Drew v. Drake

110 Cal.App.3d 555 (1980) 168 Cal. Rptr. 65 PAT DREW, Plaintiff and Appellant,

v.

WILLIAM DRAKE et al., Defendants and Respondents.

Docket No. 47113. Court of Appeals of California, First District, Division Four.

September 25, 1980. [556] COUNSEL

Gerald A. Emanuel, Larry J. Ince, John P. Hayes and Mayron, Emanuel, Ince & Hayes for Plaintiff and Appellant.

Jesse F. Ruiz and Wines, Robinson & Wood for Defendants and Respondents.

[557] OPINION

CHRISTIAN, J.

Pat Drew appeals from a judgment on demurrer, dismissing for failure to state a cause of action, a complaint against respondents William Drake and Sharon Drake for negligent infliction of emotional distress. The complaint also purported to state a cause of action for wrongful death; appellant does not challenge the judgment insofar as it dismissed that cause of action.

Appellant alleged that she and Eugene Maillet had lived together as "de facto spouses" continuously for three years and that appellant had suffered emotional distress when she witnessed the killing of Eugene Maillet in a vehicular collision caused by respondents' negligence. Respondents demurred, asserting that the complaint did not pass the three-part test of foreseeability established by the California Supreme Court in Dillon v. Legg (1968) 68 Cal.2d 728 [69 Cal. Rptr. 72, 441 P.2d 912, 29 A.L.R.3d 1316]: "(1) Whether plaintiff 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." (68 Cal.2d at pp. 740-741.)