Moon v. Guardian Postacute Services, Inc.

116 Cal. Rptr. 2d 218, 95 Cal. App. 4th 1005, 2002 Cal. Daily Op. Serv. 993, 2002 Daily Journal DAR 1205, 2002 Cal. App. LEXIS 1041

• Court: California Court of Appeal
• Decided: January 31, 2002
• Docket: A094155
• Status: Published

Opinions

Opinion

LAMBDEN, J.

Ken Moon (Ken) challenges the lower court’s determination that he does not have a claim for the negligent infliction of emotional distress (NIED) after he observed Guardian Postacute Services, Inc. (Guardian) abuse his elderly mother-in-law. We agree with the lower court that he is not “closely related” (Dillon v. Legg (1968) 68 Cal.2d 728, 741 [69 Cal.Rptr. 72, 441 P.2d 912, 29 A.L.R.3d 1316] (Dillon); Thing v. La Chusa (1989) 48 Cal.3d 644, 655 [257 Cal.Rptr. 865, 771 P.2d 814] (Thing)) and, therefore, cannot recover under a bystander claim. In addition, we conclude that he cannot, as a matter of law, allege a claim for NIED under the theory that he was a direct victim.

Background

Ken married his wife, Eileen Moon (Eileen), in October 1969.¹ Eileen is the daughter of Frances McMahon (McMahon); McMahon was born on March 28, 1911. Since the date of the Moons’ marriage, McMahon spent at least one month per year with the Moons in their home in Walnut Creek. Since 1979, McMahon had her own bedroom in the home. Between 1992 and 1993, she lived with the Moons for approximately four to five months.

On January 7, 1999, Guardian, a skilled nursing facility in Walnut Creek, admitted McMahon after she had undergone treatment at an acute care facility. Prior to moving to the assisted living facility, McMahon lived with the Moons “for a period of time.”

McMahon remained at Guardian for about 12 months, until she died. While at Guardian, Ken observed that McMahon had become malnourished and dehydrated, had lost significant weight, had become immobile and bedridden, had contracted infection, and had become incontinent. On January 22, 1999, Ken and Eileen appeared at Guardian to visit McMahon and they saw her lying in bed with infected wounds and black and purple blisters on her feet.

John McMahon (John), as executor of McMahon’s estate, and Ken and Eileen filed a complaint for nine causes of action against Guardian on January 7, 2000. The first eight causes of action were on behalf of John, and the ninth cause of action, which was for NIED, was on behalf of Ken and Eileen. Guardian filed a demurrer to the complaint.

With respect to Ken’s NIED claim, the court sustained the demurrer with leave to amend. The court ruled that Ken “has failed to allege any ‘exceptional circumstances’ which would entitle him to pursue this cause of action. (See Thing[, supra, 48 Cal.Sd at p. 668].)”

John, Ken, and Eileen filed a first amended complaint on April 17, 2000. Guardian filed a demurrer to Ken’s NIED claim. The court sustained the demurrer with leave to amend, ruling that absent undefined exceptional circumstances under Thing, supra, 48 Cal.Sd at pages 667-668, footnote 10, NIED “is restricted to blood relatives and does not extend to in-laws residing with the accident victim.”

A second amended complaint was filed; Guardian again demurred to Ken’s claim for NEED. The court sustained the demurrer without leave to amend, finding that Ken “has yet to allege the ‘exceptional circumstances,’ required by Thing[, supra, 48 Cal.Sd at pages 667-668], footnote 10.”

The court entered judgment dismissing Ken’s action, and Ken filed a timely notice of appeal.

Discussion

I. Standard of Review

The trial court sustained without leave to amend Guardian’s demurrer to Ken’s claim of NIED. When considering an appeal from a demurrer, we accept the facts pleaded as true. (American Philatelic Soc. v. Claibourne (1935) 3 Cal.2d 689, 699 [46 P.2d 135].) The trial court erred if the pleading states a cause of action under any possible legal theory; it abused its discretion if the face of the pleadings shows a reasonable probability the defects could be cured by a properly amended pleading. (Services by Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4th 1807, 1812 [52 Cal.Rptr.2d 650]; Gami v. Mullikin Medical Center (1993) 18 Cal.App.4th 870, 877 [22 Cal.Rptr.2d 819].) We conclude that the trial court neither erred nor abused its discretion.

n. NIED

NEED is a tort in negligence, and the plaintiff must establish the elements of duty, breach of duty, causation, and damages. “ ‘The distinction between the “bystander” and the “direct victim” cases is found in the source of the duty owed by the defendant to the plaintiff.’ [Citation.] ‘Bystander’ claims are typically based on breach of a duty owed to the public in general [citation], whereas a right to recover for emotional distress as a ‘direct victim’ arises from the breach of a duty that is assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of the defendant’s preexisting relationship with the plaintiff [citations].” (Huggins v. Longs Drug Stores California, Inc. (1993) 6 Cal.4th 124, 129-130 [24 Cal.Rptr.2d 587, 862 P.2d 148] (Huggins).) Ken contends that he sufficiently alleged both bystander and direct victim claims for NIED.

A. Bystander Claim

Ken contends that he sufficiently alleged a bystander claim because he pled that he had a close relationship to McMahon as her son-in-law and he observed the injury to McMahon. Guardian claims that a son-in-law, as a matter of law, is not closely related and therefore cannot claim NIED.

The court first recognized the right to recover damages based on a bystander observing another person being injured in Dillon, supra, 68 Cal.2d 728. The court explained that the following factors need to be considered to assess foreseeability: “(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.” (Id. at pp. 740-741.)

The Supreme Court in Thing, supra, 48 Cal.3d at page 656, noted that the inconsistent cases following Dillon created uncertainty as to whom may be considered “closely related” for the purposes of an NEED claim. The court noted that “foreseeability of the injury alone is not a useful ‘guideline’ or a meaningful restriction on the scope of the NIED action.” (Thing, supra, at p. 663.) The court reviewed its decisions in loss of consortium claims, and concluded that a similar limitation in recovery was warranted for NIED claims. (Id. at pp. 665-666.) The court acknowledged that limiting recovery to certain persons would result in arbitrary lines (id. at p. 666), but it pointed out that there is a class of plaintiffs who, because of their relationship to the injured party, will usually suffer the greatest emotional distress (id. at p. 667).

The Supreme Court in Thing reiterated the three criteria set forth in Dillon as being necessary to recover damages. (Thing, supra, 48 Cal.3d at pp. 667-668.) In a footnote, the court explained in dicta the following with regard to the requirement that the plaintiff must be closely related to the injured victim: “In most cases no justification exists for permitting recovery for NIED by persons who are only distantly related to the injury victim. Absent exceptional circumstances, recovery should be limited to relatives residing in the same household, or parents, siblings, children, and grandparents of the victim.” (Id. at p. 668, fn. 10.)

Ken asserts that the court in Thing did not require a relative to be a “blood” relative, and therefore Ken, who was closely related and residing with McMahon just prior to her admittance into Guardian, satisfies the criteria set forth in Thing. The court, according to Ken, could have restricted the requirement to “blood” relative if it wished. Indeed, elsewhere the court in Thing stated that recovery should be limited to “persons closely related by blood or marriage since, in common experience, it is more likely that they will suffer a greater degree of emotional distress than a disinterested witness to negligently caused pain and suffering or death.” (Thing, supra, 48 Cal.3d at p. 666.) This statement, according to Ken, indicates that the relative does not have to be a “blood” relative but may be related by marriage.

Ken maintains that a son-in-law clearly falls within the definition of relative. Black’s Law Dictionary defines relative as, “A person connected with another by blood or affinity; a kinsman.” (Black’s Law Dict. (7th ed. 1999) p. 1291, col. 2.) Affinity is defined as: “1. A close agreement. 2. The relation that one spouse has to the blood relatives of the other spouse; relationship by marriage. 3. Any familial relation resulting from a marriage.” (Id. at p. 59, col. 1.)

We agree that the definition of “relative” obviously includes son-in-law. It also includes cousins, brothers-in-law, and numerous other—distant— relationships. No court has suggested that all relatives are sufficiently close to maintain an action for NIED. Indeed, a case prior to Thing refused recovery for a bystander claim on behalf of a cousin even when it was alleged that the cousins had a relationship analogous to that of siblings. (Trapp v. Schuyler Construction (1983) 149 Cal.App.3d 1140, 1142-1143 [197 Cal.Rptr. 411].) Although both parties did not cite this case, our court has permitted an uncle, who lived in the same household as his nephew and had a relationship atin to that of a parent and child, to sue for NIED when he observed his nephew being injured. (Kriventsov v. San Rafael Taxicabs, Inc. (1986) 186 Cal.App.3d 1445, 1447 [229 Cal.Rptr. 768].) This case, however, has limited value; the court determined that the uncle and nephew were closely related based primarily on a foreseeability analysis. (Id. at pp. 1449-1450.) As discussed ante, the Supreme Court in Thing rejected the notion that a pure foreseeability analysis should apply to NEED actions. (Thing, supra, 48 Cal.3d at pp. 667-668, & fn. 11.) Furthermore, the uncle was a member of the nephew’s household at the time that he observed the nephew being injured. This is not the case here: McMahon was residing in the care facility at the time of her injury.

It is true, as Ken and the dissent maintain, that the Supreme Court in Thing did not restrict recovery for a bystander claim to “blood” relatives. However, the reason for this is obvious; spouses are not blood relatives but satisfy the requirement for a close relationship. Additionally, stepchildren, stepparents, and adopted children who are part of the familial relationship may not be related by blood to the family member making an NEED claim but may still be considered closely related.

We agree with the lower court and Guardian that by using the words “closely related” and highlighting the need to cut off liability beyond a certain point, absent exceptional circumstances, the court intended to limit NIED claims to members of the immediate family unit, such as parents, spouses, siblings, children, and grandparents of the victim. (See Thing, supra, 48 Cal.3d at p. 667-668, & fn. 10.) Indeed, the Supreme Court in Elden v. Sheldon (1988) 46 Cal.3d 267, 276-277 [250 Cal.Rptr. 254, 758 P.2d 582], stated that some courts had not limited the recovery of damages for NIED to the immediate family of the injured person, but it declined to follow the rationale of those decisions “for to do so would result in the unreasonable extension of the scope of liability of a negligent actor.”

There is a presumption that members of the immediate family have emotional attachments. The Supreme Court has already explained that it would place too great a burden on the court to determine whether unmarried cohabiting couples have an emotional attachment similar to those in a familial relationship (Elden v. Sheldon, supra, 46 Cal.3d at p. 275). It would be even a greater burden on the courts to have to consider whether in-laws have emotional attachments akin to parents/children or siblings.

Ken and the dissent rely heavily on the footnote in Thing. Admittedly, the footnote did little to help devise a bright-line rule regarding who is a close relative for the purposes of an NIED claim. The footnote limits recovery “. . . to relatives residing in the same household, or parents, siblings, children, and grandparents of the victim.” (Thing, supra, 48 Cal.3d at p. 668, fn. 10.) The dissent and Ken assert that, since McMahon lived for “a period of time” with his spouse and him before moving into the assisted living facility, this requirement is met. The footnote in Thing does not specify whether the injured person must have been residing in the same household (1) at the time of the injury or (2) for a minimum period of time. Further, it does not specify whether the person has to consider that household as his or her primary residence.² Moreover, the footnote in Thing does not make it clear whether this residency requirement merely helps to define relative or whether it provides an exception to the “closely related” requirement.

Even if we were to presume that the footnote created an exception to the “closely related” requirement, and we were to presume further that the person did not have to be residing in the household at the time of injury,³ we do not believe that an allegation that the person lived in the household for a “period of time” is sufficient. We do not disagree with the dissent that families have various forms nowadays. We note that often family members now live a distance away from each other. Thus, a parent may visit all of his or her children for a “period of time.” For example, consider a parent with seven adult children, who visits all of these children’s households for a period of time. Under the dissent’s interpretation of the footnote in Thing, all seven spouses of the children have a potential claim for NIED. Yet, our Supreme Court made it clear in Thing that it intended to restrict the number of plaintiffs who could recover under an NIED claim, not expand the universe of plaintiffs as the dissent wishes to do. We therefore believe, at a minimum, the pleading must allege that the person resided in the household for a substantial period of time.⁴ We need not reach the question of what constitutes a substantial period of time, since we hold that “period of time” clearly does not satisfy this requirement.

The dissent also asserts that we should reverse because Ken pleaded “exceptional circumstances.” Ken alleged that McMahon visited his wife and him; that McMahon stayed with his wife and him for four to five months; that McMahon stayed with his wife and him for a “period of time” before moving to an assisted living facility; that he took her weekly to the doctor when she stayed with his wife and him; and that he arranged for her to be admitted into Guardian. Indeed, the dissent quotes extensively from the second amended complaint and concludes that Ken has sufficiently pleaded exceptional circumstances because he alleged a loving and close relationship with his mother-in-law. We do not disagree that Ken and McMahon had a close and loving relationship. We do, however, disagree that such a relationship constitutes exceptional circumstances. None of the facts alleged in the second amended complaint evinces an act out of the ordinary for a son-in-law. Our Supreme Court has made it clear that courts are ill equipped to assess emotional attachments (Elden v. Sheldon, supra, 46 Cal.3d at p. 275) and that the courts must draw arbitrary lines (Thing, supra, 48 Cal.3d at p. 666); accordingly, we hold that merely pleading a strong emotional bond akin to a son and mother relationship does not satisfy the exceptional circumstances requirement.

The dissent asks, if Ken’s pleading does not constitute exceptional circumstances, “what is?” (Conc. & dis. opn. of Ruvolo, J., post, at p. 1022.) The opinion in Thing provides little guidance other than to stress that the court intended to limit the class of NIED plaintiffs. Since tort liability is always predicated on concerns about public policy, we believe that an NIED claim based on exceptional circumstances would also have to be grounded on issues of public policy. Thus, for example, if denying the claim would relieve the defendant from facing any liability for an NEED claim because there is no close living relative who can make such a claim, the court should consider the exceptional circumstances exception. Here, however, Ken’s wife, Eileen, has an NIED claim and Ken has not pleaded any exception raising public policy concerns. Accordingly, we agree with the lower court that Ken did not plead exceptional circumstances.

B. Direct Victim Claim

Ken contends that his pleadings also alleged NEED based on a direct victim claim. In his complaint, he alleged that he assisted in the admission of McMahon to Guardian by signing the admission forms. Moreover, personnel at the care facility were to contact him regarding any problems, and they had assured him on multiple occasions that McMahon would be provided proper care. Presumably, he is arguing that the nexus of his relationship with Guardian created a legal duty to him.

Courts, however, have already held that when the “plaintiff is not the defendant’s patient . . . ‘[c]ourts have not extended the . . . direct-victim cause of action to emotional distress which is derived solely from a reaction to another’s injury’ [citation].” (Huggins, supra, 6 Cal.4th at p. 131; see also Klein v. Children’s Hospital Medical Center (1996) 46 Cal.App.4th 889, 899 [54 Cal.Rptr.2d 34] [parents of child misdiagnosed as having terminal cancer had no direct victim claim].) Similarly, here, Guardian maintains, Ken cannot demonstrate that Guardian breached a duty owed directly to him and he cannot establish that such a breach directly resulted in ids suffering emotional distress. Rather, Ken’s claim is based on emotional distress allegedly suffered from witnessing McMahon’s injury.

The Supreme Court in Huggins, supra, 6 Cal.4th at page 130, pointed out that it first held there could be a direct victim claim for NIED in Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 922-923 [167 Cal.Rptr. 831, 616 P.2d 813, 16 A.L.R.4th 518]. In Molien, the Supreme Court held that a doctor owed a duty of care directly to the husband when his wife, the patient of the doctor, was incorrectly told that she had syphilis and was told to apprise her husband of the condition so he could be tested and have any necessary treatment. (Id. at p. 923.) The Huggins court explained that the doctor had a duty to the husband, not simply because the misdiagnosis necessarily impacted the husband, but because the “doctor directed his patient, the wife, to advise the plaintiff husband of the diagnosis.” (Huggins, supra, at p. 130.) These particular facts in Molien do not apply to Ken.

After limiting the holding in Molien, the Supreme Court in Huggins held that, in the case before it, the parents did not have a direct victim action against the pharmacy that had provided them with five times the prescribed dosage for medication that they gave to their infant child. (Huggins, supra, 6 Cal.4th at p. 133.) The court concluded that the pharmacy had a legal duty only to the child. (Ibid.)

Ken attempts to circumvent the holding in Huggins by claiming that his claim is distinguishable because he had a preexisting relationship with Guardian and the breach involved elder abuse. His first assertion has already been considered and rejected by other courts. For example, in Schwarz v. Regents of University of California (1990) 226 Cal.App.3d 149,161-163 [276 Cal.Rptr. 470], which was cited with approval by the Supreme Court (Huggins, supra, 6 Cal.4th at p. 131), the court rejected the father’s claim as a direct victim against the psychotherapist who had treated his son. The therapist had aided the boy’s mother in removing him to London. The father in Schwarz not only had hired the psychotherapist, but also had participated in counseling sessions with the therapist. (Schwarz, supra, at pp. 161-163.) Still, the Schwarz court explained that a contract with the parent to provide care to the child was not sufficient to impose on the caregiver a duty of care to the parent. (Id. at p. 168.) The father in Schwarz had a stronger preexisting relationship with the therapist than Ken had with Guardian. Accordingly, even if we presume that Ken had a contract with Guardian to provide care to McMahon, which is not at all clear from the alleged facts, this would not be sufficient to impose on Guardian a legal duty of care to him.

Ken’s second argument is essentially that we should create an exception to Huggins based on public policy reasons. Because this case involves elderly abuse, he argues, we should impose a broader duty of care. He points out that the purpose of the Elder Abuse Act (Welf. & Inst. Code, § 15600) is “. . . essentially to protect a particularly vulnerable portion of the population from gross mistreatment in the form of abuse and custodial neglect.” (Delaney v. Baker (1999) 20 Cal.4th 23, 33 [82 Cal.Rptr.2d 610, 971 P.2d 986].)

Ken’s argument, however, is not persuasive. The Legislature has enacted the Elder Abuse Act to protect the elderly and it already provides a remedy against negligent care facilities. The Legislature did not create a special class of people—like Ken—who may have suffered emotional distress as a result of an elderly relative being abused. Consequently, this act cannot be used to justify expanding NIED claims to any member of an extended family who has a relative residing in a care facility. The potential number of plaintiffs could be staggering. Permitting Ken to sue when he was not a patient or resident of Guardian would serve no purpose, and would contravene case law and the public policy of limiting liability for NIED claims.

HI. Amending the Complaint

Ken does not argue that the court should have permitted him to amend his complaint, and therefore he has not met his burden of demonstrating that the trial court abused its discretion (see, e.g., Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [134 Cal.Rptr. 375, 556 P.2d 737]). Moreover, the court gave him ample opportunity to cure the defects by permitting him to amend his complaint twice.

Disposition

We affirm the judgment. Guardian is awarded costs on appeal.

Haerle, Acting P. J., concurred.

1 These facts are from the second amended complaint, which we presume are true for the purposes of this appeal.

2 We take judicial notice of the death certificate attached as an exhibit to the original complaint, which states that McMahon’s “usual residence” was in Queens County, New York. However, contrary to Guardian’s position, this exhibit is not dispositive of McMahon’s residence.

3 This presumption creates numerous problems. What if the mother-in-law had resided in the home of the son-in-law and then lived in an assisted care home for 10 years? Would the son-in-law still have an NIED claim? If not, how recently must the injured person have resided in the claimant’s household?

4 The dissent also emphasizes that McMahon lived for a month each year with the Moons since 1969 and for four or five months with them between 1992 and 1993. Moreover, she had her own bedroom in the house since 1979. There is no allegation that McMahon ever gave up her own residence during this period. In addition, we do not agree that temporarily residing in a household, or visiting a household, is sufficient to satisfy a requirement that the relative resides in the household.