Drew v. Drake

110 Cal. App. 3d 555, 168 Cal. Rptr. 65, 1980 Cal. App. LEXIS 2307

Opinions

Opinion

CHRISTIAN, J.

Pat Drew appeals from a judgment on demurrer, dismissing for failure to state a cause of action, a complaint against respondents William Drake and Sharon Drake for negligent infliction of emotional distress. The complaint also purported to state a cause of action for wrongful death; appellant does not challenge the judgment insofar as it dismissed that cause of action.

Appellant alleged that she and Eugene Maillet had lived together as “de facto spouses” continuously for three years and that appellant had suffered emotional distress when she witnessed the killing of Eugene Maiflet in a vehicular collision caused by respondents’ negligence. Respondents demurred, asserting that the complaint did not pass the three-part test of foreseeability established by the California Supreme Court in Dillon v. Legg (1968) 68 Cal.2d 728 [69 Cal.Rptr. 72, 441 P.2d 912, 29 A.L.R.3d 1316]: “(1) Whether plaintiff 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.” (68 Cal.2d at pp. 740-741.)

Emotional distress to a spouse (Krouse v. Graham (1977) 19 Cal.3d 59 [137 Cal.Rptr. 863, 562 P.2d 1022]) or a parent (Archibald v. Braverman (1969) 275 Cal.App.2d 253 [79 Cal.Rptr. 723]) witnessing an injury to spouse or child meets the Dillon test because it is reasonably foreseeable that a person standing in such close relationship to the injured person may be present and suffer intense distress. No reported decision extends the “close relationship” guideline to include friends or housemates. It has nevertheless been argued that the alleged relationship of housemates might be regarded, at least for the purposes of withstanding a demurrer, as a close relationship. But the Supreme Court used the term “close relationship” as a limitation of potential liability in the context of parent and child. To allow persons standing in a “meaningful relationship” (to use a contemporary colloquialism) to recover for emotional distress resulting in physical injury would abandon the Dillon requirement that “[t]he courts.. .mark out the areas of liability, excluding the remote and unexpected.” (68 Cal.2d at p. 741.)

Appellant relies on Mobaldi v. Regents of University of California (1976) 55 Cal.App.3d 573 [127 Cal.Rptr. 720], disapproved on another point in Baxter v. Superior Court (1977) 19 Cal.3d 461, 466, footnote 4 [138 Cal.Rptr. 315, 563 P.2d 871], for the proposition that “[t]he emotional attachments of the family relationship and not legal status are those which are relevant to foreseeability.” (55 Cal.App.3d at p. 582.) But Mobaldi is readily to be distinguished from the present case. In Mobaldi the physicians whose alleged malpractice caused catastrophic injury to a child in the presence of the child’s foster mother “knew the nature of the relationship” between the child and the foster parent. (Id.) Here, in contrast, there was no family relationship and there was no allegation that respondents knew or should have foreseen any other kind of relationship between appellant and the victim of the accident. The court acted correctly when it sustained the general demurrer.

The judgment is affirmed.

Caldecott, P. J., concurred.