Aldaco v. Tropic Ice Cream Co.

California Court of Appeal Sep 23, 1980 No. Civ. 22067Published

Before: Brown (Gerald)

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Holding. A cause of action for negligent infliction of emotional distress under Dillon v. Legg accrues when the physical manifestations of the emotional trauma first appear, rather than at the time of the negligent act. Because the complaint did not state when these physical effects occurred, the statute of limitations bar was not apparent on the face of the pleading.

Issues

Does a cause of action for negligent infliction of emotional distress under Dillon v. Legg accrue at the time of the negligent act or when physical injury manifests?
May a trial court sustain a demurrer on statute of limitations grounds when the complaint does not allege the date of physical manifestation?

Disposition. reversed

Quotations verified verbatim against the opinion

“A cause of action under Dillon accrues when the physical manifestations of the emotional trauma first appear.”

“Until the physical effects of the emotional distress appear, the last element essential to a Dillon cause of action has not occurred”

Opinion

BROWN (Gerald), P. J.

Gabriel Aldaco, by his guardian ad litem, sued Tropic Ice Cream Company (Tropic) and others for damages for personal injuries he suffered on October 23, 1977. Tropic cross-complained on December 8, 1978, seeking indemnity from Gabriel’s parents, Manuel and Henrietta Aldaco, and alleging they negligently failed to supervise their son. On March 12, 1979, the parents cross-complained against Tropic, seeking damages for negligent infliction of emotional distress and alleging they suffered severe emotional trauma manifested by physical injury as a result of seeing their son’s injuries. Tropic demurred to the parents’ cross-complaint on the ground it was barred by the one-year statute of limitations (Code Civ. Proc., § 340, subd. 3). The trial court sustained the demurrer without leave to amend and the parents appeal the judgment dismissing their cross-complaint.

Did the parents’ cause of action for negligent infliction of emotional distress under

Dillon

Legg

(1968) 68 Cal.2d 728 [69 Cal.Rptr. 72, 441 P.2d 912, 29 A.L.R.3d 1316], accrue at the time of the negligent act causing the emotional distress, or at some later time, when the resulting physical injury manifested itself?

In resolving this question, we do not apply our Supreme Court’s recent decision in

Molien

Kaiser Foundation Hospitals

(1980) 27 Cal.3d 916 [167 Cal.Rptr. 831, 616 P.2d 813], permitting recovery for

[526]

negligently inflicted emotional distress unaccompanied by physical injury. All the events and proceedings here occurred long before the

Molien

decision, and the parents based their cross-complaint on

Dillon,

which requires physical injury before a plaintiff can recover for negligently inflicted emotional distress. Under these circumstances, it would be inequitable to apply

Aldaco v. Tropic Ice Cream Co.

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