Opinion
PUGLIA, P. J. “The life of the law has not been logic: it has been experience.” (Holmes, The Common Law (1881) p. 1.) There are occasions in the course of judicial decisionmaking when it becomes necessary to stand athwart the relentless march of logic and shout, “Enough already!!” The decision in this case, in which plaintiff seeks to recover from his father for emotional distress allegedly occasioned by his father’s attempted suicide, is one of those occasions.
Plaintiff initiated this action against his father (defendant), to recover for emotional distress negligently inflicted by defendant who, immediately after he had murdered his wife (plaintiff’s mother), notified plaintiff of what he had done, advised plaintiff that he intended to take his own life and, when plaintiff appeared on the scene, attempted suicide in the presence of plaintiff, who successfully intervened. Following a number of pretrial rulings narrowing plaintiff’s claims, the court conducted a bench trial and entered judgment for defendant. Plaintiff appeals. We shall affirm.
I
On the evening of July 14, 1992, defendant killed his wife. He then telephoned plaintiff and declared: “ T just blew your mother’s head off and I am going to blow my head off.’ ” Plaintiff and his wife immediately drove the short distance to defendant’s home and found defendant in the driveway [489]“with a shotgun pointed [at] his chin, and the butt on the ground with [a] stick in the trigger mechanism area.” Plaintiff observed his mother in a parked car “slumped over from the driver’s side to the passenger’s side, with no face.” Plaintiff asked defendant if he was going to kill himself in front of his son and daughter-in-law and defendant responded: “ ‘You’re God damn right I am. I’m not going to jail.’ ” Plaintiff pleaded with defendant not to shoot himself. He kept talking to defendant and edged closer. When defendant was distracted, plaintiff “lunged for the gun.” They wrestled for control of the weapon and it discharged, very slightly injuring plaintiff’s wife. Defendant was subdued and taken into custody. He was later convicted of murdering his wife and sentenced to prison. As a result of the July 14 incident, plaintiff alleged he developed posttraumatic stress disorder.
Plaintiff and his siblings settled a wrongful death claim against defendant for the death of their mother. Thereafter, plaintiff and his wife initiated this action. Defendant moved to strike all claims relating to plaintiff’s observation of his mother’s corpse and defendant’s attempted suicide, contending such matters are not properly cognizable on a claim for negligent infliction of emotional distress. The court granted the motion. Plaintiff and his wife thereafter filed an amended complaint based essentially on the same factual allegations but seeking recovery on the basis of their status as rescuers. Defendant again moved to strike on the same basis as before, and the court granted the motion.
In his second amended complaint, plaintiff sought to recover for assault and battery and negligent infliction of emotional distress on the theory he was both a “bystander” and a “direct victim.”1 It was alleged the emotional distress was occasioned by the injury to plaintiff’s wife and the struggle over the shotgun.
Given its pretrial rulings, the court at trial refused to consider matters relating to the death of plaintiff’s mother or defendant’s attempted suicide. The court rejected the remaining claims as not supported by the evidence. The court specifically concluded there had been no assault or battery and, while plaintiff is in the class of persons to whom defendant owes a duty not to inflict emotional distress, defendant’s conduct was not sufficiently “outrageous” to be actionable.
On appeal plaintiff attacks the rejection of his claims both at trial and in pretrial rulings.
[490]II
Before addressing plaintiff’s contentions, we point out what this case is not about. This is not a wrongful death action regarding the murder of plaintiff’s mother. That claim was settled by plaintiff and his siblings. There is also no claim by plaintiff’s wife either for physical injury or emotional distress. Her claims were resolved prior to judgment and she has not appealed. Finally, the trial court found plaintiff suffered no physical injury, and this finding is not challenged on appeal.
Theories of recovery for emotional distress lead into an analytic quagmire. The California Supreme Court has undertaken to clarify this area of the law:
“The law of negligent infliction of emotional distress in California is typically analyzed ... by reference to two ‘theories’ of recovery: the ‘bystander’ theory and the ‘direct victim’ theory. . . . FJD . . . [<1Q We have repeatedly recognized that ‘[t]he negligent causing of emotional distress is not an independent tort, but the tort of negligence. . . . The traditional elements of duty, breach of duty, causation, and damages apply. [*]□ Whether a defendant owes a duty of care is a question of law. Its existence depends upon the foreseeability of the risk and a weighing of policy considerations for and against imposition of liability.
“The distinction between the ‘bystander’ and ‘direct victim’ cases is found in the source of the duty owed by the defendant to the plaintiff. The ‘bystander’ cases, commencing with Dillon v. Legg (1968) 68 Cal.2d 728 [69 Cal.Rptr. 72, 441 P.2d 912], and culminating in Thing [v. La Chusa] 48 Cal.3d 644 [257 Cal.Rptr. 865, 771 P.2d 814], address ‘the question of duty in circumstances in which a plaintiff seeks to recover damages as a percipient witness to the injury of another.’ . . . These cases ‘all arise in the context of physical injury or emotional distress caused by the negligent conduct of a defendant with whom the plaintiff had no preexisting relationship, and to whom the defendant had not previously assumed a duty of care beyond that owed to the public in general.’ ... In other words, bystander liability is premised upon a defendant’s violation of a duty not to negligently cause emotional distress to people who observe conduct which causes harm to another.
“Because in such cases the class of potential plaintiffs could be limitless, resulting in the imposition of liability out of all proportion to the culpability of the defendant, this court has circumscribed the class of bystanders to whom a defendant owes a duty to avoid negligently inflicting emotional [491]distress. These limits are set forth in Thing as follows: ‘In the absence of physical injury or impact to the plaintiff himself, damages for emotional distress should be recoverable only if the 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 emotional distress beyond that which would be anticipated in a disinterested witness.’ . . .
“In contrast, the label ‘direct victim’ arose to distinguish cases in which damages for serious emotional distress are sought as a result of a breach of duty owed the plaintiff that is ‘assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of a relationship between the two.’ ... In these cases, the limits set forth in Thing, supra, 48 Cal.3d 644, have no direct application. . . . Rather, well-settled principles of negligence are invoked to determine whether all elements of a cause of action, including duty, are present in a given case.
“Much of the confusion in applying rules for bystander and direct victim recovery to the facts of specific cases can be traced to this court’s decision in Molien [v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916 [167 Cal.Rptr. 831, 616 P.2d 813, 16 A.L.R.4th 518]], which first used the ‘direct victim’ label. In that case, we answered in the affirmative the question of whether, in the context of a negligence action, damages may be recovered for serious emotional distress unaccompanied by physical injury. . . .
“In so holding, we found that a hospital and a doctor owed a duty directly to the husband of a patient, who had been diagnosed incorrectly by the doctor as having syphilis and had been told to so advise her husband in order that he could receive testing and, if necessary, treatment. . . . We reasoned that the risk of harm to the husband was reasonably foreseeable and that the ‘alleged tortious conduct of the defendant was directed to him as well as to his wife.’ . . . Under such circumstances we deemed the husband to be a ‘direct victim’ and found the criteria for bystander recovery not to be controlling. . . .
“The broad language of the Molien decision, coupled with its perceived failure to establish criteria for characterizing a plaintiff as a ‘direct victim’ rather than a ‘bystander,’ has subjected Molien to criticism from various sources, including this court. . . . The great weight of this criticism has centered upon the perception that Molien introduced a new method for determining the existence of a duty, limited only by the concept of foreseeability. To the extent that Molien, supra, 27 Cal.3d 916, stands for this proposition, it should not be relied upon and its discussion of duty is limited [492]to its facts. As recognized in Thing, ‘[I]t is clear that foreseeability of the injury alone is not a useful “guideline” or a meaningful restriction on the scope of [an action for damages for negligently inflicted emotional distress.]’ . . .
“Nevertheless, other principles derived from Molien, supra, 27 Cal.3d 916, are sound: (1) damages for negligently inflicted emotional distress may be recovered in the absence of physical injury or impact, and (2) a cause of action to recover damages for negligently inflicted emotional distress will lie, notwithstanding the criteria imposed upon recovery by bystanders, in cases where a duty arising from a preexisting relationship is negligently breached. ... In fact, it is this later principle which defines the phrase ‘direct victim.’ That label signifies nothing more.” (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1071-1074 [9 Cal.Rptr.2d 615, 831 P.2d 1197], citations and fns. omitted, original italics.)
Despite the Supreme Court’s attempt in Burgess to clarify this area of the law, the waters were muddied two years later in Bro v. Glaser (1994) 22 Cal.App.4th 1398 [27 Cal.Rptr.2d 894]. Bro was a direct victim case in which an obstetrician nicked a baby’s cheek during delivery and the parents sued for infliction of emotional distress from seeing their newborn in a bandage. The Court of Appeal attempted to synthesize prior cases and come up with a black letter rule workable in all situations. The court decreed: “[A] person in an existing, consensual relationship with another has a legally protected interest in being free of emotional distress unintentionally caused by the outrageous conduct of that other.” (22 Cal.App.4th at p. 1441, italics added.)
We rejected Bro’s black letter approach in Mercado v. Leong (1996) 43 Cal.App.4th 317 [50 Cal.Rptr.2d 569], in which an obstetrician left a high-risk patient during labor to perform elective surgery on another and the delivery had to be performed by a family practitioner, who used a procedure which, under the circumstances, was contraindicated. The child suffered permanent injury to his arm. The trial court entered judgment for the defendant obstetrician based on a jury finding of no “outrageous” conduct. We reversed, explaining: “The Bro test strays from the guidelines established by the Supreme Court and places too great a reliance on one particular element of the general negligence principles which govern imposition of liability. Moreover, Bro injects language from the separate tort of intentional infliction of emotional distress into the negligence framework, effectively creating a hybrid cause of action. Such a creation is unwarranted, given the Supreme Court’s clear pronouncement that severe emotional distress resulting from negligent conduct does not constitute a separate tort. The results in [493]both pre- and post-Burgess cases can be explained by applying the concept of foreseeability along with the other policy considerations relevant to the particular facts.” (Mercado v. Leong, supra, 43 Cal.App.4th at p. 327.)
To summarize, a party may recover for negligent infliction of emotional distress as a bystander if he: (1) is closely related to the injury victim, (2) is present at the scene of the injury-producing event and is aware it is causing injury to the victim, and (3) suffers emotional distress beyond that anticipated in a disinterested witness. (Thing v. La Chusa (1989) 48 Cal.3d 664, 667-668 [257 Cal.Rptr. 865, 771 P.2d 814].) As a direct victim, a party may recover strictly emotional distress damages, i.e., absent physical injury or impact, where a duty arising from a preexisting relationship is negligently breached. (Burgess v. Superior Court, supra, 2 Cal.4th at p. 1074.) Under such circumstances, the defendant’s conduct need not be “outrageous,” only negligent. (Mercado v. Leong, supra, 43 Cal.App.4th at p. 327.) With this background, we turn to plaintiff’s contentions on appeal.
HI
Plaintiff contends the trial court erred in rejecting his claim for negligent infliction of emotional distress as a bystander based on the shotgun blast that injured his wife. Plaintiff testified he immediately became aware the blast hit the truck behind which his wife was standing. Plaintiff further testified that after defendant was subdued he looked to see if his wife was “okay” and could not find her. Plaintiff “kind of flipped out for a few minutes,” running around asking if anyone had seen her. Plaintiff was told she had been seen walking to a neighbor’s house and when he looked in that direction he saw her returning.
Plaintiff contends the evidence established (1) he was closely related to the victim, (2) he was nearby when she was injured, immediately became frightened for her safety, and learned soon thereafter that she had been injured, and (3) suffered emotional distress as a result.
Plaintiff’s contention is essentially a challenge to the sufficiency of the evidence. Our review is thus limited to a determination of whether the record contains evidence of “ponderable legal significance” which, when coupled with all reasonable inferences therefrom, supports the judgment of the trial court. (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1203-1204 [52 Cal.Rptr.2d 518].)
The critical fact precluding plaintiff’s bystander claim is that, while he may have feared for his wife’s safety, plaintiff was unaware of her injury [494]at or about the time it occurred. Plaintiff testified the first time he learned his wife had been injured was two hours after the incident. Hence, substantial evidence supports the conclusion of the trial court.
IV
We come now to the crux of this matter. Plaintiff contends the trial court erred in concluding he cannot recover as a direct victim for negligent infliction of emotional distress. Plaintiff argues defendant’s conduct, including killing plaintiff’s mother, inviting plaintiff to view the scene, attempting to kill himself in plaintiff’s presence, struggling over the shotgun, and discharging it, was sufficiently outrageous to support such a claim. He further argues that because there was physical impact during the struggle over the shotgun, the conduct need not have been outrageous.
As previously explained, plaintiff’s recovery for negligent infliction of emotional distress as a direct victim does not turn on whether defendant’s conduct was outrageous or whether there was physical impact or injury. The determinative issue is whether defendant owed plaintiff a duty of care under the circumstances presented.
“The threshold element of a cause of action for negligence is the existence of a duty to use due care toward an interest of another that enjoys legal protection against unintentional invasion. . . . Whether this essential prerequisite to a negligence cause of action has been satisfied in a particular case is a question of law to be resolved by the court. . . . HQ A judicial conclusion that a duty is present or absent is merely ‘ “a shorthand statement . . . rather than an aid to analysis .... ‘Duty,’ is not sacrosanct in itself, but only an expression of the stun total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.’”” (Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 397 [11 Cal.Rptr.2d 51, 834 P.2d 745, 48 A.L.R.5th 835], citations omitted.)
In the absence of a contractual obligation, the determination whether in a specific case a defendant will be held liable to a third person “is a matter of policy and involves the balancing of various factors, among which are the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to him, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, and the policy of preventing future harm.” (Biakanja v. Irving (1958) 49 Cal.2d 647, 650-651 [320 P.2d 16, 65 A.L.R.2d 1358]; Bily v. Arthur Young & Co., supra, 3 Cal.4th at p. 397.)
[495]Although the infliction of emotional distress may have been foreseeable under the bizarre circumstances of this matter, this is of little assistance to plaintiff. (See Krupnick v. Hartford Accident & Indemnity Co. (1994) 28 Cal.App.4th 185, 201 [34 Cal.Rptr.2d 39]; Huggins v. Longs Drug Stores California, Inc. (1993) 6 Cal.4th 124, 133 [24 Cal.Rptr.2d 587, 862 P.2d 148]; Thing v. La Chusa, supra, 48 Cal.3d 644, 663.) As explained in Thing v. La Chusa, supra, 48 Cal.3d at page 663: “[Fjoreseeability of the injury alone is not a useful ‘guideline’ or a meaningful restriction on the scope of the [negligent infliction of emotional distress] action. The Dillon experience confirms, as one commentator observed, that ‘[fjoreseeability proves too much. . . . Although it may set tolerable limits for most types of physical harm, it provides virtually no limit on liability for nonphysical harm.’ [Citation.]”
The other relevant policy factors do not support imposition of a duty in this instance. For example, where only emotional distress is claimed, the degree of certainty that plaintiff suffered injury is diminished.
With regard to the connection between defendant’s conduct and the injury claimed, this is necessarily suspect in a family setting. Heartache and emotional pain are an inherent staple of the parent-child relationship. Neither parent nor child will always live up to the other’s expectations. A parent may be distressed, for example, when his child fails in school or gets in trouble with the law. A child may be distressed when his parent is fired from a job or so mismanages the family’s finances that they are evicted for failure to pay rent.
These are examples of conduct which, though essentially self-destructive, cause emotional distress to members of the transgressor’s family. The experience of emotional trauma is certainly not the only defining characteristic of a family relationship, but it is one of them. Indeed, it is often the price to be paid for being a member of a close family unit. Only in families that are not close are the members sufficiently indifferent to one another’s personal failings not to feel emotional distress. To inject the cold, impersonal logic of the law into such an arena could lead to the destruction of close family relationships.
Furthermore, one may not necessarily assume the closeness of family ties solely from the existence of a parent-child relationship. This is necessarily a question of fact. Closeness may be attenuated where, as here, the child is an adult and neither the parent nor the child is dependent on the other for subsistence. One might also expect closeness to be diminished where, as here, the child was subjected to physical and emotional abuse at the hands of [496]the parent. In fact, plaintiff testified in deposition he went to defendant’s home after the phone call out of “curiosity,” rather than to save his father’s life.
The law imposes on a parent a duty to support and care for his child only until the child completes high school or reaches the age of 19 (Fam. Code, § 3901) or while the child is incapacitated (Fam. Code, § 3910). The law also recognizes a duty of an adult child to support his needy parents. (People v. Heitzman (1994) 9 Cal.4th 189, 210 [37 Cal.Rptr.2d 236, 886 P.2d 1229].) These obligations are not so much for the protection of the individuals involved but for the protection of society from the burden of supporting those unable to care for themselves. The law imposes no other obligations arising out of the parent-child relationship.
Because the law imposes no criminal sanction for intentional acts of self-destruction (Thor v. Superior Court (1993) 5 Cal.4th 725, 741 [21 Cal.Rptr.2d 357, 855 P.2d 375]), recognition of a duty under the circumstances presented in this case would be tantamount to imposing a duty on parents generally to refrain from conduct which would cause emotional distress to their emancipated, adult children. For example, liability would attach to a parent who, following an automobile accident in which a family member is killed, summons an adult child to the scene to lend assistance. In our view, family relationship alone is not a sufficient basis for imposing a duty of care to refrain from negligently causing emotional distress. It is not the province of the law to enforce a code of family or parental responsibility beyond that necessary to protect society from the burden of supporting those unable to support themselves.
Defendant’s conduct was morally reprehensible but not legally cognizable. As we explained in a different context: “It is the duty of the family member ... to weigh the risk of emotional trauma against the benefit of saving a loved one’s life. Having weighed that risk, the family member . . . may decline to go to the scene. But having elected to go, the relative must be prepared not only to rejoice in a rescue but to endure the emotional burden of a tragedy as well.” (Allen v. Toten (1985) 172 Cal.App.3d 1079, 1091 [218 Cal.Rptr. 725] [declining to impose a duty on police officers who brought a wife to the scene of a standoff between police and her husband who was threatening suicide].) Plaintiff came to the scene of defendant’s attempted suicide knowing full well his father’s intentions, perhaps hoping to avert an even greater catastrophe than had already befallen the family. In that, he was successful. But his involvement in these events did not constitute him a “victim,” direct or otherwise, of defendant’s conduct.
[497]V
Plaintiff contends the court erred in rejecting his claim for assault and battery. He argues that while defendant may not have intended to injure him, intent is immaterial where injury results from an unlawful or wrongful act. (See Lopez v. Surchia (1952) 112 Cal.App.2d 314, 318 [246 P.2d 111].)
This is again an attack on the sufficiency of the evidence. In rejecting plaintiff’s assault and battery claim, the trial court explained: “It is clear from the evidence that, from and after the time of [plaintiff’s] arrival, [defendant] threatened only to harm himself. [Defendant] did not threaten [plaintiff] or [plaintiff’s wife]. It is equally clear that [plaintiff] initiated the struggle over the shotgun. Commendable as his intervention may have been, the fact is that [plaintiff] approached [defendant] and initiated the physical struggle for possession of the shotgun. In fact, as [plaintiff] approached him, [defendant] backed up in order to keep [plaintiff] from approaching him. There is no evidence that [defendant] intended to harm either [plaintiff] or [plaintiff’s wife]. There is no evidence that, had [plaintiff] not intervened, [defendant] would have done anything to injure anyone other than himself.”
“A battery is any intentional, unlawful and harmful contact by one person with the person of another. ... A harmful contact, intentionally done is the essence of a battery. ... A contact is ‘unlawful’ if it is unconsented to. . . .” (Ashcraft v. King (1991) 228 Cal.App.3d 604, 611 [278 Cal.Rptr. 900], citations omitted.) The elements of a civil battery are: “‘1. Defendant intentionally did an act which resulted in a harmful or offensive contact with the plaintiff’s person; [*][] 2. Plaintiff did not consent to the contact; [and] [<fl] 3. The harmful or offensive contact caused injury, damage, loss or harm to the plaintiff.’ ” (Barouh v. Haberman (1994) 26 Cal.App.4th 40, 46, fn. 4 [31 Cal.Rptr.2d 259] [quoting from BAJI No. 7.50].)
Assuming intent is immaterial where injury results from an unlawful or wrongful act, substantial evidence supports the trial court’s implicit finding the conduct alleged to have constituted a battery was not unlawful or wrongful. The law imposes no criminal sanction for intentional acts of self-destruction. (Thor v. Superior Court, supra, 5 Cal.4th at p. 741.) In the face of the attempted suicide, plaintiff initiated the physical contact between himself and defendant. Defendant sought to avoid it. Defendant struggled with plaintiff to gain control of the shotgun in order to accomplish his goal of self-destruction. There was no intent to harm anyone other than himself. Plaintiff’s assault and battery claim was properly rejected.
[498]The judgment is affirmed.
Morrison, J., concurred.
The complaint also contains claims for recovery under a “rescue theory” and for wrongful death. Plaintiff has abandoned these theories on appeal.