Di Costa v. Aeronaves de Mexico, S.A.

973 F.2d 1490

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 1, 1992
• Docket: No. 90-55224
• Status: Published

Opinions

CANBY, Circuit Judge:

Joan and Gilbert DiCosta appeal the district court’s dismissal of their claims for negligent infliction of emotional distress under the Federal Tort Claims Act (“Act”), 28 U.S.C. § 2674. We reverse.

BACKGROUND

The DiCostas’ complaint alleges that they were in their home on August 31,1986 when two airplanes collided in mid-air and crashed to the ground in the DiCostas’ neighborhood.¹ The DiCostas allege that the crash was proximately caused, in part, by the negligence of air traffic controllers at Los Angeles International Airport who were acting within the scope of their employment with the United States. The DiCostas further allege that they witnessed the collision and its aftermath,² and that they “were within the zone of danger created because of the mid-air collision and crash of the aircraft ... and suffered severe and lasting emotional distress, fright and shock as a result of fear for [their] own safety.” The injuries allegedly suffered by the DiCostas — including “great emotional disturbance,” “shock and injury to their ... nervous system[s],” and “great mental and physical pain” — were asserted to be severe enough to require medical treatment of Joan DiCosta and to cause problems in the DiCostas’ marriage amounting to a loss of consortium.

The district court dismissed the DiCos-tas’ complaint with prejudice pursuant to Federal Rule of Civil Procedure 12(b)(6). The district court concluded that the complaint does not state a claim for negligent infliction of emotional distress under California law, and therefore could not support a claim against the United States under the Act. See 28 U.S.C. § 2674 (United States is liable “in the same manner and to the same extent as [a] private individual under like circumstances”). In reaching its decision, the district court considered and rejected both theories of liability advanced by the DiCostas: (1) that they were bystanders who witnessed the crash which was the foreseeable result of the United States’ negligence, and (2) that they were direct victims of the United States’ negligence because they were put in direct and reasonable fear of their own safety while within the “zone of danger” of the collision and crash. The DiCostas now appeal the dismissal of their complaint, but press only their “direct victim” theory of liability.

DISCUSSION

We review de novo the district court’s dismissal of the DiCostas’ complaint. Kruso v. International Telephone & Telegraph Corp., 872 F.2d 1416, 1421 (9th Cir.1989), cert. denied, 496 U.S. 937, 110 S.Ct. 3217, 110 L.Ed.2d 664 (1990). We must determine whether California courts would hold the DiCostas to have stated a claim for negligent infliction of emotional distress.

Two early California emotional distress cases suggest quite clearly that the DiCos-tas have stated a valid claim. In Webb v. Francis J. Lewald Coal Co., 214 Cal. 182, 4 P.2d 532 (1931), the California Supreme Court permitted the plaintiff to recover for the emotional distress and associated physical disabilities she suffered when she witnessed a truck crash into a building in which she was standing. The plaintiff was not hit by the truck, but she feared for her own safety. Webb, 4 P.2d at 533. In Cook v. Maier, 33 Cal.App.2d 581, 92 P.2d 434 (1939), the California Court of Appeals held that a plaintiff stated claims for emotional distress which she allegedly suffered when she witnessed an automobile crash into her home. Again, the plaintiff was not hit, but she was fearful for her own safety. Cook, 92 P.2d at 435.³

The United States argues that the California Supreme Court’s recent decision in Thing v. La Chusa, 48 Cal.3d 644, 257 Cal.Rptr. 865, 771 P.2d 814 (1989), signalled a shift away from permitting recovery for direct victims of negligence who suffered no impact either to their person or their property. We disagree. Thing was not concerned with “direct victim” cases such as Webb and Cook. Thing addressed instead a second line of California cases which permits bystanders who witness an injury to another person to sue the negligent party who caused the injury.⁴ See Estrada v. Aeronaves de Mexico, 967 F.2d 1421 (9th Cir.1992) (applying Thing to bystander injuries arising from same airplane crash as present case). We must examine those California cases briefly to show the context in which Thing was decided, and demonstrate why its rule does not apply here.

The “bystander” line of cases began with the short-lived Amaya v. Home Ice, Fuel & Supply Co., 59 Cal.2d 295, 29 Cal.Rptr. 33, 379 P.2d 513 (1963), which refused to recognize “bystander” liability. The California Supreme Court upheld the dismissal of the plaintiffs complaint which was predicated exclusively on the fright and shock the plaintiff suffered from watching her seventeen-month old son be run over by a truck. Amaya, 29 Cal.Rptr. at 34, 379 P.2d at 514.⁵ Although principally addressing “bystander” cases, Amaya did effect a change in “direct victim” cases by rejecting the requirement that plaintiffs allege a physical impact upon themselves caused by the negligent act in order to state a valid claim for negligent infliction of emotional distress. Id., 29 Cal.Rptr. at 35, 771 P.2d at 515. After Amaya, direct victim plaintiffs needed only to allege that they were within the “zone of danger” created by the negligent act.

Amaya was overruled by Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 (1968), which allowed “bystanders” to recover if they were (1) near the scene of the accident, (2) directly shocked by witnessing the accident, and (3) closely related to the injured third party. Dillon, 69 Cal.Rptr. at 80, 441 P.2d at 920. The Dillon court rejected as arbitrary and too restrictive the requirement that plaintiffs be within the “zone of danger.” Id., 69 Cal.Rptr. at 75-76, 441 P.2d at 915-16. California’s courts were now to consider only whether the injury was reasonably foreseeable by the negligent actor. This change, while necessary to permitting “bystander” liability, also loosened the reins on “direct victim” liability.

In Molien v. Kaiser Foundation Hospitals, 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813 (1980), the California Supreme Court blurred the lines between “bystander” and “direct victim” claims by permitting recovery on a “direct victim” theory to a husband whose wife was negligently and incorrectly diagnosed as having syphilis. The doctor told the wife to tell her husband that she was infected, and to have him get a physical examination. Molien, 167 Cal. Rptr. at 832, 616 P.2d at 814. The court concluded that the husband’s emotional distress was reasonably foreseeable by the doctor, and that the husband was, therefore, entitled to recover. Id., 167 Cal.Rptr. at 835-36, 616 P.2d at 817.

Thus, at the time that the California Supreme Court was presented with Thing, there had been a trend to blur the distinction between “bystander” and “direct victim” cases, and to expand to the limits of foreseeability the liability for bystanders’ emotional injuries. The opinion in Thing reverses these trends. Thing was a classic bystander case; a mother sought to recover for emotional distress that she suffered because her son was injured in an accident that she did not witness. In rejecting her claim, the California Supreme Court sought to rationalize its prior line of decisions. The opinion in Thing disapproved of Mol-ien, and the government makes much of that fact in our case. But the disapproval was directed to the tendency to define as a “direct victim” any person whose emotional distress was foreseeable. See Thing, 257 Cal.Rptr. at 874-76, 771 P.2d at 823. Such a loose definition, among other disadvantages, permitted persons “who had riot been at or near the scene of the negligent act to recover for emotional distress on a pure foreseeability-of-the-injury basis.” Id. It also permitted such remote “bystanders” to evade the strict requirements of the three-pronged test established in Dillon. The Court in Thing curbed these tendencies by reasserting narrow boundaries for bystander emotional injuries:

We conclude, therefore, that a plaintiff may recover damages for emotional distress caused by observing the negligently inflicted injury of a third person if, but only if, said plaintiff: (1) is closely related to the injury victim; (2) is present at the scene of the injury producing event at the time it occurs and is then aware that it is causing injury to the victim; and (3) as a result suffers serious emotional distress....

Id., 257 Cal.Rptr. at 880-81, 771 P.2d at 829-30 (footnotes omitted; emphasis added). It seems apparent to us from this passage that Thing was addressed to cases in which damages are sought for emotional distress caused by injury to others. It did not change the rule that a person who is in the path of negligent conduct and reasonably fears for his or her own safety may recover for resulting emotional distress. That person is not a bystander.

Our reading of Thing is confirmed by Christensen v. Superior Court, 54 Cal.3d 868, 2 Cal.Rptr.2d, 79, 820 P.2d 181 (1991), the California Supreme Court’s most recent word on negligent infliction of emotional distress. Christensen involved claims of negligent and intentional infliction of emotional distress against a crematorium that had, among other acts, sold body parts for profit and improperly cremated bodies. The defendants sought to impose Thing’s limiting formula to deny recovery to members of the families of the deceased who did not witness the negligent conduct. The Court rejected that contention and held that family members of the deceased were entitled to recover because the duties of the crematorium ran directly to the bereaved families of the decedents. The Court explained:

Thing and Dillon v. Legg ... addressed the question of duty in circumstances in which a plaintiff seeks to recover damages as a percipient witness to the injury of another. “[T]he Dillon principles represent but the means for resolving the duty question in the specific factual context of the ‘bystander witness’ scenario_” ... The plaintiffs had not themselves been threatened with physical injury and their emotional distress did not arise out of fear for their own safety.

... Amaya, Dillon, and Thing reflect a public policy exception which limits the right of a bystander who did not suffer physical injury and was not threatened with such injury to recover damages for the emotional distress he suffered as a result of witnessing negligent coriduct which caused physical injury to a third person....

******

Application of these principles does not compel a conclusion that the limitations deemed appropriate in Dillon v. Legg, supra, and Thing v. La Chusa, supra, to limit recovery by bystanders should apply in other situations, and particularly in that presented here.

Id., 2 Cal.Rptr.2d at 87-88, 820 P.2d at 189— 90 (emphasis added).

We conclude that the rationale in Christensen establishes the continuing vitality of “direct victim” negligent infliction claims in spite of the cautionary language in Thing. It is clear that, when the recovery is for distress caused by fear for one’s own safety, rather than by an injury to another, the bystander restrictions reiterated in Thing are simply inapplicable. It follows that the Di Costas have stated a claim upon which relief may be granted for negligent infliction of emotional distress.⁶ Of course, the Di Costas must establish at trial by a preponderance of evidence that they suffered emotional distress because they reasonably feared for their own safety, rather than because they viewed the wreckage or injury to others caused by the collision.

REVERSED.

1 . The DiCostas represented at oral argument that the wreckage of the airplanes hit the ground approximately one hundred yards from their home. The United States represented that the distance was three hundred yards.

2 . Although the complaint does not specify how the DiCostas witnessed the accident, the parties agree that the DiCostas did not see the mid-air collision or the wreckage of the airplanes crashing near the DiCostas’ house. The DiCostas have alleged only that they heard two loud noises which were apparently caused by the collision and the crash of the wreckage.

3 .The dissent appears to suggest that Webb, Cook, and Lindley v. Knowlton, 179 Cal. 298, 176 P. 440 (1918), established a requirement that plaintiffs allege as part of their prima facie case not only that they were aware of a threat to their own safety, but that they knew the nature of the event that threatened injury. We find nothing in these cases establishing such a requirement and we find no California case giving such an interpretation to Webb, Cook, or Lind-ley.

4 . Every time Thing states its limitations on recovery for negligent infliction of emotional distress, it says either in the same sentence or an adjacent sentence that it is dealing with the emotional distress caused by injury to a third person. See, e.g., Thing, 257 Cal.Rptr. at 866, 771 P.2d at 815 (the issue was "the right of persons, whose only injury is emotional distress, to recover damages when that distress is caused by knowledge of the injury to a third person caused by the defendant’s negligence”); id. (the court concluded that a "limitation of bystander recovery of damages for emotional distress" is necessary); id., 257 Cal.Rptr. at 872, 771 P.2d at 821 (“the only thing that was foreseeable from the Dillon decision was the uncertainty that continues to this time as to the parameters of the third-party NIED action”); id., 257 Cal.Rptr. at 880, 771 P.2d at 829 (concluding that there are limitations on recovery by a plaintiff “for emotional distress caused by observing the negligently inflicted injury of a third person”).

5 . The trial court had provided the plaintiff with an opportunity to amend her complaint to state a claim for the fear and shock she suffered out of concern for her own safety — a "direct victim" claim — but she declined. See id.

6 . The dissent, while acknowledging that a plaintiff need not see the injury-threatening event in order to recover damages for emotional distress, argues that it is not enough simply to hear a loud noise and be put in fear because "noise alone is neither threatening nor dangerous.” Dissent, p. 1496-1497 and n. 5. But the fear is caused by the fact that extremely loud, explosive noise is frequently not "noise alone." The Di Costas may reasonably have been put in fear by such a noise, even without knowing whether it was produced by a colliding airplane or some other nearby exploding object. The Di Costas’ complaint was dismissed for failure to state a claim. They alleged that the loud noise overhead placed them in fear for their own safety and caused emotional distress. At this stage of the litigation, we cannot reject the DiCostas’ claim by characterizing the noise as potentially benign; they are entitled to attempt to prove that the noise was such that they reasonably thought that it signalled a threat of injury to themselves.