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| [1] | SUPREME COURT OF CALIFORNIA |
| [2] | S.F. No. 24084 |
| [3] | 1980.CA.40419 <http://www.versuslaw.com>; 616
P.2d 813; 167 Cal. Rptr. 831; 27 Cal. 3d 916 |
| [4] | August 25, 1980 |
| [5] | STEPHEN H. MOLIEN, PLAINTIFF AND APPELLANT, v. KAISER FOUNDATION HOSPITALS ET AL., DEFENDANTS AND RESPONDENTS |
| [6] | Superior Court of San Mateo County, No. 213927, Alan W. Haverty, Judge. |
| [7] | Herbert W. Yanowitz for Plaintiff and Appellant. |
| [8] | Wylie Aitken, Robert E. Cartwright, Edward I. Pollock, Glen T. Bashore,
Stephen I. Zetterberg, J. Nick DeMeo, Sanford M. Gage, Stephen I. Odgers,
Harvey R. Levine, Leonard Sacks, Joseph Posner and Arne Werchick as Amici
Curiae on behalf of Plaintiff and Appellant. |
| [9] | McNamara, Lewis, Dodge & Houston, Richard E. Dodge, Robert M. Slattery
and Paul M. Hoff for Defendants and Respondents. |
| [10] | Opinion by Mosk, J., with Bird, C. J., Tobriner and Newman, JJ., concurring.
Manuel, J., concurred in the judgment. Separate dissenting opinion by Clark,
J., with Richardson, J., concurring. |
| [11] | Mosk |
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[27 Cal3d Page 918]
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| [12] | To what extent should the law permit recovery of damages for the negligent
infliction of emotional or mental distress unaccompanied by physical injury?
We consider this question in two contexts, both presented by an action charging
defendants with erroneously diagnosing plaintiff's wife as suffering from
an infectious social disease. |
| [13] | Appealing from a judgment entered after a demurrer was sustained, plaintiff
asks us to decide whether he may recover for negligently inflicted |
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[27 Cal3d Page 919]
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| [14] | emotional distress and for loss of consortium, occasioned by emotional
injury to his wife. As will appear, in the light of contemporary knowledge
we conclude that emotional injury may be fully as severe and debilitating
as physical harm, and is no less deserving of redress; the refusal to recognize
a cause of action for negligently inflicted injury in the absence of some
physical consequence is therefore an anachronism. We further conclude that
it is no less regressive to deny recovery for loss of consortium simply
because the plaintiff's spouse has suffered a disabling but nonphysical
injury. Accordingly, the judgment must be reversed and plaintiff permitted
to go to trial. |
| [15] | Plaintiff Stephen H. Molien filed this action against Kaiser Foundation
Hospitals (Kaiser) and Thomas Kilbridge, M.D. (Kaiser and Dr. Kilbridge
are hereafter sometimes referred to collectively as defendants.) The amended
complaint sets forth two causes of action. In determining its sufficiency
against a demurrer we are guided by long-settled precepts: "that a general
demurrer admits the truth of all material factual allegations in the complaint
[citation]; that the question of plaintiff's ability to prove these allegations,
or the possible difficulty in making such proof does not concern the reviewing
court [citations]; and that plaintiff need only plead facts showing that
he may be entitled to some relief [citation]." (Alcorn v. Anbro Engineering,
Inc. (1970)
2 Cal. 3d 493
, 496 [
86 Cal. Rptr. 88
,
468 P.2d 216].
) |
| [16] | The principal allegations of the first cause of action are as follows:
Plaintiff and his wife, Valerie G. Molien, are members of the Kaiser Health
Plan. Mrs. Molien went to Kaiser for a routine multi-phasic physical examination.
There, Dr. Kilbridge, a Kaiser staff physician, negligently examined and
tested her, and subsequently advised her she had contracted an infectious
type of syphilis. The diagnosis was erroneous, as she did not in fact have
the disease. Nevertheless she was required to undergo treatment for syphilis,
including the administration of massive and unnecessary doses of penicillin.
As a result of defendants' conduct she suffered "injury to her body and
shock and injury to her nervous system." |
| [17] | Defendants knew plaintiff husband would learn of the diagnosis, as they
instructed Mrs. Molien to so advise him. Thereafter plaintiff was required
to undergo blood tests himself in order to ascertain whether he had contracted
syphilis and was the source of his wife's purported infection. The tests
revealed that he did not have the disease. |
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[27 Cal3d Page 920]
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| [18] | As a result of the negligently erroneous diagnosis, plaintiff's wife became
upset and suspicious that he had engaged in extramarital sexual activities;
tension and hostility arose between the two, "causing a break-up of their
marriage and the initiation of dissolution proceedings." |
| [19] | Defendants knew or should have known their diagnosis that plaintiff's
wife had syphilis and that he might also have the disease would cause him
emotional distress. He has in fact suffered "extreme emotional distress"
as a result of the negligent misdiagnosis. Additionally, he has incurred
medical expenses for counseling in an effort to save the marriage. |
| [20] | The second cause of action, after incorporating by reference all the allegations
of the first, alleges that as a consequence of defendants' acts plaintiff
has been deprived of the "love, companionship, affection, society, sexual
relations, solace, support, and services" of his wife. |
| [21] | The prayer is for damages for mental suffering and loss of consortium,
together with medical expenses. The trial court sustained general demurrers
to both causes of action, and plaintiff appealed from the ensuing judgment
of dismissal. |
| [22] | I |
| [23] | At the outset we consider a procedural issue arising from the fact that
on its face the judgment purports to dismiss only the first cause of action,
i.e., for mental suffering. In its ruling the court sustained the demurrers
to both causes of action, with leave to amend the first cause and without
leave to amend the second. When plaintiff failed to amend, the court ordered
the first cause of action dismissed; the judgment is silent, however, as
to the second. |
| [24] | Defendants contend we are without jurisdiction to review plaintiff's purported
appeal from the order sustaining the demurrer to the second cause of action,
i.e., for loss of consortium. They correctly assert that such an order is
neither appealable per se nor as a final judgment. (Beazell v. Schrader
(1962)
205 Cal. App. 2d 673
, 674 [
23 Cal. Rptr. 189].
) Plaintiff responds, however, that "in the interest of justice and to prevent
further delay" an appellate court may deem an order sustaining a demurrer
to incorporate a judgment of dismissal. (Bellah v. |
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[27 Cal3d Page 921]
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| [25] | Greenson (1978)
81 Cal. App. 3d 614
, 618, fn. 1 [
146 Cal. Rptr. 535].
) He requests that we amend the judgment of dismissal herein to apply to
both causes of action, as the trial court intended. |
| [26] | Plaintiff's request is reasonable and finds authority in our recent decision
in Tenhet v. Boswell (1976)
18 Cal. 3d 150
[
133 Cal. Rptr. 10
,
554 P.2d 330].
In Tenhet, as here, the trial court failed to dispose of all causes of action
set forth in the amended complaint. Ordinarily in that event appeal would
be barred by the "one final judgment" rule, i.e., "an appeal may be taken
only from the final judgment in an entire action." (Id. at p. 153.) But
we noted with approval the disposition adopted in Gombos v. Ashe (1958)
158 Cal. App. 2d 517
[
322 P.2d 933]
: there the court amended the judgment to include a dismissal of a cause
of action as to which a demurrer had been sustained. We found such procedure
appropriate when "the trial court's failure to dispose of all causes of
action results from inadvertence or mistake rather than an intention to
retain the remaining causes of action for trial." (
18 Cal. 3d at p. 154.
) |
| [27] | In the present case it is evident that the failure of the court to dismiss
the cause of action for loss of consortium was an oversight. We may therefore
treat the dismissal as applying to both causes of action, and we amend the
judgment accordingly. |
| [28] | II |
| [29] | We turn now to the merits of the appeal and first address plaintiff's
contention that he has stated a cause of action for the negligent infliction
of emotional distress. Defendants maintain this issue is governed by Dillon
v. Legg (1968)
68 Cal. 2d 728
[
60 Cal. Rptr. 72
,
441 P.2d 912
, 29 A.L.R.3d 1316]; they emphasize that plaintiff was not present when
the doctor announced the erroneous diagnosis, but learned of it later from
his wife. As we shall explain, however, defendants rely too heavily on Dillon
: the case is apposite, but not controlling. |
| [30] | A |
| [31] | In Dillon a mother sought damages for emotional trauma and physical injury
that resulted when she witnessed the negligently inflicted death of her
infant daughter. The defendant contended he owed no duty to the mother because
she was outside the zone of physical danger at the time of the accident.
But the traditional duty approach, we explained, |
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[27 Cal3d Page 922]
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| [32] | begged the question whether the plaintiff's interests were entitled to
legal protection; the finding of a duty was simply "'a shorthand statement
of a conclusion, rather than an aid to analysis in itself.'" (
68 Cal. 2d at p. 734.
) We therefore identified forseeability of the risk as the critical inquiry:
"In order 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."
(Id. at p. 739.) And the foreseeable risk may entail not only actual physical
impact, but emotional injury as well. (Id. at pp. 739-740 & fn. 5.) |
| [33] | Confining our analysis to the situation in which a plaintiff's emotional
shock caused by harm to a third person ripened into a physical injury, we
listed three factors bearing on the determination whether the defendant
should reasonably have foreseen injury to the plaintiff: "(1) Whether plaintiff
was located near the scene of the accident as contrasted with one who was
a distance away from it. (2) Whether the shock resulted from a direct emotional
impact upon plaintiff from the sensory and contemporaneous observance of
the accident, as contrasted with learning of the accident from others after
its occurrence. (3) Whether plaintiff and the victim were closely related,
as contrasted with an absence of any relationship or the presence of only
a distant relationship." (Id. at pp. 740-741.) |
| [34] | Consideration of these factors, we said, would enable the court to decide
"whether the accident and harm [were] 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." (Id. at p. 741.) Applying these principles
and noting the presence of all three of the above factors, we concluded:
"Surely the negligent driver who causes the death of a young child may reasonably
expect that the mother will not be far distant and will upon witnessing
the accident suffer emotional trauma." (Ibid.) |
| [35] | It must be remembered, however, that in Dillon the plaintiff sought recovery
of damages she suffered as a percipient witness to the injury of a third
person, and the three guidelines there noted served as a limitation |
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[27 Cal3d Page 923]
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| [36] | on that particular cause of action. (See, e.g., Justus v. Atchison (1977)
19 Cal. 3d 564
, 582-585 [
139 Cal. Rptr. 97
,
565 P.2d 122].
) Here, by contrast, plaintiff was himself a direct victim of the assertedly
negligent act. By insisting that the present facts fail to satisfy the first
and second of the Dillon criteria, defendants urge a rote application of
the guidelines to a case factually dissimilar to the bystander scenario.
In so doing, they overlook our explicit statement in Dillon that an obligation
hinging on foreseeability "must necessarily be adjudicated only on a case-by-case
basis . . . . [No] immutable rule can establish the extent of that obligation
for every circumstance in the future." (
68 Cal. 2d at p. 740.
) |
| [37] | Hence the significance of Dillon for the present action lies not in its
delineation of guidelines fashioned for resolution of the precise issue
then before us; rather, we apply its general principle of foreseeability
to the facts at hand, much as we have done in other cases presenting complex
questions of tort liability. (See, e.g., Tarasoff v. Regents of University
of California (1976)
17 Cal. 3d 425
, 434-435 [
131 Cal. Rptr. 14
,
551 P.2d 334
, 83 A.L.R.3d 1166]; Rodriguez v. Bethlehem Steel Corp. (1974)
12 Cal. 3d 382
, 399-400 [
115 Cal. Rptr. 765
,
525 P.2d 669].
) |
| [38] | 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. |
| [39] | 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. There remains the question
whether plaintiff is barred from recovery by the fact that he suffered no
physical injury. |
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[27 Cal3d Page 924]
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| [40] | B |
| [41] | As observed in Jarchow v. Transamerica Title Ins. Co. (1975)
48 Cal. App. 3d 917
, 935 [
122 Cal. Rptr. 470]
, "California courts have attempted to resolve the public policy problems
inherent in mental distress cases in a variety of ways." Whether legal protection
should extend to the interest in emotional tranquility has been a subject
of controversy not only in California, but elsewhere: "No general agreement
has yet been reached as to the liability for negligence resulting in fright,
shock, or other 'mental suffering,' or its physical consequences." (Prosser,
Torts (4th ed. 1971) § 54, p. 327.) The issue, not novel, has inspired numerous
and substantial scholarly expositions since the turn of the century. (See,
e.g., materials collected in Prosser, op. cit. supra, at p. 50, fn. 27 &
p. 327, fn. 31; 1 Dooley, Modern Tort Law (1977) § 15.07, p. 323, fn. 36;
2 Harper & James, The Law of Torts (1956) § 18.4, pp. 1031-1032, fn.
1.) |
| [42] | As early as 1896, this court recognized that mental suffering "constitutes
an aggravation of damages when it naturally ensues from the act complained
of." (Sloane v. Southern Cal. Ry. Co. (1896)
111 Cal. 668
, 680 [
44 P. 320].
) But such suffering alone, we said, would not afford a right of action.
(Ibid.) We pondered the question whether a nervous disorder suffered by
the plaintiff after she was wrongfully put off a train was a physical or
a mental injury: "The interdependence of the mind and body is in many respects
so close that it is impossible to distinguish their respective influence
upon each other. It must be conceded that a nervous shock or paroxysm, or
a disturbance of the nervous system, is distinct from mental anguish, and
falls within the physiological, rather than the psychological, branch of
the human organism. It is a matter of general knowledge that an attack of
sudden fright or an exposure to imminent peril has produced in individuals
a complete change in their nervous system, and rendered one who was physically
strong and vigorous weak and timid. Such a result must be regarded as an
injury to the body rather than to the mind, even though the mind be at the
same time injuriously affected." (Ibid.) |
| [43] | The foundation was thus laid, nearly a century ago, for two beliefs that
have since been frequently reiterated: first, recovery for emotional distress
must be relegated to the status of parasitic damages; and second, mental
disturbances can be distinctly classified as either psychological or physical
injury. That medical science and particularly the field of mental health
have made much progress in the 20th century is |
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[27 Cal3d Page 925]
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| [44] | manifest; yet, despite some noteworthy exceptions, the principles underlying
the decision in Sloane still pervade the law of negligence. |
| [45] | The present state of the law is articulated in BAJI No. 12.80 (6th ed.
1977): "There can be no recovery of damages for emotional distress unaccompanied
by physical injury where such emotional distress arises only from negligent
conduct. [ para. ] However, if a plaintiff has suffered a shock to the nervous
system or other physical harm which was proximately caused by negligent
conduct of a defendant, then such plaintiff is entitled to recover damages
from such a defendant for any resulting physical harm and emotional distress." |
| [46] | The BAJI language appears to be derived mainly from the opinions in Vanoni
v. Western Airlines (1967)
247 Cal. App. 2d 793
, 795-797 [
56 Cal. Rptr. 115]
, and Espinosa v. Beverly Hospital (1952)
114 Cal. App. 2d 232
, 234 [
249 P.2d 843]
, both of which relied on Sloane. The principle has been reiterated elsewhere,
but in each instance is traceable either directly or indirectly to Sloane.
(See, e.g., Fuentes v. Perez (1977)
66 Cal. App. 3d 163
, 168 [
136 Cal. Rptr. 275]
; Leasman v. Beech Aircraft Corp. (1975)
48 Cal. App. 3d 376
, 381 [
121 Cal. Rptr. 768]
; Gautier v. General Telephone Co. (1965)
234 Cal. App. 2d 302
, 307 [
44 Cal. Rptr. 404].
) It therefore appears the rule has been immutable since its early origin,
with virtually no regard for the factual contexts in which claims arose,
or the alleged causes of emotional distress, or the prevailing state of
medical knowledge. |
| [47] | Plaintiff urges that we recognize the concept of negligent infliction
of emotional distress as an independent tort. In this inquiry we first seek
to identify the rationale for the Sloane rule. None appears in the opinion,
possibly because the court classified the plaintiff's condition, "nervous
paroxysm," as a physical injury, and hence had no need to justify a denial
of recovery for psychological injury alone. Neither did the Espinosa court
provide any justification for its rejection of the plaintiff's attempt to
"subvert the ancient rule that mental suffering alone will not support an
action for damages based upon negligence." (
114 Cal. App. 2d at p. 234.
) Therefore, we must look elsewhere. |
| [48] | The primary justification for the requirement of physical injury appears
to be that it serves as a screening device to minimize a presumed risk of
feigned injuries and false claims. (See, e.g., Prosser, op. cit. supra,
at p. 328; 1 Dooley, op. cit. supra, at p. 319; Comment, Negligently Inflicted
Mental Distress: The Case for an Independent Tort |
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[27 Cal3d Page 926]
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| [49] | (1971) 59 Geo.L.J. 1237, 1244; Rest.2d Torts, § 436A, com. b.) Such harm
is believed to be susceptible of objective ascertainment and hence to corroborate
the authenticity of the claim. |
| [50] | Although most courts still adhere to the early view, the scholars assert
that such artificial barriers to recovery are unnecessary. Thus Dean Prosser
explains that "the difficulty is not insuperable. Not only fright and shock,
but other kinds of mental injury are marked by definite physical symptoms,
which are capable of clear medical proof. It is entirely possible to allow
recovery only upon satisfactory evidence and deny it when there is nothing
to corroborate the claim, or to look for some guarantee of genuineness in
the circumstances of the case. The problem is one of proof, and it will
not be necessary to deny a remedy in all cases because some claims may be
false." (Prosser, op. cit. supra, at p. 328; see also 1 Dooley, op. cit.
supra, at p. 319.) |
| [51] | The foregoing analysis was expressly adopted by the New York Court of
Appeals when it held that "Freedom from mental disturbance is now a protected
interest in this State." (Ferrara v. Galluchio (1958) 5 N.Y.2d 16 [176 N.Y.S.2d
996, 999, 152 N.E.2d 249, 71 A.L.R.2d 331].) The case involved a medical
malpractice action brought by a patient who, after receiving negligently
administered X-ray treatments from the defendants, consulted a dermatologist
who advised her to exercise certain precautions because the area of the
X-ray burn might become cancerous. The plaintiff alleged she developed a
severe "cancerphobia" and sought damages for mental anguish. In affirming
a jury verdict for the plaintiff, the New York high court deemed it "entirely
plausible, under such circumstances, that plaintiff would undergo exceptional
mental suffering over the possibility of developing cancer." (Id. at p.
1000; see also Johnson v. State (1975) 37 N.Y.2d 378 [372 N.Y.S.2d 638,
643, 334 N.E.2d 590], in which the court held that "recovery for emotional
harm to one subjected directly to the tortious act may not be disallowed
so long as the evidence is sufficient to show causation and substantiality
of the harm suffered, together with a 'guarantee of genuineness' to which
the court referred in the Ferrara case [citations].") |
| [52] | Ferrara represents a view not generally followed in California. Our courts
have instead devised various means of compensating for the infliction of
emotional distress, provided there is some assurance of the validity of
the claim. As we have seen, physical injury, whether it occurs contemporaneously
with or is a consequence of emotional distress, |
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[27 Cal3d Page 927]
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| [53] | provides one such guarantee. (Capelouto v. Kaiser Foundation Hospital
(1972)
7 Cal. 3d 889
, 892-893 [
103 Cal. Rptr. 856
,
500 P.2d 880]
; Vanoni v. Western Airlines, supra,
247 Cal. App. 2d at pp. 795-797.
) Another arises when the plaintiff asserts an independent cause of action
apart from personal injury. Thus in a suit against an insurer for damages
resulting from its wrongful refusal to settle a claim against the insured
within the policy limits, the plaintiff was permitted to recover for mental
distress as well as for pecuniary loss. We concluded: "Obviously, where,
as here, the claim is actionable and has resulted in substantial damages
apart from those due to mental distress, the danger of fictitious claims
is reduced, and we are not here concerned with mere bad manners or trivialities
but tortious conduct resulting in substantial invasions of clearly protected
interests." (Crisci v. Security Ins. Co. (1967)
66 Cal. 2d 425
, 434 [
58 Cal. Rptr. 13
,
426 P.2d 173]
; accord, Gruenberg v. Aetna Ins. Co. (1973)
9 Cal. 3d 566
, 579 [
108 Cal. Rptr. 480
,
510 P.2d 1032]
; Jarchow v. Transamerica Title Ins. Co., supra,
48 Cal. App. 3d at p. 937
; Windeler v. Scheers Jewelers (1970)
8 Cal. App. 3d 844
[
88 Cal. Rptr. 39].
) |
| [54] | Finally, intentional torts will support an award of damages for emotional
distress alone, but only in cases involving "extreme and outrageous intentional
invasions of one's mental and emotional tranquility." (Alcorn v. Anbro Engineering,
Inc., supra,
2 Cal. 3d at p. 498.
) As we explained in State Rubbish etc. Assn. v. Siliznoff (1952)
38 Cal. 2d 330
, 338 [
240 P.2d 282]
, it is the outrageous conduct that serves to insure that the plaintiff
experienced serious mental suffering and convinces the courts of the validity
of the claim. |
| [55] | We thus reach the crucial question whether continued adherence to the
venerable rule that would bar recovery in this case is warranted. Although
we recognize a need to guard against fraudulent claims, we are not persuaded
that the presently existing artificial lines of demarcation are the only
appropriate means of attaining this goal. As observed by Presiding Justice
Gardner in his concurring opinion in Allen v. Jones (1980)
104 Cal. App. 3d 207
, 216 [
163 Cal. Rptr. 445]
, "In no other area are the vagaries of our law more apparent than in the
distinction between mental and emotional distress accompanied by physical
manifestation and such discomfort unaccompanied by physical manifestation." |
| [56] | The Hawaii Supreme Court confronted the issue forthrightly and discarded
the traditional rule that there can be no recovery for the negligent infliction
of emotional distress alone. (Rodrigues v. State |
|
[27 Cal3d Page 928]
|
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| [57] | (1970) 52 Hawaii 156, 283 [472 P.2d 509].) It explained that "Courts which
have administered claims of mental distress incident to an independent cause
of action are just as competent to administer such claims when they are
raised as an independent ground for damages." (Id. at p. 519.) Moreover,
defendants will not be exposed to potentially unlimited liability for invasions
of emotional tranquility that are trivial and transient if recovery is limited
to claims of serious mental distress. The court therefore adopted as its
standard: "serious mental distress may be found where a reasonable man,
normally constituted, would be unable to adequately cope with the mental
stress engendered by the circumstances of the case." (Id. at p. 520.) |
| [58] | The Rodrigues court further noted the "multiplication of psychic stimuli"
that society presently faces, and the "increasing widespread knowledge of
the debilitating effect mental distress may have on an individual's capacity
to carry on the functions of life." (Ibid.) Accordingly, the court recognized
that "the interest in freedom from negligent infliction of serious mental
distress is entitled to independent legal protection. We hold, therefore,
that there is a duty to refrain from the negligent infliction of serious
mental distress." (Ibid.)*fn1 |
| [59] | We agree that the unqualified requirement of physical injury is no longer
justifiable. It supposedly serves to satisfy the cynic that the claim of
emotional distress is genuine. Yet we perceive two significant difficulties
with the scheme. First, the classification is both overinclusive and underinclusive
when viewed in the light of its purported purpose of screening false claims.
It is overinclusive in permitting recovery for emotional distress when the
suffering accompanies or results in any physical injury whatever, no matter
how trivial. If physical injury, however slight, provides the ticket for
admission to the courthouse, it is difficult for advocates of the "floodgates"
premonition to deny that the doors are already wide open: as we observed
in Capelouto v. Kaiser Foundation Hospitals, supra,
7 Cal. 3d at page 893
, "mental suffering frequently constitutes the principal element of tort
damages . . . ." More |
|
[27 Cal3d Page 929]
|
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| [60] | significantly, the classification is underinclusive because it mechanically
denies court access to claims that may well be valid and could be proved
if the plaintiffs were permitted to go to trial. |
| [61] | The second defect in the requirement of physical injury is that it encourages
extravagant pleading and distorted testimony. Thus it has been urged that
the law should provide a remedy for serious invasions of emotional tranquility,
"otherwise the tendency would be for the victim to exaggerate symptoms of
sick headaches, nausea, insomnia, etc., to make out a technical basis of
bodily injury, upon which to predicate a parasitic recovery for the more
grievous disturbance, the mental and emotional distress she endured." (Magruder,
Mental and Emotional Disturbance in the Law of Torts (1936) 49 Harv.L.Rev.
1033, 1059; see also Annot. (1959) 64 A.L.R.2d 100, 117, fn. 18, 128 &
fn. 8 [suggesting that "in most instances of severe mental disturbance some
deleterious physical consequence can, with a little ingenuity, be found
. . .," and that characterization of an injury as physical or mental may
depend on the ingenuity of counsel in framing the pleadings].) |
| [62] | Furthermore, as we observed in Sloane v. Southern Cal. Ry. Co., supra,
111 Cal. at page 680
, the border between physical and emotional injury is not clearly delineated.
In 1896 we deemed a "nervous shock or paroxysm" to be distinguishable from
mere mental anguish. Today, the notion that physical harm includes "shock
to the nervous system" is an accepted aspect of our law of negligence. (See
BAJI No. 12.71 (6th ed. 1977).) The Restatement, too, attempts to draw the
distinction: "The rule [precluding recovery for negligently caused emotional
distress alone] applies to all forms of emotional disturbance, including
temporary fright, nervous shock, nausea, grief, rage, and humiliation. The
fact that these are accompanied by transitory, non-recurring physical phenomena,
harmless in themselves, such as dizziness, vomiting, and the like, does
not make the actor liable where such phenomena are in themselves inconsequential
and do not amount to any substantial bodily harm. On the other hand, long
continued nausea or headaches may amount to physical illness, which is bodily
harm; and even long continued mental disturbance . . . may be classified
by the courts as illness, notwithstanding [its] mental character. This becomes
a medical or psychiatric problem, rather than one of law." (Rest.2d Torts,§
436A, com. c.) |
| [63] | In our view the attempted distinction between physical and psychological
injury merely clouds the issue. The essential question is one of |
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[27 Cal3d Page 930]
|
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| [64] | proof; whether the plaintiff has suffered a serious and compensable injury
should not turn on this artificial and often arbitrary classification scheme.
We thus agree with the view of the Rodrigues court: "In cases other than
where proof of mental distress is of a medically significant nature, [citations]
the general standard of proof required to support a claim of mental distress
is some guarantee of genuineness in the circumstances of the case. [Citation.]"
(472 P.2d at p. 520.) This standard is not as difficult to apply as it may
seem in the abstract. As Justice Traynor explained in this court's unanimous
opinion in State Rubbish etc. Assn. v. Siliznoff, supra,
38 Cal. 2d at page 338
, the jurors are best situated to determine whether and to what extent the
defendant's conduct caused emotional distress, by referring to their own
experience. In addition, there will doubtless be circumstances in which
the alleged emotional injury is susceptible of objective ascertainment by
expert medical testimony. (See Comment, Negligently Inflicted Mental Distress:
The Case for an Independent Tort (1971) 59 Geo.L.J. 1237, 1248 et seq.)
To repeat: this is a matter of proof to be presented to the trier of fact.
The screening of claims on this basis at the pleading stage is a usurpation
of the jury's function. |
| [65] | More than half a century ago Roscoe Pound recognized that claims of emotional
distress were capable of verification by means more precise than the then-prevailing
requirement of physical impact; we think his logic applies equally to the
present requirement of physical injury: "In reality [the impact requirement]
was a practical rule, growing out of the limitations of trial by jury, the
difficulty of proof in cases of injuries manifest subjectively only and
the backwardness of our knowledge with respect to the relations of mind
and body. In view of the danger of imposition, the courts, on a balance
of the interests involved, refused to go beyond cases where there was a
voucher for the truth of the plaintiff's claim . . . . With the rise of
modern psychology the basis of this caution in securing an important element
of the interest of personality was removed." (Pound, Interpretations of
Legal History (1923) pp. 120-121.) |
| [66] | For all these reasons we hold that a cause of action may be stated for
the negligent infliction of serious emotional distress. Applying these principles
to the case before us, we conclude that the complaint states such a cause
of action. The negligent examination of Mrs. Molien and the conduct flowing
therefrom are objectively verifiable actions by the defendants that foreseeably
elicited serious emotional responses in the plaintiff and hence serve as
a measure of the validity of plaintiff's claim |
|
[27 Cal3d Page 931]
|
|
| [67] | for emotional distress. As yet another corroborating factor, we note the
universally accepted gravity of a false imputation of syphilis: by statute
it constitutes slander per se. (
Civ.
Code, §
46
, subd. 2; Schessler v. Keck (1954)
125 Cal. App. 2d 827
[
271 P.2d 588].
) |
| [68] | It follows that the trial court erred in sustaining the demurrer to the
cause of action for emotional distress. |
| [69] | III |
| [70] | The court also erred in sustaining the demurrer to the cause of action
for loss of consortium. Both parties focus, appropriately, on our decision
in Rodriguez v. Bethlehem Steel Corp., supra,
12 Cal. 3d 382
, in which this cause of action had its genesis in California. After rejecting
a number of arguments against such recovery, we held that "each spouse has
a cause of action for loss of consortium, as defined herein, caused by a
negligent or intentional injury to the other spouse by a third party." (Id.
at p. 408.) |
| [71] | The negligently inflicted injury in Rodriguez consisted of an extensive
and permanent paralysis of the plaintiff's husband caused when he was struck
on the head by a falling pipe weighing over 600 pounds. Defendants now urge
that we limit the general principle there announced to the factual context
in which it arose, and hold that the cause of action for loss of consortium
requires severe physical injury to the nonplaintiff spouse. But nowhere
in our opinion did we restrict its rule to the particular facts then before
us. Defendants think it significant that we referred to Mr. Rodriguez's
condition as a "severely disabling injury" and understood the personal loss
suffered by the spouse of a "severely disabled person." (Id. at p. 400.)
These simple descriptive phrases, however, will not support the inference
defendants seek to draw: obviously a person may become "severely disabled"
mentally no less than physically, and the resulting detriment to that individual's
spouse is no less serious than if the disability were an impairment of mobility
or other bodily function.*fn2 |
|
[27 Cal3d Page 932]
|
|
| [72] | The issue in Rodriguez was whether to recognize the cause of action for
loss of consortium at all (id. at p. 385), and our holding spoke only of
recovery for "a negligent or intentional injury" to the plaintiff's spouse
(id. at p. 408). We had no reason to delimit the kinds of "injury" that
would support the cause of action, nor did we endeavor to do so. Certainly
the facts presented a compelling justification for permitting Mrs. Rodriguez
to recover: her loss was "palpable and extreme." (Note, Right to Recover
for Loss of Consortium (1975) 63 Cal.L.Rev. 323.) But the fact that it was
caused by a devastating physical injury to her husband was not vital to
our decision. Indeed, we not only defined "consortium" to embrace such intangibles
as "conjugal society, comfort, affection, and companionship," we acknowledged
that "An important aspect of consortium is . . . the moral support each
spouse gives the other . . . ." (
12 Cal. 3d at p. 405.
) Thus the impairment of one spouse's mental health could well deprive the
other of the "companionship and moral support that marriage provides no
less than its sexual side." (Id. at pp. 405-406.) |
| [73] | Two years after Rodriguez the Massachusetts Supreme Court addressed this
issue directly and recognized a cause of action for loss of consortium arising
out of severe emotional distress intentionally inflicted on the plaintiff's
spouse: "the underlying purpose of such an action is to compensate for the
loss of the companionship, affection and sexual enjoyment of one's spouse,
and it is clear that these can be lost as a result of psychological or emotional
injury as well as from actual physical harm." (Agis v. Howard Johnson Company
(1976) 371 Mass. 140 [355 N.E.2d 315, 320].) The same reasoning applies
when, as here, the alleged injury is negligently inflicted.*fn3 |
| [74] | Finally, defendants present no persuasive reasons to justify their proposal
to limit recovery for loss of consortium to cases in which the plaintiff's
spouse suffers severe physical injury. Indeed, we perceive compelling grounds
for not drawing this line. It is true our opinion in Rodriguez contemplates
injury to the nonplaintiff spouse that is sufficiently |
|
[27 Cal3d Page 933]
|
|
| [75] | serious and disabling to raise the inference that the conjugal relationship
is more than superficially or temporarily impaired. As we earlier explained,
however, it is irrefutable that certain psychological injuries can be no
less severe and debilitating than physical injuries. We could accept defendants'
position only by rejecting the manifest truth that a marital relationship
can be grievously injured when one spouse suffers a traumatically induced
neurosis, psychosis, chronic depression, or phobia. |
| [76] | Whether the degree of harm suffered by the plaintiff's spouse is sufficiently
severe to give rise to a cause of action for loss of consortium is a matter
of proof. When the injury is emotional rather than physical, the plaintiff
may have a more difficult task in proving negligence, causation, and the
requisite degree of harm; but these are questions for the jury, as in all
litigation for loss of consortium. In Rodriguez we acknowledged that the
loss is "principally a form of mental suffering" (
12 Cal. 3d at p. 401
), but nevertheless declared our faith in the ability of the jury to exercise
sound judgment in fixing compensation. (Ibid.) We reaffirm that faith today. |
| [77] | The judgment is modified to order a dismissal of the second cause of action
and, as so modified, the judgment is reversed in its entirety. |
| [78] | Disposition |
| [79] | The judgment is modified to order a dismissal of the second cause of action
and, as so modified, the judgment is reversed in its entirety. |
| [80] | CLARK, J. I dissent. |
| [81] | Our court today allows -- for the first time -- a money award against
one who unintentionally disturbs the mental tranquillity of another. |
| [82] | Because such disturbances are commonplace in our complex society, because
they cannot be objectively observed or measured, but mainly because it is
for the Legislature to create new causes of action and to fix the limits
of recovery, this court has until today refused the invitation to open wide
the door to damage claims fraught with potential abuse. |
| [83] | As acknowledged by the majority, this court's first significant extension
of tort liability occurred in Dillon v. Legg (1968)
68 Cal. 2d 728
[
69 Cal. Rptr. 72
,
441 P.2d 912
, 29 A.L.R.3d 1316], 12 short years ago. |
|
[27 Cal3d Page 934]
|
|
| [84] | In a four-to-three decision Amaya v. Home Ice, Fuel & Supply Co. (1963)
59 Cal. 2d 295
[
29 Cal. Rptr. 33
,
379 P.2d 513]
was overruled, to hold that a mother witnessing a negligent act causing
the death of her minor child could maintain an action against the tortfeasor
for "'great emotional disturbance and shock and injury to her nervous system'
which caused her great physical and mental pain and suffering." (Dillon
v. Legg, supra,
68 Cal. 2d 728
, 731.) In Amaya, five years earlier, we held that a mother observing her
seventeen-month-old son "'struck and run over by the defendants' truck'"
is not entitled to recover for her "'emotional shock and great mental disturbance
. . . sustaining injury to her body and shock and injury to her nervous
system and person . . . .'" (Amaya v. Home Ice, Fuel & Supply Co., supra,
59 Cal. 2d 295
, 298.) |
| [85] | In overruling Amaya, this court created a new cause of action. (See Dillon
v. Legg, supra,
68 Cal. 2d 728
, dis. opn. of Burke, J., at pp. 748-749.) But today's majority overstretch
"the new elasticity proclaimed by the [ Dillon ] majority" (id., at p. 749)
which purported to limit recovery to damages for "shock which resulted in
physical injury." (Id., at p. 740; italics added.) Now the majority will
permit recovery for negligently caused emotional distress unaccompanied
by physical injury. The dissenters in Dillon were prescient in their concern
our courts were entering a "'fantastic realm of infinite liability'" (id.,
at p. 751).*fn1 |
| [86] | Good reason exists for denying recovery for plaintiffs' claim although
the majority appear to acknowledge none. (Ante, at pp. 924-925.)*fn2
The requirement of a concurrence of physical injury with claimed emotional
distress is a safeguard eliminating spurious claims for negligently inflicted
mental distress. That safeguard is now abandoned in favor of newly declared
standards designed by the majority opinion to limit recoveries under their
new, independent tort. A plaintiff claiming his or |
|
[27 Cal3d Page 935]
|
|
| [87] | her mental tranquility has been disturbed can now recover "'where proof
of mental distress is of a medically significant nature,'" or the claim
of mental distress is supported by "'some guarantee of genuineness in the
circumstances of the case.'" (Ante, p. 930.) In applying these standards,
jurors are said to be "best situated to determine whether and to what extent
the defendant's conduct caused emotional distress, by referring to their
own experience." (Id.) Such standards are nonstandards, opening wide the
door to abuse. |
| [88] | The majority incorrectly rely on State Rubbish etc. Assn. v. Siliznoff
(1952)
38 Cal. 2d 330
[
240 P.2d 282]
for their contention that jurors are best situated to determine if a defendant's
conduct causes emotional distress warranting recovery of damages pursuant
to standards fixed by today's majority. However, Siliznoff deals with intentional
infliction of fright, the court stating that jurors are "ordinarily in a
better position . . . to determine whether outrageous conduct results in
mental distress than whether that distress in turn results in physical injury."
(Id., at p. 311; italics added.) A different and difficult medical question
is presented when the resulting traumatic effect of mental distress must
be determined. It is this question which the majority would depend on jurors
to answer. Relying on a medical study (Smith, Relations of Emotions to Injury
and Disease (1944) 30 Va.L.Rev. 193), this court concluded in Amaya that
questions of the effects of emotional distress would not be easy ones for
jurors. "Here that 'difficult medical question' cannot be so easily avoided.
In the cited article . . . Dr. Smith . . . concludes (1) that 'a majority
of persons claiming injury from psychic causes possessed sub-normal resistance
to psychic stimuli'; (2) that 'In only 55 of the 301 cases surveyed could
we say actual causation was proved by a preponderance of substantial and
credible evidence'; and (3) that hence 'The skeptical courts were . . .
correct in doubting whether adequate criteria of proof existed in this field
to make administration of a remedy feasible. Law, in a commendable desire
to be forward looking, outran scientific standards. Taking all cases decided
between 1850 and 1944 . . . the net balance of justice would have been greater
had all courts denied damages for injury imputed to psychic stimuli alone.'"
(Amaya v. Home Ice, Fuel & Supply Co., supra,
59 Cal. 2d 295
, 311.) No empirical evidence exists and the record fails to establish that
psychiatrists and jurors have since become better equipped to evaluate the
traumatic effects of psychic stimuli. |
| [89] | The resolution of conflicts the majority would leave to jurors, "as doctors
well know . . . often borders on fancy when the causation of alleged |
|
[27 Cal3d Page 936]
|
|
| [90] | psychoneural disorders is at issue . . . . Much timeliness remains in
Dr. Smith's warning (id., at p. 212 of 30 Va.L.Rev.) that 'eagerness to
be progressive may cause extravagant credulity and injury to scientific
standards of proof.' Extravagant credulity, of course, means ultimate injustice."
(Id., at p. 312.) |
| [91] | The fundamental problem is not foreseeing (by unguided hindsight) the
consequences of unintentional conduct, but rather realistically limiting
liability for those consequences. "It is unthinkable that any one shall
be liable to the end of time for all the results that follow in endless
sequence from his single act. Causation cannot be the answer; in a very
real sense the consequences of an act go forward to eternity, and back to
the beginning of the world." (Prosser, Palsgraf Revisited (1953) 52 Mich.L.Rev.
1, 24.) In a system compensating injury based on fault, consideration must
be given to the "moral blame attached to the defendant's conduct" (Biakanja
v. Irving (1958)
49 Cal. 2d 647
, 650 [
320 P.2d 16
, 65 A.L.R.2d 1358]) in fixing liability. When the defendant's act is merely
negligent rather than intentional, lesser moral blame attaches, cautioning
against extending liability. (See Bauer, The Degree of Moral Fault as Affecting
Defendant's Liability (1933) 81 U.Pa.L.Rev. 586, 588-592.) Liability should
be proportionate to the actor's culpability, having in mind the utility
and necessity of the conduct negligently performed. Where, as here, imposition
of liability is far disproportionate to the degree of culpability, we do
a disservice to the public -- who must ultimately bear the cost -- by sanctioning
claims for hurt feelings.*fn3 |
| [92] | The signatories to the majority opinion have -- in cases where the balance
has weighed more heavily in favor of liability than in the instant case
-- refused for policy reasons to extend liability. In Borer v. American
Airlines, Inc. (1977)
19 Cal. 3d 441
[
138 Cal. Rptr. 302
,
563 P.2d 858]
, this court noted that "foreseeable injury to a legally recognized relationship"
does not necessarily postulate a cause of action, and that "social policy
must at some point intervene to delimit liability . . . . 'Every injury
has ramifying consequences, like the ripplings of the waters, |
|
[27 Cal3d Page 937]
|
|
| [93] | without end. The problem for the law is to limit the legal consequences
of wrongs to a controllable degree.'" (Id., at p. 446.) The author of today's
majority opinion has also properly cautioned against imposition of new burdens
on the courts: "As Chief Justice Burger lamented in United States v. Richardson
(1974) 418 U.S. 166, 179 [41 L.Ed.2d 678, 689-690, 94 S.Ct. 2940]: 'As our
society has become more complex, our numbers more vast, our lives more varied,
and our resources more strained, citizens increasingly request the intervention
of the courts on a greater variety of issues than at any period of our national
development.'" (Carsten v. Psychology Examining Com. (1980) ante, pp. 793,
801, fn. 2 [
166 Cal. Rptr. 844
,
614 P.2d 276].
) |
| [94] | The majority's creation of new consequences for old acts is wrong. The
judgment should be affirmed. |
|
|
|
| Opinion Footnotes | |
|
|
|
| [95] | *fn1
To the same effect, see Wallace v. Coca-Cola Bottling Plants, Inc. (Me.
1970) 269 A.2d 117, 121, in which the court discarded the rule that recovery
for mental suffering is dependent on bodily injury being alleged or proved:
"we adopt the rule that in those cases where it is established by a fair
preponderance of the evidence there is a proximate causal relationship between
an act of negligence and reasonably forseeable mental and emotional suffering
by a reasonably forseeable plaintiff, such proven damages are compensable
even though there is no discernable trauma from external causes. The mental
and emotional suffering, to be compensable, must be substantial and manifested
by objective symptomatology." |
| [96] | *fn2
We are aware of the allegation herein that Mrs. Molien suffered "injury
to her body and shock and injury to her nervous system." Thus defendants
contend that neither trivial physical injury nor emotional injury is adequate
to support a cause of action for loss of consortium. But since we have concluded
above that the distinction between physical injury and emotional distress
is no longer defensible, we do not uphold the present cause of action solely
on the ground that some physical injury was alleged. |
| [97] | *fn3
There is a paucity of authority from other jurisdictions. An Alabama court
held, with no analysis, that the cause of action for loss of consortium
is "premised upon a physical injury suffered by the spouse." (Slovensky
v. Birmingham News Co., Inc. (Ala.App. 1978) 358 So.2d 474, 477.) In New
York a plaintiff was apparently permitted to recover for loss of consortium
when his wife developed a "cancerphobia" caused by the defendants' negligent
medical malpractice. The propriety of the award, however, was not before
the Court of Appeals when it reviewed the judgment in favor of the wife
for her own mental anguish. (Ferrara v. Galluchio, supra, 176 N.Y.S.2d at
p. 998.) |
|
|
|
| Dissent Footnotes | |
|
|
|
| [98] | *fn1
The majority dismiss Dillon's three-point test as being inapplicable "to
a case factually dissimilar to the bystander scenario" (ante, p. 923), and
conclude we should look to Dillon's broader test of foreseeability of emotional
trauma on a case-by-case basis. However, the majority cannot escape the
Dillon requirement that even though foreseeable, emotional trauma must result
from physical injury to another. |
| [99] | *fn2
The majority are encouraged to today's decision by Dean Prosser's longstanding
advocacy. (Ante, pp. 924, 925-926.) However, even he recognizes the reasons
for the current rule, stating immediately before language quoted by the
majority (ante, at p. 926): "It is now more or less generally conceded that
the only valid objection against recovery for mental injury is the danger
of vexatious suits and fictitious claims, which has loomed very large in
the opinions as an obstacle. The danger is a real one, and must be met.
Mental disturbance is easily simulated, and courts which are plagued with
fraudulent personal injury claims may well be unwilling to open the door
to an even more dubious field." (Prosser, Torts (4th ed. 1971) § 54, p.
328.) |
| [100] | *fn3
The majority's new cause of action will surely suggest to even the less
ingenious a vehicle for avoiding prior limitations on certain causes of
actions. For instance, while we have not for some time recognized a cause
for alienation of affections -- an intentional tort -- the net effect of
today's judgment is to permit recovery for emotional distress and loss of
consortium caused by even the negligent alienation of plaintiff's wife's
affections by defendant. And in a case of slander where the plaintiff is
unable to establish all conditions to recovery for this intentional tort,
cannot he now obtain relief by alleging his mental tranquility was disturbed
-- even negligently -- by defendant's utterances? |
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