Coon v. Joseph

192 Cal. App. 3d 1269, 237 Cal. Rptr. 873, 1987 Cal. App. LEXIS 1854

• Court: California Court of Appeal
• Decided: June 24, 1987
• Docket: A033089
• Status: Published

Opinions

Opinion

SCOTT, J.

Appellant Gary Coon (appellant) appeals from a judgment of dismissal following an order sustaining a demurrer without leave to amend to his complaint. By his complaint, he seeks recovery for emotional distress suffered as a witness to the alleged assault of an intimate male friend. We hold that he is not entitled to recover for negligent infliction of emotional distress as a matter of law because he fails to establish the “close relationship” requirement under Dillon v. Legg (1968) 68 Cal.2d 728 [69 Cal.Rptr. 72, 441 P.2d 912, 29 A.L.R.3d 1316]. His complaint fails to allege facts sufficient to constitute any other cause of action, and we therefore affirm the judgment.

I

Allegations of Complaint and Procedural History

For purposes of this appeal, we treat as true the allegations of the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [216 Cal.Rptr. 718, 703 P.2d 58].) The complaint here alleges as follows. On September 23, 1984, in San Francisco, appellant and a male friend (Ervin) attempted to board a municipal bus of respondent City and County of San Francisco (City). Appellant had been living with his friend for a year, and they had an intimate, stable and “emotionally significant” relationship as “exclusive life partners.” The bus driver, respondent Michael Joseph (bus driver), “denied [appellant] entry to the number 19 Polk bus, but allowed [Ervin] onto said bus.” Bus driver, in full view and hearing of appellant, verbally abused Ervin and struck his face. When appellant observed the assault on his friend, he suffered great mental and emotional distress. The complaint alleges four causes of action: intentional infliction of emotional distress, negligent infliction of emotional distress, negligence, and violation of appellant’s civil rights under Civil Code section 51.7.

Respondents City and bus driver demurred to the entirety of the complaint on the grounds that it failed to state any cause of action against them. After appellant’s counsel advised the trial court that he elected not to amend the complaint, the court sustained the demurrer without leave to amend.

We conclude that none of the four causes of action allege facts sufficient to constitute any cause of action against respondents bus driver or City.

II

Intentional Infliction of Emotional Distress

In Ochoa v. Superior Court (1985) 39 Cal.3d 159 [216 Cal.Rptr. 661, 703 P.2d 1], our Supreme Court explained the substantial hurdle a plaintiff, who is solely a witness to the injury of another, must overcome to withstand a demurrer to a claim for intentional infliction of emotional distress. There, plaintiffs were the parents of a minor who died while confined in a juvenile facility. The complaint alleged that plaintiffs experienced extreme mental and emotional distress when they visited their son after he fell ill with pneumonia. They saw him delirious, screaming in great pain and coughing up blood. The facility refused to allow them to take him to a private physician and forced his mother to leave him although he begged her to stay at his side. After several days he died. The trial court sustained a demurrer to plaintiffs’ claims for intentional and negligent infliction of emotional distress. On appeal, the court held that although plaintiffs had stated a claim for negligent infliction of emotional distress, they had failed to state as a matter of law a claim for intentional infliction of emotional distress. The court emphasized that the two torts were completely distinct. (Id., at p. 165, fn. 5.) Intentional infliction of emotional distress requires conduct which is especially calculated to cause and does cause the claimant mental distress of a very serious nature. (Ibid.) Although it was evident that defendants had caused plaintiffs untold distress, they had not acted with the purpose of causing them emotional distress. (Ibid.) The misconduct had been directed primarily at the decedent minor with plaintiffs looking on as helpless bystanders. (Id., at pp. 172-173.) The fact that defendants’ conduct had not been especially calculated to cause plaintiffs’ distress was fatal to their claim.

The Ochoa court averred to a movement towards allowing recovery for the intentional tort by one who is not the direct victim in “ ‘the most extreme cases of violent attack, where there is some especial likelihood of fright or shock.’ ” (Ochoa v. Superior Court, supra, 39 Cal.3d at p. 165, fn. 5, citing Prosser & Keeton on Torts (5th ed. 1984).) Delia S. v. Torres (1982) 134 Cal.App.3d 471 [184 Cal.Rptr. 787] constitutes one such rare exception. There, the court permitted recovery by the husband of a rape victim against the rapist, one of husband’s friends, for intentional infliction of emotional distress. The court reasoned that the rape of one’s wife, particularly by a friend, would inevitably result in such humiliation and profound emotional consequences for the husband so as to constitute a personal wrong against him. (Id., at p. 484.)

Here, the complaint alleges that bus driver refused to allow appellant to board the bus and then abused Ervin. It does not allege that bus driver directed any abuse against appellant and therefore, under Ochoa, fails to allege conduct “especially calculated to cause” appellant severe distress. The circumstances in Delia S. are not present here—the bus driver’s conduct did not constitute a personal wrong against appellant. His cause of action for the intentional infliction of emotional distress must therefore fail.

III

Negligent Infliction of Emotional Distress

In Dillon v. Legg, supra, 68 Cal.2d 728, our Supreme Court, in allowing recovery by a witness to an injury for negligent infliction of emotional distress, acknowledged the need “to limit the otherwise potentially infinite liability which would follow every negligent act----” (Id., at p. 739.) Accordingly, the court set forth three factors determinative of whether a witness to an injury may recover for negligent infliction of emotional distress; (1) whether the person was located near the scene of the accident as contrasted with one who was a distance away from it; (2) whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence; (3) whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship. (Id., at pp. 740-741.)

The third factor is the subject of this appeal: whether appellant has pleaded a sufficiently “close relationship” with Ervin to justify the imputing of foreseeability of ,the emotional distress to the respondent tortfeasors.

A sufficiently “close relationship” to warrant recovery exists between parent and child (Dillon v. Legg, supra, 68 Cal.2d at p. 741; Ochoa v. Superior Court, supra, 39 Cal.3d at pp. 166-167) and husband and wife (see Krouse v. Graham (1977) 19 Cal.3d 59, 74-75 [137 Cal.Rptr. 863, 562 P.2d 1022]), and between a man and woman who have established a valid common law marriage in a state which allows such marriages (Etienne v. DKM Enterprises, Inc. (1982) 136 Cal.App.3d 487, 490 [186 Cal.Rptr. 321] [by implication]).

The consequences of the extension of a “close relationship” beyond the parent-child and husband-wife relationship have concerned legal scholars as well as the courts. Keeton and Prosser query: “If recovery is to be permitted, however, it is also clear that there must be some limitation. It would be an entirely unreasonable burden on all human activity if the defendant who has endangered one person were to be compelled to pay for the lacerated feelings of every other person disturbed by reason of it, including every bystander shocked at an accident, and every distant relative of the person injured, as well as all his friends.” (Prosser & Keeton on Torts, supra, p. 366.)

With two exceptions,¹ the Courts of Appeal have denied recovery in the absence of a husband-wife, parent-child, or grandchild-grandparent relationship. In Drew v. Drake (1980) 110 Cal.App.3d 555 [168 Cal.Rptr. 65], plaintiff sought damages for emotional distress upon observing the death in an auto accident of the man with whom she had lived for three years. The court denied plaintiff’s claim because she had no legally recognized relationship with the decedent such as wife and husband or parent and child, and because there were no allegations that defendants knew or should have known of their relationship. The court noted: “No reported decision extends the ‘close relationship’ guideline to include friends or housemates.” (Id., at p. 557.)

Trapp v. Schuyler Construction (1983) 149 Cal.App.3d 1140 [197 Cal.Rptr. 411] and Kately v. Wilkinson (1983) 148 Cal.App.3d 576 [195 Cal.Rptr. 902] demonstrate strict adherence to Drew’s limitations on “close relationship.”

In Trapp, two minors sought recovery for negligent infliction of emotional distress after witnessing their cousin drown in a swimming pool located on the defendant’s property. The complaint alleged that the minors and their cousin “had a relationship analagous [sic] to a relationship between siblings.” (Trapp v. Schuyler Construction, supra, 149 Cal.App.3d at p. 1141.) The court denied recovery as a matter of law, stating that a “close relationship” did not include friends or those standing in a “meaningful relationship.” (Id., at p. 1142.)

In Kately, the court denied recovery for emotional distress by a mother and daughter who had witnessed the death of a child caused by the defendant’s defective product. The court stated that although the decedent allegedly had been like a natural member of the family, to permit recovery “would abandon the Dillon v. Legg requirement that courts mark out the areas of liability excluding the remote and unexpected.” (Kately v. Wilkinson, supra, 148 Cal.App.3d at p. 585.)

The inclusion of an intimate homosexual relationship within the “close relationship” standard would render ambivalent and weaken the necessary limits on a tortfeasor’s liability mandated by Dillon. We view the establishment of a clear and definite standard limiting liability to be of great importance. We adopt the reasoning of Borer v. American Airlines, Inc. (1977) 19 Cal.3d 441 [138 Cal.Rptr. 302, 563 P.2d 858], where the court denied the extension of liability for loss of consortium to the parent-child relationship. The court explained that social policy rather than logic was the basis of its decision: “ ‘[N]ot every loss can be made compensable in money damages, and legal causation must terminate somewhere. In delineating the extent of a tortfeasor’s responsibility for damages under the general rule of tort liability (Civ. Code, § 1714), the courts must locate the line between liability and nonliability at some point, a decision which is essentially political.’ ” The court also stated: “We cannot ignore the social burden of providing damages ... merely because the money to pay such awards comes initially from the ‘negligent’ defendant or his insurer. Realistically the burden of payment of awards ... must be borne by the public generally in increased insurance premiums or, otherwise, in the enhanced danger that accrues from the greater number of people who may choose to go without any insurance____” (Id., at pp. 446-447.)

To include the “emotionally significant,” “stable,” and “exclusive” relationship pled by appellant as a “close relationship” within the meaning of Dillon v. Legg would invite inconsistent results because recovery would be dependent upon the personal, completely subjective viewpoints of the trier of fact. For this reason, among others, California courts have denied liability for loss of consortium absent a legal husband-wife relationship at the time of the occurrence of the injury. (Ledger v. Tippitt, supra, 164 Cal.App.3d 625, 633-640 [recovery denied even though parties had attempted to marry, lived together, and plaintiff had borne the child of the decedent]; Lieding v. Commercial Diving Center (1983) 143 Cal.App.3d 72, 76 [191 Cal.Rptr. 559] [recovery denied where injured party asked plaintiff to marry him before accident and they married after accident]; Tong v. Jocson (1977) 76 Cal.App.3d 603, 605 [142 Cal.Rptr. 726] [recovery denied where parties engaged before accident and married after accident]; contra Butcher v. Superior Court (1983) 139 Cal.App.3d 58 [188 Cal.Rptr. 503, 40 A.L.R.4th 539].)

In Ledger v. Tippitt, supra, 164 Cal.App.3d 625, the court held that plaintiff’s complaint failed to state a cause of action for loss of consortium but did state a cause of action for negligent infliction of emotional distress. Although appellant relies upon Ledger, we find that case not controlling here. Plaintiff in Ledger alleged that defendant had stabbed the decedent in front of her and that decedent had bled to death in her arms. Plaintiff and decedent had lived together for two years and twice had attempted to marry. She had borne their son whom she was holding at the time of the stabbing. The court held that plaintiff should not be denied recovery merely because their marriage license had never been recorded. (Id., at p. 646.) It stated: “ ‘[There is no] more fundamental family relationship than one which is created when two parents establish a home with their natural child.’ ” (Id., at p. 648.)

Without commenting on the soundness of Ledger, we find it inapposite. The complaint here does not allege facts establishing a “de facto” marital relationship recognized in Ledger. Nor could such allegation be made because appellant and Ervin are both males and the Legislature has made a determination that a legal marriage is between a man and a woman. (Civ. Code, § 4100; see McClure v. Donovan (1949) 33 Cal.2d 717, 728 [205 P.2d 17]; Hinman v. Department of Personnel Admin. (1985) 167 Cal.App.3d 516, 526 [213 Cal.Rptr. 410].) Accordingly, appellant has failed to state a cause of action for negligent infliction of emotional distress.

IV

Appellant’s Claims of Negligence and Civil Rights Violations

These claims do not merit extensive discussion. Appellant claims that the complaint states a cause of action for negligence in his favor for violation of Civil Code section 2100. That section codifies the duty of “utmost care” owed by a commercial carrier to provide “safe carriage” to its passengers. Here, the verified complaint states that bus driver refused to allow appellant to board the bus; accordingly appellant never became a passenger, the duty of care codified by section 2100 never arose in favor of appellant, and respondents never breached any duty of safe carriage owing to passengers with respect to appellant.

The factual circumstances and issues in Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780 [221 Cal.Rptr. 840, 710 P.2d 907], cited by appellant, are not relevant here. There, the court held that a transit authority owes a duty of care to its passengers to protect them from assaults from fellow passengers under Civil Code section 2100. (Lopez, supra, at p. 791.) Here, the complaint does not allege, as stated above, that appellant was a passenger or that he was assaulted.

As to appellant’s claim of violation of civil rights, a brief review of the statute upon which he relies—Civil Code section 51.7—establishes he has no claim. That section provides, inter alia, that all persons have the right to be free from any violence, intimidation or threat thereof “committed against their persons” because of race, religion, sex or sexual orientation. The unambiguous language of this section gives rise to a cause of action in favor of a person against whom violence or intimidation has been committed or threatened. The complaint establishes that no violence or intimidation was committed or threatened against appellant’s person and thus no cause of action exists in his own right. Following appellant’s argument, any person would have the right to recover damages for himself or herself whenever the rights of any other human being of similar race, religion, sex, or sexual orientation were threatened. Such intent of the Legislature cannot be reasonably inferred.

For these reasons, we affirm the order of the trial court sustaining the demurrer to the complaint and the judgment of dismissal.

Barry-Deal, J., concurred.

1 Kriventsov v. San Rafael Taxicabs, Inc. (1986) 186 Cal.App.3d 1445 [229 Cal.Rptr. 768] [uncle-nephew]; Ledger v. Tippitt (1985) 164 Cal.App.3d 625 [210 Cal.Rptr. 814], discussed infra. We view the relationship of mother and foster child in Mobaldi v. Regents of University of California (1976) 55 Cal.App.3d 573 [127 Cal.Rptr. 720] as a parent-child relationship.