Does a mother who suffers emotional trauma and resulting physical injury from witnessing the negligently caused death of her child, while located outside the zone of physical danger, state a cause of action against the negligent defendant?

On September 27, 1964, David Luther Legg drove his automobile southerly on Bluegrass Road near its intersection with Clover Lane in Sacramento County. Erin Lee Dillon, an infant, was lawfully crossing the road when Legg's negligently operated vehicle collided with her, causing injuries that proximately resulted in her death. Margery Dillon, Erin's mother, was in close proximity to the collision and personally witnessed it. She alleged that, because of Legg's negligence, she suffered great emotional disturbance, shock, and injury to her nervous system, causing great physical and mental pain and suffering. Cheryl Dillon, Erin's sister, also witnessed the collision and alleged similar shock and injury. The record indicated that Cheryl may have been on the curb, possibly within the zone of danger or fearing for her own safety, while the mother admittedly was not within the zone of danger. Legg asserted contributory negligence by the mother, sister, and child as a defense.

Margery Dillon, on behalf of herself and her daughter Cheryl, sued Legg in the Sacramento County trial court, asserting three causes of action: wrongful death, the mother's claim for emotional trauma, and Cheryl's claim for emotional trauma. After answering, Legg moved for judgment on the pleadings, relying on Amaya v. Home Ice, Fuel & Supply Co. (1963), arguing that no cause of action exists for emotional distress induced by witnessing negligently caused injury to a third person unless the plaintiff feared for her own safety. The trial court granted the motion as to the mother's second cause of action and dismissed it, but denied it as to Cheryl's third cause of action because she may have been within the zone of danger. Legg later moved for summary judgment on Cheryl's count, which the trial court denied on the ground that the pretrial order precluded it. The mother appealed the judgment to the California Supreme Court.

(Tobriner, J.)

Yes. A mother who suffers physical injury from shock at witnessing the negligently caused death of her child states a cause of action even though she was outside the zone of danger. The zone-of-danger rule is artificial and indefensible: it would allow the sister to recover because she stood a few yards closer to the accident while denying recovery to the mother. Because California already rejected the physical impact requirement, the zone-of-danger concept collapses, since its only justification is fear of impact.

The twin fears underlying the denial of a duty fail. First, the possibility of fraudulent claims does not justify barring an entire class of meritorious claims. A mother's shock at seeing her child killed is real and serious, and courts must rely on the judicial process to separate meritorious claims from fraudulent ones, as in Emery v. Emery and Klein v. Klein. Second, the inability to define liability in future cases does not bar recovery on these facts. Duty turns on foreseeability of risk, which is decided case by case, and courts have drawn workable limits in analogous contexts such as the open car cases, negligent will drafting, intentional infliction of emotional distress, and English shock cases.

In determining whether the injury was reasonably foreseeable, courts consider: (1) whether the plaintiff was located near the scene of the accident; (2) whether the shock resulted from a direct emotional impact from sensory and contemporaneous observance of the accident rather than learning of it later; and (3) whether the plaintiff and victim were closely related. All three factors are present here, since a driver who kills a child may reasonably foresee that the mother will be nearby and suffer trauma. Recovery is contingent on the defendant's primary liability, so if contributory negligence defeats liability for the child's death, the mother cannot recover. Amaya is overruled to the extent inconsistent, and the judgment is reversed.

Dissent (Traynor, C. J.) Dissents for the reasons set forth in Amaya v. Home Ice, Fuel & Supply Co. (1963). That case was correctly decided and should not be overruled.

Dissent (Burke, J.) Amaya thoroughly studied and expressly rejected liability for shock induced solely by apprehension of danger to a third person, and the majority overrules it without discussing its history and policy. Every argument advanced by the majority was already considered and rejected in Amaya, and no American jurisdiction has permitted such recovery. The majority relies on English cases applying Hambrook, which Amaya rejected. The majority's guidelines, which restate Professor Prosser's suggestions, were already rejected in Amaya and produce arbitrary distinctions: how close the relationship, how near the scene, how soon the shock, and whether physical presence matters. No fallacy exists in allowing recovery for objectively reasonable fear for one's own safety while denying it for fear for others. The liability imposed is out of proportion to the tortfeasor's culpability and invites the fantastic realm of infinite liability. The majority answered that the zone-of-danger line is artificial, since it lets the sister recover but bars the mother a few yards farther away, and that case-by-case foreseeability guidelines can limit liability. The majority also leaves unexplained its statement that contributory negligence of one family member defeats another's recovery, contrary to the principle that family relationships do not impute contributory negligence. The Legislature, which has not changed Amaya in five years, should reconsider the subject.

Dissent (McComb, J.) Concurs in the dissent of Justice Burke and would affirm the judgment.