|OPINION BY: EAGLESON
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 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" rather than a "direct victim," the common law tort giving rise to plaintiff's claim is negligence. 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.
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.
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.
A parallel line of negligence cases permitting recovery of damages for emotional distress had developed in California at the time Siliznoff 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.
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.
But shortly before Dillon, in Amaya v. Home Ice, Fuel & Supply Co., 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): "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."
The Amaya view was short lived, however. Only five years later, the decision was overruled in Dillon v. Legg. 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.
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." 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.
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, 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.
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." 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.
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.
Both the physical harm and accident or sudden occurrence elements were eliminated, however, in Molien v. Kaiser Foundation Hospitals, 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. 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 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" and have contributed in some measure to the present difficulty in defining the scope of an NIED action. In Andalon v. Superior Court, 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."
"[Foreseeability]," the court noted later in Newton v. Kaiser Foundations Hospitals, "is endless because foreseeability, like light, travels indefinitely in a vacuum." Molien, 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."
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 "[foreseeability] 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." 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, 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."
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, we return to the concerns which prompted the Amaya court, 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., 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." 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; . . ."
While we emphasized in Borer, 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.
The court again recognized the need to limit recovery of monetary damages for intangible loss in Turpin v. Sortini. 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."
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.
We conclude, therefore, that a plaintiff may recover damages for emotional distress caused by observing the negligently inflicted injury of a third person if, but only if, said plaintiff: (1) is closely related to the injury victim; (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim; and (3) as a result suffers serious emotional distress -- a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances. These factors were present in Ochoa and each of this court's prior decisions upholding recovery for NIED.
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.