Molien v. Kaiser Foundation Hospitals

CLARK, J.

I dissent.

Our court today allows—for the first time—a money award against one who unintentionally disturbs the mental tranquillity of another.

Because such disturbances are commonplace in our complex society, because they cannot be objectively observed or measured, but mainly because it is for the Legislature to create new causes of action and to fix the limits of recovery, this court has until today refused the invitation to open wide the door to damage claims fraught with potential abuse.

As acknowledged by the majority, this court’s first significant extension of tort liability occurred in Dillon v. Legg (1968) 68 Cal.2d 728 [ 69 Cal.Rptr. 72 , 441 P.2d 912 , 29 A.L.R.3d 1316 ], 12 short years ago. *934 In a four-to-three decision Amaya v. Home Ice, Fuel & Supply Co. (1963) 59 Cal.2d 295 [ 29 Cal.Rptr. 33 , 379 P.2d 513 ] was overruled, to hold that a mother witnessing a negligent act causing the death of her minor child could maintain an action against the tortfeasor for “‘great emotional disturbance and shock and injury to her nervous system’ which caused her great physical and mental pain and suffering.” (Dillon v. Legg, supra, 68 Cal.2d 728, 731 .) In Amaya , five years earlier, we held that a mother observing her seventeen-month-old son “‘struck and run over by the defendants’ truck’” is not entitled to recover for her “‘emotional shock and great mental disturbance... sustaining injury to her body and shock and injury to her nervous system and person....’” (Amaya v. Home Ice, Fuel & Supply Co., supra, 59 Cal.2d 295, 298 .)

In overruling Amaya , this court created a new cause of action. (See Dillon v. Legg, supra, 68 Cal.2d 728 , dis. opn. of Burke, J., at pp. 748-749.) But today’s majority overstretch “the new elasticity proclaimed by the [Dillon\ majority” (id., at p. 749) which purported to limit recovery to damages for “shock which resulted in physical injury.” (Id., at p. 740; italics added.) Now the majority will permit recovery for negligently caused emotional distress unaccompanied by physical injury. The dissenters in Dillon were prescient in their concern our courts were entering a “‘fantastic realm of infinite liability’” (id., at p. 751). 1

Good reason exists for denying recovery for plaintiffs’ claim although the majority appear to acknowledge none. (Ante, at pp. 924-925.) 2 The requirement of a concurrence of physical injury with claimed emotional distress is a safeguard eliminating spurious claims for negligently inflicted mental distress. That safeguard is now abandoned in favor of newly declared standards designed by the majority opinion to limit recoveries under their new, independent tort. A plaintiff claiming his or *935 her mental tranquility has been disturbed can now recover “‘where proof of mental distress is of a medically significant nature,’” or the claim of mental distress is supported by “‘some guarantee of genuineness in the circumstances of the case.’” (Ante, p. 930.) In applying these standards, jurors are said to be “best situated to determine whether and to what extent the defendant’s conduct caused emotional distress, by referring to their own experience.” (Id.) Such standards are nonstandards, opening wide the door to abuse.

The majority incorrectly rely on State Rubbish etc. Assn. v. Siliznoff (1952) 38 Cal.2d 330 [ 240 P.2d 282 ] for their contention that jurors are best situated to determine if a defendant’s conduct causes emotional distress warranting recovery of damages pursuant to standards fixed by today’s majority. However, Siliznoff deals with intentional infliction of fright, the court stating that jurors are “ordinarily in a better position .. .to determine whether outrageous conduct results in mental distress than whether that distress in turn results in physical injury.” (Id., at p. 311; italics added.) A different and difficult medical question is presented when the resulting traumatic effect of mental distress must be determined. It is this question which the majority would depend on jurors to answer. Relying on a medical study (Smith, Relations of Emotions to Injury and Disease (1944) 30 Va.L.Rev. 193), this court concluded in Amaya that questions of the effects of emotional distress would not be easy ones for jurors. “Here that ‘difficult medical question’ cannot be so easily avoided. In the cited article... Dr. Smith... concludes (1) that ‘a majority of persons claiming injury from psychic causes possessed sub-normal resistance to psychic stimuli’; (2) that ‘In only 55 of the 301 cases surveyed could we say actual causation was proved by a preponderance of substantial and credible evidence’; and (3) that hence ‘The skeptical courts were...correct in doubting whether adequate criteria of proof existed in this field to make administration of a remedy feasible. Law, in a commendable desire to be forward looking, outran scientific standards. Taking all cases decided between 1850 and 1944.. .the net balance of justice would have been greater had all courts denied damages for injury imputed to psychic stimuli alone.’” (Amaya v. Home Ice, Fuel & Supply Co., supra, 59 Cal.2d 295, 311 .) No empirical evidence exists and the record fails to establish that psychiatrists and jurors have since become better equipped to evaluate the traumatic effects of psychic stimuli.

The resolution of conflicts the majority would leave to jurors, “as doctors well know. ..often borders on fancy when the causation of al *936 leged psychoneural disorders is at issue.... Much timeliness remains in Dr. Smith’s warning (id., at p. 212 of 30 Va.L.Rev.) that ‘eagerness to be progressive may cause extravagent credulity and injury to scientific standards of proof.’ Extravagant credulity, of course, means ultimate injustice.” (Id., at p. 312.)

The fundamental problem is not foreseeing (by unguided hindsight) the consequences of unintentional conduct, but rather realistically limiting liability for those consequences. “It is unthinkable that any one shall be liable to the end of time for all the results that follow in endless sequence from his single act. Causation cannot be the answer; in a very real sense the consequences of an act go forward to eternity, and back to the beginning of the world.” (Prosser, Palsgraf Revisited (1953) 52 Mich.L.Rev. 1, 24.) In a system compensating injury based on fault, consideration must be given to the “moral blame attached to the defendant’s conduct” (Biakanja v. Irving (1958) 49 Cal.2d 647, 650 [ 320 P.2d 16 , 65 A.L.R.2d 1358 ]) in fixing liability. When the defendant’s act is merely negligent rather than intentional, lesser moral blame attaches, cautioning against extending liability. (See Bauer, The Degree of Moral Fault as Affecting Defendant’s Liability (1933) 81 U.Pa.L.Rev. 586, 588-592.) Liability should be proportionate to the actor’s culpability, having in mind the utility ánd necessity of the conduct negligently performed. Where, as here, imposition of liability is far disproportionate to the degree of culpability, we do a disservice to the public—who must ultimately bear the cost—by sanctioning claims for hurt feelings. 3

The signatories to the majority opinion have—in cases where the balance has weighed more heavily in favor of liability than in the instant case—refused for policy reasons to extend liability. In Borer v. American Airlines, Inc. (1977) 19 Cal.3d 441 [ 138 Cal.Rptr. 302 , 563 P.2d 858 ], this court noted that “foreseeable injury to a legally recognized relationship” does not necessarily postulate a cause of action, and that “social policy must at some point intervene to delimit liability.... ‘Every injury has ramifying consequences, like the ripplings of the wa *937 ters, without end. The problem for the law is to limit the legal consequences of wrongs to a controllable degree.’” (Id., at p. 446.) The author of today’s majority opinion has also properly cautioned against imposition of new burdens on the courts: “As Chief Justice Burger lamented in United States v. Richardson (1974) 418 U.S. 166, 179 [ 41 L.Ed.2d 678, 689-690 , 94 S.Ct. 2940 ]: ‘As our society has become more complex, our numbers more vast, our lives more varied, and our resources more strained, citizens increasingly request the intervention of the courts on a greater variety of issues than at any period of our national development.’” (Carsten v. Psychology Examining Com. (1980) ante, pp. 793, 801, fn. 2 [ 166 Cal.Rptr. 844 , 614 P.2d 276 ].)

The majority’s creation of new consequences for old acts is wrong. The judgment should be affirmed.

Richardson, J., concurred.

The majority dismiss Dillon’s three-point test as being inapplicable “to a case factually dissimilar to the bystander scenario” (ante, p. 923), and conclude we should look to Dillon’s broader test of foreseeability of emotional trauma on a case-by-case basis. However, the majority cannot escape the Dillon requirement that even though foreseeable, emotional trauma must result from physical injury to another.

The majority are encouraged to today’s decision by Dean Prosser’s longstanding advocacy. (Ante, pp. 924, 925-926.) However, even he recognizes the reasons for the current rule, stating immediately before language quoted by the majority (ante, at p. 926): “It is now more or less generally conceded that the only valid objection against recovery for mental injury is the danger of vexatious suits and fictitious claims, which has loomed very large in the opinions as an obstacle. The danger is a real one, and must be met. Mental disturbance is easily simulated, and courts which are plagued with fraudulent personal injury claims may well be unwilling to open the door to an even more dubious field.” (Prosser, Torts (4th ed. 1971) § 54, p. 328.)

The majority’s new cause of action will surely suggest to even the less ingenious a vehicle for avoiding prior limitations on certain causes of actions. For instance, while we have not for some time recognized a cause for alienation of affections—an intentional tort—the net effect of today’s judgment is to permit recovery for emotional distress and loss of consortium caused by even the negligent alienation of plaintiff’s wife’s affections by defendant. And in a case of slander where the plaintiff is unable to establish all conditions to recovery for this intentional tort, cannot he now obtain relief by alleging his mental tranquility was disturbed—even negligently—by defendant’s utterances?