*1 Dist., No. 47113. Sept. First Div. Four. [Civ. 1980.] DREW, PAT Plaintiff and Appellant, al.,
WILLIAM DRAKE et Defendants and Respondents.
Counsel and Emanuel, Ince, Mayron, P. Hayes J. John Larry A.
Gerald Emanuel, Appellant. for Plaintiff and Ince & Hayes Wines, & for Defendants and Robinson Wood Jesse F. Ruiz Respondents.
Opinion demurrer,
CHRISTIAN, J. Pat Drew from a on dis- appeals action, against for failure to state cause of missing complaint for infliction of respondents negligent William Drake and Sharon Drake *3 emotional distress. The also to state a cause of complaint purported death; actiоn wrongful for does not the appellant challenge insofar as it dismissed of that cause action. and
Appellant alleged that she Mаillet had lived as Eugene together “de facto for and continuously three that had spouses” years appellant suffered emotional distress when she witnessed the of Eugene killing in a vehicular collision caused respondents’ negligence. by Maiflet Respondents
demurred, asserting that the did not the complaint pass of three-part foreseeability test established the by California (1968) Court 72, in v. 68 Legg Dillon Cal.2d 728 441 Cal.Rptr. [69 912, P.2d “(1) A.L.R.3d plaintiff 29 Whether was located near 1316]: the scene of the accident as contrasted one who a with was distance (2) from it. away Whether the shock resulted from a direct emotional impact plaintiff the upon from and sensory contemporaneous obser- accident, vance of the as contrasted with of learning the accident from (3) others after its occurrence. Whether and the victim plaintiff were relatеd, as closely with an contrasted absence of or any relationship the presence of only (68 distant relationship.” 740-741.) Cal.2d at pp. (Krоuse
Emotional distress a spouse (1977) to v. Graham 19 Cal.3d 59 (Archibald 562 P.2d or a Cal.Rptr. 1022]) parent [137 Cal.App.2d Braverman 275 253 Cal.Rptr. witness- 723]) [79 an to ing spouse or сhild meets Dillon test it injury the because is foreseeable in reasonably person that a such close standing relationship to the persоn be suffer injured present and intense distress. may
No reported decision extends the relationship” “close to guideline include friends or It housеmates. has nevertheless been that the argued alleged of relationship regarded, housemates be at least for the might demurrer, purрoses of as But withstanding a close the used “close Supreme Court the term as a limitation of relationship” po- tential in liability the contеxt of and child. To parent persons allow (to in a use a standing “meaningful relationship” collo- contemporary quialism) recover to for emotional distress in resulting physical injury would requirement abandon Dillon that courts.. .mark out “[t]he (68 the areas of the remote and liability, excluding unexpected.” Cal.2d 741.) at p.
558 University v. Regents relies on Mobaldi
Appellant of California of on another 720], disapproved Cal.Rptr. (1976) 55 Cal.App.3d [127 461, 466, footnote Court (1977) 19 Cal.3d in Baxter v. Superior point that proposition for the 871], “[t]he [138 not status legal and relationship the family attachments of emotional (55 at Cal.Apр.3d foreseeability.” relevant to which are are those the present from distinguished to be But Mobaldi 582.) readily p. caused cata- malpractice In Mobaldi alleged whose physicians case. foster mother of the child’s in the presence to a child strophic injury the foster the child and between relationship” “knew the nature of contrast, relationship was no (Id.) Here, family there in parent. have foreseen knew or should that respondents there was no allegation and the victim between relationship appellant kind of other any *4 the when it sustained general correctly the The court acted accident. demurrer.
The is affirmed. judgment
Caldecott, J., P. concurred.
POCHÉ, dissent. J.—I the court relationship, a close
On the of what constitutes question persons formally between those a line distinction bright draws today with another for In particular, person living married and those not. of as a matter law precluded three withоut benefit of years clergy the witnessing distress suffered from from for the emotional recovering spouse. of her “de facto” killing for resolution giv- risk is the issue. The formula of the
Foreseeability Legg Court in Dillon v. (1968) 68 Cal.2d en the California by contains only 29 A.L.R.3d 728 1316] [69 elements, which the satisfies because plaintiff undeniably three two of the fatal accident. observing her shock resulted from actually emotional whether the and the victim plaintiff Factоr three is the concern: only related, as with the absence of any relationship were contrasted “closely the a distant The court affirms relationship.” or the of presence only of a demurrer sustaining general of dismissal judgment following (italics added) between becausе it finds no ‘family relationship” plain- third has been rewritten to tiff and decedent. In effect the guideline We are told that unchurched a formal require marriage be close and that the tortfeasor could cannot relationships male/female not foresee that his victim would have a close with a relationship person to whom she was not married. formally full credit
Giving to the rarified air at level appellate conclusion reached here is nevertheless today astonishing: my majority colleagues have determined the incidence of cohаbitation without bene- fit of in clergy California to be so contemporary rare that it can society be characterized as and remote.”1 “unexpected
I do not believe that
this no
rule
marriage-no
is what the
recovery
California Supreme Court meant when it orderеd the courts of this
state to carefully
on a
basis
analyze
case-by-case
what the ordinary per-
(Dillon
son should have foreseen.
v. Lеgg, supra.)
This insistence on adherence to an older
as the
morality
to the
key
courtroom was discarded
after the close
shortly
оf the Spanish Inquisi
(Dillon
tion and is
not the law of
clearly
this state.
v. Legg, supra;
Marvin,
Marvin Mobaldi
660;
3dCal.
supra,
v. Regents Uni
versity
Appellant’s petition for a Court hearing by was denied Bird, J., Newman, J., November 1980. C. were of the opinion that the should be petition granted. contrary judicial precludes majority 1 Forevidence to the which at least notice the (1976) takes see 815, footnote in Marvin v. Marvin 18 Cal.3d 665 [134 figures today eight ‘“The census perhaps indicate that times 106]: many living together being couples years ago.’ as аre without married as cohabited ten (Comment, Cary: Recognition In re A Judicial Illicit Cohabitation 25 Has 1226.)” tings L.J. suggests, distinguishable, majority opinion 2 Mobaldi is not аs the on the basis that recog Thompson’s opinion doctor there was aware of the Justice so merely extensively developed nizes in that he refers to this as a buttress to the 582.) foreseeability (Id., point The driven rationale. at P. home elsewhere in the
opinion: foreseeability particular does not turn on whether the “‘[Reasonable [defen loss; actuality contemplates would foreseen the exact accident or it have in that dant] courts, circumstances, basis, analyzing on a case-to-case all the will decide what the reasonably (Id, ordinary man under such circumstances should have foreseen.’” at 581.) P.