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Souza v. City of Antioch4/30/1997
igently inflicted on individual citizens; suits against the state provide a fair and efficient means to distribute these losses." ( Id., 69 Cal. 2d at pp. 797-798.)
2. Negligent Infliction of Emotional Distress
Patricia Marin and her children appeal the trial court's grant of summary judgment foreclosing their action against defendants for negligent infliction of emotional distress. The sole issue on appeal is whether the family had the awareness that their relatives were being harmed when they heard gunshots from inside the house at 4745 Hunter Peak Court, which our law requires to enable them to recover in tort as bystanders. We conclude that they did not, and affirm the grant of summary judgment.
Our Supreme Court has striven to curtail a defendant's liability to those who naturally suffer when their relatives are killed or injured through negligence. (See Thing v. La Chusa (1989) 48 Cal. 3d 644, 257 Cal. Rptr. 865, 771 P.2d 814 [ Thing ].) In Thing, a mother was told by her daughter that her son had been hit by a car. Mrs. Thing rushed to the scene, where she saw her son, bloody and unconscious. In denying her the right to recover for negligent infliction of emotional distress, the Thing court explained, " ' distinction between distress caused by personal observation of the injury and by hearing of the tragedy from another is justified because compensation should be limited to abnormal life experiences which cause emotional distress. While receiving news that a loved one has been injured or has died may cause emotional distress, it is the type of experience for which in a general way one is prepared, an experience which is common. By contrast few persons are forced to witness the death or injury of a loved one or to suddenly come upon the scene without warning in situations where tortious conduct is involved. . . .' " ( Id. at p. 666, fn. 9, quoting Ochoa v. Superior Court (1985) 39 Cal. 3d 159, 165, fn. 6, 216 Cal. Rptr. 661, 703 P.2d 1.)
The rules Thing established have been called "harsh" ( Schwarz v. Regents of University of California (1990) 226 Cal. App. 3d 149, 156, 276 Cal. Rptr. 470 [ Schwarz ]), but they were deemed necessary both to bring certainty to the law (Thing, (supra) , 48 Cal. 3d at p. 647) and "to avoid limitless liability out of all proportion to the degree of a defendant's negligence . . . ." (Id. at p. 664). Toward these ends, Thing announced "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 . . . ." (Id. at pp. 667-668, fns. omitted, italics added.)
Our courts have hewn to these guidelines ever since, allowing for recovery "only in strictly limited circumstances." (Schwarz, (supra) , 226 Cal. App. 3d at pp. 158-159.) In Golstein v. Superior Court (1990) 223 Cal. App. 3d 1415, 273 Cal. Rptr. 270, parents sued a hospital where their son was negligently given a fatal overdose of radiation during treatment for a curable cancer. The hospital demurred, the trial court sustained the demurrer, and the Court of Appeal denied plaintiffs' petition to reinstate their action. The parents conceded they were not aware during the treatment that their son was being overexposed, and the court noted they could not have observed the overdose in any case. The court concluded that where an injurious event cannot be perceived, distress recovery is not allowed.
In Fife v. Astenius (1991) 23
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