*1 Dist., B005211. Second Div. Six. Feb. [No. 1985.] LEDGER,

JENNIFER Plaintiff and Appellant, TIPPITT,

RONALD WILLIAM Defendant and Respondent.

Counsel

Dale G. Givner for Plaintiff and Appellant. Walsh, & Ellis for Defendant and J. Held and Lawler

Henry Jeffrey Bruce Respondent.

Opinion brought death was McMAHON, J.* wrongful first cause action The III, on behalf Richard II. The second of Richard Arters the son of Arters infliction of and third of action for loss of consortium and negligent causes distress, who a “stable were Jennifer Ledger, enjoyed mental brought by II, the with Richard Arters dece- significant” nonmarital relationship The of action were sustained dent. demurrer to the second and third causes amend, from the judgment without and Jennifer Ledger appeals leave dismissal. Presented

Issues years two with the decedent for approximately lived appellant due to cir twice frustrated marry bore child. Their were his plans *6 their witnessed her lover cumstances control. beyond Appellant being stabbed, for in a cause of action loss and he died arms. Does she have infliction for negligent consortium? Does she have a cause of action emotional distress?

Facts in cohabitating together Arters II began Jennifer and Richard Ledger was 1981, They initially old Richard 19. was 15Vi and years when Jennifer but, 6, 1981, to their wedding to on just prior be married December planned nursed him date, Jennifer motorcycle in a accident. Richard was involved Al- to be married. health, to Nevada decided go back then to be mar- from her Jennifer did obtain parents written authorization though * Chairperson Judicial Council. Assigned by the of the Richard, ried to she certificate, obtained only of her birth which copy allegedly deemed insufficient under Nevada law. Frustrated again, they child, returned to HI, California. Jennifer bore Richard Richard’s Arters and they lived together as a family. Richard the sole for provided support Jennifer and their son. 15,

On 1983, March II, Richard Arters his by business accompanied part- ner, HI, Jennifer and son, Richard Arters their infant were to Ojai traveling to submit an estimate on a a vehicle landscaping Suddenly, driven project. by respondent, Ronald W. encroached on Richard’s lane Tippitt, causing Richard to take sudden evasive action to avoid a collision. two vehicles came to a ultimately Both drivers stop. a verbal altercation alighted ensued between Richard and respondent Tippitt.

Jennifer remained seated a few feet Richard’s vehicle for away caring child, their but where she could witness the events. Suddenly, and without warning, respondent exhibited a knife and stabbed Tippitt Richard chest. When Richard fell to the Jennifer rushed to his ground, aid. She Richard, kneeled by arms, took him in her watched and cried helplessly Richard, bleeding died, became profusely, comatose and 20 min- slowly utes later.

Discussion Observing the incidence of cohabitation without in the marriage United States increased (Butcher between 1960 and percent Court Superior 58, 503], citing comment, Consortium Rights the Unmarried: Time a Reappraisal (1981) 15 L.Q. 223, 224), Family and that the number of unmarried couples then between tripled 523,000 1,560,000 1970 and (In from 1980—rising re Cummings (1982) fn. (dis. A.L.R.4th opn.), us to allow her appellant urges

to recover for loss of consortium and infliction of emotional negligent dis- tress.

Because these two issues to be intertwined with the rules appear relating to intentional distress, infliction of emotional and the cause of statutory *7 death, action for wrongful we will each of these causes of action compare for guidance.

1. Death Wrongful

In death, an action for wrongful it is to instruct that a husband proper could love, recover reasonable for compensation loss of his wife’s compan-

632 comfort, affection, loss of enjoy solace or moral society, support,

ionship, in the relations, assistance op ment of sexual or loss of any physical the lost earn losses such as or of the home. Economic eration maintenance (1977) 19 Cal.3d (Krouse v. Graham may also recovered. ing capacity 1022]; Southwest 59, 863, Canavin v. 67-70 562 P.2d Cal.Rptr. [137 Pacific 512, 527 (1983) Cal.Rptr. 148 Ai Cal.App.3d [196 rlines with an 82].) must be contrasted death action Conversely, wrongful Thus, in a death wrongful action for infliction of mental distress. negligent distress, and sor action, including grief for mental and emotional damages Graham, 72; row, Cal.3d at (Krouse not be 19 may supra, recovered. Airlines, 148 519- pp. Canavin v. Southwest supra, Cal.App.3d Pacific statutory. California law are purely death actions under Wrongful statute, for death wrongful the cause of action “Because it is a creature of power ‘exists so far and in favor of such as the only person legislative 564, (Justus 575 (1977) declare.’ ...” v. Atchison 19 [139 Estate Co. 97, Whitney Pritchard v. 565 P.2d quoting Cal.Rptr. (1913) 564, 989]; Garcia v. Douglas 164 Cal. P. see also [129 Aircraft 390]; 890, Imperial Steed v. (1982) Co. Cal.Rptr. Cal.App.3d [184 801, 329, 115, 524 P.2d (1974) Cal.Rptr. Airlines 12 Cal.3d 119-121 [115 1204].) 68 A.L.R.3d cre validly common law marriages

While will recognize California Code, 4104; (Civ. Colbert ated states which allow such marriages § 276, 633]; Etienne v. DKM Enter (1946) P.2d Colbert 280 [169 321]), Cali Cal.Rptr. Inc. prises, Cal.App.3d [186 between marriages law of common law fornia does not doctrine accept 620, 628 (1898) 121 Cal. (Norman own v. Thomson its domiciliaries. 200]; 143]; Estate Abate 166 Cal.App.2d P. 230, 232 Cal.Rptr. Estate Edgett Cal.App.3d “heirs” 686].) are not recognized As meretricious spouses simply stat Procedure, death wrongful our 377 of the Code of Civil under section ute, wrongful who may bring are not within the class of persons (Nieto Angeles action. Los City death Co., 133 Cal.App.3d 31]; Douglas Garcia v. Aircraft 893; (1981) 118 Cal.App.3d Harrod v. Southwest Airlines Pacific 68].) an action to bring has allowed “putative spouses” Legislature Code of Civil (b)(2) of the subdivision death. Section wrongful void of a surviving spouse as “. . .the defines spouse” Procedure “putative believed in good to have or voidable who is found the court marriage statute, Under this valid . . . .” decedent was faith that the to the marriage *8 633 it has been held essence of a is a faith belief putative spouse good in the existence of a if is not solemnized. marriage valid even the marriage, 980, (1983) v. 145 982-983 (Wagner County Imperial Cal.App.3d [193 of 820]; 59, Cal.Rptr. (1958) see Woods 166 61-62 Cal.App.2d Kunakoff v. P.2d failed of the (although marriage, minister to file a record [332 773] married).) the wife lived with her husband for 30 were years believing case, In this spouse does not contend that she is a within appellant putative of the death meaning statute. wrongful Loss 2. Consortium of of concept consortium includes not loss of or ser only support

vices; love, it comfort, also embraces such elements as companionship, affection, relations, sexual each society, moral support spouse gives other life, through of triumph and the a despair deprivation spouse’s physical assistance in home. operating maintaining family 382, 405, 409, (Rodriguez v. Bethlehem Steel 12 Corp. Cal.3d fn. 31 765, 669]; Cal.Rptr. 525 P.2d Carlson v. Wald 598, 602 Cal.App.3d 10].) Cal.Rptr.

The loss of consortium does not physical severe to the require certain be no nonplaintiff spouse; can less severe and psychological injuries (Molien than debilitating Kaiser Foundation physical injuries. Hospitals (1980) 916, Cal.3d 831, 813, 616 P.2d 16 A.L.R.4th Cal.Rptr. 518].) Likewise, because the cause of action is for “loss or impair ment” of the to consortium v. Bethlehem Steel right (Rodriguez Corp., supra, Cal.3d 409), a diminution of a to consortium spouse’s rights Wald, (Carson is compensable. supra, Cal.App.3d California, In cause action for exists in favor loss consortium of a married spouse Corp., v. Bethlehem Steel (Rodriguez supra, 382, 402-406) and in favor if of common law the claim marriage partner, ant establishes that the common law created a state marriage validly which (Etienne common law DKM recognizes marriage. Enterprises, Inc., However, (by implication).) child does not have (Borer a cause of action for loss of consortium parental Airlines, v. American Inc. 858]) and a of a child’s consor has no cause action loss parent (Baxter

tium. v. Superior Court 19 Cal.3d 461

634 exist where of consortium 871].) 563 P.2d Should a cause of action for loss or a spouse?1 the claimant is not a spouse putative involved (1977) Cal.Rptr. v. Jocson 76 603 Tong Cal.App.3d [142 726] 1973 and in September and Gale became engaged a situation where plaintiff 20, 1974, 11, On February commenced November 1973. on together living 9, married on March they were involved in automobile accident but an they existed for loss of consortium no cause of action 1974. The court held that rea- The court time of the accident. were not married at the they because of consortium that of action for loss soned of a cause judicial recognition Inc., circumscribed,” Airlines Borer v. American must be citing “narrowly 441, 444. 19 Cal.3d 143 72 (1983) Cal.App.3d Center Diving [191 In v. Commercial Lieding 9, 1980, him on March 559], marry Scott asked the plaintiff Cal.Rptr. 31, date. Due to his selected as the tentative wedding 1980 they May 2, 14, 1980, August until on date was wedding postponed April cases, cause of action court, held that any out of state 1980. The citing no marital committed, had accrued when the tort was and since plaintiff time, marriage. a belated at that could not be created right right Indeed, States has held in the United with but two case exceptions, every another with cohabitating no exists in favor of cause action plaintiff Searle & (Weaver v. G.D. if later marry. at the time of the tort even 1980) 720; (N.D.Ala. 1983) v. Shivar Angelet (Ky.App. Co. 558 F.Supp. 816; 185; 1980) Sostock 390 So.2d 602 v. Carter Tremblay (Fla.App. S.W.2d 1094]; Gillespie-Linton 200 N.E.2d (1980) v Reiss 92 Ill.App.3d . [415 947]; Chiesa v. Rowe (1984) A.2d v. Miles 58 484 Md.App. [473 (1982) 183 236; Shannon 1980) Childers v. (W.D.Mich. 486 F.Supp. (1982) Co. 1141]; Morton Chemical Leonardis v. 591 A.2d N.J.Super. [444 (1982) 8 Ohio 45]; App.3d Haas Lewis A.2d N.J.Super. Florida, 1983) 562 (D.D.C. 512]; Air Inc. N.E.2d Felch v. law).) Virginia F.Supp. (applying any dependent is a providing person that “no acknowledge that under a statute 1We of the em family or household of the good faith a member employee deceased unless may qualify for benefits. relationship ployee,” party it was held that a to a meretricious (Tessler) Comp. Appeals Bd. (Department Workers’ Industrial Relations v. in Atlantic Rich grounds other Cal.Rptr. disapproved on Cal.App.3d 75-78 [156 Cal.Rptr. Comp. Appeals Bd. Co. v. Workers’

field Likewise, basis of 1257].) housing on the prohibiting discrimination 644 P.2d a statute (Hess Employment v. Fair persons. unmarried interpreted protect status will be marital 33 A.L.R.4th Housing & Commission Cal.App.3d 89 1058]; Housing Authority County see Atkisson v. Kern also statutes, However, attempting 375].) instead are dealing these but we are not with define the outer boundaries of the law of torts. will be know one another until Recovery denied where the did not parties 1978) (D.Minn. Co. the accident International Harvester (Wagner after *10 their 168), the date and wedding 455 or where announced F.Supp. parties the their accident occurred when are to invi driving up wedding pick 292], 1980) 413 165 A.L.R.4th (Sawyer (Me. tations v. A.2d Bailey of the he was to be day the on the bridegroom injured where was morning married, and the occurred in the the following day ceremony hospital (Miller 974], Davis (1980) v. Misc.2d 343 where the 107 N.Y.S.2d 1983) (Iowa 339), have two 332 (Laws children v. N.W.2d parties Griep the divorce, or where husband with never obtained a but lived another wom fifteen (Curry an for their three Tractor years Caterpillar children raising (E.D.Pa. 1984) 991). Co. 577 F.Supp.

The which view is only contrary California case2 Butcher expresses 503]; Court 139 where Superior 58 Cal.App.3d Cal.Rptr. the court allowed a woman to state a for loss of cause of action consortium. children, The lived for filed parties together years, joint had income ¥2 tax returns and referred to each other as husband and wife. Butcher court was unpersuaded by the the Supreme suggestion 382, Rodriguez

Court Steel 12 Cal.3d Bethlehem 402- Corp., supra, Inc., and Borer 441, 444, v. American Airlines supra, circumscribed, cause action for loss of consortium should be narrowly or that definition of should be to those under eligible limited spouses the wrongful Instead, death statute. that the court found same rights should be accorded to nonmarital who a “stable and partners enjoyed sig- nificant the court “one stands” from relationship.” Although night excluded definition, the foregoing it that: of the suggested stability “Evidence and of the could be significance by the duration of the relationship demonstrated contract; relationship; whether the have a of eco- degree mutual parties nomic cooperation relations; and of sexual wheth- entanglement; exclusivity er there is a with . those ‘family’ relationship children . . character- [and] istics of in what is significance which one to find expect essentially Court, (Butcher de facto marriage.” v. Superior at Cal.App.3d 70.) p.

In Grant v. Avis System (1984) Rent-A-Car Cal.App.3d 869], sat in Justice Lillie that Butcher acknowledged splendid Nevertheless, and isolation that the to authority contrary. was weight 1980) (D.N.J. F.Supp Butcher 2The court cited Bulloch v. United States where wife, granted who a cause action for loss of to a former had been married consortium injured party years, agreed shortly to the for 20 after the and reconcile divorce was final acknowledges, open before accident. court Bulloch is As the Butcher criticism (139 failing predict Jersey the direction of New law. the exis- had not demonstrated the court concluded that the male claimant to a third party since he was married tence of a “significant” relationship, love, together only commenced living moved in with his new when he occurred. one month two to his friend before days First, we note that reasons. to follow Butcher for several We decline Bd. Norman v. Ins. Unemployment Appeals “We reaffirm our Court said: our Supreme No sim marriage favoring [citation]. of a strong public policy

recognition (Accord of nonmarital relationships.” ilar favors the maintenance policy *11 815, 557 660, (1976) Cal.Rptr. 683-684 Marvin v. Marvin [134 Second, this difference.3 cases stress 106].) all the Virtually reported can somehow friend of an injured party we are troubled the idea that a by to take her action, spouse into a his or despite promise cause marry 817; Carter, 816, 390 So.2d supra, v. (Tremblay for “better or worse.” 360, Line, Inc., 1980) 502 (S.D.Ill. F.Supp. Barge Navarre v. Wisconsin 167; 165, v. 361; Gillespie-Linton 413 A.2d Sawyer Bailey, supra, v. 236, Rowe, 486 Miles, 947, 954; F.Supp. supra, Chiesa v. 473 A.2d supra, Reiss, 1094, 238; Sostock 415 supra, v. N.E.2d is not limited the in matters Third, sexual although right privacy 438, 405 U.S. 453 (Eisenstadt (1972) marital v. Baird [31 relationship court would 349, 362, 1029]), apparently the Butcher L.Ed.2d 92 S.Ct. of sexual relations exclusivity "... prove the unmarried claimant require Court, su (Butcher Superior v. . . .” the duration of relationship. this is 70; Code, 550.) We believe that 58, Evid. 139 pra, Cal.App.3d § as the most intimate about the rule that inquiries at odds with completely I, secured article to privacy a life invade pects person’s right about answers 1, that accordingly, of the California Constitution and section state a compelling absent relations not be required sexual party’s (1979) 88 Court (Fults v. Superior interest such a requiring response. 899, 210].)4 904 Cal.Rptr. Cal.App.3d [152 is limited to a “spouse” liability policies, context of insurance 3Note also that definition relationships within that less formalized Attempts to include husband or wife. (1976) Cal.App.3d (Menchaca Exchange 59 Farmers Ins. have not been successful. v. (1956) 67 50 Del. 607]; v. Carroll Harleysville Mutual Ins. Co. Cal.Rptr. 126-128 [130 (1982) Ill.App.3d 19 128, 131]; Farm Mut. Ins. Co. Sypien v. State A.2d N.J.Super. 580]; 706, 708-709, Santiago Lopez v.

N.E.2d A.L.R.4th 500].) A.2d prosecuted for various is policy, where the defendant strong public 4Consistent with this excluded others is assault, conduct with victim’s sexual evidence of the types of sexual cf., (b); People Varona Code, v. (Evid. subdivision extraordinary except § in an case. People prostitute]; victim was a Cal.App.3d Cal.Rptr. 44] [where alleged that it was Cal.App.3d 704] [where Keith 973 [173 others].) defendants engaged group sex with various complaining witness Although of one court did a former husband who majority require action, admitted brought death and who had to extramarital af- wrongful fairs, to disclose when years these liaisons occurred within the two past (without disclosing dated) (Morales names of those he Court Superior 194]), we are hardly 290-292 satisfied with a rule which to relin- would all nonmarital require partners their quish constitutional right as a condition of privacy seeking damages consortium, for loss of are unable which perceive any public policy would be served to the dark before the No Fault by returning days Family Law Act of (2 when adultery circumstantial evidence. proved by 28.12, The Cal. Family (Cont.Ed.Bar 1963) 1317-1321.) Lawyer pp. § The fourth reason is the most significant—the Butcher court’s own defi- nition invites mischief and inconsistent results. an long engagement “[H]ow will a claim? month? support One One week? or is coha- ‘Going steady?’ bitation to Shannon, be the test . . . (Childers For how Again: long?” 1141, 1143; Co., supra, A.2d see also Weaver v. Searle & G.D. 720, 723.)

558 F.Supp. *12 course, Of where in private be interested a civil parties may intensely over dispute money of a “fair of the damages, application preponderance evidence” standard indicates “minimal concern society’s with the out- come,” and a conclusion that the should “share the risk of litigants error 745, roughly equal (1982) fashion.” 455 (Santosky v. Kramer U.S. 599, 607, L.Ed.2d S.Ct. Addington from v. Texas quoting (1979) 418, 441 U.S. 323, 329, 1804]; L.Ed.2d see 99 S.Ct. Evid. Code, 115.) §

Yet consider the definition of or “significant”: “Having expressing notable; American meaning; meaningful; (The valuable.” Diet. Heritage (1982) 1139.) p. “Stable” is defined to mean “resistant to sudden change condition; or position self as well maintaining equilibrium; restoring,” (The “immutable and American Dict. permanent; enduring.” Heritage definitions,

Under these one be with a confusing satisfied juror might A “meaningful” second be with relationship. juror may impressed plain- love, tiff’s claim that she had fallen head-over-heels in the fact that despite she never cohabitated with the A condemns all injured juror third party. forms of sex premarital while a fourth believes that a “stable” rela- juror exists if the tionship only has children. A fifth couple juror might require to cohabit for decade married a sixth couple although juror, repeatedly divorced, might enchanted which existed for a relationship whole year. The seventh will insist the lovers announced their juror date

wedding to the but the will be satisfied prior eighth juror entirely And, course, if ninth married after the who couple injury. juror on the trial lived in Texas will soon ask our friend perplexed previously court bench for a definition of a common law marriage. short, standard, In courts and alike must neces jurors under this vague ” at its

sarily “guess (Connally and differ as its meaning application. 322, 328, 385, General Const. Co. L.Ed. 46 S.Ct. 269 U.S. 391 [70 morals, 126].) injurious public It reminds us of a statute acts prohibiting etc., which of course would include act which a any judge jury almost find good at the moment to their notions of what might contrary 95, morals, (Musser or order Utah 333 U.S. L.Ed. justice 562, 565, 397]) 68 S.Ct. or a statute which and unreason unjust prohibited able which would allow sanctions if the were charges, charges unjust (United or States v. unreasonable the estimation the court jury 516, 520-521, L. Cohen Grocery Co. U.S. L.Ed. 1045]; Columbia S.Ct. A.L.R. see also Ricks v. District of (D.C.Cir. 1968) 1097, 1106-1107) an immoral or pro 414 F.2d (“leading life”) (1982) 31 801- fligate People Superior Court (Engert) heinous, atrocious or 647 P.2d (“especially 76] cruel manifesting exceptional depravity”).

Indeed, standard, whether under would not assess jury merely this on the damages; suffered a of consortium and the amount loss plaintiff contrary, would also be whether the claimant has a jury determining cause of action not be influenced at all. While the would be cautioned to jury *13 (BAJI 1.00), or the that only way No. by “sympathy, prejudice passion” could if a that plaintiff is at least nine reached consensus prevail jurors verdict, if he or she was entitled to a even plaintiff sympathetic “living in sin.”

We should also in case of death the resulting that “. . . acknowledge for harm to recover . . . only impaired spouse, deprived spouse may death.[5] his or her interests and incurred between the expense For loss sustained as a result of the death of the any impaired spouse, recover, all, other if under a death statute.” wrongful must spouse Torts, Wife, (Rest.2d 693, f.; C.J.S., 401(5), com. 41 Husband & § § 286, 288]; Ry. (1928) Georgia 5Accord Graham Central Co. 217 Ala. 658 So. [117 v. 1982) Hospital (right of consortium Warrick Inc. v. Wallace (Ind.App. 435 N.E.2d 263 Ry. Louisville & N. later) malpractice days existed between date of 12 and date of death Bailey, Sawyer Co. (1896) 236]; v. McElwain 413 A.2d Ky. 98 700 v. S.W. [34 165, 809]; Bailey Long Dewitt v. B & C (dictum) (1916) 167 v. 172 N.C. 661 S.E. [90 563, 564]; Fowlie 169, (1971) Machine Co. Ops.2d 266 N.E.2d 25 Ohio St.2d 40 Ohio [54 Minneapolis First (1931) 846, Trust Co. v. 184 82 78 A.L.R. 589]. Minn. N.W. [237

639 899, 375, (1983) see 142 381- generally, Lamont v. Wolfe 382 874].) [190

Where the lives few hours after the injured injury, party consortium, (1962) (Walden recover v. Coleman 105 for loss of spouse 313, (1916) (two hours); Steiniger 242 Lane v. S.E.2d Ga.App. [124 314] 174 Iowa 317 (in hours); N.W. excess of five v. Mac Minkley [156 375] (1976) hours); Farland (a few Archie v. Mass. 891 N.E.2d [356 1391] (1972) 622, (the Hampton A.2d victim died later N.H. [287 625] that day).) hand,

On the other there will be no for loss of consortium where recovery (Benson (D.Del. 1976) dies spouse v. instantaneously. Lynch 47, 49; Womackv. Central Railroad & Co. 80 Ga. F.Supp. Banking 63, 92; 64]; 1977) S.E. Brooks v. Burkeen 549 S.W.2d (Ky. v. Druley 354].) Houdesheldt The same Wyo. rule when a is electrocuted and death occurs within seconds applies spouse 1963) v. (Harp Montgomery (D.Ore. 781), Ward & Co. 223 F.Supp. where the died in a spouse few minutes Co. (Lampe Lagomarcino Grupe (1959) 251 1, 3-4]; Iowa 204 N.W.2d where no time appreciable between the elapsed (Rogers act and death of the negligent spouse Fancy Farm Telephone Co. S.W. or where the Ky. was drunk and spouse drowned within a few hours after violation Law, and no loss of could have Dramshop support, maintenance-society (Burk resulted this brief during interval. Anderson Ind. 77 407, 408-409].) N.E.2d summarize, To we lost although obviously recognize appellant one, of a loved we companionship are not to countenance a rule willing lines, of law the Butcher court which has no and which suggested by bright would confused, leave only juries but which would also inconsistent produce results. While it would be anomalous to cause of action for loss of deny consortium to who is otherwise seek putative spouse eligible damages (Code Proc., death wrongful (b)(2)), Civ. subd. all of virtually § *14 cases limit the cause of action to reported spouses. trial,

At oral argument, us to blaze a new and to allow appellant urged who live in a with their child. recovery partners relationship” “familial (See (1984) 37 Ins. Board MacGregor Unemployment Appeals 453].) such a more Although clearly defined class of suitors would of the voiced con- many objections eliminate with a (and the Butcher rule would be inconsistent only couple cerning decisions), out-of-state we find two for declining appel- reasons compelling First, noted, no to file lant’s invitation. has right as we previously appellant an action for death. A wrongful would have jury difficulty quantifying loss of consortium Second, this during brief 20-minute interval. it appears that in distress, essence her are based and emotional damages upon grief elements which are not allowed in (Carlson actions for loss of consortium Wald, supra, 602) or, (Krouse at death p. wrongful Graham, 72). 19 Cal.3d at

3. Intentional Emotional Distress Infliction of We will briefly discuss this of tort action because the class of type persons to recover is eligible broad. Section 46 quite of the Restatement Second of Torts provides:

“1. One who extreme and conduct or reck- outrageous intentionally causes severe lessly emotional distress to another is subject for liability distress, such emotional it, and if harm to the other results from for bodily such bodily harm.

“2. Where such conduct is directed at a third the actor is person, subject if he liability or intentionally recklessly causes severe emotional distress “(a) to a member of such person’s immediate who is family present time, harm, whether or not such distress results in or bodily “(b) to other any time, who is person at the if such distress present results harm.” bodily Comment l to section 46 of the Restatement Second of Torts discusses problem conduct directed at a third “Where the extreme and person: where, conduct is directed outrageous at a third for person, example, husband is wife, murdered in the of his presence for the actor example, know that it certain, is substantially or at least that it highly probable, will cause severe emotional distress to the . . .” plaintiff.

“There is the further of whether question should limited recovery attacked, associates, to the near relatives of the or at least to close person where there is some additional guarantee that the mental disturbance is real and extreme. all of the cases involved mem- Nearly have allowing recovery bers of the immediate but there were at least cases which family; early two did not. It bemay that when a is suggested asked complete stranger match on the street and the individual who asks for is shot down suddenly it before the and se- stranger’s eyes, mental shock bemay very genuine *15 vere, and that a who witnesses pregnant bystander bloody beating may suffer a real of the them- injury deserving cases compensation. language limitation, not it does appear arbitrary selves does not such suggest any 1984) (5th ed. (Prosser p. & Keeton on Torts to be called for.” Indeed, of Torts Restatement Second illustration to section of the A, B with violently quarrels “21. In the presence bystander, provides: A is kill B knows that C, pregnant, to C. draws a threatens pistol, dis- it is cause severe emotional that that his conduct will probable highly in a distress, results miscar- which tress to A suffers severe emotional A. B to to A.” is riage. subject liability the must be a witness

It is to note that victim percipient important and the actor must the “The cases thus far know that victim is present. decided, however, limited who were have such to liability plaintiffs present what oc time, from discover later has at the those who distinguished curred. necessity drawing The limitation be the may justified by practical somewhere, who suffer emotional the line since the number of persons unlimited virtually news of of the President is distress the an assassination Torts, (Rest.2d l.) . . . .” com. §

Thus, 910], in Taylor v. Vallelunga Cal.App.2d her claimed administered to daughter damages witnessing beating of the father. The court said: “The failure of the second count complaint to ... meet the of Torts is requirements section 46 of Restatement at once There that is no that defendants knew apparent. allegation appellant father; to her administered beating was and witnessed the that was present nor is there that the for the any allegation purpose was administered beating alternative, or, distress, de- her suffer emotional that causing certain substantially fendants knew that severe emotional distress was (Id., Ford 109.)6 their also Reed v. produced by conduct.” See to have (where claimed Ky. plaintiff S.W. although 600] in the person when heard defendant assault another suffered distress she 787], 6In Delia Torres the court S. Cal.App.3d 484 [184 wife, by a rape particularly of one’s may reasonably “One that the violation and said: infer friend, Vescovo .” In profound consequences. would have . . . and extreme . . emotional Way Enterprises v. New Ltd. advertisement, “Hot Angeles published giving plaintiff’s address: Los Free Press a classified Throat, housewife, persons .” hundred en Sexy bored Norma . . . One lips—Deep young lewd, using 14-year-old to her property threatening language. tered abusive and As distress, allegation daughter’s of action for emotional cause intentional infliction of great disgrace, mental published injure, and cause the advertisement was with intent to daughter sufficient. distress deemed *16 642 house,

boarding there was no that ever or allegation defendant saw her knew she that see also illustration 21 of present); to Restatement Second Torts, 46.)7 section too, intentional,

Note that this tort calls for or at least reckless conduct intended or to inflict in with the realization injury engaged that Thus, will a result. where officers had laundromat under sur injury police veillance for the of a felon who had purpose apprehending stabbed women occasions, on but the failed previous officers to a man apprehend resembling attacker, stabbed, and the no plaintiff was there was affirmative miscon duct (Davidson justifying liability. (1982) v. Westminster City of 197, 210 894].) P.2d 649 [185 be conduct to be must so extreme as to ex

Obviously, outrageous all ceed bounds of that civilized (Davidson tolerated in a usually society. Westminister, City Hence, who daughter became when in embarrassed she watched one of her involved parents with a fight (Star third could person (1981) not recover. Rabello Nev. 90]; see (1912) also McGee v. Vanover Ky. [625 S.W. church).) outside (fight 742]

Yet is allowed recovery when a relative is killed or death threatened with in (See, (1916) plaintiff’s presence. Jeppsen v. Jensen 47 Utah 536 e.g., children, (defendant P. entered a room where her and plaintiff, 429] located, her husband, husband were cursed abused her and pointed gun him, and him); to kill threatened Knierim v. 22 Ill.2d 73 [174 Izzo husband, (threat N.E.2d and fulfillment of plaintiff’s murder 165] that threat distress); (Mahnke caused severe emotional v. Moore (in child’s Md. A.2d her father and dis killed presence, 923] wife, week, membered his and with the for a until body the child dead kept he elected to commit suicide in with a shotgun, again presence).)

However, cases have also was not allowed where witness recovery (See, related the actual victim. Hill v. Kimball 76 Tex. 210 e.g., (landlord S.W. came to tenant’s assaulted two yard his and blacks 59] wife, in a violent manner blood the tenant’s drawing presence knowing undue excitement would cause her health. She any 222, Kiseskey Carpenters’ 7In Trust So. California “ plaintiff good son telephoned saying: defendant ‘You are a no you union, resign get you’ll put a bitch if don’t with the agreement in set “ Later, hospital.’ you not seem again telephoned, saying: ...” defendant ‘Since do about your safety well-being, maybe you to be concerned about will be concerned ’ ” well-being your action for inflic wife and children. had a cause of intentional Plaintiff Note, however, wife, apparently tion of emotional distress. that his who did not hear the threats, still could claim loss of which her husband severe consortium accrued when suffered emotional distress. *17 (1920) 144 v. Williard Rogers was and suffered a pregnant miscarriage.); 15, an farm (the adjacent owner of Ark. 587 S.W. A.L.R. 1115] in a with wantonly engaged quarrel a farm and wilfully trespassed upon McDole, threat one Edwin him flourished a pistol, to challenged fight, suffered she fainted and ened to shoot McDole. Edna was Rogers present, a miscarriage.).)8 Mental Distress Negligent

4. Infliction of 72, 912, (1968) In Dillon 441 P.2d Legg 68 Cal.2d 728 Cal.Rptr. mother who suffered 29 A.L.R.3d our Court held that a Supreme to her infliction of death or injury emotional trauma from witnessing child has a valid claim for defendant is “obviously damages, reasoning more accident likely involving foresee that a mother who observes an will do so.” child will suffer harm to foretell that a witness stranger than (Dillon 728, 741.) The court Legg, supra, suggested of the “(1) three Whether located near the scene guidelines: was plaintiff (2) from it. Wheth accident as contrasted with one who was a distance away er the shock resulted from the from a direct emotional upon plaintiff impact accident, with observance of the as contrasted sensory contemporaneous (3) Whether of the accident from others after its occurrence. learning plain related, tiff and the victim were as contrasted with an absence closely (Id., or a distant any relationship only relationship.” the presence 740-741.) pp. 805,

Hedlund v. Superior (1983) Court 34 Cal.3d 695 was liable for involved the whether a psychotherapist question 41] when he injuries failed to warn a victim of a threat made potential There, had victim the both and the assailant therapist’s patient. plaintiff of these been and the failed to warn the plaintiff patients, psychotherapist threats. The assailant bodily injury used a to inflict serious shotgun upon Her mother when she son was seated next to his plaintiff. two-year-old shot, his life. Although and she threw herself over him thereby saving (id., the court did not decide whether a as to all duty “bystanders” existed 705) mother would the court reasoned that if it was foreseeable that a p. child, “. . . is equal- sustain emotional an to her witnessing injury injury [i]t (see, e.g., v. Varni trespass a 8While these intrusions could also be characterized as Razzo 294; N.E.2d Shymkiv Baker v. 6 Ohio St.3d Cal. 814]), case, boundary fence in dispute involving exchange one a heated and a removal a distress plaintiff’s presence, infliction of mental was treated as an action for intentional 811]). (Daluiso But 455 P.2d v. Boone 488 [78 where, boundary during a compare Wiehe Kukal 225 Kan. 478 P.2d 860] obscenities, husband, dispute, line and shouted pitchfork plaintiff’s defendant waived a court concluded that plaintiff standing nearby, but no threat was made and the towards insults, threats, liability annoyances. should not extend to or foreseeable when ly fails to warn a mother of therapist negligently her, result, threat of patient’s and she is injured proximate or, that her child will not be far distant and young injured upon incident, (Id., witnessing suffer emotional trauma.” at victims, If a and child parent are foreseeable what about others who wit- ness an accident or an intentional tort and who suffer thereby emotional *18 distress? Keeton and Prosser answer “If this is to inquiry saying: recovery however, be permitted, it is also clear that there must be some limitation. It would be an entirely unreasonable burden on all human if the activity defendant who has one man were to be endangered compelled pay it, the lacerated of other of in- by disturbed reason feelings every person accident, cluding every bystander shocked at an and distant relative every of the person (Prosser as well as all his & on injured, friends.” Keeton Torts, 366.) supra, p. Airlines, of

By parity Borer v. American 19 reasoning, supra, Cal.3d Justice Tobriner if the to consortium were explained right extended to the children of the it would “. . . injured substantially party, cases, increase the number of claims asserted accident the ex ordinary claims, or such and the ultimate pense settling resolving liability (Id., 444.) defendants.” at p. 822],

In v. 100 N.M. 538 P.2d the court Armstrong Ramirez [673 concluded that there must be a familial marital or intimate be- relationship wife, tween the victim and the and limited to husband plaintiff, parent child, sister, brother and and to those grandparent grandchild, persons who (Id., occupy in loco legitimate position There- parentis. fore, crosswalk, where two children saw their father struck and killed in a However, could recover. an unrelated child who also resided with the they and who family also witnessed the accident could not recover.

A will of course be allowed when he is recovery spouse present Graham, when his wife is struck (Krouse and killed another vehicle. supra, 74-75.) has also been Recovery permitted where the a common law validly witness has contracted percipient marriage created in (Etienne states which allow such v. DKM Enterprises, marriages Inc., supra, 136 or where the (by 489-490 Cal.App.3d implication), (Rickey witness Transit Chicago sees brother or sister sustain 596]; 101 Authority N.E.2d v. Patuto 439 Ill.App.3d Goncalvez 146, 151]; Walker v. Clark Equip A.2d N.J.Super. 158]; (Iowa 1982) ment Landreth v. Co. N.W.2d A.L.R.4th Reed 1978) 490).) been 570 S.W.2d have (Tex.Civ.App. Grandparents allowed where were also in a fireworks recovery they injured explosion child, very shared a they and where where witnessed injuries (Genzer v. City child with deceased close family relationship 116, 122). was allowed A child 1983) 666 S.W.2d Mission (Tex.Civ.App. sue, his law, stepfather’s under he a car strike Hawaiian where witnessed if mother, home, she was the who in the and who was treated lived same Hawaii (1974) v. Takasaki (Leong child’s natural grandmother. 758, 766, 471].)9 94 A.L.R.3d (1976) 55 University Regents In Mobaldi v. of California in Bax- on other grounds disapproved Court, 461, 466, mother foster Superior plaintiff

ter negli- in her arms while personnel had held her foster child son hospital the safe The child strength. administered solution times gently glucose been in care since was about three and a half old and had plaintiff’s years *19 he into five child went holding he was months old. While was the plaintiff comatose, convulsions brain and became irreversible suffering damage. but frustrated aby

foster had to the child had been parent attempted adopt Note, that the ill when children. county policy against adoption seriously was name. child he christened with the foster last was baptised, parent’s the as Personnel of the medical had to and child plaintiff center referred (Id., 577-578.) “mother and child.” at pp. facts, foster mother

The Mobaldi court that under those the concluded defendant, all of possessed could recover since the known to relationship, (Id., the incidents of those a child by natural enjoyed parent relationship. 582-583.) at pp.

On the other hand a best friend’s death 14-year-old who witnessed her girl fre- they in a accident denied even were recovery though was water-skiing hold her friend’s homes, the claimed to each others plaintiff quently life dear as as she would a natural The court reasoned that have sister. “[t]o family a to victim ‘akin to a relation- allow persons having relationship to by witnessing to recover for emotional distress caused ship’ that courts the victim would abandon Dillon Legg requirement unexpected. mark out areas of the remote and liability excluding [Cita- plaintiff saw a car Geiger Mass.App. 9In Barnes N.E.2d 13-year-old 10-year-old son and near her pedestrian and toss him in the air where strike son, gone went to daughter skating. had that was her she the scene ice Convinced the victim mistaken, 15- was an unrelated injured party. to rescue the the stricken child She was liability, reasoning danger invites boy. day. next The court year-old She died the denied the rescue doctrine invite It was reasonable extend rescue and accidents onlookers. not they good, to do or calamity might to all who run to the scene of on be able the chance her child has been mistakenly who believes that recovery person, to allow to an unrelated (Id., 81-82.) at pp. hurt. (Kately v. Wilkinson tion.]” Cal.App.3d 902].) In Trapp Schuyler Construction 411], court also denied cousins who recovery to first had a

close emotional attachment to the victim and also with him. played case,

In this Jennifer lived Ledger Richard Arters together married, since was 15 Jennifer Vi Twice years old. once planned with her consent. parents’ The second was frustrated a techni attempt She bore his cality. child. She in the vehicle Richard was when was stabbed and he in her died arms.

In our foreseeable, (Hedlund it is opinion, as a matter of law v. Superior Court, 705-706), knife, drew that when defendant his Richard, and stabbed that the a few woman feet distant seated in the vehicle a loved one likely who would suffer extreme emotional distress when Richard in her died arms. A who acts so viciously callously tortfeasor should not gain immunity because their license was never merely marriage recorded in some office. If would have county recorder’s defendant been liable to for mental distress who intentionally inflicting upon person was known to be we no reason present, deny see whatever recovery his simply because victim is mental negligently inflicting distress. suing *20 In 1982 the voters enacted Bill of the Victim’s of Rights. preamble I, states, article section (a) of the California Constitution in subdivision as pertinent follows: “The the State of California find and part, People declare the that enactment of and laws comprehensive provisions ensuring crime, a bill of in the rights victims of criminal including safeguards to justice grave those is a matter statewide system fully protect rights, concern. The victims rights of the criminal justice system, encom- pervade . . the to from for financial passing right wrongdoers . restitution losses suffered a result of . . . .” as criminal acts

In of this it folly would be sheer light strong suggest public policy, that Jennifer be in esteem as a victim because her merely should held low earlier obvious plans marry Richard went As to her we awry.10 grief, believe the Portee statement from N.J. 88 following Jaffee Richard, relationship during the present 10Because Jennifer had a close and was actual crime, the injuries for emotional from state restitution commission of the fund, she could recover (Gov. psychiatric expenses such as other if are not reimbursed from sources. Code, (a)(3), (b), (d)(1).) strange subds. indeed if the § and subd. It would be other remedy by by wrongdoer, contemplated Legislature, namely compensation was not recognized jurisprudence. in our ones are safe that loved “The knowledge A.2d is illuminating: 521] that re- welfare. Against of emotional is the wellspring and whole deepest which mar anxiety disappointment flashes of background, assuring loved the loss of a is than our lives take on softer hues. No loss greater apprehension than the one, helpless no is more wrenching tragedy trea- ais precious whose existence very of one the death or serious seeing stricken for one who is sure. The law should find more than pity 526.) at (417 A.2d p. or killed.” injured a loved one has been critically that (1980) 110 Drake in Drew v. We that acknowledge majority There, conclusion. contrary reached a for three facto spouses” lived as “de and the decedent together plaintiff witnessed a distress when she and that suffered emotional years plaintiff “No re- Christian said: in he was Justice vehicular collision which killed. to include friends guideline extends the ‘close relationship’ decision ported relationship that the alleged or housemates. It has nevertheless been argued of withstanding at least for the purposes of housemates might regarded, used the term demurrer, Court a close But relationship. Supreme as in the context of liability ‘close as a limitation of relationship’ potential relationship’ To standing ‘meaningful and child. allow parent persons re- for emotional distress to recover (to use a contemporary colloquialism) the Dillon would abandon sulting physical injury requirement ‘[t]he remote and unex- excluding . . . mark out the areas of liability, courts Drake, (Drew (68 741.)” p. Cal.2d at pected.’ had Court that while the Supreme Justice Roché dissented. He reasoned related, contrasted “closely the victim were that the plaintiff required rela- a distant only with the absence of in the any relationship presence 728, 741), had majority (Dillon v. Legg, supra, tionship (Id., at relationship. formal marriage rewritten the standard to require *21 he stat- 558.) of cohabitating couples, the number Acknowledging large p. the to the key as morality “The insistence on to an older ed: adherence inquisition the close of the Spanish was discarded after shortly courtroom (110 Cal.App.3d not the and is law this state. clearly [Citations.]” 559.) p. brush, that it is elementary a broad

While the Drew with majority painted facts in of the light understood is to be used language any opinion Co. Ry. Kern Elec. & (Porter v. before the court. and issues Bakersfield case, be ac- it should 223].) In this (1950) 36 Cal.2d from those are different facts which Jennifer has that knowledged presented decedent, court, marry two attempts Drew namely to the presented decedent, child, upon dependence her decision to bear his her economic assault, facts to the appalling sudden and his death relating subsequent in her arms.

The Drew majority an first proceeded upon unspoken premise, namely that the (Cf. trial is period unstable. preliminary marriage inherently Marvin, We, course, 660, 683.) Marvin must ac- that while knowledge the airwaves are full ballads voiced countless love, flicker, die languages celebrating flame can and then out. Juliet admonished Romeo: moon, moon,

“O! Swear not unconstant orb, “That monthly in her changes circled (The

“Lest that love thy complete likewise variable.” works of prove Juliet, William (Avenal Shakespeare 1975) Books Romeo and col. 1.)

Yet, in a recent case with an unmarried our dealing couple, Supreme Court said: “It is difficult to conceive of more fundamental family rela- than one which a home tionship parents is created when two establish with Bd., their natural child.” (MacGregor v. Ins. su- Unemployment Appeals pra,

Where, here, affair, we are with an intense love youthful presented love, who are to scorn we their true is now cast the sea of upon which memories?

Disposition The order second action for the demurrer to the cause of loss sustaining of consortium is dismissal based the order upon affirmed. judgment the demurrer the third action for infliction cause of sustaining negligent of mental distress is reversed. J.,

Stone, P. concurred. GILBERT, J., from dissent I respectfully Concurring Dissenting. *22 for of that a cause of action loss of disallows portion majority opinion consortium. Because of short between the suffered interval by II, death, academic, Richard Arters and discussion be following may his state may but we whether a cause Ledger are concerned with Jennifer only of action loss of I for consortium. think may. she follow failing for to The as its most reason gives significant majority Cal.Rptr. Butcher v. Court Superior courts and juries It that of the standard it provides. suggests the vagueness to its I submit meaning. will be confused the standard and have guess and significant” it is no more difficult for a to determine what a “stable jury standard in a doubt it is for it to the reasonable is than relationship apply in case, a criminal or the standard person negligence reasonably prudent case.

In Ins. Bd. Cal.3d MacGregor Unemployment Appeals found 453], our Court that Mac 689 P.2d Supreme woman, for an her in California good unmarried left Gregor, employment fiance, that cause so could live and their minor child she with her Bailey, in an of application New York. court was not with Although trial faced standard, of a it had the establishment difficulty the Butcher no finding unit: family “The evidence trial findings here court’s amply supports herself, that unit of her had ‘established a MacGregor family consisting New York with her fiance and their child’ and that she ‘chose to relocate to ’ fiance and their child in order and their unit. family to maintain preserve The record a common Bailey shows and had maintained MacGregor for household two the birth When the prior daughter. over to of their years child was born the received her into that and parents gave Bailey’s home It surname. is clear that both and intend and do Bailey pro MacGregor Unem (MacGregor vide a stable and secure home for their daughter.” Bd., 212-213.) Ins. This ployment lan Appeals very evidences a of and between guage finding significant relationship a stable in the and The be MacGregor Bailey. easy Butcher standard would apply case, MacGregor and it would easy here. apply The such or ser support elements that consortium as loss comprise vices, love, relations, solace, affection, society, sexual companionship, are as and as real to had been married to palpable Jennifer if she Ledger had lived they together Richard Arters II. tried to married They get their son with as a in that family. couple only differed from married They not both did have a in the drawer. It is marriage certificate dresser certificate must be a unrealistic and to assume that such a unduly optimistic one of those before evidence of the loss prerequisite produce qualities comfort, affection, love, Rodriquez enunciated companionship Bethlehem Steel Corp.

669].1 we had strange be as as if been married very strange 1“But let us be and well bred: let us while, Congreve, William as if not married at all.” great and as well bred we were Meade, World, IV, also, Way Rights the Unmarried: Act Scene V. Consortium See Reappraisal Time 15 Fam. L. 223. Q.

To deny recovery here is to law apply rigidly, mechanically, without regard In present day reality. MacGregor, Court Supreme that, of recognized is difficult to conceive a more fundamental familial “[i]t than relationship one is which created when two a establish home parents with their natural child. to Black’s Law According Dictionary, ‘family’ ‘most refers to of of commonly group chil- persons consisting parents dren; (5th . . .’ ed. In 1979.) Moore Shipbuilding Industrial Corporation Accidents Commission (1921) 185 207 . Cal. . . this court stated that circumstances. may ‘mean ‘family’ different under different The fam- things instance, for ily, be ... a may of related blood particular group people by or all, or not marriage, related who are living together intimate ’ and mutual of a or home . . This court interdependence single household. . has recognized that ‘the family is the basic unit of our society, center of the personal affections that ennoble and enrich human life. It channels destructive; drives that biological otherwise become it en- might socially sures environment; the care and education of children in a stable it estab- another; lishes from continuity one it nurtures and generation develops (De the individual initiative that a free distinguishes people.’ Burgh De Burgh .)” (MacGregor Cal.2d . . v. Unem- 863-864. Bd., ployment Ins. Appeals

The MacGregor not court did need a certificate to marriage family know when it saw one. It would be as for a trier of fact to just apply easy Butcher standard and find that a existed significant relationship stable and in the instant case.

To follow the Butcher cause of action to case allow Jennifer’s stand would not or topple undermine the While institution some marriage. reasons, persons may marry for I that the cynical possibility plead- doubt of action future cause for loss of consortium some ing potential (See 1980) is one of (D.N.J. them. Bulloch United States F.Supp. 1078, 1087.)

To here because of of a certificate deny recovery marriage the absence windfall to tortfeasors who supplies fortuitously injure partner an unmarried than a who has suffered rather married one. couple party loss, a real such as The rule Jennifer stated Ledger, goes uncompensated. in Butcher does not in motion because set an avalanche litigation, out, limits Jennifer to foreseeable risk. Rodriquez liability court points In that, the court stated one who causes a Rodriquez, “. . . negligently the injured to an adult that severely disabling injury may reasonably expect is married and will be affected that person adversely his or spouse In our be a married injury. society injured the likelihood that an adult will substantial, man or . . woman is . the probability [fn. omitted] [a]nd *24 loss reason of a will suffer a personal disabled spouse severely person Corp., Bethlehem Steel (Rodriquez of that is substantial.” equally it is foreseeable 400.) In today’s society equally 12 Cal.3d at with whom that an with an unmarried injured may partner person living has a stable and significant relationship. person me as it does the

The absence of lines in Butcher does not trouble bright rules that offer in fashioning It is true that lines are majority. bright helpful law, if lines are too bright, in the but these certainty predictability blind us to and to a result. reality just