*1 July No. 24637. [S.F. 1985.] al., Petitioners,

GLORIA OCHOA et COUNTY, THE SUPERIOR COURT OF CLARA SANTA Respondent; al., COUNTY OF et SANTA CLARA Real Parties Interest.

Counsel

Jessie Serna for Petitioner. Sacks, Goff, A. Wylie

Robert E. J. De Leonard Victoria Cartwright, Aitken, Arnold, Bashore, Bourhis, D. Richard Harlan Glen T. Ray *4 Caldwell, Jr., K. Edwin Train Bridgman, Casey, Douglas David S. Vries, Fowler, de M. G. Dana H. Ian Greig Gage, Herzog, Sanford Hobart, Jacobs, Levine, Timothy McCarthy, K. R. John C. Stanley Harvey Peach, Posner, Sulnick, Arne W. John M. Dyke, Ribert H. Van Joseph Werchick I. on behalf of Petitioner. and Amici Curiae Stephen Zetterberg Hassard, Huber, D. B. Brock Bonnington, Sturgeon, & William Rogers Towery, & James E. Phillips, Morgan, Towery, Morgan Morgan, Spector, Rankin, Center, Hinshaw, Oneal, Luckhardt, Marlais, H. & David Lund and A. Ryan Edward for Real Parties in Interest. Hinshaw Opinion

BROUSSARD, J.

Facts This Ochoa 13-year-old Rudy arises out of the death of proceeding tragic Ochoa, 26, are on March Raul and Gloria 1981. The petitioners (plaintiffs), (defend The in real interest surviving parties Ochoa. parents Rudy ants) are and four agents of Santa Clara and County alleged employees of the states that on February county.1 complaint2 action, 1Contrary county’s longer it was no in this assumption that defendant sustaining reverse its plaintiffs sought directing writ of the trial court to order mandate county demurrers defendants. as well as the individual against guided by we are the well- testing sufficiency complaint 2In a demurrer allegations material general settled rule “a demurrer admits the truth of all factual [citation]; ability prove allegations, or complaint question plaintiff’s that the these [citations]; possible making proof reviewing does not concern the court difficulty such showing relief only plead facts that he be entitled to some and need (Alcorn Engineering, Anbro Inc. 2 Cal.3d [citation].” 216].) P.2d 1981, Rudy County was admitted to the of Santa Clara custody juvenile 23, 1981, hall. On March he with cold. On March became ill an apparent and he Rudy’s went to care treatment. infirmary parents and visited him on March 24. saw he ill” and was “extremely that was They his left in an told his holding Rudy side to relieve severe attempt pain. “bug.” that he felt had he had a parents sick and that he been told that very Gloria Ochoa thereafter and spoke expressed hall authorities juvenile concern that her The juvenile son was treatment. receiving necessary hall Both authorities to reassure her her condition. about son’s attempted their extreme mental parents experienced upon seeing and emotional distress son’s illness and and continued to be distressed thereafter. pain 25, 1981,

On March infirmary. was admitted to the hall Rudy juvenile He was had a tem- eventually diagnosed as bilateral and having pneumonia of 105 perature degrees. When Mrs. Ochoa in the infirmary, visited son he was very and pale, dehydrated. sweaty. looked His was clammy skin He to be into most appeared and was going hallucinating during convulsions of his mother’s visit. sick When he was lucid he complained feeling very and of feeling Mrs. Ochoa was pain. “very distressed concerned” *5 requested that she be her allowed to take her sick child to own physician. She told the necessary authorities that she would in so cooperate any way long Rudy could be seen Mrs. Ochoa was then by family physician. Lourdeaux, M.D., defendants, seen one of by and was told that Stanley her son only had flu and he that should be left in the infirmary. Rudy asked his mother to to repeatedly take him a doctor. After private repeating doctor, her that her requests son be seen Mrs. told by family Ochoa was that she would have to wait until the to discuss following morning prob- lem with the probation officer. Dr. that Lourdeaux then advised Mrs. Ochoa her son would be given a penicillin shot.3

Mrs. Ochoa then returned to her son’s to find him bedside complaining left, of excruciating under his rib to comfort pain When she cage. attempted him, his side was tender to She on and touch. with the nurses spoke duty that her son requested be to her “even if hand- released doctor private cuffed.” The her nurses denied her Mrs. Ochoa the nurses request. gave telephone number and that she be called if immediately Rudy got asked worse and told them that she wished to be informed of condition. kept his nurses,

After her with the conversation Mrs. Ochoa returned and began to bring to cold order his fever down. At she apply compresses one point was told to leave. She did by infirmary with this personnel comply given. It 3It is the shot was ever was not during unclear whether administered the time Mrs. with her that Ochoa was son. however, cold her child request, and continued attend to applying continuously Rudy water and reassure him. compresses by attempting him, him asked not to tried to roll her leave him. While she was with she screamed, over of excruciating on his side. and Rudy yelled complaining area, him chest her doctor and tell his and asked to summon the pain Mrs. while Rudy about the The doctor called but did not examine pain. was vomiting Ochoa was this child was present. Throughout entire period and unable to retain He was observed any by infirmary personnel fluids. also blood. coughing up her son. bent

The authorities that Ochoa leave insisted Mrs. again “[S]he [stay] down to kiss her and that she him and clasped tightly pleaded [he] him that because he was so sick.” She reassure Rudy, telling attempted then the doctor had her him. Mrs. Ochoa was assured he would tend to and again to leave her son’s She to Dr. Lourdeaux required room. returned that her to be pleaded family physician son allowed treated this Ochoa removed from the for that all of Mrs. facility During purpose. She was distressed “experienced extreme mental and emotional distress.” her child’s because of it son’s condition because appeared her son medical needs were never saw being again Mrs. Ochoa ignored. alive. attending Rudy also Ochoa seen complaint alleges Lourdeaux, on Dr. on March

physician, Tuesday, once only one occasion a.m. on March only Wednesday, 10:30 approximately this, After until he died at approximately 1981. no examined him physician 1:05 a.m. on Thursday, March 1981. *6 in- the the was never transferred to

Finally, complaint alleges Rudy were tensive care unit no taken facility, X-rays despite of any hospital rib the below the cage, par- communications of and distress repeated pain side, on the no or urine tests were left and that blood ticularly performed. History

Procedural demurred nine of action. Defendants Plaintiffs’ set forth causes complaint with- nine through and the trial court sustained the demurrers to counts five the writ of to sought compel out leave to amend. Plaintiffs then mandate fifth, the court order the defendants’ demurrers to sustaining to set aside the sixth, of action.4 and ninth causes eighth of may on the basis that the trial court’s order be sustained 4Defendants do not claim Code, 845.6.) (See immunity. Gov.

sovereign § I they

Plaintiffs first contend that have stated a cause of action for infliction of our negligent emotional distress under decision 912, Dillon v. Legg 68 Cal.2d 728 441 P.2d Cal.Rptr. 1316).5 subsequent A.L.R.3d An examination of Dillon and cases the compels conclusion that have a cause of for neg stated action plaintiffs ligent infliction of emotional distress.6 5Although plaintiffs they assert that have a cause of action for intentional infliction stated distress, of they subject. emotional presented argument appear have on the Plaintiffs no assume that a cause of action for intentional infliction of emotional be estab distress lished on the theory same that for infliction of emotional The torts distress. two Witkin, entirely (See are (8th 1974) different. Summary seq. Cal. of Law ed. et § et seq.) § 548 The negligence count An examination the is discussed text. of requirements for intentional plain infliction of emotional leads to the conclusion that distress have not alleged tiffs facts sufficient state of a cause action for that tort. A cause of action for allege showing intentional infliction of emotional must facts distress outrageous conduct which is intentional or which is the bounds of reckless and outside decency. It has been in summarizing discussing said the cases intentional infliction of emo- tional distress that emerged “the rule which seems to have that there is for conduct is exceeding usually all bounds by society, especially tolerated decent a nature is cause, cause, (Prosser calculated to very and does & mental of a serious kind.” distress (5th omitted, 1984) added.) (See, Keaton on Torts ed. e.g., fn. italics Fletcher Western National Company Cal.Rptr. Insurance 376 [89 Life A.L.R.3d maliciously making employed charges 286] tactics [defendant such as false order compel plaintiff policy disadvantageous^ policy]; to surrender or to settle Tate v. Canónica [making 180 Cal.App.2d and accusations threats 28] Here, purpose publicly humiliating plaintiff].) although conduct defendants distress, plaintiffs did cause the negligently untold it evident that is the defendants acted Further, rather with causing than the purpose plaintiffs although emotional distress. appears law to be moving allowing recovery toward where mental distress is caused when clearly witnesses person, conduct directed toward a third “thus far is attack, limited to the most extreme especial cases violent where there some likelihood Keeton, (Prosser fright omitted.) shock.” & have fn. Plaintiffs aban- eighth doned their cause of parental rights. action—interference with complaint 6The only extremely reveals that Mr. Ochoa once he visited his son and that was distressed what he we explain, saw. As shall actionable under such distress is Dillon. saw, Presumably, any further distress suffered him was he but result what rather the result of what was subsequent related to him his wife after visit their son. Under Dillon such distress is not actionable. The discussion in text focuses on however, experiences of analysis, Mrs. Ochoa. applicable to Mr. Ochoa’s cause *7 It by action. has been said personal that a distinction between observation distress caused injury of the hearing the tragedy justified compensation of because another is should be limited to experiences abnormal life re which cause emotional distress. While distress, ceiving injured news that a one may loved has been or has died it cause emotional type is experience general the of for way prepared, experience which in a one which is By persons common. contrast few forced to injury are witness the death or of a loved one suddenly or upon warning to come the in scene without where conduct is situations tortious case, example, the present involved. In while a in a for it common to visit loved one hospital pain highly and to be the loved one’s and suffering, distressed it is uncommon apparent neglect to witness patient’s person the of the immediate medical needs medical Note, (See generally, Limiting Liability nel. Negligent Dis Emotional Infliction of “Bystander Recovery" The

tress: Cases So.Cal.L.Rev. a parent to hold that

In Dillon we the first American jurisdiction became her child who or on injury witnesses the infliction death in cases injury recover for the trauma resulting physical emotional we doing harm. so where the does not fear imminent parent physical be artificiality” plaintiff of the rule rejected “hopeless requiring touch- fearful for or own in order to recover. safety his personal chief element our in “Since the analysis foreseeability. stone of Dillon was to plaintiff in a or an duty obligation whether defendant owes determining risk, in every be concern is the that factor will foreseeability prime such foreseeability duty it is case. Because intertwined inherently a basis.” case-by-case obligation necessarily adjudicated only must upon Cal.2d at p. a cause of aid in whether ascertaining Dillon also to provided guidelines . . whether defend- action was “In . determining stated a case. particular or, terminol- in other ant should foresee the reasonably plaintiff, care, the courts will a of due whether defendant owes ogy, plaintiff duty take into account as Whether following: plaintiff such factors with one who was located near the scene of the accident as contrasted emo- from direct distance from it. the shock resulted away Whether obser- tional and contemporaneous from the impact upon plaintiff sensory accident, from oth- vance of the accident learning as contrasted with were closely the victim ers after its occurrence. Whether related, or the any presence contrasted with an absence of relationship a distant only relationship. of the defend- degree

“The evaluation these will indicate the factors to foresee that likely ant’s defendant is more foreseeability: obviously harm than her child will suffer mother who an accident affecting observes of fore- Similarly, degree to foretell witness do will so. stranger case of his con- greater of the third is far seeability person’s injury he subsequently than that in observance of the accident temporaneous shock the nearby, it. foresee that likely learns of The defendant is more that someone harm than to anticipate mother will cause witnessing physical re- emotional than a temporary distant from the accident will suffer more other; elements, course, into each fixing action. All these shade (Id., at facts, case.” each tied into the obligation, depends upon intimately 740-741, original.) italics in to satisfy facts sufficient alleged There is no that Mrs. Ochoa has question *8 deceased, Plaintiff, the parent requirements. first last Dillon

167 while her present child suffered at the hands of defend- injury apparent ants.7 whether,

The primary issue before us is to state a cause of action order Dillon, under the child’s of a must have been the result brief injury sudden occurrence viewed The issue contemporaneously by plaintiff. did not arise in Dillon an because the to the child was caused injury automobile accident. Many of the cases requiring application subsequent of the Dillon factors have to the also involved situations similar Dillon case brief, where there was a (See, Hathaway sudden occurrence. v. e.g., Su- (1980) Court perior 112 728 Cal.App.3d Cal.Rptr. [169 [electrocu- 435] tion]; Parsons v. Superior Court 81 506 Cal.App.3d Cal.Rptr. [146 495, 5 A.L.R.4th accident]; v. Court Superior 826] [car Nazaroff 80 553 Cal.App.3d Cal.Rptr. [drowning]; Powers v. Sissoev [145 657] (1974) 39 865 Cal.App.3d accident]; Archibald v. Cal.Rptr. [114 868] [car Braverman Cal.App.2d Cal.Rptr. [explosion].) [79 723] case, One Jansen v. Children’s Medical Center Hospital Cal.App.3d Cal.Rptr. has that the child’s injury [106 required 883] death be the result of a sudden occurrence. In Jansen a mother sought damages for emotional trauma and caused injury by witnessing physical pain-ridden deterioration and death of her She later daughter hospital. learned that her child’s death was to the due failure to diagnose penetrating duodenal ulcer. The Jansen court denied Dillon recovery, concluding that “contemplates a sudden and brief event the child’s . . . causing injury. event causing [T]he must child itself be one which can be the subject sensory (Jansen, perception.” Cal.App.3d Since the failure to not be diagnose could discerned contem- by lay person failure, poraneously with such the court the Dillon concluded extending rules to cover this situation would yield liability limitless potentially which Dillon sought to avoid. Jansen was in Hair County followed Monterey (1975) 45 Cal.App.3d In Mobaldi v. Cal.Rptr. 639]. Regents University (1976) 55 of California 720], the court interpreted Jansen as that “the requiring observe an act contemporaneously . . . The Jansen restric- causing injury. tion is related to the reason for It the Dillon limitation. that to recognizes avoid ‘potentially infinite Dillon its liability’ draws limitation in [citation] terms very of a close connection in time between the negli- and geography 7Defendants appear suggest only that Dillon applies plaintiffs when witness the death Dillon, however, Further, of their relative. speaks plaintiffs injury. terms death or do they not contend that are entitled to recover experienced because of the shock and trauma upon learning Rudy’s Rather, posited death. on the shock and trauma which they experienced upon seeing being ignored by their son’s medical needs the defendants. *9 584-585; Parsons v. (Id., Superior act and resulting injury.”

gent Court, 506, supra, requirement “sudden occurrence”

We of Jansen’s implicitly approved 97, 565 P.2d v. Cal.Rptr. 122]. Justus Atchison 19 Cal.3d 564 [139 fathers who of action Justus involved death and Dillon causes' wrongful room, distress and who had delivery experienced had been present Justus pre- believed that when fetuses were delivered We still-born. ... a than Jansen because “each accident Justus] sented closer case [in Atchison, Cal.3d (Justus supra, a was sudden occurrence.” relatively to state a cause fathers had failed 584.) We nevertheless held that the as result of shock a under had not sustained they action Dillon because of the accident.’” “‘sensory and observance contemporaneous Dillon, 740.) While Justus implicitly Cal.2d at quoting involved essentially the case the sudden occurrence approved requirement, of a connection between a situation where the were unaware fathers defendants’ conduct and injury. distress a action for emotional

Our review of other cases cause of allowing re- occurrence” under Dillon leads us to the conclusion that the “sudden a Such guidelines. the Dillon an unwarranted restriction on quirement a of foresee- high degree restriction limits when there is arbitrarily event, from an abnormal and the shock flows ability shock plaintiff and, such, very of compensation—the purpose frustrates unduly goal the cause of action meant to further. the Dillon criteria done so by applying

The cases have allowing In Krouse are instructive. with some and for that reason degree flexibility 1022], for 562 P.2d v. Graham 19 Cal.3d 59 his wife in his car while husband was example, sitting parked car plain- removed trunk. The defendant’s approached groceries car. and then struck plaintiff’s tiff’s car at killed wife speed, high plaintiff’s Dillon despite of action under We held that the husband had stated cause car and did defendant’s the fact that he did not see his wife struck being (Krouse v. Gra- on her. effect of the collision immediately observe the ham, . . does not 74-75.) “Dillon . We said that supra, 19 Cal.3d at pp. In the injury. death or causing visual of the impact require perception de- us, struck not see Elizabeth matter before did although Benjamin struck, so automobile, had been the fact that she fully fendant’s he perceived defendant’s observed for he before the knew an instant position impact, course, realized that vehicle on a collision high her at approach speed circumstances under such her. Clearly, defendant’s car must have struck Eliz- causing the impact witness to must be deemed Benjamin percipient (Id. original.) italics abeth’s catastrophic injuries.” *10 Braverman, in Archibald v. (which supra, 275 Cal.App.2d Similarly Krouse) we in approved the Court of held that a mother had stated Appeal a cause of action under Dillon even the she did not observe actually though Archibald the tortious event. child after mother came her moments upon he had injured been in an of The court observed that “the shock explosion. a child seeing the event severely immediately may after tortious injured itself,” just as profound as that the and in accident experienced witnessing that therefore the had met the observance require contemporaneous Braverman, (Archibald Dillon. of ment Cal.App.2d Archibald, Using similar to that in approach in the court Nazaroff v. Court, Superior supra, 553 held that a mother had stated Cal.App.3d cause of action where she arrived on the scene in her time to see missing child pulled out of being and to aid in efforts to neighbor’s resuscitate pool him. He died three days later. After a number of cases which reviewing Dillon factors the balance, applied the court concluded: “On in the light above, of all of the criteria reviewed we must conclude that the record before the court demonstrates that there are of triable issues fact to to carry toas jury whether the harm to the alleged physical mother resulted from an emotional shock caused proximately the direct emotional impact the contemporaneous observation the immediate the de consequences act, which was the cause proximate injury fendants’ death of her son. The shout from the area have [Citation pool omitted.] her permitted scene, to reconstruct as well Mrs. as did Archibald and Mr. Krouse. Her knowledge what had occurred from her was derived senses, own and from another’s of an recital uncontemporaneous Court, event.” (Nazaroff v. Superior 566-567, supra, added.) italics In Mobaldi v. Regents University California, supra, Cal.App.3d 573, plaintiff brought her foster son to the for tests hospital relating congenital kidney defect. Plaintiff held the boy in her arms while doctors injected glucose and dye solution into intravenously. his arm Unbeknownst one of plaintiff, the physicians mistakenly used a unsafe” “drastically dosage of the solution. The doctors then left the room to examine X-rays. While arms, in his foster mother’s the child to breath began peculiarly, became spastic, convulsant and finally comatose. Mobaldi held that plaintiff satisfied the Dillon where she and hear- requirements by sight “perceive[d] ing physical injury another in her presence caused defendant’s negligence, ...”

Mrs. Ochoa’s position this case is similar to the plaintiffs above-discussed cases and factually from that mother distinguishable in Jansen. Here Mrs. Ochoa aware of and observed conduct aware of the fact her child. She was

defendants produced knowledge To her medical attention. that her child was in need of immediate her complaint care. As necessary had the defendants failed provide con distress and mental and emotional she extreme alleges, “experienced of medical neglect outrageous cern for son apparent [sic] *11 Archi in both care while she was Like the present.” parents Nazaroff bald, shock, the connection from she was able to and suffered perceive, Jansen, contrast, in By between defendants’ conduct and her child’s injury. suffering. of her child’s distress from the only sight the mother’s stemmed of impact distress she have suffered as result Any may perceiving the acci “learning of her child was the result of defendant’s conduct upon 741.) Cal.2d (Dillon, supra, dent from others after its occurrence.” from that Jansen was no different In this the mother’s situation in regard, due of his or her child and suffering who witnesses the any parent pain a contrib conduct is is unaware that the defendant’s to illness factor to the continued and suffering. uting pain on the the case before us may Jansen Although distinguished tortious defendant’s did not perceive that in Jansen ground plaintiff conduct, County court in Hair we no means did the suggest—as must be aware 543-544—that Monterey, plaintiff supra, Cal.App.3d ob court in Mobaldi actions. As the of the tortious nature defendant’s served, result that a mother to the anomalous such a would lead requirement because she who a car could recover viewed child struck being (Mobaldi, supra, did not realize that the driver was intoxicated. 583.) at p. Cal.App.3d conduct of the defendant’s

We are satisfied that when there is observation con- awareness the defendant’s and the child’s injury contemporaneous child, recovery is permitted. duct or lack thereof is harm to the causing merely were forth in Dillon It is to remember that the factors set important a foreseeable to be in whether the plaintiff used guidelines assessing “We are not As we stated in Dillon: victim of the defendant’s negligence. whether¡ reduced weight the absence or now called to decide in upon factors, and injury that the accident of the above we would conclude some duty owed no defendant and that therefore reasonably were not foreseeable demar lines of the courts will draw of due care to In future cases plaintiff. in the com alleged ones cation facts more subtle than the compelling upon in is clear that It (Dillon, us.” 68 Cal.2d at p. before plaint Ochoa that Mrs. to foresee had reason every case defendants present would be their conduct. distressed the Dillon the benefit of not get

It has been that should suggested plaintiffs distressing where rule, at a location because were they voluntarily present incidents were to occur. In we that another likely Justus dictum implied factor mitigating against of the Dillon rule application plight the fathers present voluntarily room was that were delivery they in a present where it was would witness place extremely they likely distressing events. Cal.3d this Some courts have read statement imply recovery by the scene of a traumatic voluntarily event be precluded. (See, v. Macias e.g., Cortez 640, 650 Cal.App.3d 905]; Regents University Austin v. Cal.Rptr. 420], Jeffer of California son, J., dis.)8 Such a however requirement very undercuts foundation upon which the Dillon case rested. We said Dillon that a tortfeasor could be held liable for to a because of the foreseeabil damages bystander parent *12 “ ity that the of parent child endangered would be ‘somewhere in the ’ ” (Dillon, vicinity. 730, Prosser, 68 Cal.2d supra, Law quoting (3d Torts 1964) ed. A distinction between the involuntary voluntary presence of the close relative of the or dead thus injured person appears relieve the defendant of risk which very should have been foreseen. While in a case it a bystander be said that proper shock, assumed the risk of traumatic we that in ordinary cannot say course of events the voluntary of the should involuntary presence plaintiff be a decisive factor in whether has stated a Dillon determining cause of action. To the extent that Justus makes contrary it is suggestion, disapproved.

The fear that a less than strict Dillon factors will result application in “infinite liability” should not courts from prevent allowing plaintiffs forward when go their shock and trauma stems from their sensory percep tion of defendant’s where, conduct and their loved one’s injury, particularly here, as defendants could clearly foresee Mrs. Ochoa’s traumatized reac tion. In Dillon defendant that argued an otherwise meritorious claim should be barred out of a fear that there would be an increase in suits as well as fraudulent claims. We here our to such a contention: repeat response should be sorry a rule which would bar all such claims on adopt “‘[We] alone, grounds of policy and in order to success of prevent possible unrighteous or groundless actions. Such a course involves denial of cases, redress in meritorious and it a certain necessarily degree implies distrust, share, do not tribunals to capacity legal get [we] at the 744, truth in this (Dillon, class of claim.’” 68 Cal.2d at 8Commentators have voluntary/involuntary bystander also noted and criticized distinc (See, Ursin, e.g., Negligent tion. Emotional Distress: Coherence Nolan & Infliction of Emerging Twerski, Chaos 583, 597; Seizing the Middle Hastings L.J. Ground Between Rules Design Litigation: Advancing and Standards in Ver Directed Defect dict Practice in the 521, Law Torts L.Rev. N.Y.U. Dulieu (1925) quoting Hambrook v. Stokes Bros. K.B.

quoting J.) Kennedy, White and Sons K.B. opn. has Mrs. Ochoa as alleged,

We therefore conclude that under facts emotional distress a cause of action for infliction of stated the fifth cause action should reinstated.

II of action for negligent Plaintiffs also contend that have stated cause they of de- victims” because were “direct they infliction of emotional distress Molien v. Kaiser our decision in within the negligence meaning fendant’s 831, 616 P.2d Foundation 27 Cal.3d 916 Hospitals could court held a husband 16 A.L.R.4th In Molien this 518]. where of emotional distress cause of action infliction state a for negligent We having rejected his wife had been negligently misdiagnosed syphilis. the diagnosis he when contention that although present plaintiff’s Dillon wife, victim under his he was a “bystander” was communicated to action lies not that “. . . the of Dillon for the saying significance present issue precise for resolution its delineation of fashioned guidelines *13 us; rather, of foreseeability we then before its apply general principle hand, complex in other cases facts at much as we have done presenting of tort liability. questions omitted.] [Citations foreseeable reasonably was “In the case bar the risk of harm to plaintiff diagnosis syphilis It that an erroneous easily to defendants. predictable emo- and resultant marital discord probable and its source would produce Mrs. advice to Kilbridge’s to a Dr. spouse; tional distress married patient’s confirms that plaintiff Molien to have her husband examined for the disease the disease Because diagnosis. was a foreseeable victim of the negligent relations, anticipate it is rational to normally only transmitted sexual hostility anxiety, both husband and wife would suspicion, experience to believe was reliable had reason every when confronted with what they medical evidence of a noxious infidelity. particularly conduct defend- tortious alleged “We thus with that the plaintiff agree ” (Molien, 27 Cal.3d to his ant was directed to him as well as wife. added.) p.at italics victims as direct here a cause of action Plaintiffs have not stated was, by very its misdiagnosis In Molien defendant’s defendants’ negligence. to tell was asked The wife wife and the husband. nature directed at both the submit to husband was required her husband of the and the diagnosis case contrast, in the instant the defendants’ By negligence tests. here decedent, directed at the with on primarily Mrs. Ochoa as looking helpless as the bystander of her son’s demise before her. While tragedy unfolded she was a foreseeable to whom the defendants owed a care plaintiff duty Dillon, to our pursuant holding owed to her as a duty owed was witness, not as percipient a direct victim of negligence.

Ill In the sixth cause of action refer Gloria Ochoa incorporates by ence the facts previously set forth and that the and delib “callous alleges erate indifference” of defendants “to the serious medical and needs physical of decedent” violated federal and against state constitutional prohibitions cruel and unusual punishment.9 She further alleges the facts state a cause of action under 42 cognizable United States Code section 1983.10

We note initially that the civil cause of action has been rights brought by Gloria Ochoa in her administratrix of her deceased son’s capacity special estate. Although United States Code section 1983 itself is silent on the question whether an action to its survives the death of pursuant provisions violations, victim of the alleged 42 United States Code section 1988 provides that “in all cases where laws of the . . . United are [the States] deficient in the provisions to furnish necessary suitable remedies and punish law, offenses against law, the common as modified and changed by constitution and statutes the state wherein the court having jurisdiction of such civil or held, criminal cause is so far as the is not inconsistent same States, the Constitution and laws of the United be extended to shall *14 govern said courts in the trial and of the cause. ...” disposition (42 U.S.C. 1988.) This has provision § been to mean that interpreted since actions, section 1983 is silent on the of survival of state law question be must referred to in order to (See make that Robertson v. determination. Wegmann 584, 554, 559-561, 436 U.S. 588-590 L.Ed.2d 98 [56 1991].) S.Ct. Eighth 9Both the I, Amendment of the federal Constitution and article section 17 of the California Constitution prohibit punishment. Eight infliction of cruel and The unusual provides: Amendment “Excessive required imposed, bail shall not be nor excessive fines nor I, cruel and punishments unusual provides: inflicted.” Article section or 17 “Cruel punishment

unusual may not be inflicted or imposed.” excessive fines provides statute, 10Section “Every who, 1983 in part: person, relevant any under color of ordinance, custom, regulation, usage or . subjects, subjected, any . . or to causes be citizen of the United States deprivation ... any rights, or privileges, immunities secured by laws, the Constitution and law, party shall be liable to the in injured an action at suit in equity, proper or other proceeding for redress. ...” California courts jurisdiction exercise rights concurrent over civil actions under section (See, 754, 1983. 985]; Serrano v. Unruh Cal.Rptr. 32 Cal.3d 621 652 P.2d [186 Williams 453, v. Horvath 1125].) 16 Cal.Rptr. Cal.3d 834 548 P.2d [129 174 survival governing

Probate Code section 573 is the principal provision in relevant in 1961 actions in this state. Section 573 as amended provides death of of the by “. of action shall be lost reason . . cause part [n]o or his executor administra- but be maintained or may by against any person of action here- to “all causes tor.” These were meant apply provisions Code, (1974 573 Ann. Prob. or hereafter . . . .” (Deering’s § tofore arising that all 327.) to make clear ed.) note at The 1961 amendment was meant claims, survived the death to the person, those including 1974) (8th ed. (See Witkin, of Cal. Law Summary victim or wrongdoer. 461, 14-15, 2314-2315; (1979) 88 Cal.App.3d Estate Hoertkom §§ case, claim is in the 806].) the decedent’s In the present [151 tort, 573, his death and survives of a and under section such claim nature Witkin, the administrator of his estate. may brought by action, we note that to the the section 1983 Turning allegations supporting status custodial or silent as ambiguous precise complaint he was a “pretrial It whether Ochoa to his death. is unclear Rudy prior of a equivalent in fact received the juvenile detainee” whether he had Amendment Eighth trial. afforded general, protections for a crime. has and sentenced do not attach unless the victim been tried 651, 671-672, L.Ed.2d fn. (See 430 U.S. Ingraham Wright [51 711, drawn between a 730, 1401].) been 97 S.Ct. A distinction has usually and a sentenced detainee, whom the state lacks power punish, pretrial and unusual manner. offender, whom cruel the state punish 447, 520, 465- L.Ed.2d (1979) 441 U.S. 535-536 (See Bell v. Wolfish 1291, 1978) F.2d 466, (4th Cir. 1861]; S.Ct. Loe v. Armistead the due clause process A trial is awaiting detainee protected Amendment, (Ibid.) Amendment. rather Eighth the Fourteenth than case, however, “the due because is not fatal the instant ambiguity Amendment the Eighth of a are at least as as great process rights [detainee] (Revere v. Massachusetts to a available convicted prisoner.” protections L.Ed.2d (1983) 463 U.S. General Hospital facts, alleged, show 2983].) we that the S.Ct. Because conclude *15 determining for standards set forth conduct violated the that defendants’ violated, we need not been have whether the convicted rights prisoners afforded pretrial the rights action the exact scope determine in the present however, should, be given medical care.11 Plaintiff detainees with to respect 11 note, however, at least two articulated Supreme Court has We that the United States standards, obligation to furnish process governing the due may applicable, be state’s which Bell any crime. In convicted of custody in its who have not been medical care to individuals detainees, pretrial Wolfish, supra, of confinement which involved the conditions v. [(1963) 372 U.S. [Kennedy in v.] court stated: “The factors identified Mendoza-Martinez

175 amend, leave to if of her she so to the status son requests, properly allege at the time of his death.

Estelle v. Gamble 251, 97 429 U.S. 97 L.Ed.2d S.Ct. [50 285] a set forth standards to a claim that the medical needs of applicable have been In that United States Court prisoner case the ignored. Supreme held “deliberate indifference to con- serious medical needs prisoners stitutes the wanton . ‘unnecessary and infliction of . . omit- pain’ [citation Gamble, (Estelle supra, Amendment.’’ v. 429 proscribed by Eighth ted] state, U.S. at 104 260].) L.Ed.2d at The went on to how- p. court [50 ever, that not every claim medical care rises to the level of inadequate cruel and unusual punishment. “a that a Specifically, physician complaint has been or a diagnosing medical condition does not treating state a valid claim of medical mistreatment under the Eighth Amendment.” 261].) 106 L.Ed.2d at p. [50

The court concluded that under the facts there had present prisoner to In Gamble failed state a claim for relief. had been prisoner injured, had been a checked for hernia returned to his cell. He experienced pain for which he was given medication and examined The was doctor. doctor, he was following day examined again diagnosed another as back strain and having received his medication for condition. On other oc- (9 644, 554)] 144 L.Ed.2d provide 83 guideposts. S.Ct. useful A court ... must decide disability imposed whether the purpose for the of punishment or whether it is but an incident of some legitimate governmental [(1960) other purpose. Flemming See v. Nestor 1435, 363 U.S. showing 603] 613-617 L.Ed.2d [4 S.Ct. Absent of an ex 1367]. pressed officials, punish intent to on the part facility generally of detention that determination will turn on purpose ‘whether alternative rationally which [the restriction] it, assignable connected is appears and whether it excessive relation the alternative purpose assigned Mendoza-Martinez, 168-169, Kennedy supra, [to v. it].’ U.S. at [9 644, 554]; Nestor, Flemming L.Ed.2d 83 S.Ct. supra, see v. L.Ed.2d [4 1367], Thus, S.Ct. particular if a pretrial reasonably condition or restriction of detention is legitimate not, related to governmental more, objective, ‘pun it does without amount to (Bell (60 ishment.’” omitted.) v. [supra, 468)], at pp. U.S. L.Ed.2d at 538-539 fns. Wolfish Youngberg 2452], v. Romeo 457 U.S. 307 L.Ed.2d S.Ct. process rights involved the due involuntarily of an mentally person, committed retarded court first noted [(1976) that the standard articulated in Estelle v. Gamble U.S. 285)] L.Ed.2d 97 S.Ct. persons for denial medical care of convicted had been Romeo, erroneously 307, 312, applied by (Youngberg the lower court. v. 457 U.S. 28, 35].) fn. 11 involuntarily L.Ed.2d person court concluded that the committed right food, shelter, adequate conditions, had a clothing, and medical also care and to safe bodily freedom minimally from adequate training restraint and care or reasonable to ensure safety and freedom from undue Liability imposed restraint. would be “when the decision professional [regarding person] care of the committed departure such substantial accepted professional judgment, practice, per- standards to demonstrate that the responsible actually son judgment.” (Youngberg did not base the decision on such a *16 Romeo, supra, 42], standard, p. omitted.) 323 L.Ed.2d at either fn. Under alleged facts as would a constitute cause action under section 1983.

176 he when by complained casions he received and was seen doctors treatment had that the The it apparent plaintiff court concluded that was pain. quite indifferent doctors were not “received extensive medical care and that the 262].) to his needs.” fn. 16 L.Ed.2d from a “serious suffering was Defendants do not that Ochoa Rudy dispute Rather, did not rise conduct medical need.” contend that defendants’ they in Gam- the court by the level of “deliberate indifference” contemplated two doctors on at least was seen Pointing Rudy ble. fact infirmary in the he received a was diagnosis, placed occasions and that him, are assert that plaintiffs was for defendants penicillin prescribed have a of cases which Defendants on rely group merely alleging negligence. that under or evidence suggests denied relief to where prisoners allegations or if not adequate was adequate, the circumstances the treatment received merely negligent.12 may, medical treatment

It has been however that inadequate recognized, instances, States Code section of 42 United some constitute violation 860-861, 5.) fn. v. F.2d (Westlake (6th 1976) Lucas Cir. 537 1983. ex 1982) (E.D.Pa. In 529 F.Supp. v. City Philadelphia Sturtz recklessly “carelessly, that defendants acted ample, plaintiff alleged neck and eye, sutures from his they when failed to remove negligently” inadequate alleging was although face. court concluded that plaintiff 1983; “. . . treatment, section action under medical he had stated a cause of attention and dispute where a has received medical prisoner some treatment, reluctant to are generally over the federal courts adequacy Wisconsin, v. 368 F.Supp. second medical Pinon guess judgments. case. clearly distinguishable from the instant upon defendant are all 12The cases relied (3d was 1980) example, the defendant doctor v. F.2d 1204 for Hamilton Roth Cir. 624 had never been ar condition plaintiff’s unaware that the consultation he had ordered for immediately arranged for delay ranged by prison Upon learning of the the doctor officials. pre cooperate who did not prisoners have involved consultation. Other cases 1980) (S.D.N.Y. (See, Hongisto Bourgeois v. e.g., scribed course of treatment. 304; 468.) 1981) cases the court Layne (1st F.2d In other F.Supp. v. Cir. Vinzant it did not and found that given personnel examined the medical course treatment plaintiff’s given the nature any way adequate deviate treatment or from standard was 229; (See, (5th v. Robinson 1977) Alexander Bass Cir. 550 F.2d condition. v. Sullivan 164; (E.D.Pa. 1232; (9th 1980) Freeman 1979) May 633 F.2d F.Supp. v. Cir. Enomoto 728; (S.D.Ga. 1980) 1977) F.Supp. (8th v. Beck v. Lockhart Cir. 561 F.2d Brown urgent medical suggesting a serious In other cases there was a lack of evidence 209; 1980) v. McGowan (See, (E.D.Wis. F.Supp. Brown e.g., v. need. Sowell Israel (8th Cir. (D.Colo. 1978) 468; Marshall v. United States F.Supp. Hancock Unknown diagnosis 1978) an incorrect though doctor had made 587 F.2d In one case even examination the doctor’s period not convinced that he did so after of time and the court was Campbell 1285). Finally, (see (4th 1977) merely 554 F.2d cursory v. Jones Cir. Wester diagnose (E.D.Pa. 1980) failure Hospital F.Supp. Heart 692 involved Sacred cursory attempt to do so very made more than rare disease where the defendants had alarming symptoms. and where the had exhibited no

177 1072, (E.D.Wis. 1973). See v. 468 F.2d Shappell, also Fitzke (6th cases, 1972). however, Cir. In some attention rendered the medical all, be so may woefully thereby as to amount to no treatment inadequate Westlake, 5; 860, to the level a rising 1983 claim. 537 F.2d at n. § Tolbert v. Eyman, 1970); 434 F.2d v. (9th Riley Rhay, Cir. (9th

F.2d (9th Cir. 1969); Rhay, Stilner v. 371 F.2d 421 n. 3 Cir.), denied, cert. (1967). 386 U.S. 87 S.Ct. 18 L.Ed.2d 346 case, In this . .. plaintiff has set of facts which adequately pleaded may a evidence a deliberate indifference en to serious medical needs which may title him to 1983 relief.” at p. §

Other cases have similarly medi- recognized “woefully inadequate” cal care result in the infliction of (See, cruel and unusual punishment. e.g., (D.Conn. 1978) 279; Scitarelli v. Manson Vin- Layne F.Supp. (1st 468, 474; 1981) Cir. (D.N.H. 657 F.2d Laaman v. Helgemoe zant 1977) 437 F.Supp. must, as we

Accepting the truth of the allegations complaint, there is no question that the treatment received Ochoa under the by Rudy circumstances was “woefully Mrs. inadequate.” brought Ochoa her son’s symptoms the attention of the when on defendants she visited with him March 24. When she visited him second time was Rudy exhibiting alarm ing symptoms, including soaring hal temperature, dehydration, vomiting, lucinations, the beginnings convulsions and severe on his left side. pain He was also indicated, observed blood. These vomiting conditions even layperson, emergency measures were needed. it was Significantly, left to Mrs. Ochoa to make use in order to care for her facilities son. Although penicillin it prescribed, is unclear that was ever admin any istered. Mrs. Ochoa’s for treatment for her son were met requests only the observation that he had It “bug.” is also that no alleged radiological, blood or urine tests were undertaken in order to condition. diagnose Rudy’s

Given the severity of the exhibited the decedent as well as symptoms the lack of response by defendants we to his medical needs conclude that Mrs. Ochoa has facts sufficient to state a cause of action under pleaded 42 United States Code section 1983.

a Let writ peremptory of mandate issue Court commanding Superior of Santa Clara to vacate its order in this a new County action and to enter order consistent with the views this expressed opinion.

Mosk, J., Kaus, J., J., Girard, J.,* Reynoso, concurred.

*Assigned by the Chairperson of the Judicial Council. *18 have

GRODIN, J. the facts which the agree majority plaintiffs I of infliction to cause of action for negligent are sufficient state a alleged 728 (1968) 68 Cal.2d under of Dillon v. Legg emotional distress the theory so, the 72, 912, 441 That being P.2d 29 A.L.R.3d Cal.Rptr. [69 1316]. were “direct they “alternative” which have advanced—that theory plaintiffs Kaiser of Molien v. victims” of defendant’s within the negligence meaning 831, P.2d 616 Foundation Cal.3d Hospitals Cal.Rptr. 916 [167 813, The majority in case to be redundant. 16 A.L.R.4th this 518]—appears and I of this cause to the decision entirely therefore opinion adequate in concur the judgment. today’s

I after opinion also with the Chief Justice that there remain agree the the Dillon guidelines numerous of concerning questions application this court to the lower courts which which have troublesome proved must, later, of needed a means focusing sooner confront and resolve. As devel- to attention which ought guide those considerations upon policy thoughts to add a few the law in this area I take the opment opportunity own. my deter- regards As physical injury, apart problems pertaining (see, Rowland Christian e.g., mination of in certain classes of cases duty 97, 561]), 108, P.2d Cal.2d 112-113 Cal.Rptr. foreseeability, allowed under a normally showing negligence, cause; for the said to be question and each of these elements is proximate General, (Weirum v. RKO Inc. 15 Cal.3d jury. Keaton, 1984) (5th ed. 36]; 539 P.2d see also Prosser & Torts § distress, to emotional 235-238.) If rules were applied same precisely as a

then in who claims to have suffered such any injury principle person to a his case result of would be entitled to present another’s act negligent with respect whenever the record reflects triable issues fact jury Moreover, this logical analysis as a matter of elements tort. requisite enun- with the criteria would be true whether or not the evidence comported Dillon, as guidelines ciated in most criteria would serve since at those of fact. as a foreseeability determination jury’s question however, recognized, It must be such rule would desirable. Perhaps observing that that it is not the rule which Dillon established. After infinite potentially “to limit the otherwise serves principle foreseeability 739), (68 Cal.2d p. which act” every would follow “the courts Justice factors suggest Tobriner’s opinion proceeds reason- should defendant will take into account” in “whether determining de- or, whether terminology, in other ably foresee plaintiff, (Id., see also fendant owes due care.” plaintiff duty the accident whether court will determine light of these factors the [“[i]n foreseeable”]; and harm was have courts reasonably [“[t]he situations, liability, drawn the limits of past, analogous general applying cases”].) guidelines such as those above set forth to the facts of specific Thus, be, however, it is flexible the Dillon were intended to guidelines *19 they clear that were to the as a first instance the courts applied by means of The guarding against unwarranted extensions of liability. principle of a this foreseeability, for the became fused in normally question jury, analysis with the for of which serves vehicle concept duty, normally as limiting on the of are to thought basis considerations which policy outweigh (Dia- the of policy victims of conduct. compensating negligent mond, Dillon v. Revisited: Toward a Legg Theory Compensating Unified of Bystanders and Relatives (1984) 35 L.J. Intangible Injuries Hastings for Dillon v. Revisited].) Legg [hereafter confusion,

This fusion has to a given degree rise of and a of perception “arbitrariness,” in the of the Dillon Professor Dia- application guidelines. mond, criteria, for (a that the example, argues three Dillon one only close between the victim and relationship clearly is bystander plaintiff) Revisited, relevant to a (Dillon v. foreseeability analysis Legg L.J. at Hastings 488), and that “mechanical application” “has led to guidelines the erection of limitations on bear- arbitrary recovery little relation ing to the so principles forcefully foreseeability espoused ” (Id., in Dillon. The Chief Justice’s in this case separate opinion provides numerous illustrations of this thesis. dilemma,

One solution to this is any to abandon limitations obviously, for upon recovery emotional that are not also injury imposed upon physical This injury. to be the Mc appears of the House of Lords in approach Loughlin v. O’Brian (1982) 2 All is 298.1 The not Eng.Rep. parallel precise since in Britain (see are personal cases tried without injury normally jury Ward v. James 1 Q.B. 280) so it which deter court mines whether the recovery present. elements are there application, fore, the English rule is similar to that which would exist if we were to recognize negligent infliction emotional tort generic distress as with element of foreseeability by determined the court rather than the jury. Justice,

A second approach, that advocated the Chief for calls extend- ing of Molien v. principle Kaiser Foundation Hospitals, supra, Cal.3d so as to allow infliction of mental victim, distress whether the plaintiff is a “direct” or “indirect” but to insist high 1The Coffey court of Australia has arrived at similar result in Jaensch v. Argus Austl. L.R. 417. The function this

that the meet some threshold “seriousness.” injury “fraud, claims, trivial would be to requirement, presumably, against protect Ursin, Emotional liability.” (Nolan Negligent unlimited & Infliction of L.J. Hastings Distress: Coherence Chaos Emerging from commentator, emotional One that even “serious” observing existence, “limiting recovery a normal and inevitable suggests part do cases of emotional distress most with people face sufficientfre- for, to absorb and thus certainty quency anticipate, prepare sufficient (Note, Limiting severe or emotional suffering permanent damage.” without “Bystander Negligent Emotional Distress: Liability for Infliction of 847, 868.) This is similar Recovery” Cases 54 So.Cal.L.Rev. constituted, man, normally in Molien: “a formulation whether reasonable would be unable to mental stress cope engendered adequately *20 Rodrigues citing the circumstances of the case.” Cal.3d 509, 520],)2 State 52 Hawaii P.2d 173 [472 Two what be termed might academic commentators have suggested for it is more radical solution. Richard Miller argues possible Professor recovery to to for mental-distress- judicial process produce approach and policy concerns of satisfy justice that will without-impact competing ordinary of “only negli if the courts are to willing couple application re liability for of gence significant issue principles determining The (Miller, Scope duction in the if damages available imposed.” “The Making Emotional Distress: Liability Negligent of for Infliction of 1, 3.) Fit Punishment 1 Hawaii Eschewing Crime” L.Rev. of general Miller advocates case-by-case Professor approach, application cases to tan tort with a limitation of in mental-distress principles (Id., at economic loss of and disability. in the form medical care gible Diamond, in 39-40.) Turpin Professor to this court’s pp. opinion pointing il P.2d to v. Sortini 31 Cal.3d 220 Cal.Rptr. 954] re lustrate the of limitations judicially upon such appropriateness imposed thesis to include loss covery, advocates Professor Miller’s extending (Dillon v. Legg as well. consortium and claims parent-and-child society Revisited, 479-480.) supra, L.J. Hastings limitation it court-imposed has been that while

Finally, suggested any inflicted who recover for category negligently upon plaintiffs more ac- the result is emotional distress can be as “arbitrary,” attacked at all. in not to have limitations any terms of than ceptable public policy Harm— Emotional (Pearson, to Liability Bystanders Negligently Inflicted suggests it Molien insofar as Nolan and take with the formulation 2Professors Ursin issue rule, when injury, should be abandoned plaintiff” physical that the “thin skull to applicable Ursin, (Nolan Emotional Distress: injury. Negligent comes it to emotional & Infliction of Chaos, Hastings fn. Emerging Coherence L.J. at A L.Rev. Comment on Nature Rules U.Fla. Arbitrary Professor a return Though Pearson relies his upon analysis urge “zone of danger” might test Dillon a similar rejected, argument in made with or with- guidelines, continued reliance Dillon support upon out modification. alternatives,

This case does not these and I require us choose among not do do so now. to me that the What seems important recognize choice involves difficult inevitably including questions public policy, determination to whether any the nature emotional injury requires limitations recovery that are not upon imposed physical injury also upon and, so, if what those limitations to be. Absent precisely ought legislative decisions, guidance, courts cannot avoid such making policy assistance, process them we are making to benefit from all the likely evidence, the form of can analysis and that the empirical parties provide. BIRD, J.,C. Concurring and Dissenting.

I. Seventeen years Dillon v. ago Legg (1968) 68 Cal.2d 728 *21 441 P.2d 1316], 29 A.L.R.3d California became the first American jurisdiction to hold that a mother could recover for the emotional distress she experienced when she witnessed the infliction of death or to her child even she was not within the zone of though physical (See Ursin, Nolan danger. & Emotional Distress: Negligent of Infliction Coherence Emerging 583.) Chaos L.J. The Dillon Hastings from court the rejected “hopeless (68 of the rule artificiality” zone-of-danger 733) Cal.2d at and the emphasized foreseeability of primary importance in establishing (Id., 739-740.) liability.1 pp.

However, the court cautioned that since inherently intertwined duty with this foreseeability, issue “must necessarily adjudicated only upon case-by-case basis. We cannot now defendant’s predetermine obligation every situation by a fixed category; no immutable rule can establish the extent of that (68 for Cal.2d obligation every circumstance of future.” added.) italics

Dillon set forth certain guidelines determining foreseeability ques- “(1) tion: Whether near scene the accident as was located plaintiff foreseeability, 1Dillon embraced the concepts negligence, proximate cause and but Also, condemned recovery contrary general “artificial abstractions” which bar rules. “ recognized it principles ‘mechanical rules thumb which are at variance with these good.’ (68 746-747.) do more harm than pp. Cal.2d at [Citation.]” with one Whether the shock away contrasted who was distance from it. from the and sensory resulted from a direct emotional upon plaintiff impact accident, with learning of the as contrasted observance contemporaneous and the accident others after its occurrence. Whether related, victim an relation- closely any were as contrasted with absence ” (68 Cal.2d at 740- or the ship presence only relationship. distant The What followed confusion rather than clarity. has in Dillon's wake is led This has strictly Dillon have been and guidelines mechanically applied. and results antithetical to arbitrary, principles inconsistent inequitable in Dillon. enunciated First,

A of the the Court of Appeal review cases is illustrative. consider Dillon guideline. decisions have construed second strictly Hathaway Superior Court 112 Cal.App.3d 435], cooler evaporative was electrocuted six-year-old boy by touching house, father, while mother who were inside the outside. His playing came their wrong out after son’s told them playmate something their water by child. rushed outside to see him in a They lying puddle state,” Efforts revive him cooler in a “dying gagging spitting up. failed. 730-731.) at pp.

The action Court of held that the did not state a cause of Appeal parents under Dillon because did not the second “requirement.” they satisfy injury- “did not sensorily perceive parents event, is, electrically charged the actual contact between the causing (the child], water but cooler saw results contact only [their *22 The was con- injuries) (Id., 736.) after the accident was at court p. over.” followed fident that its strict of the second Dillon application “requirement” (Id., 734.) flow of “steady Court cases.” at Appeal p. 506 Superior Cal.Rptr. Parsons v. Court 81 Cal.App.3d [146 There, who 5 the plaintiffs, A.L.R.4th one in that “flow.” example 826] had two were been a car in which their following daughters passengers, daugh came the car. realized their instantly upon wreckage They the ters either dead left his car reached were or The father dying. (Id., 508-509.) Neverthe “before the dust had settled.” at pp. wreckage see, less, not hear or the did parents the Court held that since Appeal event, the Dillon second sensorily otherwise perceive injury-producing (Id., 512.)2 had been met. at “requirement” p. Woodbridge Ebarb Park Cal.Rptr. Assn. Cal.App.3d 2See [210 also v. in a minutes body floating spa 20 (recovery denied to who observed brother’s sister

751] These cases are hard to reconcile with other Court of decisions Appeal which have taken a more flexible view. For example, Nazaroff Superior 657], Court the mother of a Cal.App.3d Cal.Rptr. three-year-old after boy sought recovery being son witnessing pulled from a swimming The mother had for her son when she pool. been looking scream, heard neighbor Danny.” “It’s She ran to saw a pool neighbor Danny out and him resuscitation. Three pull give mouth-to-mouth later, days boy (Id., 559.) died. at pp.

Even though accident, mother arrived on the scene after Court of Appeal recovery. that Dillon permitted Observing pa- [not] “creat[ed] rameters but (80 at char- merely guidelines” 562), Cal.App.3d Nazar off acterized the issue as whether emotional distress had resulted from the “contemporaneous observation the immediate of the de- consequences act,” fendants’ and concluded that there were triable issues of fact for the at jury.

Similarly, Archibald v. Braverman Cal.App.2d 723], the plaintiff’s 13-year-old son sustained severe injuries as the result of a explosion. Within moments of the actual explo- gunpowder sion, the mother appeared at the scene in an effort to render aid. When she saw his she injuries, suffered severe shock and fright, mental illness. Court Appeal defendants, reversed a summary for the judgment

concluding all three Dillon factors had been satisfied. factor, As to the second the court noted that claim- “[a] ing damages emotional trauma as a result of to a third must party either be present the time of the accident shock sustained [citation] by the plaintiff must be fairly contemporaneous with the accident rather than when the plaintiff the whole matter a later follow informed of date. Manifestly, the shock of a child seeing severely [Citation.] injured after immediately the tortious event as that just expe- profound rienced in the accident witnessing itself. the shock sustained Consequently, by the mother herein was . explosion . . .” ‘contemporaneous’ (Ibid., added.) italics *23 Madigan City after he drowned when arm spa); his became encased in drain at bottom of v. (1983) Santa Ana 145 Cal.App.3d (recovery Cal.Rptr. parent 607 denied to [193 593] of and stepparent son); who arrived at scene within killing 15 minutes after collision their (1977) v. Cal.Rptr. (recovery Gerhardt 68 Cal.App.3d

Arauz 937 denied to [137 619] son); mother who arrived at injuring scene within 5 her Powers minutes after collision v. (1974) Cal.App.3d Sissoev 39 Cal.Rptr. (recovery 865 denied to mother who saw [114 868] injured accident); 5 Vi-year-old (1971) daughter 30 to 60 minutes after the Deboe v. Horn Cal.App.3d 16 (recovery 221 Cal.Rptr. emergency [94 denied wife to to summoned 77] room totally husband). where she paralyzed observed 184 the

There is no should Why par- reconcile these cases. principled way Parsons, after the ents in and who arrived on the scene moments Hathaway event, in and crucial have been when the recovery, parents denied Nazaroff Archibald, accident, who have been permit- also arrived moments after the in the the parents ted Was the emotional distress suffered recovery? by emotional distress former cases less foreseeable than the any reasonably drawn suffered the in cases? The distinctions arbitrary the latter parents re- in and unjust cases such as and Parsons lead to Hathaway inequitable sults.

Other are this narrow construction rigid, inconsistent results caused the For Justus v. Atchison second Dillon guideline. example, compare Austin v. (1977) Cal.3d 564 565 P.2d with 19 Cal.Rptr. [139 122] 354 Regents University (1979) 89 Cal.App.3d [152 of California who were in Both cases involved Cal.Rptr. plaintiff-fathers present 420]. due defend- room when their children died birth delivery during Justus, the fa- ants’ In the court denied since alleged negligence. had ther’s him the baby just shock occurred the doctor informed that after Austin, (19 However, recov- 585.) died. Cal.3d at in the court permitted p. . . .” since the of the death his own observation . ery father “learned (89 are irreconcilable.3 Surely, at these results Cal.App.3d vic-

Cases the third Dillon addressing factor—“[w]hether related, any tim were with an absence of closely relationship as contrasted 741)—further a distant Cal.2d only relationship” presence that in terms of only illustrate morass has Dillon developed. spoke marriage close lower have in a blood or yet courts read close relationship, dis- arbitrary as a for recovery. Again, threshold relationship requirement tinctions, these mechanical and inconsistencies are the result of inequities applications. Superior Cal.App.3d 3Also illustrative is Johnson v. Court [177 There, 63], medically Cal.Rptr. resulting from a caused a mother emotional distress suffered finally recognized initially guidelines, The court but attempted apply stillbirth. Dillon {Id., neatly Dillon mold.” difficulty fitting medically “the into the caused stillbirth action, nonetheless recognizing concluded that a cause of the court “[i]t during fetus patently sufficiently relationship clear a mother forms close . . . The pregnancy foreseeably so that stillbirth will cause her severe emotional distress. its was not which it problem contorting solution to the lies in Dillon to cover situation fit, sensory arising designated recognizing emotional distress but action for part cause of impact compensable of the death of the mother’s child (Ibid.) malpractice Dillon a focus on the reason reading to herself.” A more liberal oí a strained foreseeability prevented able have such of the serious emotional distress would (See 190-191.) analysis. post, disarray. (Compare Negligent own state of misdiagnosis and treatment are their cases Cal.Rptr. Regents App.3d Mobaldi Cal. University v. [127 of California 720], Hospital with Jansen Medical Center v. Children’s Cal.Rptr. Cal.App.3d 538 County Monterey Hair 883]

639].)

185 Drew v. Drake is another Cal.Rptr. Cal.App.3d [168 65] There, she wit- illustration. the sustained emotional distress when plaintiff nessed an her facto with whom automobile collision “de involving spouse” she had lived three the third Dillon continuously for years. Construing and the guideline a between the require “family relationship” decedent, observed, the in a standing Court of allow Appeal persons “[t]o ‘meaningful (to a to recover relationship’ use contemporary colloquialism) for emotional Dillon distress would abandon the resulting physical injury . that . . out requirement liability, excluding courts mark the areas ‘[t]he ’ (Id., the remote 557-558.) ...” at unexpected. pp. dissent, In a worded Justice Poché chastised for sharply majority a drawing “bright line distinction” married between those persons formally and those not and for a rewriting third Dillon “to guideline require 558.) formal marriage at “We are told relationship.” Cal.App.3d . unchurched . . cannot be close and that the tortfeasor relationships could not foresee that his with a relationship victim would have a close to whom she was not person married. ... I do not believe that formally [t] no this marriage-no rule is what the California Court Supreme meant when it ordered the state a courts this on case- carefully analyze by-case (Id., basis what ordinary have foreseen.” person should 558-559.)4 v.

Trapp Schuyler Construction 149 Cal.App.3d [197 Cal.Rptr. further illustrates how the have construed narrowly courts 411] this The guideline. were plaintiffs two children who witnessed the drowning of their first cousin and constant in a playmate pool negligently swimming maintained defendant. of a analo- Despite presence relationship gous to between the Court of held that a close rela- siblings, Appeal friends, housemates, tionship “does not include standing or those ‘meaningful (Id., relationship.’”

The Court of for the Fifth that the Appeal District concluded recently third Dillon guideline (Kately strict construction. v. Wilkinson requires mother, There, Cal.App.3d 902].) Kately, Cal.Rptr. Rebecca, Rhonda, her friend, 14-year-old and the daughter, best daughter’s described as a “filial member” of the were involved in a water family, accident. was the Rhon- skiing Kately owner and of the boat. While operator 4A recent of Appeal contrary majority. Court decision has reached result Drew Ledger 814], Tippitt court concluded that an unmarried witnessing cohabitant could sue for emotional distress suffered “ stabbing pity death of lover. court noted that law should find more than ‘[t]he one who seeing critically is stricken or killed.’ injured that a loved one has been [Cita tion.]”

da was of an alleged water wheel locked because skiing, steering boat’s Rhonda, on, causing defect. While looked collided with Rebecca boat Rhonda, alive, into the boat. severe who was back injuries. was still pulled However, column, was unable to Kately “because of the locked steering Rhonda in to sit with boat. and Rebecca were operate Kately compelled water. Rhonda died badly mutilated condition the boat circled in the as (Id., 580.) injuries, as a result of her at these fatal injuries.” Witnessing p. Kately Rebecca suffered emotional stress. relationship

The Court of and Rebecca’s Kately’s concluded Appeal rela- family with but akin to a Rhonda was “not a one family relationship . .” (Kately, supra, because of . . tionship associations friendship past cases 579.) of several out-of-state Although aware guideline, which construction of the third Dillon more liberal suggested called the court “which have been upon observed that the California courts when the foreseeability, to construe the Dillon relate guidelines they absolute, than have construed satisfaction of one or more of was less them (Id., them strictly.” 584.)5 at p. illustrate, are the inconsistency

As these cases so confusion aptly The courts have result of the Dillon guidelines. a strict construction of reasonable woven a web of or no relation to the little arbitrary having rules of a emotional distress. foreseeability plaintiff’s However, Dillon and does not stop this state of law deplorable Foundation Hospitals its This court’s in Molien v. Kaiser progeny. decision (1980) 27 A.L.R.4th Cal.3d 916 616 P.2d 518] “analytically added layer already complex another of confusion upon dis- for emotional rules foreseeable regime arbitrary restricting recovery 587). (Nolan Ursin, tress” & L.J. at Hastings Molien, to recover for emotional distress this court a husband permitted a factual his Faced with syphilis. from the of wife resulting misdiagnosis mold, recognized situation did into the Dillon Molien not fit neatly and reaffirmed that that Dillon's controlled foreseeability general principles lia- a defendant’s determining was the foreseeability inquiry” “critical 922-923.) Cal.3d bility. guidelines not the Dillon bystander,

Since the plaintiff-husband However, the risk of since were Molien applicable. permitted court characterized foreseeable.” The “reasonably harm the husband was the husband as a “direct victim.” at p. (See post, theory. Appeal permitted recovery

5The Court of on another *26 observed, As several commentators and have this “direct victim” courts (See, test is more nothing e.g., than reasonable foreseeability disguise. 600, Andalon v. 162 Superior Court 609 Cal.Rptr. Cal.App.3d [208 899]; 914, Royale v. Convalescent Wiggins Hospital Cal.App.3d 158 Sonenshine, (dis. J.); Adjust 922-923 Accounts Cal.Rptr. opn. [206 2] ment Bureau v. Cooperman 158 848-849 Cal.App.3d [204 881]; Ursin, 603; Note, & Cal.Rptr. Nolan supra, L.J. Hastings Negligent Emotional Distress: Molien v. New Horizons Infliction of After Kaiser Hospitals (1981) 189.) Foundation 13 Pacific L.J. test, too,

Yet that has in Andalon v. confusion. For spawned example, Court, Superior the Court of permitted Cal.App.3d Appeal of a child born with parents Syndrome Down’s to recover for emotional distress from the resulting alleged care the mother. negligent prenatal court victims,” concluded that both were “direct since the parents mother awas party contract with the defendant-doctor and father was a “direct beneficiary of tort-duty virtue of the doctor- imposed [the] patient (Id., relationship.” at p.

In Accounts Adjustment Bureau Cooperman, supra, 158 Cal.App.3d 844, the Court of Appeal permitted parents two-year-old of a child to maintain an action against for emotional psychologist distress allegedly Molien, caused by the defendant’s on misdiagnosis their child. Relying the court held that would be pure fiction to believe that a negligent “[i]t diagnosis of a two-year-old could not foreseeably cause serious parents emotional distress. A no two-year-old has one but to be distressed. parents Parents having sole for their child victims of responsibility can direct their child’s (Id., misdiagnosis.” 848-849.) at pp.

A similar expansive reading Molien’s direct victim occurred analysis in Sesma v. Cueto (1982) There, Cal.App.3d Cal.Rptr. 12]. a mother and father suffered emotional distress as a result of medical alleged negligence resulting stillbirth of their child. The court permitted mother to to trial go as a direct victim since the dis- mother’s “emotional tress could have been in her personally directly sustained own right, contrasted to injury sustained in her as a ‘bystander’ capacity prospective mother distressed at (Id., inflicted unborn fetus.” upon omitted.) fn. The court further held that Molien the conclusion “supports . that . . the father may be able to is a show that he ‘direct victim’—if [] witness—of percipient acts rise to infliction of serious negligent giving emotional (Id., distress.” at p.

However, v. Macias Cortez 905], the Court of construed Molien’s direct victim Appeal strictly require- There, of emotional distress

ment. a mother sued for infliction negligent son. The court caused of her infant treatment negligent diagnosis broad ... recognized sufficiently permit in Molien language “[t]he (Id., case before similar to be to the facts us.” reasoning applied 649.) Nevertheless, and denied guidelines the court the Dillon applied did not from a contemporaneous because mother’s shock result news her child’s death observance of the conduct but from the 650.)6 moments later. at p. *27 v. Royale Convalescent

Wiggins Hospital, supra, Cal.App.3d also a direct victim limitation. illustrates strict construction of Molien's There, a for emotional the court to a wife who sued hospital denied recovery her seriously distress from the care of husband who was arising negligent failure hurt when he fell of the defendant’s from his bed because hospital the case to raise the bed’s The court was not that safety persuaded rails. Molien, a direct fell the wife was not within the ambit of that concluding from her husband’s injuries. victim since her emotional distress derived solely (I d., 917-918.) at pp. a dissent, In the wife was a Justice concluded that Sonenshine persuasive (158 923.) “It is easily pre direct victim under at Molien. Cal.App.3d dictable that infirm would pro care one’s and negligent elderly spouse duce of this case. emotional This is true distress. particularly context her ob Wife herself and unable to fulfill elderly spousal is personally care to of comfort and care. She thus entrusted husband’s ligations a would have direct defendants. abuse that Any negligent responsibility (Ibid.) her.” effect on Wilkinson, of Appeal the Court Kately Cal.App.3d v. would not permit a Dillon

applied analysis. Although flexible direct victim Molien, ante, (see 185), at court held that under mother the 587-589.) The man at daughter were direct victims. pp. have that Kate ufacturer and boat foreseen reasonably seller “should boat, suffer as the of the defective would ly, purchaser operator another injured emotional malfunctioned and killed or distress when the boat a (Id., 587-588.) defective product human “The user being.” pp. a defect product not mere and direct victim the bystander but primary decision, Califor has months after Molien 6One commentator observed that “[wfithin case to guidelines’ of that began nia ‘standards and appellate struggling apply courts to deter in Molien respective supreme of their court’s reminder Despite facts cases. basis, already to strict adherence liability case-by-case mine on have reverted lower courts Hospitals: New (Note, to the Dillon Foundation standards.” Molien Kaiser California’s Negligent L.Rev. Cal. Western Tort Distress Serious Emotional Infliction of 101, 118, omitted.) fn. (Id., Moreover, . . . .” in view of a statute which that required surveillance, the skier be under constant the court held that “it was fore- witnessing seeable would suffer emotional distress daughter] [the skier for whom was the observer ....’’ she responsible 588-589.) that has followed Kately particularly the confusion representative Dillon and Molien. Faced in which emo- with a factual situation compelling foreseeable, tional distress was court result. manifestly just reached But result was obscured a strict of the Dillon guidelines reading a flexible direct victim analysis.

Taken together, Dillon and Molien reduce if a following: victim,” is a “direct then a test to determine foreseeability “pure” applies However, infliction if the of emotional distress. plain- Diamond, tiff “bystander,” (See is a the three Dillon are criteria invoked. By- Dillon v. Legg Theory Revisited: Toward Compensating *28 Unified standers and Relatives L.J. Intangible Injuries (1984) Hastings 494-495; Note, Negligent Emotional Distress: Reconciling Infliction of Bystander and Direct Victim U.S.F. L.Rev. Causes Action 145, 152.) be It may asked whether the victim and a distinction between direct bystander is sufficiently (See clear to tests. different justify application Court, Andalon v. Superior 608-609.) Why, at supra, for example, should such as be plaintiffs Mr. Molien permitted while who fall within plaintiffs the ambit of the Dillon scenario bystander be denied recovery because of the Dillon simply they satisfy fail all guidelines?

One commentator has summarized the state of infliction aptly of emotional law distress after Dillon and have Molien: applied “[C]ourts the Dillon guidelines them as strict mechanically, viewing preconditions recovery. This mechanical arbitrary has led to the erection of application limitations on recovery little relation to of foresee- bearing principles ability espoused so in Dillon. forcefully While some instances mental is distress other compensated, injuries foreseeable mental are not. equally The is result feast or famine for the on the fortuities plaintiff depending ” time, location, or characterization of the or ‘indirect.’ as ‘direct’ (Diamond, at omitted.) L.J. fns. Hastings p.

II. Instead providing clear that is needed this area guidance sorely law, the majority mechanically the Dillon guidelines.7 Despite apply (See 7Compare majority’s treatment of Mrs. Ochoa with treatment Mr. Ochoa. their ante, maj. opn., fn. their reaffirmation be (maj. that the should treated such guidelines opn., ante, “re- 170), into strict even convert guidelines majority id.., (See narrowly & also construe fn. quirements.” They facts. Molierís direct victim Molien to its analysis, limiting virtually the “sudden occurrence” majority properly reject requirement been is premised had read into the second Dillon Their guideline. rejection ante, 168.) How on the arbitrariness (Maj. opn., requirement. ever, there ob the rule “when they propose—that recovery permitted contempo servation of the defendant’s the child’s injury conduct and harm” causing raneous or awareness the defendant’s conduct lack thereof is (id., 170)—is at p. arbitrary. equally be here,

While rule not always this obtains the correct such will result the case. of the defendant’s Liability should not on the observation hinge from seeing of emotional shock wrongdoing. Certainly, foreseeability loved one on whether always plain- die suffer does depend tiff aware” that observes the defendant’s conduct or is “contemporaneously such conduct is the harm. causing rule, on the scene after

Under the who arrives majority’s any parent accident who is will not For recovery. parent pres- permitted example, with a which results ent child when a doctor administers an incorrect dosage *29 who asked death while a is recovery, parent child’s will permitted in fatal to wait the same room while the doctor administers adjoining will not. dosage another,

This there court should not one limitation replace arbitrary and unfair inequitable artificial distinctions which result in by perpetuating Instead, es court embrace the rulings. foreseeability principles this should that both Dillon and Molien. Both of those decisions poused emphasized liability. determining of the risk was the critical element in foreseeability Dillon, 740.) 922; at (Molien, at 68 Cal.2d supra, p. Cal.3d supra, p. “ infinite Both to limit the otherwise potentially order recognized [i]n act, holds law of torts which would follow liability every negligent at the defendant for others which defendant amenable only injuries Molien, added; time were at italics reasonably p. foreseeable.” a on 922.) at to be determined liability Both instructed that had supra, p. the extent basis rule” could establish case-by-case and that “no immutable at (Dillon, supra, for in the future. circumstance liability every Molien, 740; 923.) at p. supra, p. dan- of the zone of

Just as Dillon “hopeless artificiality” condemned the bar (68 733), rule Cal.2d “artificial abstractions denounced ger p. 747) (id., of tort contrary general [principles p. law]” “ ” and rejected ‘mechanical of thumb’ which are at variance with rules those “me- general (id., 746), court principles reject this should p. chanical rules of thumb” Dillon guide- created rigid application lines and condemn the the direct “hopeless artificiality” victim/bystander duty distinction. Just as Molien held that the defendant owed to exercise care in that . reasonably case the risk of harm . . was “[b]ecause (27 923), foreseeable” Cal.3d at this court should reaffirm that simple holding.

Dillon and Molien foreseeability conclusion that reasonable compel test for appropriate whether a defendant is liable determining infliction of emotional distress. other those cases Any reading creates artificial distinctions and which in the end arbitrary limitations pro- duce unjust results and mass confusion.

By embracing reasonable foreseeability determine defendant’s liabil- ity, this court would all conform the emotional distress area to other areas law, of negligence there thereby its admonition in Dillon that honoring law, “no reason good why the general including rules tort concepts cause, of negligence, proximate to all other foreseeability, long applied types should injury, the case govern now before us.” Cal.2d at The test of reasonable “facilitates rational risk foreseeability spreading correlates with the risks that the defendant should liability (Diamond, expect.” L.J. at Hastings Most importantly, it provides a basis for principled determining liability. courts,

Other Hawaii, notably have held that reasonable England is the foreseeability test for appropriate a defendant’s determining in these cases. McLoughlin O’Brian All Eng.Rep. plain- tiff’s husband and three minor children involved in an were automobile *30 accident caused the by defendants’ One of the chil- negligence. plaintiff’s dren was killed and her and two other children instantaneously husband accident, were severely At the injured. time of the the was two plaintiff miles away at home. She was of informed the accident about hour later There, and was driven to the she hospital. saw the injured, bedraggled members of her and family heard that her had been two-year-old daughter result, shock, killed. As a plaintiff suffered severe organic depression a change (Id., 300-301.) of at personality. pp. of House Lords reversed both lower courts which had denied plain-

tiff’s claim and held she that had stated a cause of action for emotional Dillon, distress. in on Relying part McLoughlin concluded that “common law to principle the follow the of requires judges the logic ‘reasonably as, it

foreseeable so in it to apply test’ circumstances where is appropriate, distance, time, untrammelled by spatial, or limits. physical temporal Space, the the nature of the the of injuries sustained and relationship immediate victim to but not legal of the accident are factors be weighed, limitations, be when of is to foreseeability applied.” the test reasonable 311.) supra, 2 All at (McLoughlin, Eng.Rep. p. instructive, I

Since Lord in Bridge’s McLoughlin opinion particularly were no would like to from it at He concluded that there quote length. policy the of tortfea negligent considerations sufficient to justify limiting liability sors, distress, than who have criterion by caused emotional some narrower (Id., “A which 319-320.) of reasonable at foreseeability. policy to be on to must duty relied narrow the the tortfeasor’s scope negligent of considerations, be be and must justified by cogent readily intelligible of reference to factors capable defining by the of appropriate liability limits by which are not draw a line (Id., purely arbitrary.” “[T]o limit reference of any arbitrary to criteria must impose largely [the Dillon\ fast of . . . such hard and would be liability. [Ijnjustice wrought any lines (Ibid.) of as have been policy suggested.” where

Lord “this Bridge negligence concluded that is an area law we the freeze law in should resist once more to temptation try yet who, rigid application would to some posture deny justice succeed, ., in interests classic ought . . principles negligence continuously where matter is uncertain certainty, very subject in insurers from the interests of and their developing, defendants saving in I find myself burden doubtful claims. sometimes resist having duty . . . the defendant’s complete Tobriner agreement [Justice] must necessarily adju- on and—‘must be foreseeability reasonable depend de- dicated We cannot now only upon case-by-case predetermine basis. no fendant’s in a fixed immutable obligation every category; situation rule circumstance of every can establish the extent of that obligation ” added.) future.’ All italics Eng.Rep., the tort The courts of Hawaii have taken stands. In recognizing similar distress, State Rodrigues infliction of emotional court 509], held that 52 Hawaii 52 Hawaii P.2d 283 [472 such application general cases would determined “most justly where it was rea tort be found principles.” Liability *31 to could result foreseeable that serious distress the sonably plaintiff mental (Id., from 520-521.) the conduct. defendant’s at pp. four in v. Takasaki years was reaffirmed later

Rodrigues Leong There, that 94 A.L.R.3d the court held Hawaii P.2d 471]. [520 it “when a to an reasonably foreseeable that reasonable plaintiff-witness accident would not to the stress cope engendered able mental circumstances, such the trial conclude defendant’s conduct court should that is the the cause of and on de proximate liability plaintiff’s impose fendant for the of his any from damages arising consequences negligent (Id., 765.) The court noted that the Dillon act.” at p. “should guidelines not be a trial court but should at most be employed by recovery bar (Id., indicative of 766.)8 the of at degree mental stress suffered.” p. decision, recently,

Most in a unanimous the Hawaii Court reaf Supreme firmed the Rodrigues Leong. in Campbell principles and In v. espoused Station, Quarantine Animal Etc. 1066], Hawaii 557 P.2d the court of upheld award for suffered when damages emotional distress the plaintiffs’ died as a result of the in dog defendants’ trans negligence the to a porting dog veterinarian None of the private plaintiffs saw hospital. the die nor did dog any of them see its deceased were informed body. They (Id., death dog’s 1067.) the telephone following day. p.

The court Rodrigues (632 found that and Leong were dispositive. P.2d at 1068.) that the Dillon p. the view Reaffirming “should be utilized guidelines to determine distress, the genuineness and rather than to degree mental bar recovery,” the court indicated that is no that there the requirement (Id., tortious event be 1069.)9 witnessed by the plaintiffs. Supreme 8The Hawaii Court retreated somewhat from the views expressed forceful in Rodrigues Leong Kelley and in Supply, Kokua Sales Ltd. 56 Hawaii 204 [532 There, P.2d recovery the court grandfather living 673]. denied where in California suffered a fatal heart attack telephone when informed daughter granddaughter that his had been killed and another granddaughter seriously injured a result of an automobile accident as in To Kelley Hawaii. limit a liability, required plaintiffs defendant’s the court be located within a reasonable distance from the scene the accident. The court held that the defendants reasonably grandfather could not consequences foresee the since (Ibid.) his location scene of the accident was “too remote.” dissent, Richardson, In strongly Rodrigues worded Chief Justice the author

Leong, chastised majority drawing “arbitrarily plaintiff’s for a line that forecloses claim negligent for infliction of mental majority stress.” P.2d at He reminded the decisions, prior that in repose separate court “saw fit to trust in the trier fact its feigned’ ‘meritorious from the principles accordance with traditional tort . . . .” (Ibid.) “It follows from wrongdoer our established case law that for is liable consequences of his policy act. It is thus a deliberate decision that as between an innocent negligent wrongdoer, Confining and a latter must bear the loss. ...[!] liability specific sphere contemporaneity, proposed, is all too inflexible. effect majority arbitrary reinstates a scheme as to where ends that we distinctions expressly rejected Rodrigues. artificiality position majority’s readily is too apparent.” (Ibid.) 9An increasing number of other out-of-state are permitting decisions emo (See, guidelines tional distress in situations where the explicitly Dillon are not satisfied. Sons, e.g., Ferriter v. Daniel O’Connell’s Inc. N.E.2d Mass. [permitted recovery by A.L.R.4th a mother and children 518] for emotional distress from

194 the taken the courts of and Hawaii con- posture England supports role in clusion that reasonable should the deter- foreseeability play primary jurisdictions defendant’s in such cases. As both mining recog- the Dillon nized, for the should be used as mere factors guidelines jury’s rather for recovery.10 consideration than as hard and fast requirements of that it will such an will Opponents undoubtedly open approach proclaim observe, the the floodgates liability. majority result in unlimited But as “ ‘ Dillon, from a rule which would sorry should quoting adopt “[We] alone, bar all such claims on and in order to the prevent grounds policy success of Such a course in- possible actions. unrighteous groundless cases, necessarily implies volves the denial in meritorious and it redress share, distrust, do a certain degree capacity [we] ’ ” ante, tribunals to at truth in this class of claim.” legal get (Maj. opn., the omitted.) citations Rodrigues, a related Hawaii Court Addressing Supreme argument that its of the burden of recognized administering decision “does shift part claims mental assumed the courts to inordinately juries.” distress cases, 8.) However, in other P.2d fn. mental tort jury, “[a]s a cross in a better position section of the representing community consider under what or should not circumstances should particular society Moreover, for is no recovery jury mental distress. . . . less recognize restraint’ man’ we have established ‘without under the ‘reasonable standard injuries witnessing hospital quadriplegic husband-father in he had in a after sustained accident; plaintiff Supreme work-related that “[a] Massachusetts Judicial Court stated who injured greater rushes onto the accident scene and finds a loved one has no entitlement compensation hospital. for that So long shock than a who instead to the rushes accident, closely equally the shock are types as follows on the heels of the the two 697.)]; (1978) 555 foreseeable.” v. Babineau 375 Mass. N.E.2d [380 Dziokonski [permitted recovery wrongful suffered severe for a mother’s death where mother 1295] resulting passenger shock and died from a attack while she in the ambulance heart was a carrying daughter daughter that was run over due to the hospital; had been negligence vicinity defendant’s lived in the arrived on accident mother who had lying had on injured daughter ground]; scene and witnessed her Portee v. Jaffee recovery by original not see accident [permitted N.J. A.2d mother who did [417 521] young moving outer elevator and trapped which her son was between the door of a shaft, agonizing wall of the but who to the scene witnessed the slow was summoned child]; injuries police unsuccessfully sought of her to free the crushing death son N.J.Super. Transport Jersey [permitted A.2d Mercado v. New 800] recovery by happened, it went to a mother who of the accident minutes after scene learned street]; 1982) Corp. (Tex.App. Motors injured and saw her son in General v. Grizzle who [permitted recovery by a mother arrived at scene moments after the 642 S.W.2d accident].) (See Coffey(1984) jurisdictions a similar conclusion. Jaensch v. 10Twoother have reached 417; Paugh Hanks Ohio St.3d 6 Ohio B.R. 114 Argus L.R. Austl. 759].) proposing reasonably full for For an excellent discussion foreseeable N.E.2d Bell, Recovery Psychic injuries, The Bell Tolls: Toward Full Tort distress see emotional Injury U.Fla. L.Rev. 333. *33 than innumerable other where a man’ stan- cases ‘reasonable negligence dard and tort general are and where the issue principles applied preliminary of whether the case on men would presents which reasonable questions {Ibid.) for disagree is the court.”

Dillon itself indicated that the “lim- foreseeability of reasonable concept the otherwise infinite would follow potentially liability every it[s] act .” ... at “we 739.) Cal.2d Dillon also observed that p. cannot let the difficulties be frustrate the that there adjudication principle remedy every {Ibid.) substantial In the face of the wrong.” present confusion law, that exists in area of be this these statements should not ignored.

Moreover, court, the Molien like the Hawaii court in limited Rodrigues, recovery to claims of serious (Molien, mental distress. 27 Cal.3d at supra, 930; p. Rodrigues, limitation, 520.)11 P.2d at supra, p. That employed with the reasonable foreseeability limits the adequately class principle, (Nolan Ursin, 609-615; potential claims. & L.J. supra, 33 at Hastings pp. Ltd., Kelley Kokua Sales and 532 P.2d at 677-678 Supply, supra, (dis. Richardson, opn. C. J.).) seriousness criterion adequately “[T]he fraud, protects claims, against trivial liability and unlimited by requiring severe and Ursin, (Nolan harm.” & debilitating L.J. at supra, Hastings p.

It is also instructive to take note of Hawaii’s In its most recent experience. decision, the Hawaii “[sjince Court Supreme out that our pointed holding in Rodrigues, cases’; there has been no of similar the fears of ‘plethora unlimited liability have not true.” proved 632 P.2d at (Campbell, supra, p. 1071.)12

III. The Dillon guidelines in determining envisioned as aids reason- originally able foreseeability have been transformed into threshold rigid, requirements for recovery. Arbitrary, inconsistent and the rule. results are inequitable The scheme, Molien “direct victim” at as construed majority, least man, 11“[Sjerious constituted, mental normally distress be found where a reasonable would be adequately unable to cope engendered by with the mental stress circumstances 520; Molien, 928; (Rodrigues, the case.” supra, p. supra, p. 472 P.2d at at Cal.3d Dillon, see supra, p. general also principles recovery 68 Cal.2d ‘Under should [“ had in such a if fright case defendant should foresee or shock enough severe cause constituted.’”].) person normally substantial in a recognize 12I imposed arbitrary requirement that Hawaii one has to limit its since Ltd., (See Rodrigues. Kelley Supply, decision v. Kokua Sales and 532 P.2d at Richardson, id., 676; J.), ante, (dis. opn. but see C. fn. reasoning

only simply per- adds another of confusion. layer majority’s petuates problem. *34 on which Dillon and

The answer lies in a of the grounds careful reading distress, of Molien rest. An regardless individual who suffers emotional able to should be “bystander,” whether he or she a victim” or a “direct if foreseeable (1) reasonably recover distress was emotional damages reasonable fore- and the distress was serious. The of concepts suffered against adequately protect and serious seeability injury, employed together, it. Dillon determining unlimited a basis for liability principled provide liability. of fact in determining should remain to assist the trier guidepost arti shows that “Legal history As Justice Tobriner stated so eloquently, fear will legal process ficial islands of created from the that exceptions, time, and, work, de reality not do not withstand the waves of usually to an [fj captivity scend into . . . No reason our oblivion. good compels (Dillon, 747-748.)13 Cal.2d at indefensible orthodoxy.” pleaded have not facts suffi majority’s plaintiffs 13I dissent from the that also conclusion (See maj. opn., of emotional distress. cient to state cause action for intentional infliction of ante, 165, act majority that the defendant must apparently rely fn. on view view, (Ibid.) support To purpose causing of the plaintiffs “the emotional distress.” majority involving cite cases threats insults. view, autopsies, involving unauthorized my closely more cases this situation resembles defendant acted with where been a claim that the has found even absence of (See, & L. Ins. causing e.g., Huntly Zurich General A. purpose of emotional distress. 163].) Cal.App. Co. P. upon outrageous may rest A of of distress cause action intentional infliction emotional causing of disregard” probability conduct the defendant which is in “reckless (See Newby distress. There does have be an intent to cause such emotional distress. not 288, 547], disapproved Cal.Rptr. Apartments v. Alto Riviera 296 [131 740-741, Point, fn. 9 point in Ltd. v. 30 Cal.3d on another Marina Wolfson 1161].) conduct is P.2d “A defendant’s A.L.R.4th knowledge if has disregard causing he probability of the emotional distress reckless with deliberate disre- high will result and acts degree probability that emotional distress (BAJI 12.77 possible No. probability disregard results.” gard of that or with wanton Torts, i.) (6th 1977); response the lack of also Rest.2d com. Given § ed. see and the severity symptoms exhibited the decedent defendants in the face of the Ochoa, pleaded to state a cause have facts sufficient repeated pleas plaintiffs Mrs. infliction of emotional distress. action for intentional sufficient majority plaintiffs stated facts interesting It is to note that the conclude also requires plaintiffs 42 United States Code section 1983 to state a cause of action under “woefully inadequate” thus medical care was show that defendants’ to state facts which ante, (See pp. 176- punishment. maj. opn., cruel and unusual in the infliction of resulted it punishment, does have amounted to cruel and unusual conduct If defendants’ distress disregard” test for an intentional infliction of emotional satisfy the “reckless inconsistency there here. cause of action? Methinks