Lead Opinion
Opinion
“The life of the law has not been logic: it has been experience.” (Holmes, The Common Law (1881) p. 1.) There are occasions in the course of judicial decisionmaking when it becomes necessary to stand athwart the relentless march of logic and shout, “Enough already!!” The decision in this case, in which plaintiff seeks to recover from his father for emotional distress allegedly occasioned by his father’s attempted suicide, is one of those occasions.
Plaintiff initiated this action against his father (defendant), to recover for emotional distress negligently inflicted by defendant who, immediately after he had murdered his wife (plaintiff’s mother), notified plaintiff of what he had done, advised plaintiff that he intended to take his own life and, when plaintiff appeared on the scene, attempted suicide in the presence of plaintiff, who successfully intervened. Following a number of pretrial rulings narrowing plaintiff’s claims, the court conducted a bench trial and entered judgment for defendant. Plaintiff appeals. We shall affirm.
I
On the evening of July 14, 1992, defendant killed his wife. He then telephoned plaintiff and declared: “ T just blew your mother’s head off and I am going to blow my head off.’ ” Plaintiff and his wife immediately drove the short distance to defendant’s home and found defendant in the driveway
Plaintiff and his siblings settled a wrongful death claim against defendant for the death of their mother. Thereafter, plaintiff and his wife initiated this action. Defendant moved to strike all claims relating to plaintiff’s observation of his mother’s corpse and defendant’s attempted suicide, contending such matters are not properly cognizable on a claim for negligent infliction of emotional distress. The court granted the motion. Plaintiff and his wife thereafter filed an amended complaint based essentially on the same factual allegations but seeking recovery on the basis of their status as rescuers. Defendant again moved to strike on the same basis as before, and the court granted the motion.
In his second amended complaint, plaintiff sought to recover for assault and battery and negligent infliction of emotional distress on the theory he was both a “bystander” and a “direct victim.”
Given its pretrial rulings, the court at trial refused to consider matters relating to the death of plaintiff’s mother or defendant’s attempted suicide. The court rejected the remaining claims as not supported by the evidence. The court specifically concluded there had been no assault or battery and, while plaintiff is in the class of persons to whom defendant owes a duty not to inflict emotional distress, defendant’s conduct was not sufficiently “outrageous” to be actionable.
On appeal plaintiff attacks the rejection of his claims both at trial and in pretrial rulings.
Before addressing plaintiff’s contentions, we point out what this case is not about. This is not a wrongful death action regarding the murder of plaintiff’s mother. That claim was settled by plaintiff and his siblings. There is also no claim by plaintiff’s wife either for physical injury or emotional distress. Her claims were resolved prior to judgment and she has not appealed. Finally, the trial court found plaintiff suffered no physical injury, and this finding is not challenged on appeal.
Theories of recovery for emotional distress lead into an analytic quagmire. The California Supreme Court has undertaken to clarify this area of the law:
“The law of negligent infliction of emotional distress in California is typically analyzed ... by reference to two ‘theories’ of recovery: the ‘bystander’ theory and the ‘direct victim’ theory. . . . FJD . . . [<1Q We have repeatedly recognized that ‘[t]he negligent causing of emotional distress is not an independent tort, but the tort of negligence. . . . The traditional elements of duty, breach of duty, causation, and damages apply. [*]□ Whether a defendant owes a duty of care is a question of law. Its existence depends upon the foreseeability of the risk and a weighing of policy considerations for and against imposition of liability.
“The distinction between the ‘bystander’ and ‘direct victim’ cases is found in the source of the duty owed by the defendant to the plaintiff. The ‘bystander’ cases, commencing with Dillon v. Legg (1968)
“Because in such cases the class of potential plaintiffs could be limitless, resulting in the imposition of liability out of all proportion to the culpability of the defendant, this court has circumscribed the class of bystanders to whom a defendant owes a duty to avoid negligently inflicting emotional
“In contrast, the label ‘direct victim’ arose to distinguish cases in which damages for serious emotional distress are sought as a result of a breach of duty owed the plaintiff that is ‘assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of a relationship between the two.’ ... In these cases, the limits set forth in Thing, supra,
“Much of the confusion in applying rules for bystander and direct victim recovery to the facts of specific cases can be traced to this court’s decision in Molien [v. Kaiser Foundation Hospitals (1980)
“In so holding, we found that a hospital and a doctor owed a duty directly to the husband of a patient, who had been diagnosed incorrectly by the doctor as having syphilis and had been told to so advise her husband in order that he could receive testing and, if necessary, treatment. . . . We reasoned that the risk of harm to the husband was reasonably foreseeable and that the ‘alleged tortious conduct of the defendant was directed to him as well as to his wife.’ . . . Under such circumstances we deemed the husband to be a ‘direct victim’ and found the criteria for bystander recovery not to be controlling. . . .
“The broad language of the Molien decision, coupled with its perceived failure to establish criteria for characterizing a plaintiff as a ‘direct victim’ rather than a ‘bystander,’ has subjected Molien to criticism from various sources, including this court. . . . The great weight of this criticism has centered upon the perception that Molien introduced a new method for determining the existence of a duty, limited only by the concept of foreseeability. To the extent that Molien, supra,
“Nevertheless, other principles derived from Molien, supra,
Despite the Supreme Court’s attempt in Burgess to clarify this area of the law, the waters were muddied two years later in Bro v. Glaser (1994)
We rejected Bro’s black letter approach in Mercado v. Leong (1996)
To summarize, a party may recover for negligent infliction of emotional distress as a bystander if he: (1) is closely related to the injury victim, (2) is present at the scene of the injury-producing event and is aware it is causing injury to the victim, and (3) suffers emotional distress beyond that anticipated in a disinterested witness. (Thing v. La Chusa (1989)
HI
Plaintiff contends the trial court erred in rejecting his claim for negligent infliction of emotional distress as a bystander based on the shotgun blast that injured his wife. Plaintiff testified he immediately became aware the blast hit the truck behind which his wife was standing. Plaintiff further testified that after defendant was subdued he looked to see if his wife was “okay” and could not find her. Plaintiff “kind of flipped out for a few minutes,” running around asking if anyone had seen her. Plaintiff was told she had been seen walking to a neighbor’s house and when he looked in that direction he saw her returning.
Plaintiff contends the evidence established (1) he was closely related to the victim, (2) he was nearby when she was injured, immediately became frightened for her safety, and learned soon thereafter that she had been injured, and (3) suffered emotional distress as a result.
Plaintiff’s contention is essentially a challenge to the sufficiency of the evidence. Our review is thus limited to a determination of whether the record contains evidence of “ponderable legal significance” which, when coupled with all reasonable inferences therefrom, supports the judgment of the trial court. (Beck Development Co. v. Southern Pacific Transportation Co. (1996)
The critical fact precluding plaintiff’s bystander claim is that, while he may have feared for his wife’s safety, plaintiff was unaware of her injury
IV
We come now to the crux of this matter. Plaintiff contends the trial court erred in concluding he cannot recover as a direct victim for negligent infliction of emotional distress. Plaintiff argues defendant’s conduct, including killing plaintiff’s mother, inviting plaintiff to view the scene, attempting to kill himself in plaintiff’s presence, struggling over the shotgun, and discharging it, was sufficiently outrageous to support such a claim. He further argues that because there was physical impact during the struggle over the shotgun, the conduct need not have been outrageous.
As previously explained, plaintiff’s recovery for negligent infliction of emotional distress as a direct victim does not turn on whether defendant’s conduct was outrageous or whether there was physical impact or injury. The determinative issue is whether defendant owed plaintiff a duty of care under the circumstances presented.
“The threshold element of a cause of action for negligence is the existence of a duty to use due care toward an interest of another that enjoys legal protection against unintentional invasion. . . . Whether this essential prerequisite to a negligence cause of action has been satisfied in a particular case is a question of law to be resolved by the court. . . . HQ A judicial conclusion that a duty is present or absent is merely ‘ “a shorthand statement . . . rather than an aid to analysis .... ‘Duty,’ is not sacrosanct in itself, but only an expression of the stun total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.’”” (Bily v. Arthur Young & Co. (1992)
In the absence of a contractual obligation, the determination whether in a specific case a defendant will be held liable to a third person “is a matter of policy and involves the balancing of various factors, among which are the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to him, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, and the policy of preventing future harm.” (Biakanja v. Irving (1958)
The other relevant policy factors do not support imposition of a duty in this instance. For example, where only emotional distress is claimed, the degree of certainty that plaintiff suffered injury is diminished.
With regard to the connection between defendant’s conduct and the injury claimed, this is necessarily suspect in a family setting. Heartache and emotional pain are an inherent staple of the parent-child relationship. Neither parent nor child will always live up to the other’s expectations. A parent may be distressed, for example, when his child fails in school or gets in trouble with the law. A child may be distressed when his parent is fired from a job or so mismanages the family’s finances that they are evicted for failure to pay rent.
These are examples of conduct which, though essentially self-destructive, cause emotional distress to members of the transgressor’s family. The experience of emotional trauma is certainly not the only defining characteristic of a family relationship, but it is one of them. Indeed, it is often the price to be paid for being a member of a close family unit. Only in families that are not close are the members sufficiently indifferent to one another’s personal failings not to feel emotional distress. To inject the cold, impersonal logic of the law into such an arena could lead to the destruction of close family relationships.
Furthermore, one may not necessarily assume the closeness of family ties solely from the existence of a parent-child relationship. This is necessarily a question of fact. Closeness may be attenuated where, as here, the child is an adult and neither the parent nor the child is dependent on the other for subsistence. One might also expect closeness to be diminished where, as here, the child was subjected to physical and emotional abuse at the hands of
The law imposes on a parent a duty to support and care for his child only until the child completes high school or reaches the age of 19 (Fam. Code, § 3901) or while the child is incapacitated (Fam. Code, § 3910). The law also recognizes a duty of an adult child to support his needy parents. (People v. Heitzman (1994)
Because the law imposes no criminal sanction for intentional acts of self-destruction (Thor v. Superior Court (1993)
Defendant’s conduct was morally reprehensible but not legally cognizable. As we explained in a different context: “It is the duty of the family member ... to weigh the risk of emotional trauma against the benefit of saving a loved one’s life. Having weighed that risk, the family member . . . may decline to go to the scene. But having elected to go, the relative must be prepared not only to rejoice in a rescue but to endure the emotional burden of a tragedy as well.” (Allen v. Toten (1985)
Plaintiff contends the court erred in rejecting his claim for assault and battery. He argues that while defendant may not have intended to injure him, intent is immaterial where injury results from an unlawful or wrongful act. (See Lopez v. Surchia (1952)
This is again an attack on the sufficiency of the evidence. In rejecting plaintiff’s assault and battery claim, the trial court explained: “It is clear from the evidence that, from and after the time of [plaintiff’s] arrival, [defendant] threatened only to harm himself. [Defendant] did not threaten [plaintiff] or [plaintiff’s wife]. It is equally clear that [plaintiff] initiated the struggle over the shotgun. Commendable as his intervention may have been, the fact is that [plaintiff] approached [defendant] and initiated the physical struggle for possession of the shotgun. In fact, as [plaintiff] approached him, [defendant] backed up in order to keep [plaintiff] from approaching him. There is no evidence that [defendant] intended to harm either [plaintiff] or [plaintiff’s wife]. There is no evidence that, had [plaintiff] not intervened, [defendant] would have done anything to injure anyone other than himself.”
“A battery is any intentional, unlawful and harmful contact by one person with the person of another. ... A harmful contact, intentionally done is the essence of a battery. ... A contact is ‘unlawful’ if it is unconsented to. . . .” (Ashcraft v. King (1991)
Assuming intent is immaterial where injury results from an unlawful or wrongful act, substantial evidence supports the trial court’s implicit finding the conduct alleged to have constituted a battery was not unlawful or wrongful. The law imposes no criminal sanction for intentional acts of self-destruction. (Thor v. Superior Court, supra, 5 Cal.4th at p. 741.) In the face of the attempted suicide, plaintiff initiated the physical contact between himself and defendant. Defendant sought to avoid it. Defendant struggled with plaintiff to gain control of the shotgun in order to accomplish his goal of self-destruction. There was no intent to harm anyone other than himself. Plaintiff’s assault and battery claim was properly rejected.
Morrison, J., concurred.
Notes
The complaint also contains claims for recovery under a “rescue theory” and for wrongful death. Plaintiff has abandoned these theories on appeal.
Dissenting Opinion
This case involves civil liability for grisly family violence. An abusive father shot his wife in the face, then telephoned his adult son, who lived nearby, and told him he had murdered his mother and was about to shoot himself. When the son, accompanied by his pregnant wife, arrived a few minutes later, the father had his shotgun pointed at his head and insisted on committing suicide. The son wrestled with him for control of the shotgun. His wife sustained minor injuries when the shotgun fired. The father survived and was convicted of murder. Not surprisingly, the son suffers severe posttraumatic stress disorder. He sued his father on a variety of legal theories, all of which were ultimately rejected by the trial court.
Lamenting “the relentless march of logic,” while touting the ennobling virtue of “experience,” (maj. opn., ante, at p. 488) the majority denies plaintiff all relief, reasoning that “[h]eartache and emotional pain are an inherent staple of the parent-child relationship.” [Id. at p. 495.) Because I find little in the rules of logic or the lessons of human experience to support the majority’s views, I respectfully dissent.
The majority discerns that duty is “the crux of this matter” and duty “is a matter of policy” determinable as a question of law. (Maj. opn., ante, at p. 494.) And so it is. “[T]he problem of duty is as broad as the whole law of negligence.” (Prosser & Keaton on Torts (5th ed. 1984) pp. 357-358.) But in performing its policy calculus, the majority does little more than recapture the angst of earlier years when claims for emotional distress were met with universal disdain. However, the policy judgments underlying recognition of emotional distress as a compensable injury have been made by the Supreme Court. We may question the clarity and wisdom of its pronouncements but the “relentless flow” of its policy judgments runs counter to the majority decision. As sympathetic as I might be with the exasperated tone of the opinion, the majority has chosen an inappropriate outlet to vent its frustration. “Enough already” is a sentiment which aptly applies to many ill-considered lawsuits appealed to this court; the current case does not warrant such a response.
Recognition of a duty between family members to refrain from the conduct of the type here at issue will not tear families asunder or lead to lawsuits by frustrated parents or homework-stressed students and, most importantly, would not be a radical departure from past articulations of duty.
Supreme Court decisions regarding NEED exhibit the court’s profound ambivalence on the subject. There is, on the one hand, a strong recognition that emotional injury can be as disabling and life altering as physical injury, with all the attendant economic consequences that merit compensation. That recognition is tempered, however, by a fear that claims may often be trivial or fraudulent, by a lack of faith in the ability of science to distinguish legitimate from false claims, and by a similar skepticism regarding the ability of juries to calculate damages. The concern with legitimacy and quantification applies to claims for both intentional and negligent infliction. Additional concerns apply to claims for negligent infliction of emotional distress—concerns that permitting recovery for clearly legitimate emotional injury on the same terms as physical injury would expose citizens to tort liability for even innocuous behavior and overwhelm the courts with numerous and difficult cases. The court has struggled to develop principled standards for compensating the truly injured without imposing unacceptable social costs. The concept of duty has played a central role in this struggle.
Duty can be defined either in terms of risk (whether defendant’s conduct posed an unreasonable risk of foreseeable injury to someone) or in terms of relationship (whether the personal relationship between defendant and plaintiff warrants imposition of a duty). Until recently, duty for purposes of NIED was defined largely in terms of risk of physical injury, and duty was found to exist only in narrowly circumscribed circumstances. Initially, recovery was only permitted when there was physical injury and emotional distress was parasitic to the injury. Later, physical impact, even without injury, provided a basis for recovery. Still later, plaintiffs within a zone of physical danger were permitted to recover. Nonetheless, in all cases, duty was effectively restricted; defendants did not owe a duty to the world at large to avoid conduct creating an unreasonable risk of inflicting emotional harm. The ambit of duty was for all intents and purposes the same as that imposed for physical injuries. However, the law recognized emotional injuries suffered by those who might otherwise be subject to physical harm. By restricting duty in such a manner, the courts greatly limited the number of potential claimants and tied recovery for emotional injury to situations more likely to result in credible claims. Duty extended only to those who were physically endangered by defendant’s conduct.
The scope of duty was expanded, however, with the court’s decision in Dillon v. Legg (1968)
The rules were changed with the Supreme Court’s decision in Molien v. Kaiser Foundation Hospitals (1990)
Duty was thus defined not in terms of risk but in terms of a relationship. The court concluded there are some preexisting relationships that impose a duty on the parties to refrain from conduct creating a risk of serious emotional injury. The crux of the direct victim theory is the requirement of
Here the trial court found plaintiff was within the class of persons having a protected interest in being free of the negligent infliction of emotional distress by his father and he had sustained emotional damages as a result of the events which occurred following his father’s telephone call. The trial court’s holding was proper. The parent-child relationship is a “preexisting relationship” and gives rise to a duty on a father’s part to avoid severe emotional harm. The trial court denied recovery because the conduct was not outrageous. As we held in Mercado v. Leong (1996)
The Supreme Court has not undertaken to describe the nature of the preexisting relationship which gives rise to duty. Certainly, not every fleeting encounter can be characterized as a “preexisting relationship.” However, we need not concern ourselves with fringe issues; there is no doubt under the facts here presented that the parties had a preexisting relationship. The majority assumes that we are free to define such duty as a matter of policy in the same manner as duty is defined in other negligence contexts. This may be so. Their policy formulation, however, fails.
The majority’s analysis of duty begins with the historic concern that “where only emotional distress is claimed the degree of certainty that plaintiff suffered injury is diminished.” The majority then asserts the certainty is diminished further in a family setting, where the connection between defendant’s conduct and injury claimed is “necessarily suspect.” In any event, we are told, one may not assume the closeness of family ties (and hence, presumably, the likelihood of emotional harm) from the existence of a parent-child relationship. Nevertheless, subjecting the “cold, impersonal
Certainly, the possibility of fraudulent claims, standing alone, would not preclude a finding of duty. The Supreme Court has been mindful of that possibility and in Dillon even acknowledged that juries may not always sift good claims from bad. “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.” (Dillon v. Legg, supra,
The majority offers various examples of stress-producing conduct between family members in an effort to explain the folly of imposing a duty on defendant in the present case. Whatever my thoughts on the hypotheticals offered by the majority, I am not persuaded that imposing a duty on the defendant to avoid exposing his adult child to horrific family violence is foolish. Certainly disputes over homework bear no relation to murder and attempted suicide. For that reason I would reverse the judgment.
A petition for a rehearing was denied December 16,1997, and the opinion was modified to read as printed above. Appellant’s petition for review by the Supreme Court was denied March 18, 1998. Kennard, J., was of the opinion that the petition should be granted.