Dillon v. Legg

TRAYNOR, C. J.

I dissent for the reasons set forth in Amaya v. Some Ice, Fuel & Supply Co. (1963) 59 Cal.2d 295, 297-315 [29 Cal.Rptr. 33, 379 P.2d 513], In my opinion that case was correctly decided and should not be overruled.

BURKE, J.

As recently as 1963 this court, in Amaya v. Home Ice, Fuel & Supply Co., 59 Cal.2d 295 [29 Cal.Rptr. 33, 379 P.2d 513], thoroughly studied and expressly rejected the proposition (pp. 298-299) that tort liability may be predicated on fright or nervous shock (with consequent bodily illness) induced solely by the plaintiff’s apprehension of negligently caused danger or injury to a third person. As related in our Amaya opinion, plaintiff there was the mother of a 17-month-old boy who saw him struck by a truck; accordingly our ruling necessarily included all mothers of small children who observe them being injured. Yet today this court’s Amaya decision is overruled by an opinion which disdains any discussion whatever of the history and policy of pertinent law painstakingly set forth in Amaya.

Every one of the arguments advanced in today’s opinion was considered by this court and rejected, expressly or by fair implication, in Amaya.1 Further, as Amaya points out (p. 304 of 59 Cal.2d), in every jurisdiction in this country that had ruled on the point at issue the decisions up to that time (1963) were unanimous in upholding the rule of nonliability.

So far as has been discovered, in not a single such jurisdiction has an appellate court ruled to the contrary since *749 Amaya.2 But the majority make "no attempt in today’s opinion—as apparently they could not—to buttress their result with citations of cases based on American law, to say nothing of that of California. Instead, we are offered two English cases applying the 1925 Hambrook case (Hambrook v. Stokes Bros. [1925] 1 K.B. 141), whose ruling we expressly rejected in Amaya (pp. 303-304 [fn. 4], and 313, of 59 Cal.2d), and which, as already stated has not been followed or approved by any jurisdiction in this country.

The majority, obviously recognizing that they are now embarking upon a first excursion into the “fantastic realm of infinite liability” (Amaya, at p. 315 of 59 Cal.2d), undertake to provide so-called “guidelines” for the future. But notwithstanding the limitations which these “guidelines” purport to impose, it is only reasonable to expect pressure upon our trial courts to make their future rulings conform to the spirit of the new elasticity proclaimed by the majority.

Moreover, the majority’s “guidelines” {ante, pp. 740-741) are simply a restatement of those suggested earlier by Professor Prosser (Prosser, Torts (2d ed., 1955) p. 182) they have already been discussed and expressly rejected by this court in Amaya (pp. 312-313). Upon analysis, their seeming certainty evaporates into arbitrariness, and inexplicable distinctions appear.3 As we asked in Amaya-. What if the plaintiff was honestly mistaken in believing the third person to be in danger or to be seriously injured? What if the third person had assumed the risk involved? How “close” must the relationship be between the plaintiff and the third person? I.e., what if the third person was the plaintiff’s beloved niece or nephew, grandparent, fiancé, or lifelong friend, more dear to the plaintiff than her immediate family? Next, how “near” *750 must the plaintiff have been to the scene of the accident, and how “soon” must shock have been felt? Indeed," what is the magic in the plaintiff’s being actually present? Is the shock any less real if the mother does not know of the accident until her injured child is brought into her home? On the other hand, is it any less real if the mother is physically present at the scene but is nevertheless unaware of the danger or injury to her child until after the accident has occurred? No answers to these questions are to be found in today’s majority opinion. Our trial courts, however, will not so easily escape the burden of distinguishing between litigants on the basis of such artificial and unpredictable distinctions.

Further, and again contrary to the assertions of the majority (ante, pp. 732-733), no fallacy or incongruity appears in the rule permitting recovery to one within the physical zone of danger for trauma suffered from fear of impact, but denying it to a person outside that zone. The impact feared must be to oneself, and it must be an objective fear—not merely that of- an excessively imaginative or timid plaintiff. As pointed out in the leading ease of Waube v. Warrington (1935) 216 Wis. 603, 612-613 [258 N.W. 497], “It is one thing to say that as to those who are put in peril of physical impact, impact is immaterial if physical injury is caused by shock arising from the peril. It is the foundation of cases holding to this liberal ruling, that the person affrighted or sustaining shock was actually put in peril of physical impact, and under these conditions it was considered immaterial that the physical impact did not materialize. It is quite another thing to say that those who are out of the field of physical danger through impact shall have a legally protected right to be free from emotional distress occasioned by the peril of others, when that distress results in physical impairment.” (Italics added.) Thus, California’s rule that a plaintiff’s reasonable fear for his own safety is compensable presents neither an argument for the same rule as to fear for others, nor a danger of recovery based on the plaintiff’s false claims of fear for himself.4

*751 The assertion of the majority (ante, p. 735) that “The denial of ‘duty’ in the instant situation [i.e., physical impairment resulting from emotional distress occasioned by apprehension of the peril of others] rests upon the prime hypothesis that allowance of such an action would lead to successful assertion of fraudulent claims,’’ (italics added) is controverted by the very ease cited in support. (Waube v. Warrington, supra, 216 Wis. 603, 613.) Instead of reliance on any such “prime hypothesis,” the Wisconsin court had this to say in Waube: “The answer to this question cannot be reached solely by logic, nor is it clear that it can be entirely disposed of by a consideration of what the defendant ought reasonably to have anticipated as a consequence of his wrong. The answer must be reached by balancing the social interests involved in order to ascertain how far defendant’s duty and plaintiff’s right may justly and expediently be extended. It is our conclusion that they can neither justly nor expediently be extended to any recovery for physical injuries sustained by one out of the range of ordinary physical peril as a result of the shock of witnessing another’s danger. Such consequences are so unusual and extraordinary, viewed after the event, that a user of the highway may be said not to subject others to an unreasonable risk of them by the careless management of his vehicle. Furthermore, the liability imposed by such a doctrine is wholly out of proportion to the culpability of the negligent tort-feasor, would put an unreasonable burden upon users of the highway, open the way to fraudulent claims, and enter a field that has no sensible or just stopping point.”

As this court declared in Amaya (p. 315 of 59 Cal.2d), there is good sense in the conclusion of the court in Waube that ‘1 the liability imposed by such a doctrine is wholly out of proportion to the culpability of the negligent tort-feasor”; further, to permit recovery by every person who might adversely feel some lingering effect of the defendant’s conduct would throw us into “the fantastic realm of infinite liability.” Yet the majority opinion in the present case simply omits to either mention or discuss the injustice to California defendants flowing from such a disproportionate extension of their liability—an injustice which plainly constituted a “prime hypothesis” for rejection of the liability sought to *752 be imposed by the plaintiffs in Waube and in Amaya. (See also Jelley v. LaFlame (N.H. 1968) supra, 238 A.2d 728, 730, citing with approval and following this ground of decision expressed in Watibe and in Amaya.)

Additionally, the majority fail to explain their bare assertion {ante, p. 733) that contributory negligence of Erin will defeat any recovery by plaintiff mother and sister.5 The familiar and heretofore unquestioned principle is that the relationships of parent and child or of husband and wife in themselves furnish no basis for imputation of contributory negligence. (Within, Summary of Cal. Law (1960) Torts, § 341, p. 1542; Rest.2d Torts, § 488.) Is this principle now abrogated in California? If so, it is a ruling extending far beyond the confines of the particular issue now before us, and reaches potentially every negligence action in which the plaintiffs are members of the same family.

It appears to me that in the light of today’s majority opinion the matter at issue should be commended to the attention of the Legislature of this state. Five years have elapsed since our Amaya decision, during which that body has not undertaken to change the law we there declared. We may presume, therefore, that the limitations upon liability there affirmed comport with legislative views. But if all alleged California tortfeasors, including motorists, home and other property owners, and governmental entities, are now to be faced with the concept of potentially infinite liability beyond any rational relationship to their culpability, then surely the point has been reached at which the Legislature should reconsider the entire subject and allow all interests affected to be heard.

I would affirm the judgment.

McComb, J., concurred.

ln Amaya the trial court sustained a general demurrer to the complaint and dismissed the action. The Court of Appeal reversed, and in its opinion pronounced the doctrine that is revived in the majority, opinion here.. (See (Cal.App.) 23 .Cal.Rptr. .1.31.) . Upon--petition ■ .this, .court granted a.hearing, thereby nullifying .-the Court iof Appeal opinion."' Our opinion affirmed the trial court. .

The courts of two states have expressly denied recovery: see Barber v. Pollock (1963) 104 N.H. 379 [187 A.2d 788] (wife witnessed from inside the house an accident in which her husband was killed); Jelley v. LaFlame (1968) 108 N.H. 471 [238 A.2d 728] (mother standing on side of highway witnessed an accident in which her 6-year-old daughter, who had alighted from a school bus, was crushed to death by a truck) ; Knaub v. Gotwalt (Pa. 1966) 422 Pa. 267 [220 A.2d 646], in which the court expressly rejected even the “impact” rule and noted that, as shown in 18 A.L.R.2d 220, virtually no jurisdiction permits recovery to a mere witness not in the zone of danger.

Thus the Supreme Court of New Hampshire has recently recognized that to approve recovery by mothers of small children, as do the majority here, would create “the need ... to impose arbitrary and illogical limitations to prevent the undue extension of the liability of an alleged negligent operator such as the defendant in this case.” (Jelley v. LaFlame (1968) supra, 238 A.2d 728, 730.)

Contrary to the assertion of the majority (ante, pp. 746-747), no California ease has held that “a mother could recover for fear for her children’s safety if she simultaneously entertained a personal fear for herself.” As correctly stated in Amaya (p. 300 of 59 Cal.2d), Lindley v. Knowlton (1918) 179 Cal. 298 [176 P. 440], held only that liability may be predicated upon fright and consequent illness induced by the plaintiff’s reasonable fear for her own safety, even when the plaintiff may also have feared for the safety of her children. And as likewise correctly stated in Amaya (p. 302), the holding in Reed v. Moore (1957) 156 Cal.App.2d 43, 47 [319 P.2d 80], was that a wife who was outside the zone of danger *751 tjut witnessed a collision in which her husband was injured could not recover. Neither Lindley nor Meed holds, or even suggests, that a plaintiff may recover for fear for the safety" of another if she can establish that she herself was in the zone of danger.

Neither does the majority opinion enlighten us as to how the contributory negligence of either (a) plaintiff mother or (b) plaintiff sister will assertedly defeat any recovery by the other.