Ochoa v. Superior Court

*178 GRODIN, J.

I agree with the majority that the facts which plaintiffs have alleged are sufficient to state a cause of action for negligent infliction of emotional distress under the theory of Dillon v. Legg (1968) 68 Cal.2d 728 [ 69 Cal.Rptr. 72 , 441 P.2d 912 , 29 A.L.R.3d 1316 ]. That being so, the “alternative” theory which plaintiffs have advanced—that they were “direct victims” of defendant’s negligence within the meaning of Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916 [ 167 Cal.Rptr. 831 , 616 P.2d 813 , 16 A.L.R.4th 518 ]—appears in this case to be redundant. The majority opinion is therefore entirely adequate to the decision of this cause and I concur in the judgment.

I agree also with the Chief Justice that there remain after today’s opinion numerous questions concerning the application of the Dillon guidelines which have proved troublesome to the lower courts and which this court must, sooner or later, confront and resolve. As a means of focusing needed attention upon those policy considerations which ought to guide the development of the law in this area I take the opportunity to add a few thoughts of my own.

As regards physical injury, apart from problems pertaining to the determination of duty in certain classes of cases (see, e.g., Rowland v. Christian (1968) 69 Cal.2d 108, 112-113 [ 70 Cal.Rptr. 97 , 443 P.2d 561 ]), recovery is normally allowed under a showing of negligence, foreseeability, and proximate cause; and each of these elements is said to be a question for the jury. (Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 46 [ 123 Cal.Rptr. 468 , 539 P.2d 36 ]; see also Prosser & Keaton, Torts (5th ed. 1984) § 37, pp. 235-238.) If precisely the same rules were applied to emotional distress, then in principle any person who claims to have suffered such injury as a result of another’s negligent act would be entitled to present his case to a jury whenever the record reflects triable issues of fact with respect to the requisite elements of the tort. Moreover, as a matter of logical analysis this would be true whether or not the evidence comported with the criteria enunciated in Dillon , since at most those criteria would serve as guidelines for the jury’s determination of foreseeability as a question of fact.

Perhaps such a rule would be desirable. It must be recognized, however, that it is not the rule which Dillon established. After observing that the principle of foreseeability serves “to limit the otherwise potentially infinite liability which would follow every negligent act” ( 68 Cal.2d at p. 739 ), Justice Tobriner’s opinion proceeds to suggest factors which “the courts will take into account” in determining “whether defendant should reasonably foresee the injury to plaintiff, or, in other terminology, whether defendant owes plaintiff a duty of due care.” (Id., at p. 740, see also p. 741 [“[i]n light of these factors the court will determine whether the accident *179 and harm was reasonably foreseeable”]; p. 742 [“[t]he courts have in the past, in analogous situations, drawn the limits of liability, applying general guidelines such as those above set forth to the specific facts of the cases”].)

Thus, however, flexible the Dillon guidelines were intended to be, it is clear that they were to be applied in the first instance by the courts as a means of guarding against unwarranted extensions of liability. The principle of foreseeability, normally a question for the jury, became fused in this analysis with the concept of duty, which serves normally as a vehicle for limiting liability on the basis of policy considerations which are thought to outweigh the policy of compensating victims of negligent conduct. (Diamond, Dillon v. Legg Revisited: Toward a Unified Theory of Compensating Bystanders and Relatives for Intangible Injuries (1984) 35 Hastings L.J. 477 [hereafter Dillon v. Legg Revisited].)

This fusion has given rise to a degree of confusion, and a perception of “arbitrariness,” in the application of the Dillon guidelines. Professor Diamond, for example, argues that of the three Dillon criteria, only one (a close relationship between the victim and the bystander plaintiff) is clearly relevant to a foreseeability analysis (Dillon v. Legg Revisited, supra, 35 Hastings L.J. at p. 488), and that the “mechanical application” of the guidelines “has led to the erection of arbitrary limitations on recovery bearing little relation to the principles of foreseeability espoused so forcefully in Dillon . ” (Id., at p. 478.) The Chief Justice’s separate opinion in this case provides numerous illustrations of this thesis.

One solution to this dilemma, obviously, is to abandon any limitations upon recovery for emotional injury that are not also imposed upon physical injury. This appears to be the approach of the House of Lords in McLoughlin v. O’Brian (1982) 2 All Eng.Rep. 298. 1 The parallel is not precise since in Britain personal injury cases are normally tried without a jury (see Ward v. James (1966) 1 Q.B. 273, 280) so that it is the court which determines whether the elements of recovery are present. In application, therefore, the English rule is similar to that which would exist if we were to recognize negligent infliction of emotional distress as a generic tort with the element of foreseeability determined by the court rather than by the jury.

A second approach, that advocated by the Chief Justice, calls for extending the principle of Molien v. Kaiser Foundation Hospitals, supra, 27 Cal.3d 916 , so as to allow recovery for the negligent infliction of mental distress whether the plaintiff is a “direct” or “indirect” victim, but to insist *180 that the injury meet some threshold of “seriousness.” The function of this requirement, presumably, would be to protect against “fraud, trivial claims, and unlimited liability.” (Nolan & Ursin, Negligent Infliction of Emotional Distress: Coherence Emerging from Chaos (1982) 33 Hastings L.J. 583 , 620.) One commentator, observing that even “serious” emotional injury is a normal and inevitable part of existence, suggests “limiting recovery to cases of emotional distress that most people do not face with sufficient frequency or sufficient certainty to anticipate, to prepare for, and thus to absorb without suffering severe or permanent emotional damage.” (Note, Limiting Liability for the Negligent Infliction of Emotional Distress: The “Bystander Recovery” Cases (1981) 54 So.Cal.L.Rev. 847, 868.) This is similar to the formulation in Molien : whether “a reasonable man, normally constituted, would be unable to adequately cope with the mental stress engendered by the circumstances of the case.” ( 27 Cal.3d at p. 938 , citing Rodrigues v. State (1970) 52 Hawaii 156, 173 [ 472 P.2d 509, 520 ],) 2

Two academic commentators have suggested what might be termed a more radical solution. Professor Richard Miller argues that it is possible for the judicial process to produce an approach to recovery for mental-distress-without-impact that will satisfy the competing concerns of justice and policy “only if the courts are willing to couple the application of ordinary negligence principles for determining the issue of liability with a significant reduction in the damages available if liability is imposed.” (Miller, The Scope of Liability for Negligent Infliction of Emotional Distress: Making “The Punishment Fit The Crime” (1979) 1 Hawaii L.Rev. 1, 3.) Eschewing a case-by-case approach, Professor Miller advocates application of general tort principles with a limitation of recovery in mental-distress cases to tangible economic loss in the form of medical care and disability. (Id., at pp. 39-40.) Professor Diamond, pointing to this court’s opinion in Turpin v. Sortini (1982) 31 Cal.3d 220 [ 182 Cal.Rptr. 337 , 643 P.2d 954 ] to illustrate the appropriateness of such judicially imposed limitations upon recovery, advocates extending Professor Miller’s thesis to include loss of consortium and parent-and-child society claims as well. (Dillon v. Legg Revisited, supra, 35 Hastings L.J. at pp. 479-480.)

Finally, it has been suggested that while any court-imposed limitation upon the category of plaintiffs who may recover for negligently inflicted emotional distress can be attacked as “arbitrary,” the result is more acceptable in terms of public policy than not to have any limitations at all. (Pearson, Liability to Bystanders for Negligently Inflicted Emotional Harm— *181 A Comment on the Nature of Arbitrary Rules (1982) 34 U.Fla. L.Rev. 477.) Though Professor Pearson relies upon his analysis to urge a return to the “zone of danger” test which Dillon rejected, a similar argument might be made in support of continued reliance upon Dillon guidelines, with or without modification.

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

The high court of Australia has arrived at a similar result in Jaensch v. Coffey (1984) 54 Austl. Argus L.R. 417.

Professors Nolan and Ursin take issue with the Molien formulation insofar as it suggests that the “thin skull plaintiff” rule, applicable to physical injury, should be abandoned when it comes to emotional injury. (Nolan & Ursin, Negligent Infliction of Emotional Distress: Coherence Emerging from Chaos, supra, 33 Hastings L.J. at p. 616, fn. 188.)