Trapp v. Schuyler Construction

Opinion

AMERIAN, J.

This appeal is from an order of dismissal entered after the demurrer of respondent Schuyler Construction dba Regent Apartments to a first amended complaint was sustained without leave to amend.

Facts

Kenneth Trapp and Karen Trapp (hereinafter appellants), minors under 14 years of age, by Kenneth Trapp and Rose Trapp, their parents, allege in their first amended complaint for negligent infliction of emotional distress that they are the first cousins of Ian Glenn McSweaney, with whom they “had a very close emotional attatchment [sic].” It is further alleged that appellants and McSweaney “played together often and had a relationship analagous [sic] to a relationship between siblings. Plaintffs [sz'c] loved [McSweaney] as they would their own brother.”

Appellants brought this action after sustaining “great emotional distrubance [sic] and shock and injury to their nervous system [sic], resulting in gastrointestinal disorders, head aches [sic], shock, anxiety, and loss of sleep,” upon witnessing the drowning of McSweaney in a swimming pool located on respondent’s property. It is alleged that the death resulted from respondent’s negligence in maintaining the swimming pool and the swimming pool area.

Respondent demurred, asserting that the first amended complaint did not pass the guidelines to foreseeability of risk of emotional trauma 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.” (At pp. 740-741.)

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