Souza v. City of Antioch4/30/1997
on. Minutes later, she arrived to find her home engulfed in flames. In a ruling consistent with the holdings of both Ortiz and Wilks, the court held that the plaintiff did not need to have witnessed the crash or the actual injuries being inflicted on her family to recover. The fatal event, the court ruled, the fire that ensued from the crash, was ongoing. And, knowing that her family members were inside the house, plaintiff had to have known they were experiencing injury while she watched the house burn.
While these cases plainly show that a successful plaintiff need not "actually have witnessed the infliction of injury to her [relative]" (Wilks, (supra) , 2 Cal. App. 4th at p. 1271), they also show that fearing the worst is different from knowing the worst, and is not enough for bystander recovery. As the Fife court stated, "recovery . . . is possible only if a plaintiff is present at the scene . . . and is then aware a family member is being injured."(Fife, (supra) , 232 Cal. App. 3d at p. 1093, original italics.) Or, as the Wilks court put it, the plaintiff must be "at the scene of the accident and . . . sensorially aware, in some important way, of the accident and the necessarily inflicted injury to her [relative.]" (Wilks, (supra) , 2 Cal. App. 4th at p. 1271, italics added.)
Patricia Marin and her children have not made such a case. Each of their depositions shows that when they heard the shots that killed their family members, they did not know who, if anyone, had been injured. At worst, they imagined what anyone in their shoes would imagine: that something terrible had happened to someone they loved. Marin, in deposition, testified that, when she heard the shots that killed her family, she thought "that the police broke in and killed them." William Souza testified, "You just get this feeling that goes over you like, . . . something bad has happened." Cynthia Poipao testified that although she heard the shots and doors crashing, she could not tell from what part of the house the sounds came. Like her brother, she conceded it was "fair to say" that when she first heard the shots she did not know what had happened. She amplified, "I probably thought that [Joel] -- that somebody shot him or he shot himself. I mean, I knew he was in danger."
These statements do not establish that, when they heard the shots, Joel Souza's family was "then aware" that he or the children had been injured. (Fife, (supra) , 232 Cal. App. 3d at 1093.) And, unlike the explosion in Wilks or the fire in Air Crash Disaster, the gunshots in this case were not enough to enable a bystander to conclude that their loved ones were "necessarily" injured. (Wilks, (supra) , 2 Cal. App. 4th at p. 1271.) There were many people with guns in the house. From outside, it was impossible to tell which of them had fired the shots or at whom, if anyone. By their own accounts, until they saw Nicholas's body being taken from the house, none of the family members knew what had happened. Their testimony describes suspense, not surprise. And for that reason, their anguish, though very real, is different from that of one "forced to witness the death or injury of a loved one or to come upon the scene without warning in situations where tortious conduct is involved." (Thing, (supra) , 48 Cal. 3d at p. 666, fn. 9.) Their distress is not compensable.
Conclusion
We affirm the trial court's grant of summary judgment in the family's case against the defendants. In the plaintiff's action for wrongful death, we reverse the court's rulings on duty and immunity, and remand for further proceedings. Respondents are entitled to their costs of opposing the family's appeal. The plaintiff is entitled to her costs of appea
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