Thing v. La Chusa

771 P.2d 814, 48 Cal. 3d 644, 257 Cal. Rptr. 865, 1989 Cal. LEXIS 1492

• Court: California Supreme Court
• Decided: April 27, 1989
• Docket: L.A. 32301
• Status: Published

Opinions

Opinion

EAGLESON, J.

The narrow issue presented by the parties in this case is whether the Court of Appeal correctly held that a mother who did not witness an accident in which an automobile struck and injured her child may recover damages from the negligent driver for the emotional distress she suffered when she arrived at the accident scene. The more important question this issue poses for the court, however, is whether the “guidelines” enunciated by this court in Dillon v. Legg (1968) 68 Cal.2d 728 [69 Cal.Rptr. 72, 441 P.2d 912, 29 A.L.R.3d 1316] are adequate, or if they should be refined to create greater certainty in this area of the law.

Although terms of convenience identify the cause of action here as one for negligent infliction of emotional distress (NIED) and the plaintiff as a “bystander”¹ rather than a “direct victim,” the common law tort giving rise to plaintiff’s claim is negligence. (Dillon v. Legg, supra, 68 Cal.2d 728, 730; Amaya v. Home Ice, Fuel & Supply Co. (1963) 59 Cal.2d 295, 314-315 [29 Cal.Rptr. 33, 379 P.2d 513].) It is in that context that we consider the appropriate application of the concept of “duty” in an area that has long divided this court—recognition of 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. Although we again find ourselves divided, we shall resolve some of the uncertainty over the parameters of the NIED action, uncertainty that has troubled lower courts, litigants, and, of course, insurers.

Upon doing so, we shall conclude that the societal benefits of certainty in the law, as well as traditional concepts of tort law, dictate limitation of bystander recovery of damages for emotional distress. In the absence of physical injury or impact to the plaintiff himself, damages for emotional distress should be recoverable only if the 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 emotional distress beyond that which would be anticipated in a disinterested witness.

I

Background

On December 8, 1980, John Thing, a minor, was injured when struck by an automobile operated by defendant James V. La Chusa. His mother, plaintiff Maria Thing, was nearby, but neither saw nor heard the accident. She became aware of the injury to her son when told by a daughter that John had been struck by a car. She rushed to the scene where she saw her bloody and unconscious child, who she believed was dead, lying in the roadway. Maria sued defendants, alleging that she suffered great emotional disturbance, shock, and injury to her nervous system as a result of these events, and that the injury to John and emotional distress she suffered were proximately caused by defendants’ negligence.

The trial court granted defendants’ motion for summary judgment, ruling that, as a matter of law, Maria could not establish a claim for negligent infliction of emotional distress because she did not contemporaneously and sensorily perceive the accident. Although prior decisions applying the guidelines suggested by this court in Dillon v. Legg, supra, 68 Cal.2d 728, compelled the ruling of the trial court, the Court of Appeal reversed the judgment dismissing Maria’s claim after considering the decision of this court in Ochoa v. Superior Court (1985) 39 Cal.3d 159 [216 Cal.Rptr. 661, 703 P.2d 1]. The Court of Appeal reasoned that while Maria’s argument, premised on Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916 [167 Cal.Rptr. 831, 616 P.2d 813, 16 A.L.R.4th 518], that she was a direct victim of La Chusa’s negligence, did not afford a basis for recovery, contemporaneous awareness of a sudden occurrence causing injury to her child was not a prerequisite to recovery under Dillon.

We granted review to consider whether Ochoa supports the holding of the Court of Appeal. We here also further define and circumscribe the circumstances in which the right to such recovery exists. To do so it is once again necessary to return to basic principles of tort law.

II

Emotional Distress as a Compensable Item of Damage in Intentional Torts

Although the theory of recovery in issue here is the tort of “negligence,” recognition of emotional distress as a distinct item of damage for which recovery may be had even absent physical injury or impact is not limited to negligence actions. Indeed, recovery for intentional conduct that invades the individual’s right to peace of mind was recognized long before such recovery was permitted in negligence actions. It is useful, therefore, to place emotional distress as a basis for a negligence action in perspective by briefly reviewing the development of common law recognition of a protectible interest in individual peace of mind—i.e., the right to be free from socially unacceptable conduct that seriously affects another’s peace of mind.

The range of mental or emotional injury subsumed within the rubric “emotional distress” and for which damages are presently recoverable “includes fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation and indignity, as well as physical pain.” (Deevy v. Tassi (1942) 21 Cal.2d 109, 120 [130 P.2d 389].)

Express or implicit recognition that peace of mind warrants legal protection is found in recovery for emotional distress as an aggravation of damages sought under intentional tort theories. Initially, emotional distress was recognized simply as an item of damages in those actions. With few exceptions, causing mental distress did not itself create a right of action, and where mental distress alone exists the common law rarely permitted recovery of damages. (5 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 402, p. 483.)

Possibly the first exception to that limitation existed in recovery for assault. Assault is a tort which today recognizes the right of the individual to peace of mind, to live without fear of personal harm. “A civil action for assault is based upon an invasion of the right of a person to live without being put in fear of personal harm.” (Lowry v. Standard Oil Co. (1944) 63 Cal.App.2d 1, 7 [146 P.2d 57].) It has been noted, however, that actions based on intentional conduct were originally authorized not in recognition of or to redress a right to mental tranquility, but to afford an alternate dispute resolution mechanism. Legal action was preferable to redress on the field of honor. (See Pearson, Liability to Bystanders for Negligently Inflicted Emotional Harm—A Comment on the Nature of Arbitrary Rules (1982) 34 U.Fla.L.Rev. 477, 486.)

Emotional distress is also an accepted item of damage that may be recovered in actions for abuse of process (Spellens v. Spellens (1957) 49 Cal.2d 210, 233 [317 P.2d 613]); false imprisonment (Gill v. Epstein (1965) 62 Cal.2d 611, 618 [44 Cal.Rptr. 45, 401 P.2d 397]); libel (Scott v. Times-Mirror Co. (1919) 181 Cal. 345, 365 [184 P. 672, 12 A.L.R. 1007]); and invasion of privacy. (Melvin v. Reid (1931) 112 Cal.App. 285 [297 P. 91].) Here, too, recovery has not been limited to circumstances in which the mental distress is an aggravation of a physical injury or impact.

Recognition of emotional distress as a compensable injury when caused by an intentional tort carried with it a judgment that the defendant’s conduct was sufficiently outrageous or unacceptable that an award of damages was justified to punish the tortfeasor and deter such conduct by others. This development led in turn to a focus on the nature of the defendant’s conduct, rather than on identifying a traditional tort to justify recovery for infliction of emotional distress, and culminated in recognition of the tort now known as intentional infliction of emotional distress.²

With recognition of intentional infliction of emotional distress as a discrete tort cause of action, this court accepted both freedom from emotional distress as an interest worthy of protection in its own right, and the proposition that it is possible to quantify and compensate for the invasion of that interest through an award of monetary damages even when the severity of the emotional distress is not manifested in physical symptoms. “If a cause of action is otherwise established, it is settled that damages may be given for mental suffering naturally ensuing from the acts complained of [citations], and in the case of many torts, such as assault, battery, false imprisonment, and defamation, mental suffering will frequently constitute the principal element of damages. [Citation.] In cases where mental suffering constitutes a major element of damages it is anomalous to deny recovery because the defendant’s intentional misconduct fell short of producing some physical injury.” (State Rubbish etc. Assn. v. Siliznoff (1952) 38 Cal.2d 330, 338 [240 P.2d 282].)

In Siliznojf, the court rejected arguments that permitting recovery for emotional distress without proof of physical injury would invite fraudulent claims and create difficulties in proof that serious mental distress resulted from the tortious conduct. The court reasoned that the defendant’s conduct often afforded greater proof of a serious invasion of the victim’s mental tranquility than did the presence or absence of resulting physical symptoms. (Ibid.)

Ill

Limitations in Negligence Actions

A parallel line of negligence cases permitting recovery of damages for emotional distress had developed in California at the time Siliznoff, supra, 38 Cal.2d 330, was decided. Initially, however, in negligence cases the right to recover for emotional distress had been limited to circumstances in which the victim was himself injured and emotional distress was a “parasitic” item of damages, or if a plaintiff who had been in the “zone of danger” did not suffer injury from impact, but did suffer physical injury as a result of the emotional trauma. (See Webb v. Francis J. Lewald Coal Co. (1931) 214 Cal. 182, 184 [4 P.2d 532, 77 A.L.R. 675]; Lindley v. Knowlton (1918) 179 Cal. 298, 301-302 [176 P. 440].)

Where the conduct was negligent, emotional distress caused solely by fear for a third person’s safety or apprehension of injury to the third person, was first recognized as an injury for which damages could be sought in Dillon v. Legg, supra, 68 Cal.2d 728.

But shortly before Dillon, in Amaya v. Home Ice, Fuel & Supply Co., supra, 59 Cal. 2d 295, the court had declined the opportunity to broaden the right to recover for emotional distress. Amaya, after confirming that the “impact rule” making a contemporaneous physical impact a prerequisite to recovery for negligently induced fright or shock was not applicable in California, held damages could not be recovered by persons outside the zone of danger created by the defendant’s negligence even when that shock was reflected in physiological symptoms. The court quoted with approval the statement of the general rule of nonliability for nervous shock induced by fear for a third party applied by the Court of Appeal in Reed v. Moore (1957) 156 Cal.App.2d 43 [319 P.2d 80]: “ ‘As a general rule, no recovery is permitted for a mental or emotional disturbance, or for a bodily injury or illness resulting therefrom, in the absence of a contemporaneous bodily contact or independent cause of action, or an element of wilfulness, wantonness, or maliciousness, in cases in which there is no injury other than one to a third person, even though recovery would have been permitted had the wrong been directed against the plaintiff. The rule is frequently applied to mental or emotional disturbances caused by another’s danger, or sympathy for another’s suffering. It has been regarded as applicable to a mental or emotional disturbance resulting from an injury not only to a stranger, but also to a relative of the plaintiff, such as a child, sister, father, or spouse.’ ” (59 Cal.2d at pp. 302-303.)

The court explained the restriction on the right to recover damages for emotional distress in negligence actions on the ground that the defendant had not breached a legal duty to the plaintiff. The court concluded that existence of a duty could not be defined, or left to the jury to find, on the basis of whether the injury was foreseeable. Rather the existence and scope of the defendant’s duty in this context was one for the court.

Several factors led to that conclusion. First was the observation that there are circumstances in which although a foreseeable risk exists, there is no duty to avoid creation of that risk. Another was the then prevalent view of other courts and commentators that the type of harm—fright or nervous shock with consequent bodily illness induced solely by apprehension of danger to another person—was not reasonably foreseeable. Ultimately, however, the court weighed the interest of the plaintiff in freedom from invasion of mental tranquility against the costs involved in recognizing a duty and concluded that factors militating against recognition of a legal duty to the third party plaintiff predominated.

First among these policy considerations was efficient administration of justice. The court’s concern here was the possibility of fraud and the difficulty in resolving disputes among witnesses over the extent and severity of the injury where negligent conduct rather than intentional conduct allegedly produced the emotional distress. A second important administrative factor was concern that it would be impossible to limit the circumstances in which liability would exist for emotional distress caused by apprehension of danger or injury not to the plaintiff but to a third person. The court concluded, also, that socioeconomic and moral factors mandate that there be some limit to the liability of the negligent actor. (Amaya, supra, 59 Cal.2d at pp. 312-313.)

The concept of relative fault weighed equally with the administrative concerns. “As long as our system of compensation is based on the concept of fault, we must also weigh ‘the moral blame attached to the defendant’s conduct.’ [Citation omitted.] Here is felt the difference between the social importance of conduct that negligently causes harm and conduct that is intended to do so. It is often said that in the latter case the defendant will be held liable for a broader range of consequences because, as the consequences are intended, they are the more ‘foreseeable.’ But in many intentional tort cases the defendant has been held liable under this reasoning for consequences far beyond those which he actually intended. [Citation.] It follows that, once more, ‘foreseeability’ is not the real answer. Rather, the increased liability imposed on an intentional wrongdoer appears to reflect the psychological fact that solicitude for the interests of the actor weighs less in the balance as his moral guilt increases and the social utility of his conduct diminishes.” (59 Cal.2d at p. 315.)

The Amaya view was short lived, however. Only five years later, the decision was overruled in Dillon v. Legg, supra, 68 Cal.2d 728. In the ensuing 20 years, like the pebble cast into the pond, Dillon's progeny have created ever widening circles of liability. Post -Dillon decisions have now permitted plaintiffs who suffer emotional distress, but no resultant physical injury, and who were not at the scene of and thus did not witness the event that injured another, to recover damages on grounds that a duty was owed to them solely because it was foreseeable that they would suffer that distress on learning of injury to a close relative.

In Dillon itself, the issue was limited. The mother and sister of a deceased infant each sought damages for “great emotional disturbance and shock and injury to her nervous system” which had caused them great mental pain and suffering. Allegedly these injuries were caused by witnessing the defendant’s negligently operated vehicle collide with and roll over the infant as she lawfully crossed a street. The mother was not herself endangered by the defendant’s conduct. The sister may have been. The trial court had therefore granted the defendant’s motion for judgment on the pleadings as to the mother, but had denied it with respect to the sister of the decedent. Faced with the incongruous result demanded by the “zone of danger” rule which denied recovery for emotional distress and consequent physical injury unless the plaintiff himself had been threatened with injury, the court overruled Amaya.

Reexamining the concept of “duty” as applicable to the Dillon facts, the court now rejected the argument that the possibility of fraudulent claims justified denial of recovery, at least insofar as a mother who sees her child killed is concerned, as “no one can seriously question that fear or grief for one’s child is as likely to cause physical injury as concern over one’s own well-being.” (Dillon v. Legg, supra, 68 Cal.2d 728, 736.) The court held instead that the right to recover should be determined by application of “the neutral principles of foreseeability, proximate cause and consequential injury that generally govern tort law.” (Id., at p. 737.)

The difficulty in defining the limits on recovery anticipated by the Amaya court was rejected as a basis for denying recovery, but the court did recognize that “to limit the otherwise potentially infinite liability which would follow every negligent act, the law of torts holds defendant amenable only for injuries to others which to defendant at the time were reasonably foreseeable.” (Dillon, supra, 68 Cal.2d at p. 739.) Thus, while the court indicated that foreseeability of the injury was to be the primary consideration in finding duty, it simultaneously recognized that policy considerations mandated that infinite liability be avoided by restrictions that would somehow narrow the class of potential plaintiffs. But the test limiting liability was itself amorphous.³

In adopting foreseeability of the injury as the basis of a negligent actor’s duty, the Dillon court identified the risks that could give rise to that duty as both physical impact and emotional disturbance brought on by the conduct. Having done so, the Dillon court conceded: “We cannot now predetermine defendant’s obligation in every situation by a fixed category; no immutable rule can establish the extent of that obligation for every circumstance of the future.” (68 Cal.2d at p. 740.) In an effort to give some initial definition to this newly approved expansion of the cause of action for NIED the court enunciated “guidelines” that suggested a limitation on the action to circumstances like those in the case before it.

“We note, first, that we deal here with a case in which plaintiff suffered a shock which resulted in physical injury and we confine our ruling to that case. In determining, in such a case, whether defendant should reasonably foresee the injury to plaintiff [mother], or in other terminology, whether defendant owes plaintiff a duty of due care, the courts will take into account such factors as the following: (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.

“The evaluation of these factors will indicate the degree of the defendant’s foreseeability; obviously defendant is more likely to foresee that a mother who observes an accident affecting her child will suffer harm than to foretell that a stranger witness will do so. Similarly, the degree of foreseeability of the third person’s injury is far greater in the case of his contemporaneous observance of the accident than that in which he subsequently learns of it. The defendant is more likely to foresee that shock to the nearby, witnessing mother will cause physical harm than to anticipate that someone distant from the accident will suffer more than a temporary emotional reaction. All of these elements, of course, shade into each other; the fixing of the obligation, intimately tied into the facts, depends upon each case.

“In light of these factors the court will determine whether the accident and harm was reasonably foreseeable. Such reasonable foreseeability does not turn on whether the particular [defendant] as an individual would have in actuality foreseen the exact accident and loss; it contemplates that courts, on a case-to-case basis, analyzing all the circumstances, will decide what the ordinary man under such circumstances should reasonably have foreseen. The courts thus mark out the areas of liability, excluding the remote and unexpected.” (Dillon, supra, 68 Cal.2d at p. 741. Italics added.)

The Dillon court anticipated and accepted uncertainty in the short term in application of its holding, but was confident that the boundaries of this NIED action could be drawn in future cases. In sum, as former Justice Potter Stewart once suggested with reference to that undefinable category of materials that are obscene, the Dillon court was satisfied that trial and appellate courts would be able to determine the existence of a duty because the court would know it when it saw it.⁴ Underscoring the questionable validity of that assumption, however, was the obvious and unaddressed problem that the injured party, the negligent tortfeasor, their insurers, and their attorneys had no means short of suit by which to determine if a duty such as to impose liability for damages would be found in cases other than those that were “on all fours” with Dillon. Thus, 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.

IV

Post-Dillon Extension

The expectation of the Dillon majority that the parameters of the tort would be further defined in future cases has not been fulfilled. Instead, subsequent decisions of the Courts of Appeal and this court, have created more uncertainty. And, just as the “zone of danger” limitation was abandoned in Dillon as an arbitrary restriction on recovery, the Dillon guidelines have been relaxed on grounds that they, too, created arbitrary limitations on recovery. Little consideration has been given in post -Dillon decisions to the importance of avoiding the limitless exposure to liability that the pure foreseeability test of “duty” would create and towards which these decisions have moved.

Several post-Dillon decisions of this court are particularly noteworthy in this expansive progression. In the first, Krouse v. Graham (1977) 19 Cal.3d 59 [137 Cal.Rptr. 863, 562 P.2d 1022], this court held that the NIED plaintiff need not “visually” perceive the third party injury to satisfy the Dillon guideline suggesting that the plaintiff suffer shock from “ ‘the sensory and contemporaneous observance of the accident, . . .’ ” It was sufficient that the plaintiff knew the position of his wife just outside the automobile in which he was seated the instant before she was struck by defendant’s automobile which he had seen and realized was going to strike her. He was, therefore, a “percipient witness to the impact causing [her] injuries.” (19 Cal.3d 59, 76.)

We also find in Krouse, supra, 19 Cal.3d 59, the roots of the uncertainty reflected by the instant case over whether the plaintiff must perceive the injury causing incident at all or may recover for emotional distress suffered on viewing its “immediate consequences” even though not present at the scene when it occurred. Krouse created uncertainty as to the meaning and importance of the plaintiff’s status as a “percipient witness” by approving the conclusion of the Court of Appeal in Archibald v. Braverman (1969) 275 Cal.App.2d 253 [79 Cal.Rptr. 723], that visual perception of the accident was not required without commenting on the context in which the Archibald court made its ruling. That decision had allowed recovery by a mother who “did not actually witness the tort but viewed the child’s injuries within moments after the occurrence of the injury-producing event.” (275 Cal.App.2d 253, 255.) Thus, it appeared that this court agreed that persons who were not present at the accident scene could recover damages for the emotional distress they later suffered when told by others of the injury to their loved one or when they later came to the scene.

Krouse, supra, 19 Cal.3d 59, was followed by Justus v. Atchison (1977) 19 Cal.3d 564 [139 Cal.Rptr. 97, 565 P.2d 122], in which the court identified the issue as whether the plaintiff fathers’ causes of action for the emotional impact of observing the stillborn birth of their children satisfied the Dillon guideline of shock resulting from a direct emotional impact from the sensory and contemporaneous observance of an “accident.” The court did not decide this question, ruling instead that the plaintiffs could not recover because neither had learned of the death of the fetus until informed by a doctor. Thus the “disabling shock” occurred only upon being informed by another of the injury. (19 Cal.3d 564, 585.) By implication, however, it seemed that the injury producing event need not be a sudden occurrence or accident.

However, the court in Hoyem v. Manhattan Beach City Sch. Dist. (1978) 22 Cal.3d 508, 523 [150 Cal.Rptr. 1, 585 P.2d 851], reaffirmed the requirement that the shock or emotional distress necessary to a cause of action for NIED under Dillon must “result from a ‘direct emotional impact’ on the plaintiff caused by ‘sensory and contemporaneous observance of the accident.’ ”

But in Nazaroff v. Superior Court (1978) 80 Cal.App.3d 553 [145 Cal.Rptr. 657], after considering this court’s post -Dillon decisions and those of the Courts of Appeal, including Archibald v. Braverman, supra, 275 Cal.App.2d 253, the concept of contemporaneous observance was broadened. The court held that a mother who, while searching for her missing three-year-old child, heard a neighbor scream his name, realized the child must have fallen into the neighbor’s pool, and saw the child being pulled from the pool and given cardiopulmonary resuscitation as she ran up, could state a cause of action under Dillon. The court reasoned that it was not necessary that the plaintiff perceive the accident if she suffered physical harm that resulted from “the direct emotional impact from the contemporaneous observation of the immediate consequences of the defendants’ negligent act, which was the proximate cause of the injury and death of her son.” (Nazaroff, supra, 80 Cal.App.3d 553, 566.) The court explained that the plaintiff may have mentally reconstructed the accident and the child might still have been experiencing the injuries caused by the defendants’ negligence when his mother first observed him.

With the Nazaroff decision, supra, 80 Cal.App.3d 553, therefore, the Dillon guideline of sensory perception of an accident or injury was no longer considered a prerequisite to recovery. It was still necessary, however, that the plaintiff who had witnessed the immediate consequences of an injury producing incident suffer emotional distress sufficient to result in physical injury.

Both the physical harm and accident or sudden occurrence elements were eliminated, however, in Molien v. Kaiser Foundation Hospitals, supra, 27 Cal.3d 916, at least as to those plaintiffs who could claim to be “direct victims” of the defendant’s negligence. The court held in Molien that a defendant hospital and doctor owed a duty directly to the husband of a patient who had been diagnosed erroneously as having syphilis, and had been told to so advise the husband in order that he could receive testing and, if necessary, treatment.

In finding the existence of a duty to the husband of the patient, the court reasoned that the risk of harm to the husband was reasonably foreseeable, and that the tortious conduct was directed to him as well as the patient. (Molien v. Kaiser Foundation Hospitals, supra, 27 Cal.3d 916, 922.) The status of the plaintiff mother in Dillon was distinguished as she suffered her injury solely as a “percipient witness” to the infliction of injury on another. She was therefore a “bystander” rather than a “direct victim.”

The court did not further explain this distinction, or its relevance to whether the plaintiff should be allowed to recover damages for emotional distress. Both decisions had looked to the relationships of the parties to find foreseeability of the injury and thus a “duty to the plaintiff.” The basis for finding a duty to the mother in Dillon was the foreseeability of her emotional distress to “the negligent driver who causes the death of a young child [and] may reasonably expect that the mother will not be far distant and will upon witnessing the accident suffer emotional trauma.” (Dillon v. Legg, supra, 68 Cal.2d 728, 741.) In Molien, “[t]he risk of harm to plaintiff was reasonably foreseeable to defendants. It is easily predictable that an erroneous diagnosis of syphilis and its probable source would produce marital discord and resultant emotional distress to a married patient’s spouse; [the physician’s] advice to Mrs. Molien to have her husband examined for the disease confirms that plaintiff [husband] was a foreseeable victim of the negligent diagnosis. . . . [H] We thus agree with plaintiff that the alleged tortious conduct of defendant was directed to him as well as to his wife. Because the risk of harm to him was reasonably foreseeable we hold . . . that under these circumstances defendants owed plaintiff" a duty to exercise due care in diagnosing the physical condition of his wife.” (27 Cal.3d 916, 923.)

Molien neither established criteria for characterizing a plaintiff as a “direct” victim, nor explained the justification for permitting “direct” victims to recover when “bystander” plaintiffs could not. The immediate effect of the decision, however, was to permit some persons who had no prior relationship with the defendant that gave rise to a duty, who did not suffer physical injury as a result of emotional distress, who did not observe the negligent conduct, and who had not been at or near the scene of the negligent act to recover for emotional distress on a pure foreseeability-of-the injury basis. The limitations on recovery for emotional distress that had been suggested in the Dillon “guidelines” were not applicable to “direct” victims of a defendant’s negligence.

The subtleties in the distinction between the right to recover as a “bystander” and as a “direct victim” created what one Court of Appeal has described as an “amorphous nether realm" (Newton v. Kaiser Foundation Hospitals (1986) 184 Cal.App.3d 386, 391 [228 Cal.Rptr. 890]; Andalon v. Superior Court (1984) 162 Cal.App.3d 600, 610 [208 Cal.Rptr. 899]), and have contributed in some measure to the present difficulty in defining the scope of an NIED action.⁵ In Andalon v. Superior Court, supra, 162 Cal.App.3d 600, the court found that a physician’s duty arose out of contract, after it had abandoned the effort to resolve the “direct” or “bystander” dilemma: “The problem which arises from this cryptic explanation is: how are we to distinguish between ‘direct victim’ cases and ‘bystander’ cases? An impression is given that the foreseeability of the particular injury to the husband alone explains the result. The inference suggested is that a ‘direct victim’ is a person whose emotional distress is a reasonably foreseeable consequence of the conduct of the defendant. This does not provide criteria which delimit what counts as reasonable foreseeability. It leads into the quagmire of novel claims which the Supreme Court foresaw as an unacceptable consequence of a ‘pure’ foreseeability analysis . . . .” (162 Cal.App.3d at p. 609.)

“[F]oreseeability,” the court noted later in Newton v. Kaiser Foundations Hospitals, supra, 184 Cal.App.3d 386, 391, “is endless because foreseeability, like light, travels indefinitely in a vacuum.” Molien, supra, 27 Cal.3d 916, thus, left to future cases the “unenviable tasks of distinguishing bystander from direct victim cases and establishing limits for the latter . . . with a ‘foreseeable’ diversity of results.” (Newton, supra, 184 Cal.App.3d at p. 390.)

The Dillon-Molien waters, described by the Court of Appeal in this case as “murky,” were further muddied when the right to recover in the negligence action was expanded to include “bystander” plaintiffs who suffered emotional distress, but no contemporaneous or consequential physical injury. We had reasoned in Molien that the requirement of physical injury was no more necessary to ensure that a claim of serious emotional distress is genuine in NIED actions than it was in actions for intentional infliction of emotional distress. Rather the question was one of proof to be left to the jury. (Molien v. Kaiser Foundation Hospitals, supra, 27 Cal.3d 916, 930.)

Cases subsequent to Molien assumed that the reasoning which led the court to abandon the physical-injury requirement extended to “bystander” NIED actions. Physical manifestation of the serious nature of the mental distress suffered by the plaintiff was no longer an element of the cause of action. (See Ochoa v. Superior Court, supra, 39 Cal.3d 159; Hedlund v. Superior Court (1983) 34 Cal.3d 695, 706, fn. 8 [194 Cal.Rptr. 805, 669 P.2d 41, 41 A.L.R.4th 1063].)

Ochoa v. Superior Court, supra, 39 Cal.3d 159, 172, partially explained and limited “direct victim” recovery under Molien, supra, 27 Cal.3d 916, to situations in which the defendant’s negligence is “by its very nature directed at” the plaintiff. However, Ochoa also indicated that the dimensions of the NIED tort might be expanded further for “bystander” plaintiffs. Ochoa confirmed that recovery was permitted even though the injury producing event was not sudden or accidental, and even though its negligent cause was not immediately apparent. The court observed that the factors set forth in Dillon had been offered only as guidelines, and suggested that none was essential to recovery for NIED. Foreseeability that the injury would cause emotional distress was the proper inquiry. (Ochoa, supra, at p. 170.)

That dictum in Ochoa was broader than the issue presented in Ochoa, however. The plaintiff mother had observed the effects of the defendants’ negligent failure to diagnose and properly treat the illness of her teenage son. Her observation of his pain and suffering, and his deteriorating condition, as the defendants failed to either properly care for him or accede to her entreaty that she be permitted to obtain care for him, was the cause of the emotional distress for which she sought to recover. The allegations of the complaint satisfied only two of the Dillon factors—she was at the scene of the negligent injury producing conduct and was closely related to the person whose physical injury caused her distress. Defendants’ negligence in failing to give proper medical treatment, however, was not a sudden accidental occurrence and thus the second Dillon factor was not met: “Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, . . .” (Dillon v. Legg, supra, 68 Cal.2d 728, 740-741.)

This court, after reviewing several decisions of the Courts of Appeal which had limited recovery for NIED to percipient witnesses of a “sudden occurrence,” held that this requirement was an unwarranted restriction on the cause of action authorized in Dillon. “Such a restriction arbitrarily limits liability when there is a high degree of foreseeability of shock to the plaintiff and the shock flows from an abnormal event, and, as such, unduly frustrates the goal of compensation—the very purpose which the cause of action was meant to further.” (Ochoa v. Superior Court, supra, 39 Cal.3d 159, 168.)

Ochoa also held that the NIED plaintiif need not be aware that the conduct was “tortious.” Reasoning that such a requirement leads to anomalous results, the court held that “when there is observation of the defendant’s conduct and the child’s injury and contemporaneous awareness the defendant’s conduct or lack thereof is causing harm to the child, recovery is permitted.” (Ochoa v. Superior Court, supra, 39 Cal.3d 159, 170.) Thus, the plaintiff in that case did not have to know that the defendants had negligently misdiagnosed her son. It was enough that she knew that they were refusing or neglecting to give him additional treatment and this was the cause of the additional injury he was suffering.

In sum, however, as to “bystander” NIED actions, Ochoa held only that recovery would be permitted if the plaintiff" observes both the defendant’s conduct and the resultant injury, and is aware at that time that the conduct is causing the injury.⁶ The Court of Appeal erred in concluding that Ochoa, supra, 39 Cal.3d 159, held that these NIED plaintiffs need not witness the defendant’s conduct.

V

Clarification of the Right to Recover for NIED

Not surprisingly, this “case-to-case” or ad hoc approach to development of the law that misled the Court of Appeal in this case has not only produced inconsistent rulings in the lower courts, but has provoked considerable critical comment by scholars who attempt to reconcile the cases. (See Rabin, Tort Recovery for Negligently Inflicted Economic Loss: A Reassessment (1985) 37 Stan.L.Rev. 1513, 1524-1526, hereafter Rabin; Diamond, Dillon v. Legg Revisited: Toward a Unified Theory of Compensating Bystanders and Relatives for Intangible Injuries (1984) 35 Hastings L.J. 477, hereafter Diamond; Bell, The Bell Tolls: Toward Full Tort Recovery for Psychic Injury (1984) 36 U.Fla.L.Rev. 333; Pearson, Liability for Negligently Inflicted Psychic Harm: A Response to Professor Bell (1984) 36 U.Fla.L.Rev. 413; Nolan & Ursin, Negligent Infliction of Emotional Distress: Coherence Emerging from Chaos (1982) 33 Hastings L.J. 583, 620; Miller, The Scope of Liability for Negligent Infliction of Emotional Distress: Making “The Punishment Fit the Crime” (1979) 1 Hawaii L.Rev. 1, hereafter Miller; Pearson, Liability to Bystanders for Negligently Inflicted Emotional Harm—A Comment on the Nature of Arbitrary Rules (1982) 34 U.FIa.L.Rev. 477; Comment, Dillon Revisited: Toward a Better Paradigm for Bystander Cases (1982) 43 Ohio St. L.J. 931, 948; Note, Limiting Liability for the Negligent Infliction of Emotional Distress: The “Bystander Recovery” Cases (1981) 54 So.Cal.L.Rev. 847; Note, Molien v. Kaiser Foundation Hospitals: California’s New Tort of Negligent Infliction of Serious Emotional Distress (1982) 18 Cal. Western L.Rev. 101; Note, Negligent Infliction of Emotional Distress: Reconciling the Bystander and Direct Victim Causes of Action (1983) 18 U.S.F. L.Rev. 145.)

Proposals to eliminate the arbitrary results of the proliferating, inconsistent and often conflicting Dillon progeny include the suggestion that recovery be allowed in any case in which recovery for physical injury is permitted. (See Ochoa v. Superior Court, supra, 39 Cal.3d 159, 178 [conc. opn. of Grodin, J.].) Another would limit recovery to the close-relatives class contemplated by Dillon, but allow recovery whenever mental distress to the plaintiff was foreseeable. (Id. at p. 196, conc. & dis. opn. of Bird, C. J.) At the other extreme, respondent here and amicus curiae Association for California Tort Reform argue, in essence, that the Dillon “guidelines” should be recognized as substantive limitations or elements of the tort.

In his thoughtful article documenting the conflicting and sometimes arbitrary results of attempts by lower courts to apply Dillon and Molien,

7 Professor Diamond analyzes the “flaws” in the Dillon analysis which he believes have contributed to the problem. He concludes that the Dillon-based cause of action identifies a “duty” on the basis of the purely fortuitous circumstances in which an injury occurs. As a result, when recovery for emotional distress alone is permitted under the Dillon guidelines, “foreseeability” is not a realistic indicator of potential liability and does not afford a rational limitation on recovery. Nor, Diamond suggests, do the Dillon guidelines, particularly under the expanded right to recovery created by Molien (and, we note, Ochoa), provide such limitation. In his view, only one of the Dillon guidelines is even relevant to foreseeability—the relationship of the plaintiff to the person suffering physical injury—because it is foreseeable that the emotional distress suffered by a close relative on witnessing that injury will be greater than that of a stranger. (Diamond, supra, 35 Hastings L.J., at pp. 487-489.)

Diamond argues that the fact that it is foreseeable that a close relative will suffer psychological trauma at witnessing the injury does not adequately limit liability for damages for such intangible losses. When recovery for emotional distress was permitted only as an item of “parasitic” damage suffered by a plaintiff who had been physically injured, the defendant’s exposure was limited by more predictable factors. Foreseeability that various activities may cause physical injury limits the potential universe of persons who may be harmed. This, in turn, by limiting the negligent actor’s exposure makes it possible to protect potential victims and the defendant through insurance or other risk-spreading mechanisms whose cost is more closely related to the risk, and ensures that this exposure bears a more rational relationship to the defendant’s culpability. (Diamond, supra, 35 Hastings L.J., at pp. 490-493.)

Another scholar suggests that any foreseeable plaintiff be permitted to recover for NIED and loss of filial consortium, but only for economic loss, thereby reconciling the divergent paths and limitations on recovery for noneconomic damages in these related torts with that permitted in actions for wrongful life. (See Miller, supra, 1 Hawaii L.Rev., at pp. 39-41.) Diamond agrees that this solution would permit recovery by all foreseeable plaintiffs in “intangible” tort cases, while restricting recovery to “economically acceptable” limits. (Diamond, supra, 35 Hastings L.J., at p. 480.)

In the NIED context, however, permitting recovery of economic damages by all foreseeable plaintiffs would expose defendants to risks no less arbitrary and unacceptable than those presently existing. While the recovery by individual victims might be less, the number of potential plaintiffs traumatized by reason of defendant’s negligent conduct toward another, would turn on fortuitous circumstances wholly unrelated to the culpability of the defendant.

Our own prior decisions identify factors that will appropriately circumscribe the right to damages, but do not deny recovery to plaintiffs whose emotional injury is real even if not accompanied by out-of-pocket expense. Notwithstanding the broad language in some of those decisions, it is clear that foreseeability of the injury alone is not a useful “guideline” or a meaningful restriction on the scope of the NIED action. The Dillon experience confirms, as one commentator observed, that “[fjoreseeability proves too much. . . . Although it may set tolerable limits for most types of physical harm, it provides virtually no limit on liability for nonphysical harm.” (Rabin, supra, 37 Stan. L. Rev. at p. 1526.) It is apparent that reliance on foreseeability of injury alone in finding a duty, and thus a right to recover, is not adequate when the damages sought are for an intangible injury, In order to avoid limitless liability out of all proportion to the degree of a defendant’s negligence, and against which it is impossible to insure without imposing unacceptable costs on those among whom the risk is spread, the right to recover for negligently caused emotional distress must be limited.

We acknowledged and addressed one aspect of this problem in Elden v. Sheldon (1988) 46 Cal.3d 267 [250 Cal.Rptr. 254, 758 P.2d 582], holding that cohabitation, without formal marriage, did not constitute the close relationship contemplated by the Dillon guidelines and that foreseeability of injury alone does not justify imposition of liability for negligently caused emotional distress. In so doing, we again recognized that policy considerations justify restrictions on recovery for emotional distress notwithstanding the sometimes arbitrary result, and that the court has an obligation to establish those restrictions. Elden confirmed that those policy considerations include both the burden on the courts in applying vaguely defined criteria and the importance of limiting the scope of liability for negligence. If the consequences of a negligent act are not limited an intolerable burden is placed on society. A “bright line in this area of the law is essential.” (46 Cal.3d 267, 277.)

The issue resolved in Elden was too narrow to create that “bright line” for all NIED actions. This case, however, presents a broader question and thus affords the court a better opportunity to meet its obligation to create a clear rule under which liability may be determined. In so doing we balance the impact of arbitrary lines which deny recovery to some victims whose injury is very real against that of imposing liability out of proportion to culpability for negligent acts. We also weigh in the balance the importance to the administration of justice of clear guidelines under which litigants and trial courts may resolve disputes. Thus, as we did in Elden, supra, 46 Cal.3d 267, we return to the concerns which prompted the Amaya court, supra, 59 Cal.2d 295, to deny recovery for negligent infliction of emotional distress.

Among the concerns of the Amaya court was the social cost of imposing liability on a negligent tortfeasor for all foreseeable emotional distress suffered by relatives who witnessed the injury. The court again faced this problem in Borer v. American Airlines, Inc. (1977) 19 Cal.3d 441 [138 Cal.Rptr. 302, 563 P.2d 858], in which the court was asked to recognize a child’s right to recover for the loss of a parent’s consortium, an action that, like NIED, seeks monetary damages for mental or emotional loss. Refusing to permit such “filial” consortium actions, the court concluded that the cause of action for loss of consortium must be narrowly circumscribed. “Loss of consortium is an intangible injury for which money damages do not afford an accurate measure or suitable recompense; recognition of a right to recover for such losses . . . may substantially increase the number of claims asserted in ordinary accident cases, the expense of settling or resolving such claims, and the ultimate liability of the defendants." (Id. at p. 444.) The decision, we explained, was one of policy. We reasoned that we could not “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 . . . 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. We must also take into account the cost of administration of a system to determine and pay [the] awards; . . .” (Id. at p. 447.)

While we emphasized in Borer, supra, 19 Cal.3d 441, that our refusal to extend the right to recover damages in consortium cases did not signal a refusal to allow damages for intangible losses in other contexts, the policy bases for the decision are relevant to defining the NIED cause of action. Crucial to the Borer decision were the intangible nature of the loss, the inadequacy of monetary damages to make whole the loss, the difficulty in measuring the damage, and the societal cost of attempting to compensate the plaintiff. Multiplication of the defendant’s liability was an additional concern. The number of family members who might seek damages on the basis of a single incident could unreasonably enlarge the defendant’s burden. We rejected a suggestion that principles enunciated in Dillon mandated recognition of the children’s cause of action, noting what was then the Dillon limitation—that the Dillon plaintiff have suffered physical injury— which limited the class of potential plaintiffs. (19 Cal.3d at p. 450.)⁸

The court again recognized the need to limit recovery of monetary damages for intangible loss in Turpin v. Sortini (1982) 31 Cal.3d 220, 237 [182 Cal.Rptr. 337, 643 P.2d 954]. There, in an action for “wrongful life," the court limited damages to economic loss and observed that “a monetary award of general damages . . . cannot in any meaningful sense compensate the plaintiff.”

Ochoa v. Superior Court, supra, 39 Cal.3d 159, 165, footnote 6,⁹ offers additional guidance, justifying what we acknowledge must be arbitrary lines to similarly limit the class of potential plaintiffs if emotional injury absent physical harm is to continue to be a recoverable item of damages in a negligence action. The impact of personally observing the injury-producing event in most, although concededly not all, cases distinguishes the plaintiff’s resultant emotional distress from the emotion felt when one learns of the injury or death of a loved one from another, or observes pain and suffering but not the traumatic cause of the injury. Greater certainty and a more reasonable limit on the exposure to liability for negligent conduct is possible by limiting the right to recover for negligently caused emotional distress to plaintiffs who personally and contemporaneously perceive the injury-producing event and its traumatic consequences.

Similar reasoning justifies limiting recovery 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. Such limitations are indisputably arbitrary since it is foreseeable that in some cases unrelated persons have a relationship to the victim or are so affected by the traumatic event that they suffer equivalent emotional distress. As we have observed, however, drawing arbitrary lines is unavoidable if we are to limit liability and establish meaningful rules for application by litigants and lower courts.

No policy supports extension of the right to recover for NIED to a larger class of plaintiffs. Emotional distress is an intangible condition experienced by most persons, even absent negligence, at some time during their lives. Close relatives suffer serious, even debilitating, emotional reactions to the injury, death, serious illness, and evident suffering of loved ones. These reactions occur regardless of the cause of the loved one’s illness, injury, or death. That relatives will have severe emotional distress is an unavoidable aspect of the “human condition.” The emotional distress for which monetary damages may be recovered, however, ought not to be that form of acute emotional distress or the transient emotional reaction to the occasional gruesome or horrible incident to which every person may potentially be exposed in an industrial and sometimes violent society. Regardless of the depth of feeling or the resultant physical or mental illness that results from witnessing violent events, persons unrelated to those injured or killed may not now recover for such emotional upheaval even if negligently caused. Close relatives who witness the accidental injury or death of a loved one and suffer emotional trauma may not recover when the loved one’s conduct was the cause of that emotional trauma. The overwhelming majority of “emotional distress” which we endure, therefore, is not compensable.

Unlike an award of damages for intentionally caused emotional distress which is punitive, the award for NIED simply reflects society’s belief that a negligent actor bears some responsibility for the effect of his conduct on persons other than those who suffer physical injury. In identifying those persons and the circumstances in which the defendant will be held to redress the injury, it is appropriate to restrict recovery to those persons who will suffer an emotional impact beyond the impact that can be anticipated whenever one learns that a relative is injured, or dies, or the emotion felt by a “disinterested” witness. The class of potential plaintiffs should be limited to those who because of their relationship suffer the greatest emotional distress. When the right to recover is limited in this manner, the liability bears a reasonable relationship to the culpability of the negligent defendant.

The elements which justify and simultaneously limit an award of damages for emotional distress caused by awareness of the negligent infliction of injury to a close relative are those noted in Ochoa—the traumatic emotional effect on the plaintiff who contemporaneously observes both the event or conduct that causes serious injury to a close relative and the injury itself. Even if it is “foreseeable” that persons other than closely related percipient witnesses may suffer emotional distress, this fact does not justify the imposition of what threatens to become unlimited liability for emotional distress on a defendant whose conduct is simply negligent. Nor does such abstract “foreseeability” warrant continued reliance on the assumption that the limits of liability will become any clearer if lower courts are permitted to continue approaching the issue on a “case-to-case” basis some 20 years after Dillon.

(P) 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;¹⁰ (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;¹¹ and (3) as a result suffers serious emotional distress—a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances.¹² These factors were present in Ochoa and each of this court’s prior decisions upholding recovery for NIED.

The dictum in Ochoa suggesting that the factors noted in the Dillon guidelines are not essential in determining whether a plaintiff is a foreseeable victim of defendant’s negligence should not be relied on. The merely negligent actor does not owe a duty the law will recognize to make monetary amends to all persons who may have suffered emotional distress on viewing or learning about the injurious consequences of his conduct. To the extent they are inconsistent with this conclusion, Nazaroff v. Superior Court, supra, 80 Cal.App.3d 553, and Archibald v. Braverman, supra, 275 Cal.App.2d 253, are disapproved. Experience has shown that, contrary to the expectation of the Dillon majority, and with apology to Bernard Witkin, there are clear judicial days on which a court can foresee forever and thus determine liability but none on which that foresight alone provides a socially and judicially acceptable limit on recovery of damages for that injury.

VI

Disposition

The undisputed facts establish that plaintiff was not present at the scene of the accident in which her son was injured. She did not observe defendant’s conduct and was not aware that her son was being injured. She could not, therefore, establish a right to recover for the emotional distress she suffered when she subsequently learned of the accident and observed its consequences. The order granting summary judgment was proper.

The judgment of the Court of Appeal is reversed.

Each party shall bear its own costs on appeal.

Lucas, C. J., Panelli, J., and Arguelles, J.,* concurred.

1 As our subsequent discussion will explain, the right to recover for NIED suffered as a result of observing the pain and suffering accompanying an injury to another, has been extended to plaintiffs who are neither “bystanders” present at the scene of the injury causing incident nor percipient witnesses “who view the defendant’s negligent conduct.”

2 As one treatise summarizes the shift: “In many instances where the only substantial harm was emotional, recovery was allowed by finding some traditional legal peg on which to hang it. Thus if the court could find a battery or trespass, however technical, it was much less reluctant to uphold plaintiff’s claim for mental suffering. Gradually, however, the understanding grew that resort to such devices obscured the principle that best explained the holdings of the courts. A more general willingness to provide for liability, where the harm was intentionally or even recklessly inflicted, emerged. The character of the defendant’s behavior became of prime importance.” (2 Harper et al., The Law of Torts (2d ed. 1986) pp. 606-607, fns. omitted.)

Prosser and Keaton on Torts explains: “The early cases refused all remedy for mental injury, unless it could be brought within the scope of some already recognized tort. Thus it was held that mere words, however violent, threatening or insulting, did not constitute an assault, and hence afforded no ground for redress. It might well be inquired why the trespass action for assault, which was a remedy designed to keep the peace, never was extended to words which were more insulting, unendurable, and generally provocative than blows. Perhaps it was the proximity of the criminal law, with its fixed notion that assault must always be something in the nature of an attempted battery. In any event, the result was a rule which permitted recovery for a gesture that might frighten the plaintiff for a moment, and denied it for menacing words which kept the plaintiff in terror for a month. But if some independent tort, such as assault, battery, false imprisonment, or seduction could be made out, the cause of action served as a peg upon which to hang the mental damages, and recovery was freely permitted. Such ‘parasitic’ damages were the entering wedge.

“It has gradually become recognized that there is no magic inherent in the name given to a tort, or in any arbitrary classification, and that the infliction of mental injury may be a cause of action in itself.” (Prosser and Keeton on Torts (5th ed. 1984) pp. 56-57.)

3 Because a general duty exists to avoid causing foreseeable injury to another, the concept of “foreseeability” enters into both the willingness of the court to recognize the existence of a duty, the breach of which permits an action for damages, and into the determination by a trier of fact whether the specific injury in issue was foreseeable. The court explained the distinction in Ballard v. Uribe (1986) 41 Cal.3d 564, 573, footnote 6 [224 Cal.Rptr. 664, 715 P.2d 624]: “[A] court’s task—in determining ‘duty’—is not to decide whether a particular plaintiff’s injury was reasonably foreseeable in light of a particular defendant’s conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party.

“The jury, by contrast, considers ‘foreseeability’ in two more focused, fact-specific settings. First, the jury may consider the likelihood or foreseeability of injury in determining whether, in fact, the particular defendant’s conduct was negligent in the first place. Second, foreseeability may be relevant to the jury’s determination of whether the defendant’s negligence was a proximate or legal cause of the plaintiff’s injury.”

In the present context, however, we are concerned not with whether an injury is “foreseeable” as a result of the negligent conduct. As the court recognized in Dillon, supra, 68 Cal.2d 728, it is no less “foreseeable” that a person outside the “zone of danger” will suffer emotional distress on observing the injury of a close relative than it is that this person would suffer such distress if he or she were also threatened with injury. Thus, the court’s role in deciding whether a “duty” to these persons should be recognized does not depend solely on the “foreseeability” of the emotional distress, but on these policy considerations.

4 See Jacobellis v. Ohio (1964) 378 U.S. 184, 197 [12 L.Ed.2d 793, 803-804, 84 S.Ct. 1676] (conc. opn. of Stewart, J.).

5 Less charitable comment on the purported distinction between “bystander” and “direct victim” plaintiffs has criticized it as “analytically unsound.” (Pearson, Liability to Bystanders for Negligently Inflicted Emotional Harm—A Comment on the Nature of Arbitrary Rules, supra, 34 U.Fla.L.Rev. at p. 515.)

6 Under criteria that permit recovery by close relatives who suffer shock and trauma from their sensory perception of the defendant’s conduct and their relative’s injury, if the traumatized reaction was foreseeable, Ochoa upheld not only a cause of action by the mother of the deceased child, but also the father whose complaint alleged that he had visited the child only once and “was extremely distressed by what he saw.” (39 Cal.3d 159, 165, fn. 6.) His recovery was limited, however, to the distress suffered on the one occasion on which he witnessed the apparent neglect of his son by the defendants. He was not permitted to recover for distress suffered when he learned from his wife after her subsequent visits to the child of the continuing neglect of and suffering experienced by the child.

7 Diamond, supra, 35 Hastings L.J. 477.

8 Similar concerns led the court to reject a parent’s cause of action for loss of a child’s consortium in a companion case. “Our opinion in Borer v. American Airlines, supra, [19 Cal.3d] 441, explains the policy considerations which impelled us to conclude that a child should not have a cause of action for loss of parental consortium. Those reasons for the most part apply fully to the present issue of a parental claim for loss of filial consortium. The intangible character of the loss, which can never really be compensated by money damages; the difficulty of measuring damages; the dangers of double recovery or multiple claims and of extensive liability—all these considerations apply similarly to both cases.’’ (Baxter v. Superior Court (1977) 19 Cal.3d 461, 464 [138 Cal.Rptr. 315, 563 P.2d 871].)

9 “[A] distinction between distress caused by personal observation of the injury and by hearing of the tragedy from another is justified because compensation should be limited to abnormal life experiences which cause emotional distress. While receiving news that a loved one has been injured or has died may cause emotional distress, it is the type of experience for which in a general way one is prepared, an experience which is. common. By contrast few persons are forced to witness the death or injury of a loved one or to suddenly come upon the scene without warning in situations where tortious conduct is involved. In the present case, for example, while it is common to visit a loved one in a hospital and to be distressed by the loved one’s pain and suffering, it is highly uncommon to witness the apparent neglect of the patient’s immediate medical needs by medical personnel.” (Ochoa v. Superior Court, supra, 39 Cal.3d 159, 165, fn. 6.)

10 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.

11 Once the rhetoric of the dissent (post, p. 682) has been pierced, it is clear that the dissent, too, recognizes that foreseeability of injury cannot be the sole test of liability, and that the court must ultimately define the limits of liability. While not forthrightly acknowledging the inescapable necessity of limits that will in some cases seem arbitrary, the dissent (post, p. 688) itself suggests a different, but no less arbitrary, limit—that the plaintiff may recover if he or she witnesses the “immediate” consequences of the third party injury (Why stop there? Is that a less arbitrary line?). It is obvious, moreover, that the difficulty in defining the parameters of the line espoused by the dissent has been the cause of further arbitrariness in the irreconcilable rulings of trial courts and the conflicting appellate rulings on cases in which the factual differences offer little or no meaningful distinctions.

The dissent’s suggestion that Rowland v. Christian (1968) 69 Cal.2d 108, 112-113 [70 Cal.Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496], should extend to actions for negligent infliction of emotional distress lacks support in our decisions. Neither Rowland v. Christian nor the other cases cited by the dissent (Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425 [131 Cal.Rptr. 14, 551 P.2d 334, 83 A.L.R.3d 1166]; J’Aire Corp. v. Gregory (1979) 24 Cal.3d 799 [157 Cal.Rptr. 407, 598 P.2d 60]; Sun'n Sand, Inc. v. United California Bank (1978) 21 Cal.3d 671 [148 Cal.Rptr. 329, 582 P.2d 920]; Wei rum v. RKO General, Inc. (1975) 15 Cal.3d 799 [123 Cal.Rptr. 468, 539 P.2d 36]) are cases in which damages for negligently inflicted emotional distress were in issue. Recovery for this type of damage, when no other injury is present, has never been subject only to the general principles of foreseeability applied in Rowland v. Christian that the dissent (post, pp. 686-687) would have us adopt here as the basis of liability.

12 As explained by the Hawaii Supreme Court, “serious mental distress may be found where a reasonable [person] normally constituted, would be unable to adequately cope with the mental distress engendered by the circumstances of the case.” (Rodrigues v. State (1970) 52 Hawaii 156, 173 [472 P.2d 509, 519-520].)

Retired Associate Justice of the Supreme Court sitting under assignment by the Chairperson of the Judicial Council.