Wiggins v. Royale Convalescent Hospital

158 Cal. App. 3d 914, 206 Cal. Rptr. 2, 1984 Cal. App. LEXIS 2372

• Court: California Court of Appeal
• Decided: July 31, 1984
• Docket: Civ. 30378
• Status: Published

Opinions

Opinion

TROTTER, P. J.

Julia Wiggins (plaintiff) sued Royale Convalescent Hospital (defendant) for emotional distress damages arising from defendant’s negligent care of her husband. She appeals from the judgment of dismissal following the sustaining of defendant’s demurrer on the ground the complaint failed to state facts sufficient to constitute a cause of action. Plaintiff contends the trial court erred by misconstruing Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916 [167 Cal.Rptr. 831, 616 P.2d 813, 16 A.L.R.4th 518] and by sustaining the demurrer without leave to amend. We disagree and affirm the judgment.

The complaint alleges the following facts which are presumed true for purposes of our review (Allen v. Jones (1980) 104 Cal.App.3d 207, 209 [163 Cal.Rptr. 445]): Plaintiff placed her terminally ill husband in defendant’s care in October 1980. In November, he was seriously hurt in a fall from his bed after defendant failed to raise the bed’s safety rails. Defendant knew, or should have known, husband would fall and be injured without safety rails; and plaintiff would suffer emotional distress as a result, even though she was not present. Due to defendant’s negligence, plaintiff experienced great mental, physical, and nervous pain and anguish.

I.

The record before us indicates the trial court asked plaintiff’s counsel several times if he desired leave to amend the complaint. In response, he would either decline or argue against sustaining the demurrer. We conclude he elected not to amend the complaint, thus the trial court did not abuse its discretion in denying him leave to amend. Further, it is presumed plaintiff’s complaint set forth her strongest possible case. (See Logan v. Southern Cal. Rapid Transit Dist. (1982) 136 Cal.App.3d 116, 127 [185 Cal.Rptr. 878].)

Our colleague in dissent seems to overlook plaintiff’s counsel’s refusals and avers “. . . plaintiff should have been permitted to amend to state a cause of action . . . .” (See dis. opn., post, pp. 920-921.) However, we choose to accept counsel’s statements as determinative of whether the court abused its discretion in ruling. To hold otherwise would create confusion and further restrict trial court discretion. Once counsel states he is unable to amend to set forth different or additional facts it cannot be an abuse of discretion for a trial court to refuse leave to amend.

II.

Plaintiff acknowledges she has not stated a cause of action under the Dillon “bystander” rule of foreseeable harm. (Dillon v. Legg (1968) 68 Cal.2d 728 [69 Cal.Rptr. 72, 441 P.2d 912, 29 A.L.R.3d 1316].) While the closeness factor is satisfied by her marital relationship, neither the proximity to the scene nor the contemporaneous observance factors have been met. (Id., at pp. 740-741.) And Dillon’s progeny have generally required a direct emotional impact upon the plaintiff from a “sensory and contemporaneous observance” of the accident. (See cases reviewed in Justus v. Atchison (1977) 19 Cal.3d 564, 582-584 [139 Cal.Rptr. 97, 565 P.2d 122]; Hathaway v. Superior Court (1980) 112 Cal.App.3d 728, 732-736 [169 Cal.Rptr. 435]; Cortez v. Macias (1980) 110 Cal.App.3d 640, 649-650 [167 Cal.Rptr. 905].) However, contrary to plaintiff’s argument, we are not persuaded her case falls within the ambit of Molien v. Kaiser Foundation Hospitals, supra, 27 Cal.3d 916.

In Molien, the defendant physicians negligently misdiagnosed syphilis in examining the plaintiff’s wife. They advised her to inform her husband who was thereafter tested for the disease with negative results. The misdiagnosis caused marital discord and led to the initiation of dissolution proceedings. The plaintiff husband sued for negligent infliction of emotional distress and loss of consortium caused by the misdiagnosis and its effects upon his marriage. The trial court sustained demurrers to both causes of action.

Reversing the trial court, the Molien court held a cause of action may be stated for negligent infliction of emotional distress without accompanying physical injury. (Molien v. Kaiser Foundation Hospitals, supra, 27 Cal.3d at pp. 928-931.) Rather than overruling Dillon, the court noted it was “apposite but not controlling.” (Id., at p. 921.) The court then distinguished the plaintiff in Molien as a “direct victim,” as opposed to the “percipient witness” plaintiff in Dillon. (Id., at pp. 922-923.) “In the case at bar the 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; Dr. Kilbridge’s advice to Mrs. Molien to have her husband examined for the disease confirms that plaintiff was a foreseeable victim of the negligent diagnosis. Because the disease is normally transmitted only by sexual relations, it is rational to anticipate that both husband and wife would experience anxiety, suspicion, and hostility when confronted with what they had every reason to believe was reliable medical evidence of a particularly noxious infidelity, [f] 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, in negligence parlance, that under these circumstances defendants owed plaintiff a duty to exercise due care in diagnosing the physical condition of his wife.” (Id., at p. 923.)

In the instant case, plaintiff is not a “direct victim.” Her emotional distress is derived solely from injuries to her husband. By contrast, the tortious conduct of the Molien defendant was directed “to him [the plaintiff] as well as his wife.” (Molien v. Kaiser Foundation Hospitals, supra, 27 Cal.3d at p. 923.) Furthermore, Molien presented a complex question of tort liability where the nature of the misconduct made the plaintiff a “direct victim.” (Id., at p. 923.) No such problem is presented here.

III.

Plaintiff refers in her opening brief to Allen v. Jones, supra, 104 Cal.App.3d 207 and Wynn v. Monterey Club (1980) 111 Cal.App.3d 789 [168 Cal.Rptr. 878], and contends her complaint pleaded a cause of action for emotional distress based on negligent breach of contract. However, plaintiff did not present this theory of recovery to the trial court. Her complaint sounds only in tort and does not fall within the purview of either Allen or Wynn.

In Allen, the complaint alleged the plaintiff made an oral agreement with defendant mortician to cremate the body of the plaintiff’s brother and ship the remains to Illinois; and that, due to the defendant’s negligence, the package was lost in transit. The plaintiff suffered emotional distress as a result. (Allen v. Jones, supra, 104 Cal.App.3d at pp. 209-210.) The Allen holding is restricted to allowing recovery for emotional distress damages “without physical injury for negligent mishandling of a corpse by a mortuary.” (Id., at p. 214.) The dissent finds some support in Allen for emotional distress damages based on breach of contract. She is wrong; “It is neither necessary nor appropriate for us in this case to take that giant leap for mankind espoused by the concurring opinion. We need only take the modest step, consistent with common law tradition, of declaring the law applicable to the case at hand. Our decision today hopefully clarifies California law on liability for negligent mishandling of corpses by bringing it into conformity with the views expressed by Professor Prosser, the Restatement and modern decision from sister states.” (Id., at p. 215, italics added.)

In Wynn, the plaintiff sued two gambling clubs alleging his wife, a known compulsive gambler, had incurred substantial debts in the defendants’ establishments. “I think it pertinent, however, to point out that any logical analysis of the contract at bench shows that it was the clear intent of the husband plaintiff and it was so understood by defendants that defendants deny monetary credit to plaintiff’s wife and specifically that they refrain from cashing her checks.” (Wynn v. Monterey Club, supra, 111 Cal.App.3d 789, 801 (conc. opn. of Roth, P. J.).) “The gravamen of plaintiff’s complaint against defendants is that defendants, by deliberately or negligently breaching their contract, caused the disruption of the marriage, which resulted in plaintiff suffering physical and emotional distress compensable by way of general and punitive damages.” (Id., at p. 795.)

In Wynn the main contention on appeal was the legality of the contract, the trial court granted summary judgment finding it to be illegal and unenforceable. The Wynn court reversed finding the contract to be legal and then observed, “[t]he remaining question, and one which neither of the parties has addressed, is whether the type of damage claimed by plaintiff is compensable beyond the return of the initial consideration, i.e., the $1,750. The trial judge in overruling demurrers to the complaint determined that plaintiff had pleaded a cause of action. Our denial of the petition for mandate affirmed that determination. Nothing presented at the hearing on the motion for summary judgment detracts from that determination.” (Wynn v. Monterey Club, supra, 111 Cal.App.3d at p. 799.) Thus Wynn only set aside a summary judgment based on the legality of a contract and observed it had denied a petition for mandate seeking overturn of the trial court’s determination a cause of action had been pleaded.

The Wynn court then cited Molien v. Kaiser Foundation Hospitals, supra, 27 Cal.3d 916, a case based upon a negligence cause of action, as precedent for emotional distress damages arising out of a breach of contract. It further supported its reasoning by reference to Leavy v. Cooney (1963) 214 Cal.App.2d 496 [29 Cal.Rptr. 580] which, the Wynn court stated, found pure mental and emotional suffering to be compensable in a breach of contract case. In discussing Leavy, the Wynn court said: “There it was held that the contracting parties contemplated that a breach of the contract would result in ‘humiliation and embarrassment’ to the plaintiff.” (Wynn v. Monterey Club, supra, 111 Cal.App.3d at p. 801.) However, the Leavy case is not so easily compartmentalized. There J. Miller Leavy, the well known prosecutor in the infamous Caryl Chessman case had at the request of defendant appeared in the making of a film concerning the prosecution and imprisonment of Chessman. Leavy, however, fearful the public might think he was being compensated for his participation, demanded the film be shown only on television. A second defendant, Sterling, knowing defendant Cooney did not have Leavy’s consent, exhibited the film in 500 to 750 theaters. Leavy sued for breach of contract and tortious invasion of his right of privacy. The court in affirming plaintiff’s award stated, “[t]he appeal is argued as if the action is only one for breach of contract, and we have considered the arguments for and against liability under section 3300, Civil Code. We do not, however, take the view that the wrongful actions of the defendants consisted only of the violation of plaintiff’s rights under the contract, [f] Sterling had no contract with Leavy, and its conduct was clearly tortious. The contract between Leavy and Cooney related only to exhibition on television, and the wrong of defendants consists not only in the breach of an agreement not to exhibit the film in theaters, but also in the fact that it could not, under any circumstances, be so exhibited without the consent of Leavy, which he had not given. Defendants had no more right to show the pictures in theaters than they would have had if Leavy had refused to permit it to be shown publicly at all. [f] ‘For the breach of an obligation not arising from contract, the measure of damages, except where otherwise expressly provided by this Code, is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not.’ (Civ. Code, § 3333.) [f] As to Cooney the wrong consisted of breach of contract and also of a tortious invasion of Leavy’s right of privacy; as to Sterling the wrong was the breach of an obligation not arising out of contract. The detriment caused to Leavy was the proximate result of the wrongs thus committed.” (Leavy v. Cooney, supra, 214 Cal.App.2d at pp. 500-501.) We thus question the Wynn court’s citation and reliance on Leavy.

We note no court has taken the quantum leap in reasoning and law urged in the dissent and we refuse to plunge into an uncharted and limitless sea of liability; further it is not necessary to a resolution of the issue before us.

Judgment is affirmed.

Wallin, J., concurred.