majority, obviously recognizing that they are now embarking upon a first excursion into the “fantastic realm of infinite liability” (Amaya, at p. 315 of 59 Cal.2d), undertake to provide sо-called “guidelines” for the future. But notwithstanding the limitations which these “guidelines” purport to impose, it is only reasonable to expect pressure upon our trial courts to make their future rulings conform to the spirit of the new elasticity proclaimed by the majority.
Moreover, the majority’s “guidelines” {ante, pp. 740-741) are simply a restatement of those suggested earlier by Professor Prosser (Prosser, Torts (2d ed., 1955) p. 182) they have already been discussed and expressly rejected by this court in Amaya (pp. 312-313). Upon analysis, their seeming certainty evaporates into arbitrariness, and inexplicable distinctions appear.
Further, and again contrary to the assertions of the majority (ante, pp. 732-733), no fallacy or incongruity appears in the rule permitting recovery to one within the physical zone of danger for trauma suffered from fear of impact, but denying it to a person outside that zone. The impact feared must be to oneself, and it must be an objective fear—not merely that of- an excessively imaginative or timid plaintiff. As pointed out in the leading ease of Waube v. Warrington (1935)
As this court declared in Amaya (p. 315 of 59 Cal.2d), there is good sense in the conclusion of the court in Waube that ‘1 the liability imposed by such a doctrine is wholly out of proportion to the culpability of the negligent tort-feasor”; further, to permit recovery by every person who might adversely feel some lingering effect of the defendant’s conduct would throw us into “the fantastic realm of infinite liability.” Yet the majority opinion in the present case simply omits to either mention or discuss the injustice to California defendants flowing from such a disproportionate extension of their liability—an injustice which plainly constituted a “prime hypothesis” for rejection of the liability sought to
Additionally, the majority fail to explain their bare assertion {ante, p. 733) that contributory negligence of Erin will defeat any recovery by plaintiff mother and sister.
It appears to me that in the light of today’s majority opinion the matter at issue should be commended to the attention of the Legislature of this state. Five years have elapsed since our Amaya decision, during which that body has not undertaken to change the law we there declared. We may presume, therefore, that the limitations upon liability there affirmed comport with legislative views. But if all alleged California tortfeasors, including motorists, home and other property owners, and governmental entities, are now to be faced with the concept of potentially infinite liability beyond any rational relationship to their culpability, then surely the point has been reached at which the Legislature should reconsider the entire subject and allow all interests affected to be heard.
I would affirm the judgment.
McComb, J., concurred.
ln Amaya the trial court sustained a general demurrer to the complaint and dismissed the action. The Court of Appeal reversed, and in its opinion pronounced the doctrine that is revived in the majority, opinion here.. (See (Cal.App.) 23 .Cal.Rptr. .1.31.) . Upon--petition ■ .this, .court granted a.hearing, thereby nullifying .-the Court iof Appeal opinion."' Our opinion affirmed the trial court. .
The courts of two states have expressly denied recovery: see Barber v. Pollock (1963)
Thus the Supreme Cоurt of New Hampshire has recently recognized that to approve recovery by mothers of small children, as do the majority here, would create “the need ... to impose arbitrary and illogical limitations to prevent the undue extension of the liability of an alleged negligent operator such as the defendant in this case.” (Jelley v. LaFlame (1968) supra,
Contrary to the assertion of the majority (ante, pp. 746-747), no California ease has held that “a mother could recover for fear for her children’s safety if she simultaneously entertained a personal fear for herself.” As correctly stated in Amaya (p. 300 of 59 Cal.2d), Lindley v. Knowlton (1918)
Neither does the majority opinion enlighten us as to how the contributory negligence of either (a) plaintiff mother or (b) plaintiff sister will assertedly defeat any recovery by the other.