Lead Opinion
Opinion
Introduction and Facts
In December 1993, a group of employees at a Honda dealership in Santa Ana watched a corporate jet fall out of the sky. They feared the jet would crash into them. They feared injury from the ensuing explosion.
The jet didn’t crash into them. Rather, it crashed into nearby ground. Despite their fears, the employees were among the first to arrive at the scene of the crash, to offer whatever assistance they could, and to observe the aftermath.
The employees, led by James Lawson, later sued Management Activities, Inc., and several related entities, the owners and operators of the jet, for the “serious, substantial and enduring mental anguish” occasioned by the crash. The trial court dismissed the case after it sustained a demurrer without leave to amend and Lawson and his coworkers brought this appeal.
If this court were to apply the principles articulated in Bro v. Glaser (1994)
To oversimplify the Bro opinion, emotional distress recovery in negligence falls into two categories, “direct victim” and “bystander” situations, depending on whether the plaintiff suffered emotional distress upon seeing someone else physically hurt—if so, then it is a “bystander” situation, if not, “direct victim.” If the plaintiff claims direct victim status, Bro divines the
The plaintiffs, however, argue that their case cannot be shoehorned into the categories of “direct victim” or “bystander” because they feared for their own safety in those few horrific moments before the crash. And they point to a body of California case law, most recently relied on by the Ninth Circuit in another airplane crash case, In re Air Crash Disaster Near Cerritos, Cal. (9th Cir. 1992)
We will not attempt, in this opinion, to articulate any great general rules for emotional distress cases—the Supreme Court will have its hands full when, if ever, it attempts to articulate one grand unified theory in the area.
One observation is necessary at the beginning of any case involving an emotional distress claim based on negligence. When courts use the acronym “NIED” for “negligent infliction of emotional distress” (and they commonly do) they are in danger of falling into a semantic trap. That is, the very fact that there is a handy acronym for an idea may lead, perhaps subconsciously, to giving that idea more credence than it deserves. Here, the danger is treating “negligent infliction of emotional distress” as an independent tort or, at least, an independent tort doctrine, with a life of its own.
For example, while the Wooden case was careful to recognize that “NEED is simply a species of negligence” (Wooden v. Raveling, supra,
Instead of lumping emotional distress cases under one heading and then, like Einstein, searching for a grand consistent theory to reconcile the cases,
The question before us, then, is not a mechanistic inquiry as to whether fear-for-own-safety cases fall under the rubric of “direct victim,” “bystander” or perhaps a third legal category for “zone of danger” (as plaintiffs, understandably afraid that we might follow Bro, urge upon us). It is not a matter of simply pigeonholing our facts into some neat legal category. Rather, the fundamental question is whether the duty of care necessarily attendant upon operating an airplane extends as far as those who fear for their own safety in a crash, even though they remain literally untouched.
On that score the answer is no. When this case is looked at in light of the seven factors traditionally used by our Supreme Court to determine the existence of a duty, the balance tips decidedly against liability. The traditional factors are (1) the foreseeability of harm to the plaintiff, (2) the degree of certainty that plaintiff suffered injury, (3) the closeness of the connection between the conduct and the injury suffered, (4) the moral blame attached to defendant’s conduct, (5) the policy of preventing future harm, (6) the extent of the burden to the defendant, and (7) the consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved. (See Burgess v. Superior Court, supra, 2 Cal.4th at pp. 1079-1080; Christensen v. Superior Court, supra, 54 Cal.3d at pp. 885-886; Biakanja v. Irving (1958)
The Seven Factors
As Bro pointed out, foreseeability is of limited usefulness in delineating duty in emotional distress cases. (See Bro v. Glaser, supra, 22
On balance, foreseeability itself does not count for much, one way or the other, on the question of liability for emotional distress to otherwise unhurt bystanders to airplane crashes.
By contrast, the certainty of injury is a factor that squarely weighs against liability. Again, the key is the loosey-goosey nature of a pure emotional distress claim. One can always worry oneself sick, almost as a matter of will. The reality of psychological injury remains—and perhaps, despite CAT scans, PET scans, MRI’s and who knows what the future holds, always will remain—a subject of intense philosophical debate. There is always the suspicion that extending the tort duty gives plaintiffs an incentive to malinger or worry themselves into a state of depression. Suffice to say for purposes of this case that certainty of injury is something that we do not have. Yes, the question of the reality of injury can go to a jury, but that is not
The third factor is the closeness of the connection between the defendant’s conduct and the injury suffered. Here, the factor certainly does tilt in the direction of liability. There is no reasonable doubt that being near a plane crash and fearing for one’s own safety during those few terrible moments before the crash is going to be traumatic. The factor is ameliorated somewhat, however, by the differences in psychological constitutions among people. Some people will act heroically in situations of disaster—indeed, it appears that the plaintiffs, regardless of how traumatized they were from the few moments of fear before the crash, summoned up great courage in going to the crash after they realized they were out of danger. One cannot predict, for example, how many people in the vicinity of a plane crash are already predisposed to depression, or—because of their own unique experiences— are inclined to fall to pieces in any disaster, act heroically, or, as the complaint suggests here, act heroically and then go into depression. There will always be some trauma, of course. How much, again, is unpredictable.
The fourth factor is the moral blame attached to the defendant’s conduct. This factor weighs heavily against liability. Plane crashes, much more so than car crashes, tend to be fatal. There is far more reckless driving than reckless flying. Plane crashes are usually the result of some tragic error in the maintenance or operation of the plane—at worst, negligence in light of a very high standard of required performance—rather than any kind of moral indifference to the possibility of injury. Nothing is to be gained by extending the liability attendant upon air crashes to the emotional distress of ground spectators.
Next there is the policy of preventing future harm, to which the same considerations apply as moral blame. The high likelihood of death and the inevitable liability which will come to those physically affected is more than sufficient to deter “future harm.” Beyond that, there is a regulatory apparatus devoted to air safety which, in quality and intensity of care, is already
The final two factors—the extent of the burden to the defendant and the general macroeconomic consequence (if we may be so bold as to so characterize the final factor) to the community—also weigh against liability. The actuarial unpredictability of emotional distress damages could add significantly to the cost of insuring air transportation. A federal district court summed up the problem nicely when it declared: “This Court is not prepared to extend [the airline’s] direct duty to all the non-passengers it’s [sic] planes fly over on a daily basis. To hold airlines responsible for the possible emotional injury for such a large and indeterminate group of people would be to expose airlines to ‘virtually limitless . . . tort liability.’ ” (Air Crash Disaster at Cove Neck Long Island, N.Y. (E.D.N.Y. 1995)
Air crashes are inevitably going to be very expensive disasters. They usually make the newspapers in a way that car crashes don’t. Most air crashes are going to involve some collateral damage to surrounding property and pose a serious risk to bystanders of tangible harm from flying debris. The demands on the insurance pool for recovery are going to be correspondingly greater, and in a context where insurance availability is going to be exhausted. Extending liability to those who suffer the emotional distress of several moments of fear just before the crash will merely dilute the pool of recovery, as well as make air transportation harder to insure.
In short, the factors which determine duty weigh, on balance, against liability for emotional distress damages to otherwise unhurt bystanders. What factors tilt in the direction of liability don’t tilt very far; the factors against weigh decidedly against.
Prior Cases and the “Zone of Danger"
In In re Air Crash Disaster Near Cerritos, Cal., supra,
With due respect to the Ninth Circuit, we must disagree that California tort case law may be read for the broad proposition that emotional distress damages are available whenever one reasonably fears for one’s own safety because of the negligence of another, regardless of actual circumstances or context. The proposition is simply too broad. A moment’s reflection should reveal that there are too many situations in modem life when one can reasonably be scared for one’s own safety. Permitting a lawsuit for just that fright would clog the courts and make transportation and commerce impossible. Duty is a question of law which depends on the “ ‘foreseeability of the risk and upon a weighing of policy considerations for and against the imposition of liability.’ ” (Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc., supra,
Scratch a great legal problem and you are likely to find a great philosophical problem. The question of emotional distress damages implicates nothing less than the mind-body problem in philosophy.
The passage from Sloane, if read carefully, suggests that the Supreme Court casually accepted an almost “Cartesian” view that there is a mental world wholly divorced from the physical body, but simply located the particular damages in the Sloane case on the “body” side of the divide. Thus the implication was that if the damages were really “mental” there would have been no recovery. (Cf. Fluharty v. Fluharty, supra,
The other cases relied on in Air Crash Disaster Near Cerritos simply repeated the Sloane rationale. That is, these courts assumed that the trauma leading to the emotional distress caused some unspecified “nerve damage” or “shock to the nerves” which took the case out of the emotional and into the physical.
In Lindley v. Knowlton (1918)
Webb v. Francis J. Lewald Coal Co. (1931)
Cook v. Maier (1939)
Ditto Vanoni v. Western Airlines (1967)
If the rationale of the Sloane-Lindley-Webb-Cook-Vanoni cases seems strained, it is because it is, and the time has come to recognize that fact. The emotional distress-nerve damage dichotomy can be misleading. Since nerves carry all sensory phenomena to the brain, every stimulus is going to have a “physical” effect in terms of actual signals transmitted through the nervous system. This means that every stimulus generating an emotional effect— which is pretty much all stimuli—can also be said to lead to a “physical” effect, and therefore constitute a “physical” injury. Any emotional distress can be styled “nervous shock.” Yet it cannot be denied that there is a difference between a pinched nerve and one which has been a conduit for an emotionally traumatic experience based on fright. In one, the harm is direct, centered on the nerve itself. In the other, the trauma is based on how the brain interprets certain stimuli, as distinct from the stimuli itself.
The point may be illustrated by reference to what one might think is the ordinarily prosaic world of insurance coverage law. For years, one of the great “recurring issues” in liability insurance coverage was whether the words “bodily injury” in a commercial general liability (CGL) insurance policy obligated an insurer to cover claims arising out of economic or business torts where the bodily injury claim was based on emotional distress. (See Waller v. Truck Ins. Exchange, Inc. (1995)
Yet can it be denied that people who have lost their economic hopes and security, or who are left in the lurch without health insurance and who are then injured in an accident are going to experience some “physical” manifestations of their emotional distress? Sleepless nights, heart palpitations, a horrible feeling in the pit of one’s stomach—these are “bodily” phenomena if one were to take the words “bodily injury” with a dogged literality. Certainly one must experience “nervous shock” upon hearing that one’s life savings have been sunk into a worthless investment. The point is, as the Molien decision alluded to, the “attempted distinction between physical and psychological injury” is artificial; one cannot extrapolate the “nervous shock” rationale into infinity or there will be no limits on liability. (See Molien v. Kaiser Foundation Hospitals, supra, 27 Cal.3d at pp. 929-930.)
In short, there is no shortcut to analyzing the actual duty and the gravamen of the claim in each case. There are cases where “shock” is clearly not compensable and cases where maybe it should be. Teenagers have been known to get heart palpitations when their boyfriends or girlfriends leave them. On the other hand, pregnant women have been known to suffer miscarriages when they witnessed their spouses injured in a car crash (e.g., Reed v. Moore (1957)
Cases are not authority for propositions which they did not decide. (Roberts v. City of Palmdale (1993)
Ironically, the recent decision of Wooden v. Raveling, supra,
It is enough, rather, simply to note two aspects of the Wooden decision which distinguish it from the case at hand. One, there is a difference between car crashes and airplane crashes as they relate to bystanders. Automobile drivers necessarily must be highly aware of the surrounding area and nearby property through which they drive. Freeways pose different risks than residential streets. Children might dart out into a narrow alley; one must drive slowly to avoid them. No such necessity attaches on a wide stretch of open highway in the desert.
The risk to bystanders is different in air travel. Most of the time, after all, when a plane is flying, the safety of bystanders on the ground is irrelevant
Two, Wooden did not analyze the bystander’s fear for her own safety in context of the seven factors which our high court has traditionally used to delineate duty. The case thus hardly stands for the proposition that these seven factors would mandate a broad or inflexible fear-for-one’ s-own-safety or “zone of danger” rule, particularly as regards an air crash case.
In sum, case law does not require imposition of a duty on operators of airlines to avoid the emotional trauma inherent in any crash to otherwise unhurt bystanders. We write on a clean slate.
Disposition
The judgment is affirmed.
Bedsworth, J., concurred.
Notes
The defendants’ motion to strike the reply brief as containing facts not in record is hereby denied as moot. Our facts are taken from the complaint, not the reply brief.
The Air Crash Disaster court categorized the case as a “direct victim” one. (See In re Air Crash Disaster Near Cerritos, Cal., supra,
Perhaps—but only perhaps—the very attempt to articulate one set of consistent common law general rules in the area is a grail which will never be found. Time will tell.
Notwithstanding Molien v. Kaiser Foundation Hospitals (1980)
While plaintiffs may have felt some heat, wind and vibration in the few moments before the crash, it would be a gross distortion of their complaint to suggest that they are claiming anything in addition to their emotional distress for being exposed to the possibility of death or injury in an impending plane crash.
The story is in the Titwillow song near the end of the operetta. (Gilbert & Sullivan, The Mikado (1885).)
See Saving Private Ryan (Dreamworks SKG 1998); compare Speir, Application and Use of Post-Traumatic Stress Disorder as a Defense to Criminal Conduct (June 1989) 1989 Army L. 17, 17 (noting that “most people” do not develop posttraumatic stress disorder after extremely traumatic events).
For example, see People v. Lockett (1983)
See Note, Solving America’s General Aviation Crisis: The Advantages of Federal Preemption Over Tort Reform (1995) 80 Cornell L. Rev. 747, 749 (“General aviation is one of the most intensely regulated industries in the United States. Since its enactment of the Federal Aviation Act of 1958, Congress has regulated nearly every aspect of the manufacture and operation of general aviation aircraft for the purpose of ensuring ‘the highest degree of safety.’ [Fns. omitted.]”). The “crisis” in the title refers to the strains on American aircraft manufacturers created by conflicts between state tort law and federal regulations.
See
Breathes there a soul who has not witnessed an accident or two over the past few years? Or at least had a driver come speeding up from behind and momentarily worried that a crash was imminent? The bottom line of our dissenting colleague’s analysis is that all witnesses to an accident who momentarily fear for their safety but who otherwise escape—indeed, those who fear for their safety even when there is no accident but merely a close call—-may sue the wrongdoer for money as compensation for emotional distress. Wow! If this were the law, insurance premiums would skyrocket and the courts would groan from the sheer weight of litigation. The ultimate lawyers’ paradise would have arrived: everyone would be suing everyone.
This is hardly esoteric stuff. The law reviews are full of it. Plug in “mind” “body” “Plato” and “dualism” in just the same sentence into a law review data base and you will find no less than 74 documents. (E.g., Barresi, Advocacy, Frame, and the Intergenerational Imperative: A Reply to Professor Weiss on “Beyond Fairness to Future Generations” (1998) 11 Tul. Envtl. L. J. 425, 428 [reference to “Cartesian dualism, the tendency inherent in Western thought to erect a philosophical barrier between mind and body, between matter and spirit, and between the physical world and the intellectual one”]; Miller, DNA Blueprints, Personhood, and Genetic Privacy (1998) 8 Health Matrix 179, 190-191 [contrasting views of Aristotle, Descartes and Hume on the self]; Sells, Saving Icarus (Feb. 1998) 23 Mont. Law. 1, 26 [reference to “the tired dualism of matter and spirit”]; Smith, Machine Intelligence and Legal Reasoning (1998) 73 Chi.-Kent L. Rev. 277, 279 [“Descartes’ error was in concluding that intelligence can exist independently of the human body”]; Handsley, Mental Injury Occasioned by Harm to Another: A Feminist Critique (1996) 14 Law & Ineq. J. 391, 467, fn. 333 [“Liberal philosophy also rested on the ‘metaphysical dualism’ of the mind-body split.”].)
Justice Puglia opined in Merenda v. Superior Court (1992)
For example, in the case before us, an employee sitting in an isolated and soundproof conference room might have been wholly oblivious to the impending crash. For those who became aware of the impending crash, the shock value depended on the brain to interpret certain stimuli as possible impending death.
Which is not to say that even in the latter situation the courts have had an easy time of being consistent. Reed actually held that the woman could not recover because the negligent act was not “directed at” her, but at her husband, which is how the Court of Appeal distinguished Sloane. (Reed v. Moore, supra,
Thus our decision today might be different if the plaintiffs had all suffered heart attacks. However, we need not address the problem of whether a “hard” or palpable phenomenon, like a heart attack, brought on in a bystander to a plane crash by fear of being hurt in a plane crash, is recoverable. We need only note that the number of otherwise untouched bystanders who suffer heart attacks as a result of the fear of being hurt in a plane crash is going to be far fewer than the number of otherwise untouched bystanders who, as in the present case, really suffer only fear itself.
Our dissenting colleague acknowledges that the 1896 Sloan decision is not “precisely” on point, but extrapolates the principle of liability bn which that decision was based into an inflexible rule which mandates liability for mere fear any time there is negligent conduct. As we have already indicated, that broad idea is untenable in the light of what our high court has said in the 100 years since that venerable case.
Dissenting Opinion
Standard of Review
This case comes to us after the trial court sustained the defendants’ demurrers due to the plaintiffs’ failure to state a cause of action. We therefore accept the allegations of the pleadings as true. (Angie M. v. Superior Court (1995)
Allegations Contained Within the Pleading
The plaintiffs’ first amended complaint alleges: “The events giving rise to this cause of action occurred . . . when a Westwind Jet crashed while approaching for landing . . . . [f] . . . Plaintiffs . . . were at the time . . . employed by . . . a car dealership . . . . [H] . . . and . . . present [there when they] . . . ffl] . . . observed the . . . Jet begin to descend, falling out of the sky. The plaintiffs watched the Westwind Jet crash into the ground. Prior to the. . . crash[], the plaintiffs were fearful. . .the. . . Jet, or parts of it, would land on them and cause them serious injury. [^] . . . Plaintiffs watched the . . . Jet explode and, in fact, felt the force and heat of the explosion, the force of which caused them to be thrown forward as they ran from the scene of the crash. The plaintiffs also feared that they might be further harmed by the force and/or heat of the explosion as well as debris flying from the explosion site.” The complaint further alleges, “As a proximate result. . . , plaintiffs suffered serious, substantial and enduring mental anguish and emotional distress which injured their health, strength and
The Allegations State a Cause of Action
The majority concludes the plaintiffs failed to state a cause of action because California does not recognize emotional distress damages for airplane crash spectators who suffer no physical harm.
Over 100 years ago, our Supreme Court recognized, “A shock to the nervous system may be caused either by some physical impact or by fright caused by exposure to imminent peril.” (BAJI No. 12.81 (7th ed. 1986 bound vol.), italics added; see Sloane v. Southern Cal. Ry. Co. (1896)
Webb v. Francis J. Lewald Coal Co. (1931)
The Supreme Court has not addressed the precise issue we consider—may an airplane crash witness recover for emotional distress damages relating solely to fear for personal safety? However, the Ninth Circuit in In re Air Crash Disaster Near Cerritos, Cal. (9th Cir. 1992)
Cerritos is noteworthy for two reasons. First, of course, the majority held the plaintiffs could recover emotional distress damages after merely hearing a crash. Second, even the dissent acknowledged California law would allow recovery if the plaintiffs had seen the crash. (In re Air Crash Disaster Near Cerritos, Cal., supra, 973 F.2d at pp. 1494-1495 (dis. opn. of Rymer, J.).) The dissenting judge parted company with her colleagues only because, as she explained, the cases upon which the majority relied do not extend to plaintiffs who “were unaware of the injury-causing event that threatened their safety. [H] . . . [H]. . . [Pjlaintiffs who may recover on account of fear for their own safety will have appreciated why they are in danger.” (Id. at p. 1496 (dis. opn. of Rymer, J.).)
The Majority Opinion
The Supreme Court says a car crash spectator can recover emotional distress damages. The Ninth Circuit says plaintiffs can recover if they are emotionally distressed after hearing a plane crash.
Why do my colleagues conclude these plaintiffs cannot recover? The majority sees a difference between car crash and airplane disaster witnesses. They say those who operate a car must be more “aware of the surrounding area and nearby property” because “[t]he risk to bystanders is different . . . .” (Maj. opn., ante, at p. 667.) Moreover, they say the standard is different because while results of airplane crashes are worse than car crashes, airplane operators should be held to a lower standard of care
Simply stated my brethren are unimpressed with California Supreme Court authority, suggesting the high court should rethink its position and recognize its rationale is “strained” because it “assume[s] that the trauma leading to the emotional distress caused some unspecified ‘nerve damage’ or ‘shock to the nerves’ which took the case out of the emotional and into the physical.” (Maj. opn., ante, at p. 663.) And, they find the Ninth Circuit just plain wrong. “With due respect to the Ninth Circuit, we must disagree . . . California tort case law [does not permit] emotional distress damages . . . whenever one reasonably fears for one’s own safety . . . .” (Id. at p. 661, original italics.)
When cleansed of its fictional and historical rhetoric, the majority opinion affirms the trial court’s sustaining of the demurrer because the justices reject what they label the “loosey-goosey” concept of emotional distress. (Maj. opn., ante, at p. 658.) Actually, my brethren are just unimpressed with “weak” people. As they say, “[T]ort law cannot countenance [an] . . . ‘eggshell psyche.’ ”
My colleagues miss the point. Their feelings about emotional distress damages are irrelevant. The Supreme Court sets the standard we are to follow. I would reverse the granting of the demurrer and permit the trier of fact to decide if the defendants were negligent and, if so, whether the plaintiffs were damaged as a result.
My brethren acknowledge the plaintiffs “may have felt some heat, wind and vibration in the few minutes before the crash,” but explain, “[I]t would be a gross distortion of their complaint to suggest that they are claiming anything in addition to their emotional distress for being exposed to the possibility of death or injury in an impending plane crash.” (Maj. opn., ante, at p. 657, fn. 5.) But we must accept as true all of the allegations contained in the complaint. The plaintiffs claim their injuries resulted from fear the plane would crash on them and from the heat, wind and vibration. In any event, standing alone, the allegation of fear from imminent peril is sufficient to state a cause of action for emotional distress damages.
The majority has turned this doctrine on its ear. As every first year law student learns, tortfeasors take their victims as they find them. (Prosser & Keeton, Torts (5th ed. 1984) § 43, p. 292 [defendant liable for death of plaintiff, even though normal victim would have suffered only a bump on the head]; see also Sloane v. Southern Cal. Ry. Co., supra,