Opinion
Hearing Granted Aug. 29, 1962.
Opinion vacated 29 Cal.Rptr. 33, 379 P.2d 513.
Thompson, Sherbourne & Oppen, Van Nuys, for appellant.
Berry, Davis, Channell & McNamara, Oakland, for respondents.
TOBRINER, Justice.
We probe here the single question whether a mother may recover damages for physical injuries resulting from emotional shock caused by fear for the safety of her infant child. While the cases are divided upon the issue, we cannot rule that the negligent driver owes no 'duty' to the injured mother and thus avoids liability. As we shall point out, we cannot hold as a matter of law that the risk of such injury is not foreseeable in the context of presentday conditions.
Appellant, Lillian Amaya, and her son, James Amaya, by his father and guardian ad litem, Joe Amaya, Jr., brought this action for personal injuries arising out of the alleged negligent operation of respondent corporation's truck by respondent Homer L. Foote and 'Doe One.'
The complaint sets forth two causes of action. The first cause of action alleges that respondent Foote and 'Doe One,' operating respondent corporation's truck with its permission and within the scope of their employment, negligently drove the truck and thereby proximately caused enumerated personal injuries to plaintiff, James Amaya, who 'was in a private driveway at or near' a designated residence.
The second cause of action states that appellant, Lillian Amaya, is the mother of the injured boy, who was seventeen months of age. At the time of the accident, appellant, who was seven months pregnant, 'was standing near her * * * infant son, watching over him,' and 'observed the negligent conduct' of respondents Foote and 'Doe One' as the truck bore down on him. She 'shouted a warning,' but they failed to stop the truck and ran over the boy. Appellant 'was compelled to stand helpless and watch her infant son be struck and run over by the defendants' truck.'
As a proximate result of the negligent operation of the truck appellant 'suffered an emotional shock and great mental disturbance as a result of being forced to observe her infant child struck and run over by said truck and became violently ill and nauseous and was hurt and injured in her health, strength and activity, sustaining injury to her body and shock and injury to her nervous system and person,' etc. Appellant alleges on information and belief The court sustained respondents' general demurrer to the second cause of action without leave to amend. The court entered judgment on the demurrer against appellant on April 5, 1961. Thereafter the court entered judgment against both appellant, Lillian Amaya, and James Amaya. The record does not disclose the basis of the judgment against James Amaya, who has not appealed from the adverse ruling. Appellant appeals from the judgment against her.
Additionally, appellant, in her opening brief states: 'The court offered plaintiff's counsel the opportunity to amend and state that the fright and shock suffered by the plaintiff was for the fear of her own safety. Plaintiff's counsel declined stating to the Court that the plaintiff suffered fright and shock as a result of being compelled to watch her infant child crushed beneath the wheels of an ice truck, and that all the fright and shock she suffered was as a result of her fear for the safety of her child, and not out of fear for her own safety.' Respondents 'accept this volunteer statement as a stipulation by appellant * * *.'
Whatever natural and human impulse there may be to allow recovery to a plaintiff mother in this situation, the decisions reflect neither magnanimity nor uniformity in granting relief. We certainly agree with Prosser's statement: 'It seems sufficiently obvious that the shock of a mother at danger or harm to her child may be both a real and a serious injury. All ordinary human feelings are in favor of her action against the negligent defendant.' (Prosser, Law of Torts (2d ed., 1955), p. 181.) To understand the reluctance of some courts to give effect to that feeling we must glance backwards briefly to certain aspects of the development of the law of torts.
In the early stages of that unfolding, the courts, following an approach that is the very antithesis of the reasoning which denied recovery in our case, fastened a strict liability upon the actor who caused the damage. In the decisions, which set the rules of conduct for the enclosed feudal society, the actor bore responsibility for the damage he caused without regard to whether he was at fault or whether he owed a 'duty' to the injured person. Indeed, the defendant owed a duty to all the world to conduct himself without causing injury to his fellows. It may be that the physical contraction of the feudal society imposed an imperative for maximum procurable safety, and a corresponding absolute responsibility upon its members.
Pound, The Spirit of the Common Law, pp. 27-31; 119-120; Wigmore, Responsibility for Tortious Acts: Its History (1894) 7 Harv.L.Rev. pp. 315, 383, 441; Ames, Law and Morals (1908) 22 Harv.L.Rev. p. 97; 3 Holdsworth, History of English Law (3d Ed. 1923), pp. 375-377; 8 Holdsworth, History of English Law (3d Ed. 1923), pp. 446-449.
The Industrial Revolution, which cracked the solidity of the feudal society and opened up wide and new areas of expansion, changed the legal concepts. Just as the new competitiveness in the economic sphere figuratively broke out of the walls of the feudal community, so it broke through the rule of strict liability. In the place of strict liability it introduced the theory that an action for negligence would lie only if the defendant breached a duty which he owed to plaintiff. As Lord Esher said in Le Lievre v. Gould (1893) 1 Q.B. 491, 497: 'A man is entitled to be as negligent as he pleases towards the whole world if he owes no duty to them.' The evolution of this concept of 'duty' proved to be a tortuous one, a course which has been marked by courts that have disagreed and decisions that have been vague. Indeed, Prosser has written that "duty' is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.' (P. 167.) The classic definition of duty has been in terms of foreseeability, but the definition itself is wide and general, and its application here becomes even more difficult because of the incursion of two other factors: the so-called 'unforeseeable' plaintiff and the infliction upon such plaintiff of emotional distress. As to the definition, one statement of it occurs in the famous case of Donoghue v. Stevenson (1932) A.C. 562, 580: 'The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be--persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.'
But our question is the more difficult because we must determine if appellant is a person who is so 'closely and directly affected' by the act of the driver of the truck that he should have reasonably had her in contemplation when he directed his mind to performing the act. Respondents would contend here that the mother of the injured child, should, instead, be characterized as an 'unforeseeable' victim of the driver's negligence and outside the zone of any apparent danger. She would fall within the exclusion of Palsgraf v. Long Island R. Co. (1928), 248 N.Y. 339, 162 N.E. 99, 59 A.L.R. 1253, a leading case in which the court denied liability against a railroad, whose agent, assisting a passenger to board a train, dislodged a package of firewords which exploded, causing some scales, many feet away, to fall upon plaintiff. The court held that defendant owed no duty to this 'unforeseeable' plaintiff. Indeed, our case compounds the Palsgraf difficulty because the injury to plaintiff consisted of emotional distress, a type of harm which the courts have been reluctant to recognize.
The general reluctance to grant relief for emotional distress is demonstrated in cases cited in Prosser, Law of Torts (2d Ed. 1955) p. 38; Magruder, Mental Disturbance in Torts, 49 Harv.L.Rev., pp. 1033, 1035; N.Y.Law Rev.Comm.Report (1936), Recommendation of the Law Revision Commission to the Legislature, Relating to Liability for Injuries Resulting from Fright or Shock, pp. 379, 410-422.
We believe, however, that the proper approach is to recognize, and grant, recovery for an injury caused to one who suffers emotional distress. We think, too, that such injury is foreseeable if a defendant's conduct encompasses potential risk of harm to a class of persons which includes the plaintiff. Harper and James point out that this foreseeable risk may be of two types. The first class involves actual physical impact. 'In other cases, however, plaintiff is outside the zone of physical risk (or there is no risk of physical impact at all), but bodily injury or sickness is brought on by emotional disturbance which in turn is caused by defendant's conduct. Under general principles recovery should be had in such a case if defendant should foresee fright or shock severe enough to cause substantial injury in a person normally constituted. Plaintiff would then be within the zone of risk in very much the same way as are plaintiffs to whom danger is extended by acts of third persons, or forces of nature, or their own responses (where these things are foreseeable).' (2 Harper & James, The Law of Torts, pp. 1035-1036; footnotes omitted.)
Prosser states the following rule: 'In negligence cases, duty is an obligation, recognized by the law, to conform to a particular standard of conduct toward another. The plaintiff must be within the class of persons to whom the duty is owed, The point in controversy crystallizes into the issue as to who falls within the class of persons to whom respondents owed a duty. Several dangers were present when the driver negligently operated respondent ice company's truck in the vicinity of the mother and her child. There was the danger that certain persons, including the child, and possibly the mother, although she did not fear for her own safety, might be struck by the truck. There was the danger that property might be destroyed. There was the danger that certain persons might suffer physical harm as a result of fright for their own safety or for the safety of others. The foreseeability of each of these dangers constitutes a question of fact which, within the limits we set forth infra, should be resolved by the trier of fact and not by a mechanical rule which, insensitive to individual situations, serves merely to establish an artificial and abstract simplicity.
We cannot rule that, as a matter of law, the injury to appellant was not foreseeable. The only justification for holding that appellant cannot state a cause of action would be, not that the injury to her, due to emotional distress, was not foreseeable, as a matter of law, but rather that the courts must deny recovery for reasons of policy; that, otherwise, factual questions will arise which are too difficult for courts or juries to decide.
As the Reporter of Tentative Draft No. 5 of § 313 of the Restatement of the Law of Torts 2d points out: 'Most of the decisions denying recovery have said that there is no duty to the plaintiff on the Palsgraf theory, because no harm to the plaintiff was reasonably to be foreseen. This sounds unreasonable; if a small child is run down in the street, it is not at all unlikely that the mother may be somewhere in the vicinity, and suffer severe mental disturbance resulting in bodily harm. The basis of the decisions appears rather to be a distrust of the injury itself, together with the difficulty of drawing a line which will rule out remote relatives, those who discover the harm five seconds or an hour after its occurs, and the like.' (Pp. 9, 10-11.)
Thus, the basic precept that 'It is fundamental to our common-law system that one may seek redress for every substantial wrong' (Battalla v. State (1961), 10 N.Y.2d 237, 219 N.Y.S.2d 34, 36, 176 N.E.2d 729, 730) becomes blocked out in many cases by legalistic abstractions. Depicting the situation in obscure colorization various courts declare themselves unable to give relief because of the absence of such requirements as (1) physical impact, (2) presence of the plaintiff in the zone of physical impact, (3) phusical manifestations of emotional distress, or (4) plaintiff's fear for his own safety. Finally, (5) some courts hold that recovery would encourage a flood of fraudulent claims which, they say, they cannot successfully segregate from deserving ones. While at the base of these contentions there may be no more than an underlying reluctance to permit recovery in a new area of injury, the considerations should be examined on the merits.
Thus no immutable rule calls for physical impact to justify recovery for emotional distress. The courts have long Acadia, California, Ltd. v. Herbert
The following cases dispense with the impact requirement in actions for negligent infliction of emotional distress: Battalla v. State (1961), 10 N.Y.2d 237, 219 N.Y.S.2d 34, 176 N.E.2d 729, 730; Padgett v. Colonial Wholesale Distributing Co. (1958), 232 S.C. 593, 103 S.E.2d 265, citing Sloane v. Southern Cal. Ry. Co. (1896), 111 Cal. 668, 44 P. 320, 32 L.R.A. 193; Colla v. Mandella (1957), 1 Wis.2d 594, 85 N.W.2d 345, 64 A.L.R.2d 95; Belt v. St. Louis San Francisco Ry. Co. (10th Cir., 1952), 195 F.2d 241, citing Emden v. Vitz (1948), 88 Cal.App.2d 313, 198 P.2d 696 and Taylor v. Pole (1940), 16 Cal.2d 668, 107 P.2d 614; Mahnke v. Moore (1951), 197 Md. 61, 77 A.2d 923; Cote v. Litawa (1950), 96 N.H. 174, 71 A.2d 792, 18 A.L.R.2d 216; Rasmussen v. Benson (1937), 133 Neb. 449, 275 N.W. 674, 122 A.L.R. 1468; Frazee v. Western Dairy Products (1935), 182 Wash. 578, 47 P.2d 1037; Cashin v. Northern Pac. Ry. Co. (1934), 96 Mont. 92, 28 P.2d 862; Bowles v. May (1932), 159 Va. 419, 166 S.E. 550; Alabama Fuel & Iron Co. v. Baladoni (1916), 15 Ala.App. 316, 73 So. 205; Salmi v. Columbia and N. R. R. Co. (1915), 75 Or. 200, 146 P. 819, L.R.A.1915D, 834; Kimberly v. Howland (1906), 143 N.C. 398, 55 S.E. 778, 7 L.R.A.,N.S., 545; Purcell v. St. Paul City Ry. Co. (1892), 48 Minn. 134, 50 N.W. 1034, 16 L.R.A. 203. According to the writer of Intentional Infliction of Mental Suffering: A New Tort in Illinois, 11 Depaul L.Rev. 151 (Autumn-Winter 1961), reprinted in Insurance Counsel Journal (1962) Vol. 29, pp. 459, 461-462: 'This rule, requiring impact in cases of negligence is followed by Illinois and by thirteen other states. However, it has been rejected in several states and abandoned by many others that had previously adopted it; so that today the majority rule is that where there is a definite physical injury produced by extreme emotional distress negligently caused, the defendant is liable notwithstanding the absence of any physical impact.' (Footnotes omitted.)
The second asserted requirement, that the plaintiff must be present within the zone of physical impact, finds expression in the well known case of Waube v. Warrington (1935), 216 Wis. 603, 258 N.W. 497, 98 A.L.R. 394, although, as we shall point out, the basic premise of the case is not free
The case is discussed in Magruder, Mental and Emotional Disturbance in the Law of Torts (1936) 49 Harv.L.Rev., pp. 1033, 1040. The underlying problem has given the draftsmen of the Restatement of the Law of Torts 2d considerable trouble. Thus the original Restatement provision, § 313, Restatement of the Law of Torts (1934) provides as follows: 'If the actor unintentionally causes emotional distress to another, he is liable to the other for illness or bodily harm of which the distress is a legal cause if the actor (a) should have realized that his conduct involved an unreasonable risk of causing the distress, otherwise than by knowledge of the harm or peril of a third person, and (b) from facts known to him should have realized that the distress, if it were caused, might result in illness or bodily harm. Caveat: The Institute expresses no opinion as to whether an actor whose conduct is negligent as involving an unreasonable risk of causing bodily harm to a child or spouse is liable for an illness or other bodily harm caused to the parent or spouse who witnesses the peril or harm of the child or spouse and thereby suffers anxiety or shock which is the legal cause of the parent's or spouse's illness or other bodily harm.' (Pp. 850-851.) In Tentative Draft No. 5, the Reporter, Professor Prosser, proposes deleting the caveat and substituting: '(2) The rule stated in subsection (1) has no application to illness or bodily harm of another, caused by emotional distress arising solely from harm or peril to a third person, unless the negligence of the actor has otherwise created an unreasonable risk of bodily harm to the other.' (P. 9.) The import of this change is altered, however, upon reading the reasons advanced by the Reporter: 'Note to Institute: The Caveat is stricken, and Subsection (2) is substituted, because of the overwhelming weight of the case law. The Advisers are unanimous in wishing to retain the Caveat, for its possible effect upon the courts--although it must be conceded that it has thus far had no effect. The Reporter is in sympathy with this position, and feels that there should be liability to a mother who suffers a heart attack when she sees her child killed before her eyes. He is compelled, however, to recognize that the decisions are otherwise. The Council are agreed that the Caveat should go out, and the definite rule of non-liability should be stated.' (P. 9.)
Moreover, the famous English case of Hambrook v. Stokes Brothers (1925) 1 K.B. 141 comes to the opposite conclusion. In Hambrook the defendants' servant left a truck parked at the top of a steep street with the engine running and without taking proper precautions to prevent it from moving. The truck started down the hill by itself and finally ran into the side of a house. The deceased, a pregnant woman, while walking with her children to school, saw the oncoming truck. Although, according to the court, she suffered no personal exposure to danger, she feared for the safety of her children, who had gone around a corner and were out of sight. After being informed that a little girl had been injured she discovered that the victim was her own child. Shocked by the sight of the child in the hospital, the decedent suffered a hemorrhage; ultimately both she and her unborn child died.
The court allowed recovery to her husband even though the deceased mother neither
Turning to the third alleged requirement, we note that although some cases in other states hold that emotional distress, even if followed by physical injury, cannot serve as a basis for recovery in such a situation as the instant one, neither reason nor decision in California support such a conclusion. Thus in Easton v. United Trade School Con. Co. (1916), 173 Cal. 199, 203, 159 P. 597, 599, L.R.A.1917A, 394 the court declared: 'In no one of these cases, nor in any other well-adjudicated case--and certainly not by the courts of this state--is it held that where fright accompanies or follows a wrongful physical injury, that it is not an element of damage. To the contrary, fright under such circumstances is but one form of mental anguish, and the mental anguish as a direct reasonable outcome of the illegal physical injuries is always an element of damage.' Since the complaint in the instant case alleges that the emotional distress caused physical injury it falls within the Easton holding and disposes of this third possible basis for the rejection of appellant's claim.
Cases denying recovery for emotional distress even though followed by physical manifestations: Mitchell v. Rochester Ry. Co. (1896), 151 N.Y. 107, 45 N.E. 354, 34 L.R.A. 781, overruled in Battalla v. State (1961), 10 N.Y.2d 237, 219 N.Y.S.2d 34, 176 N.E.2d 729, 730; cases collected in N. Y. Law Rev. Comm. Report (1936) pp. 410-422. Contra: Cases collected in N. Y. Law Rev. Comm. Report (1936) p. 406, et seq.; Lindley v. Knowlton (1918). 179 Cal. 298, 176 P. 440; Vargas v. Ruggiero (1961), 197 A.C.A. 772, 17 Cal.Rptr. 568; see e. g., Bowman v. Williams (1933), 164 Md. 397, 165 A. 182; Mitnick v. Whalen Bros., Inc. (1932), 115 Conn. 650, 163 A. 414 (plaintiff must fear for own safety).
The fourth potential ground of rejection, that plaintiff must fear for his own safety rather than for that of another, finds expression in Reed v. Moore (1957), 156 Cal.App.2d 43, 319 P.2d 80 and similar decisions; yet some of the cases cited in Reed, some subsequent California cases, as we shall point out, and some cases of other
Other cases to the same effect: Nuckles v. Tennessee Electric Power Co. (1927), 155 Tenn. 611, 299 S.W. 775; Carey v. Pure Distributing Corporation (1939), 133 Tex. 31, 124 S.W.2d 847; see cases collected in 18 A.L.R.2d 220, 230-234; cases collected in N. Y. Law Rev.Comm. (1936) 451-452, fn. 265.
Reed relies upon Easton, a case which, we have noted, holds that a plaintiff may recover for physical injury which follows emotional distress. Reed likewise rests upon Kelly v. Fretz (1937), 19 Cal.App.2d 356, 65 P.2d 914, which recognized that the authorities were in conflict upon whether or not a mother should recover for emotional shock produced by the fear of the safety of her child. In that case defendants' negligence resulted in the death of plaintiff's mother-in-law and the injury of her child. Plaintiff herself was not struck or frightened by the car's approach and had no knowledge of it. Whether the verdict rested upon plaintiff's distress caused by injuries to these others, or upon the element of fright produced by fear for the safety of her child or for her own safety, did not clearly appear. The court said: 'Manifestly the verdict could not rest upon grief caused by the injuries to others. [Citations.] If it rested upon the element of fright produced by fear for the safety of her child, the authorities differ on the right of recovery. Lindley v. Knowlton, 179 Cal. 298, 302, 176 P. 440. If it rested on fear for her own safety, her evidence fails to support the verdict.' (p. 362, 65 P.2d p. 916; emphasis added.)
As the quoted portion of the opinion discloses, the Kelly case relied upon Lindley, a decision in which the court, although not required to decide the issue, recognized that excellent authority supported recovery for fright produced by the 'apprchended danger' of another. (179 Cal. p. 299, 176 P. 440.) In Lindley, a 165 pound chimpanzee had entered plaintiff's house and attacked her children, whom she rescued from it. She may have feared for herself as well as her children but her children were exposed to the greater danger; when she intervened the chimpanzee was 'choking one of them severely; * * *' (p. 299, 176 P. 440.)
A consideration of California cases subsequent to Reed brings us to the fifth and last deterrent upon which courts have relied for refusal of relief in the present type of case. Courts have said that 'to allow recovery in the absence of physical injury will open the door to unfounded claims and a flood of litigation * * *.' (State Rubbish etc. Ass'n v. Siliznoff (1952), 38 Cal.2d 330, 338, 240 P.2d 282, 286.) Yet the Supreme Court in Siliznoff, in the absence of physical manifestations, gave relief for emotional distress which followed threats of physical violence. While in that case plaintiff intentionally, rather than negligently, caused the emotional upset, the court recognized that mental distress could foreseeably lead to bodily harm. Thus the cause of action need not be 'founded on a The court in Siliznoff, moreover, did not shy away from affording recovery for the bare emotional distress because it might be simulated, but held that the jurors '[f]rom their own experience' (p. 338, 240 P.2d 440) were competent to judge the effect of different acts upon the emotions. Indeed, in an age when the teachings of psychiatry have made clear the effect of emotional disturbance, it would be incongruous to hold that we must not allow recovery for such injury because it is hard to measure or because it may be simulated.
As the court states in Emden v. Vitz (1948), 88 Cal.App.2d 313, 198 P.2d 696: 'Appellants' contention that the rule permitting the maintenance of the action would be impractical to administer and would flood the courts with litigation is but an argument that the courts are incapable of performing their appointed tasks, a promise which has frequently been rejected.' (p. 319, 198 P.2d p. 700.) The New York Court of Appeals has recently pointed out: 'In any event, it seems that fraudulent accidents and injuries are just as easily feigned in the slight-impact cases and other exceptions wherein New York permits a recovery, as in the no-impact cases which it has heretofore shunned.' (Battalla v. State (1961), 10 N.Y.2d 237, 219 N.Y.S.2d 34, 37, 176 N.E.2d 729, 731; footnotes omitted.) See Throckmorton, Damages for Fright, 34 Harv.L.Rev., pp. 260-277.
The various bases for refusal of relief which we have discussed do not actually touch upon the central issue as to whether respondents owed appellant a duty of due care because of the foreseeability of the emotional trauma suffered by appellant. When one is negligent in the operation of a car he should, as a reasonable man, foresee that the class of persons who may suffer harm from his misconduct includes the parent whose emotional distress issues from the exposure of his child to injury by reason of the negligence. The above grounds for refusal of relief are in substance no more than court-inspired theories to restrict the range of liability of a defendant to narrow areas; they do not relate to the key question.
We are sympathetic with courts which do not believe that redress should be afforded for the flutter of every heart at the sight of an accident. But the need for delineating the area of liability does not justify the obliteration of the liability. We think Prosser has suggested reasonable boundary lines; the instant case falls within them. As Prosser states: 'It is clear that the injury threatened or inflicted upon the third person must be a serious one, of a nature to cause severe shock to the plaintiff, and that the shock must result in actual physical harm. The action might well be confined to members of the immediate family, or perhaps to husband, wife, parent or child, to the exclusion of bystanders, and remote relatives. As an additional safeguard, it has been said that the plaintiff must be present at the time of the accident, or at least that the shock must be fairly contemporaneous with it, rather than follow at a later date. Admittedly such restrictions are quite arbitrary, but they may be necessary in order not to leave the liability of a negligent defendant open to undue extension by the verdict of sympathetic juries, who under our system must define and apply any general rule to the facts of the case before them.' Within some such limits, it is still possible that a rule imposing liability may ultimately be adopted.' (P. 182; footnotes omitted.)
Within those limits the trier of the fact in the instant case may find that the emotional distress suffered by appellant was foreseeable to respondents.
It is not consonant with the reactions, or the mores, of the society of today to hold that the mother who suffers emotional distress upon the sight of her child's injury should not recover if the trier of fact finds such injury was reasonably foreseeable. The knowledge of potential emotional trauma to a parent who witnesses We reverse the judgment.
BRAY, P.J., and SULLIVAN, J., concur.
Hearing granted; TOBRINER, J., not participating.