Appellant Gary Coon (appellant) appeals from a judgment of dismissal following an order sustaining a demurrer without leave to amend
Allegations of Complaint and Procedural History
For purposes of this appeal, we treat as true the allegations of the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [216 Cal.Rptr. 718, 703 P.2d 58].) The complaint here alleges as follows. On September 23, 1984, in San Francisco, appellant and a male friend (Ervin) attempted to board a municipal bus of respondent City and County of San Francisco (City). Appellant had been living with his friend for a year, and they had an intimate, stable and "emotionally significant" relationship as "exclusive life partners." The bus driver, respondent Michael Joseph (bus driver), "denied [appellant] entry to the number 19 Polk bus, but allowed [Ervin] onto said bus." Bus driver, in full view and hearing of appellant, verbally abused Ervin and struck his face. When appellant observed the assault on his friend, he suffered great mental and emotional distress. The complaint alleges four causes of action: intentional infliction of emotional distress, negligent infliction of emotional distress, negligence, and violation of appellant's civil rights under Civil Code section 51.7.
Respondents City and bus driver demurred to the entirety of the complaint on the grounds that it failed to state any cause of action against them. After appellant's counsel advised the trial court that he elected not to amend the complaint, the court sustained the demurrer without leave to amend.
We conclude that none of the four causes of action allege facts sufficient to constitute any cause of action against respondents bus driver or City.
Intentional Infliction of Emotional Distress
In Ochoa v. Superior Court (1985) 39 Cal.3d 159 [216 Cal.Rptr. 661, 703 P.2d 1], our Supreme Court explained the substantial hurdle a plaintiff, who
The Ochoa court averred to a movement towards allowing recovery for the intentional tort by one who is not the direct victim in "`the most extreme cases of violent attack, where there is some especial likelihood of fright or shock.'" (Ochoa v. Superior Court, supra, 39 Cal.3d at p. 165, fn. 5, citing Prosser & Keeton on Torts (5th ed. 1984).) Delia S. v. Torres (1982) 134 Cal.App.3d 471 [184 Cal.Rptr. 787] constitutes one such rare exception. There, the court permitted recovery by the husband of a rape victim against the rapist, one of husband's friends, for intentional infliction of emotional distress. The court reasoned that the rape of one's wife, particularly by a friend, would inevitably result in such humiliation and profound emotional consequences for the husband so as to constitute a personal wrong against him. (Id., at p. 484.)
Negligent Infliction of Emotional Distress
In Dillon v. Legg, supra, 68 Cal.2d 728, our Supreme Court, in allowing recovery by a witness to an injury for negligent infliction of emotional distress, acknowledged the need "to limit the otherwise potentially infinite liability which would follow every negligent act...." (Id., at p. 739.) Accordingly, the court set forth three factors determinative of whether a witness to an injury may recover for negligent infliction of emotional distress: (1) whether the person was located near the scene of the accident as contrasted with one who was a distance away from it; (2) whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence; (3) whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship. (Id., at pp. 740-741.)
The third factor is the subject of this appeal: whether appellant has pleaded a sufficiently "close relationship" with Ervin to justify the imputing of foreseeability of the emotional distress to the respondent tortfeasors.
The consequences of the extension of a "close relationship" beyond the parent-child and husband-wife relationship have concerned legal scholars as well as the courts. Keeton and Prosser query: "If recovery is to be permitted, however, it is also clear that there must be some limitation. It would be an entirely unreasonable burden on all human activity if the defendant who has endangered one person were to be compelled to pay for the lacerated feelings of every other person disturbed by reason of it, including every bystander shocked at an accident, and every distant relative of the person injured, as well as all his friends." (Prosser & Keeton on Torts, supra, p. 366.)
Trapp v. Schuyler Construction (1983) 149 Cal.App.3d 1140 [197 Cal.Rptr. 411] and Kately v. Wilkinson (1983) 148 Cal.App.3d 576 [195 Cal.Rptr. 902] demonstrate strict adherence to Drew's limitations on "close relationship."
In Trapp, two minors sought recovery for negligent infliction of emotional distress after witnessing their cousin drown in a swimming pool located on the defendant's property. The complaint alleged that the minors and their cousin "had a relationship analagous [sic] to a relationship between siblings." (Trapp v. Schuyler Construction, supra, 149 Cal. App.3d at p. 1141.) The court denied recovery as a matter of law, stating that a "close relationship" did not include friends or those standing in a "meaningful relationship." (Id., at p. 1142.)
In Kately, the court denied recovery for emotional distress by a mother and daughter who had witnessed the death of a child caused by the defendant's defective product. The court stated that although the decedent allegedly had been like a natural member of the family, to permit recovery "would abandon the Dillon v. Legg requirement that courts mark out the areas of liability excluding the remote and unexpected." (Kately v. Wilkinson, supra, 148 Cal. App.3d at p. 585.)
To include the "emotionally significant," "stable," and "exclusive" relationship pled by appellant as a "close relationship" within the meaning of Dillon v. Legg would invite inconsistent results because recovery would be dependent upon the personal, completely subjective viewpoints of the trier of fact. For this reason, among others, California courts have denied liability for loss of consortium absent a legal husband-wife relationship at the time of the occurrence of the injury. (Ledger v. Tippitt, supra, 164 Cal.App.3d 625, 633-640 [recovery denied even though parties had attempted to marry, lived together, and plaintiff had borne the child of the decedent]; Lieding v. Commercial Diving Center (1983) 143 Cal.App.3d 72, 76 [191 Cal.Rptr. 559] [recovery denied where injured party asked plaintiff to marry him before accident and they married after accident]; Tong v. Jocson (1977) 76 Cal.App.3d 603, 605 [142 Cal.Rptr. 726] [recovery denied where parties engaged before accident and married after accident]; contra Butcher v. Superior Court (1983) 139 Cal.App.3d 58 [188 Cal.Rptr. 503, 40 A.L.R.4th 539].)
In Ledger v. Tippitt, supra, 164 Cal.App.3d 625, the court held that plaintiff's complaint failed to state a cause of action for loss of consortium but did state a cause of action for negligent infliction of emotional distress. Although appellant relies upon Ledger, we find that case not controlling here. Plaintiff in Ledger alleged that defendant had stabbed the decedent in front of her and that decedent had bled to death in her arms. Plaintiff and decedent had lived together for two years and twice had attempted to marry. She had borne their son whom she was holding at the time of the stabbing. The court held that plaintiff should not be denied recovery merely because their marriage license had never been recorded. (Id., at p. 646.) It stated: "`[There is no] more fundamental family relationship than one
Without commenting on the soundness of Ledger, we find it inapposite. The complaint here does not allege facts establishing a "de facto" marital relationship recognized in Ledger. Nor could such allegation be made because appellant and Ervin are both males and the Legislature has made a determination that a legal marriage is between a man and a woman. (Civ. Code, § 4100; see McClure v. Donovan (1949) 33 Cal.2d 717, 728 [205 P.2d 17]; Hinman v. Department of Personnel Admin. (1985) 167 Cal.App.3d 516, 526 [213 Cal.Rptr. 410].) Accordingly, appellant has failed to state a cause of action for negligent infliction of emotional distress.
Appellant's Claims of Negligence and Civil Rights Violations
These claims do not merit extensive discussion.
The factual circumstances and issues in Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780 [221 Cal.Rptr. 840, 710 P.2d 907], cited by appellant, are not relevant here. There, the court held that a transit authority owes a duty of care to its passengers to protect them from assaults from fellow passengers under Civil Code section 2100. (Lopez, supra, at p. 791.) Here, the complaint does not allege, as stated above, that appellant was a passenger or that he was assaulted.
For these reasons, we affirm the order of the trial court sustaining the demurrer to the complaint and the judgment of dismissal.
Barry-Deal, J., concurred.
For the reasons stated in part III of the majority opinion, I concur in the decision to restrict the definition of a "close relationship" under Dillon v. Legg (1968) 68 Cal.2d 728 [69 Cal.Rptr. 72, 441 P.2d 912, 29 A.L.R.2d 1316] to a marital relationship meeting the legal requirements imposed by our Legislature, as well as to the parent-child and other close relationships identified in the lead opinion. I write separately to emphasize that it is the obligation of the Legislature to examine the question whether people in committed relationships, both heterosexual and homosexual, other than those meeting the legal requirements for marriage, should be accorded recognition giving rise to all, or selected, legal rights traditionally reserved to married persons.
Historically, the Legislature has had the full authority to prescribe rules governing the marital relationship, including its creation and the rights and obligations incident to it. (McClure v. Donovan (1949) 33 Cal.2d 717, 728 [205 P.2d 17].) For this reason our statutes control the validity of marriages without regard to the common law. (Norman v. Thomson (1898) 121 Cal. 620, 621 [54 P. 143].) Legislative regulation of marital status is warranted because the creation and enforcement of rights incident to it involve complex questions of public policy.
The Legislature has determined that only a man and a woman can enter into a valid marriage (Civ. Code, § 4100 [the constitutionality of which is not challenged in this appeal]), and that a common law marriage, that is, a mutual assumption of marital rights, duties and obligations without compliance with licensing and solemnization requirements, cannot be contracted
I believe that the question of extension of marital rights and benefits beyond the legally recognized marital relationship against third parties and governmental entities is a matter of public policy demanding the attention of the Legislature. These rights and benefits include recognizing the right to bring tort actions for wrongful death and for negligent infliction of emotional distress as well as the right to employee benefits such as family health care, group insurance and unemployment benefits. (See Rivera, Our Straight-Laced Judges: The Legal Position Of Homosexual Persons In The United States (1979) 30 Hastings L.J. 799, 874.) Because it is my view that the decision to extend these and other rights to committed nonmarital relationships is a matter for the Legislature,
I dissent from the majority's holding that an intimate homosexual relationship cannot be a significant relationship as a matter of law for stating a cause of action for negligent infliction of emotional distress; however for the reasons stated below I still must concur in the judgment.
In order for a plaintiff to recover for negligent infliction of emotional distress, the court must determine that the accident and injuries were reasonably foreseeable not to the particular defendant, but to the ordinary man. (Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 922 [167 Cal.Rptr. 831, 616 P.2d 813, 16 A.L.R.4th 518]; Dillon v. Legg, supra, 68 Cal.2d 728, 741.) In determining whether a defendant should reasonably
The majority only relies on the third criteria for determining that appellant failed to state a cause of action. The majority looks at different cases for the type of significant relationship which is required to state a cause of action for negligent infliction of emotional distress and states: "The inclusion of an intimate homosexual relationship within the `close relationship' standard would render ambivalent and weaken the necessary limits on a tortfeasor's liability mandated by Dillon. We view the establishment of a clear and definite standard limiting liability to be of great importance." Dillon did not mandate the limits on a tortfeasor's liability under the three factors stated above. "It is important to remember that the factors set forth in Dillon were merely guidelines to be used in assessing whether the plaintiff was a foreseeable victim of the defendant's negligence. As we stated in Dillon: `We are not now called upon to decide whether, in the absence or reduced weight of some of the above factors, we would conclude that the accident and injury were not reasonably foreseeable and that therefore defendant owed no duty of care to plaintiff. In future cases the courts will draw lines of demarcation upon facts more subtle than the compelling ones alleged in the complaint before us.'" (Ochoa v. Superior Court (1985) 39 Cal.3d 159, 170 [216 Cal.Rptr. 661, 703 P.2d 1].)
Contrary to the majority's statement that "the establishment of a clear and definite standard limiting liability" is of great importance, the California Supreme Court in Ochoa approves a more flexible approach to the Dillon guidelines. Ochoa examined Dillon's contemporaneous observation requirement and permitted recovery to a mother who had seen her child's health deteriorate through neglect while the child was in a juvenile hall infirmary which resulted in his death when she was not present. "The fear that a less than strict application of the Dillon factors will result in `infinite liability' should not prevent courts from allowing plaintiffs to go forward when their shock and trauma stems from their sensory perception of defendant's conduct and their loved one's injury, ... In Dillon defendant argued that an otherwise meritorious claim should be barred out of a fear that there would be an increase in suits as well as fraudulent claims. We repeat here our response to such a contention: `"[We] should be sorry to
The majority states: "To include the `emotionally significant,' `stable,' and `exclusive' relationship pled by appellant as a `close relationship' within the meaning of Dillon v. Legg would invite inconsistent results because recovery would be dependent upon the personal, completely subjective viewpoints of the trier of fact." In MacGregor v. Unemployment Ins. Appeals Bd. (1984) 37 Cal.3d 205 [207 Cal.Rptr. 823, 689 P.2d 453], wherein the court held that when a worker leaves her employment to accompany her "nonmarital partner" to another state in order to maintain the familial relationship they have established with their child, she voluntarily leaves work with good cause within the meaning of the statute governing eligibility for unemployment insurance benefits. In MacGregor the court recognized that a holding that would preclude benefits in the absence of a legal marriage relationship would "avoid the difficulties and dangers which would accompany a requirement that administrative agencies and courts make individualized determination of the `true nature' of intimate personal relationships." (Id., at p. 213.) The court in MacGregor in holding that the absence of legally recognized marriage did not preclude an individual from receiving unemployment compensation benefits stated: "This court considered similar arguments in Norman v. Unemployment Ins. Appeals Bd.  34 Cal.3d 1 [192 Cal.Rptr. 134, 663 P.2d 904]. There, although we declined to find good cause based solely on a nonmarital relationship in which marriage was not imminent, we explicitly declined to hold that a legal marriage is a prerequisite for establishing good cause where other indices of compelling familial obligations exist. [Citation.] Today we reaffirm the principle that the lack of a legally recognized marriage does not prevent a claimant from demonstrating that compelling familial obligations provided good cause for leaving employment." (Id., at p. 213.)
Often the closeness of a relationship is analyzed in order to determine whether a plaintiff may recover for negligent infliction of emotional distress when plaintiff witnesses a particular person injured. In Mobaldi v. Regents of University of California (1976) 55 Cal.App.3d 573 [127 Cal.Rptr. 720] (disapproved on other grounds in Baxter v. Superior Court (1977) 19 Cal.3d 461, 466, fn. 4 [138 Cal.Rptr. 315, 563 P.2d 871]) the relationship of foster mother and foster child was held to be sufficient to permit recovery. In
For our purposes an important case is Ledger v. Tippitt (1985) 164 Cal.App.3d 625 [210 Cal.Rptr. 814], wherein the court held that an unmarried mother living with the father of her child stated a cause of action for negligent infliction of emotional distress as a result of her observation of an assault on the father which caused his death.
Thus, the majority's statement "to include the `emotionally significant,' `stable,' and `exclusive' relationship pled by appellant as a `close relationship' invites inconsistent results because recovery would be dependent upon the personal, completely subjective viewpoints of the trier of fact" may be true but the courts have been determining for some time whether a particular relationship constitutes a significant one. The closeness of a relationship for the negligent infliction of mental distress goes to foreseeability and is thus an issue for the court to decide. "`The courts thus mark out the areas of liability, excluding the remote and unexpected.'" (Molien v. Kaiser Foundation Hospitals, supra, 27 Cal.3d 916, 922.) Since homosexuals cannot marry (Civ. Code, § 4100), under the majority's decision, they are precluded from ever recovering for negligent infliction of emotional distress. However, recovery for negligent infliction of emotional distress is not limited to couples that are married. (Ledger v. Tippitt, supra, 164 Cal.App.3d 625.) When marriage is not a requirement for recovery, there is no reason to distinguish between heterosexual relationships and homosexual relationships in determining whether the relationship is significant and stable. (Note, Marital Status Qualifications: Protecting Homosexual and Heterosexual
In a contemporary society (and particularly in San Francisco) it is foreseeable a homosexual relationship might exist. Such a relationship may be significant enough to meet the third Dillon requirement. "`[F]amily' may `mean different things under different circumstances. The family, for instance, may be ... a particular group of people related by blood or marriage, or not related at all, who are living together in the intimate and mutual interdependence of a single home or household....'" (MacGregor v. Unemployment Ins. Appeals Bd., supra, 37 Cal.3d 205, 212.)
While I dissent from the majority's holding that an intimate homosexual relationship cannot be a significant relationship for stating a cause of action for negligent infliction of emotional distress, I must still concur in the judgment.
As noted in the beginning of this dissent and concurrence the courts must determine what an ordinary man under such circumstance should have reasonably foreseen, thus marking out the areas of liability, excluding the remote and unexpected. (Dillon v. Legg, supra, 68 Cal.2d 728, 741.) An action for negligent infliction of mental distress will not lie for bad manners or trivialities, but tortious conduct resulting in substantial invasions of clearly protected rights. (Molien, supra, at p. 927.) The complaint alleges that appellant was denied entry to a San Francisco Municipal Bus, but his significant other was allowed onto the bus. It is further alleged that the defendant bus driver verbally abused Robert Ervin and struck him. The complaint does not allege that Robert Ervin was physically injured in any manner at all. I simply do not find this conduct by the bus driver, without an allegation that Robert Ervin was injured in some significant manner, would cause an ordinary person to foresee that appellant would suffer any substantial emotional distress. (Accounts Adjustment Bureau v. Copperman (1984) 158 Cal.App.3d 844, 848 [204 Cal.Rptr. 881].) Recovery for this tort was not meant to cover every situation in which an individual acts improperly, but rather toward tortious conduct resulting in substantial invasions of clearly protected rights.
Since appellant does not plead any medical injury to himself or his significant other, there is nothing in the complaint to support the genuineness of the claim. "The Molien court's evolutional reiteration of the Dillon foreseeability test for establishing emotional distress is not, however, free of any pleading requirements. Although foreseeability must generally be adjudicated
In conclusion, I disagree that a homosexual relationship cannot be of a significant nature to sustain a cause of action for negligent infliction of emotional distress. However, I concur in the judgment because appellant failed to plead his case in such a manner to support the genuineness of the claim.
A petition for a rehearing was denied July 22, 1987, and appellant's petition for review by the Supreme Court was denied September 17, 1987.