Opinion
SILLS, P. J.
Introduction and Facts
In December 1993, a group of employees at a Honda dealership in Santa Ana watched a corporate jet fall out of the sky. They feared the jet would crash into them. They feared injury from the ensuing explosion.
The jet didn’t crash into them. Rather, it crashed into nearby ground. Despite their fears, the employees were among the first to arrive at the scene of the crash, to offer whatever assistance they could, and to observe the aftermath.
The employees, led by James Lawson, later sued Management Activities, Inc., and several related entities, the owners and operators of the jet, for the “serious, substantial and enduring mental anguish” occasioned by the crash. The trial court dismissed the case after it sustained a demurrer without leave to amend and Lawson and his coworkers brought this appeal.1
If this court were to apply the principles articulated in Bro v. Glaser (1994) 22 Cal.App.4th 1398 [27 Cal.Rptr.2d 894], Justice McDaniel’s tour de force in the area of damages for emotional distress under a negligence theory (the reader should note we do not use the phrase “negligent infliction of emotional distress”), we might end this opinion right here with a summary affirmance.
To oversimplify the Bro opinion, emotional distress recovery in negligence falls into two categories, “direct victim” and “bystander” situations, depending on whether the plaintiff suffered emotional distress upon seeing someone else physically hurt—if so, then it is a “bystander” situation, if not, “direct victim.” If the plaintiff claims direct victim status, Bro divines the [655]requirement that there be both a preexisting consensual relationship between the parties (see, e.g., Bro v. Glaser, supra, 22 Cal.App.4th at pp. 1416, 1427) and the defendant’s conduct reach a certain level of outrageousness (see, e.g., id. at pp. 1434, 1438-1439, 1441). In the case before us, there is no doubt that there was no preexisting relationship between the parties, much less a consensual one. Nothing comes close to outrageousness. Quite the opposite really: The reasonable inference from the complaint is that the captain of the jet courageously managed to avoid crashing into a populated area.
The plaintiffs, however, argue that their case cannot be shoehorned into the categories of “direct victim” or “bystander” because they feared for their own safety in those few horrific moments before the crash. And they point to a body of California case law, most recently relied on by the Ninth Circuit in another airplane crash case, In re Air Crash Disaster Near Cerritos, Cal. (9th Cir. 1992) 973 F.2d 1490, to propound the rule that individuals who simply fear for their own safety because of a defendant’s negligence may always recover for the ensuing emotional distress.2 We also note that the recent decision in Wooden v. Raveling (1998) 61 Cal.App.4th 1035 [71 Cal.Rptr.2d 891] takes issue with both the preexisting relationship and outrageous conduct requirements articulated in Bro for “direct victim” cases based on fear for one’s own safety. (See Wooden, supra, 61 Cal.App.4th at pp. 1038-1042.)
We will not attempt, in this opinion, to articulate any great general rules for emotional distress cases—the Supreme Court will have its hands full when, if ever, it attempts to articulate one grand unified theory in the area.3 We will only decide the case before us, though that requires that we respectfully decline to follow the Wooden decision to the degree that its facts—a car crash in which a literal bystander feared, for her own safety— might be extrapolated to the airplane crash before us. Applying the standard seven-factor analysis by which our high court has traditionally ascertained duty in tort law, we hold that the duty of care imposed on airplane operators does not extend to the emotional distress suffered by physically untouched spectators of plane crashes, even spectators who, for a brief moment, reasonably fear for their own safety.
[656] Back to the Basics
One observation is necessary at the beginning of any case involving an emotional distress claim based on negligence. When courts use the acronym “NIED” for “negligent infliction of emotional distress” (and they commonly do) they are in danger of falling into a semantic trap. That is, the very fact that there is a handy acronym for an idea may lead, perhaps subconsciously, to giving that idea more credence than it deserves. Here, the danger is treating “negligent infliction of emotional distress” as an independent tort or, at least, an independent tort doctrine, with a life of its own.
For example, while the Wooden case was careful to recognize that “NEED is simply a species of negligence” (Wooden v. Raveling, supra, 61 Cal.App.4th at p. 1046), the opinion also casually referred to the “NEED theory” (see id. at p. 1041) as if the “NIED theory” were something already firmly established. At the outset we must remind ourselves that, however handy the acronym, as our Supreme Court has made abundantly clear, there is no such thing as the independent tort of negligent infliction of emotional distress. (E.g., Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984 [25 Cal.Rptr.2d 550, 863 P.2d 795] [“there is no independent tort of negligent infliction of emotional distress”]; Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072 [9 Cal.Rptr.2d 615, 831 P.2d 1197] [“We have repeatedly recognized that ‘[t]he negligent causing of emotional distress is not an independent tort, but the tort of negligence.’ ”]; Christensen v. Superior Court (1991) 54 Cal.3d 868, 884 [2 Cal.Rptr.2d 79, 820 P.2d 181] [“Negligent infliction of emotional distress is not an independent tort .... ”]; Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588 [257 Cal.Rptr. 98, 770 P.2d 278] [substantially same as Burgess].) Indeed, civilized life would not be possible if there were such a tort. To borrow a phrase from Blake, if tort damages were available for anything which could foreseeably cause our fellow human beings emotional distress, then “who can stand?” No one, saint or sinner, can go through life without “negligently” inflicting emotional distress on others. (Cf. Fluharty v. Fluharty (1997) 59 Cal.App.4th 484, 495 [69 Cal.Rptr.2d 244] [making point that heartache and pain are inherent in certain human relationships].)4
Instead of lumping emotional distress cases under one heading and then, like Einstein, searching for a grand consistent theory to reconcile the cases, [657]it is more in keeping with the fact that NIED is not a separate doctrine to ask: What are the circumstances under which a plaintiff can recover damages for emotional distress as a matter of the law of negligence! It is true that the question, however phrased and whatever its permutations, requires more words than just “NIED,” and therefore is more cumbersome to write. But at least the asking of it reminds us what we are dealing with. When the question is asked, a court is not likely to stray too far from the fundamentals of basic negligence law, that is, the “ ‘traditional elements of duty, breach of duty, causation, and damages.’ ” (See Burgess v. Superior Court, supra, 2 Cal.4th at p. 1072, quoting Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc., supra, 48 Cal.3d at p. 588.)
The question before us, then, is not a mechanistic inquiry as to whether fear-for-own-safety cases fall under the rubric of “direct victim,” “bystander” or perhaps a third legal category for “zone of danger” (as plaintiffs, understandably afraid that we might follow Bro, urge upon us). It is not a matter of simply pigeonholing our facts into some neat legal category. Rather, the fundamental question is whether the duty of care necessarily attendant upon operating an airplane extends as far as those who fear for their own safety in a crash, even though they remain literally untouched.5
On that score the answer is no. When this case is looked at in light of the seven factors traditionally used by our Supreme Court to determine the existence of a duty, the balance tips decidedly against liability. The traditional factors are (1) the foreseeability of harm to the plaintiff, (2) the degree of certainty that plaintiff suffered injury, (3) the closeness of the connection between the conduct and the injury suffered, (4) the moral blame attached to defendant’s conduct, (5) the policy of preventing future harm, (6) the extent of the burden to the defendant, and (7) the consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved. (See Burgess v. Superior Court, supra, 2 Cal.4th at pp. 1079-1080; Christensen v. Superior Court, supra, 54 Cal.3d at pp. 885-886; Biakanja v. Irving (1958) 49 Cal.2d 647, 650 [320 P.2d 16, 65 A.L.R.2d 1358].)
The Seven Factors
As Bro pointed out, foreseeability is of limited usefulness in delineating duty in emotional distress cases. (See Bro v. Glaser, supra, 22 [658]Cal.App.4th at p. 1413; see also Thing v. La Chusa (1989) 48 Cal.3d 644, 663-664 [257 Cal.Rptr. 865, 771 P.2d 814] [noting that foreseeability alone is not “useful” in emotional distress cases because it provides no limits on liability for “ ‘nonphysical harm’ ”].) Foreseeability is independent of any preexisting relationship which, as the Bro court (rightly) points out, provides a natural limitation on liability. It takes no imagination to realize that people on the ground who are close to an airplane crash are going to be very scared. By the same token, while it is foreseeable that the fright will be intense, it is also foreseeable that the actual fright itself will be short lived. What is not foreseeable is the severity of people’s psychological reactions to the crash. Emotional distress is a murky cauldron of actuarial imprecision, inherently limitless. It is also an area of remarkable individual idiosyncracity, with great extremes at either end. The Lord High Executioner in The Mikado was ready to commit suicide if he was rejected by the elderly Katisha6; Private Ryan, the fictional embodiment of a generation of World War II veterans, stoically endured the death and dismemberment of close comrades who gave their lives to rescue him, and then went on to live a productive life.7 At least in the context of the foreseeability factor in emotional distress cases like this one, tort law cannot countenance the doctrine of the “eggshell psyche.”
On balance, foreseeability itself does not count for much, one way or the other, on the question of liability for emotional distress to otherwise unhurt bystanders to airplane crashes.
By contrast, the certainty of injury is a factor that squarely weighs against liability. Again, the key is the loosey-goosey nature of a pure emotional distress claim. One can always worry oneself sick, almost as a matter of will. The reality of psychological injury remains—and perhaps, despite CAT scans, PET scans, MRI’s and who knows what the future holds, always will remain—a subject of intense philosophical debate. There is always the suspicion that extending the tort duty gives plaintiffs an incentive to malinger or worry themselves into a state of depression. Suffice to say for purposes of this case that certainty of injury is something that we do not have. Yes, the question of the reality of injury can go to a jury, but that is not [659]the point. Psychological symptoms are much more susceptible to being faked than more palpable effects.8
The third factor is the closeness of the connection between the defendant’s conduct and the injury suffered. Here, the factor certainly does tilt in the direction of liability. There is no reasonable doubt that being near a plane crash and fearing for one’s own safety during those few terrible moments before the crash is going to be traumatic. The factor is ameliorated somewhat, however, by the differences in psychological constitutions among people. Some people will act heroically in situations of disaster—indeed, it appears that the plaintiffs, regardless of how traumatized they were from the few moments of fear before the crash, summoned up great courage in going to the crash after they realized they were out of danger. One cannot predict, for example, how many people in the vicinity of a plane crash are already predisposed to depression, or—because of their own unique experiences— are inclined to fall to pieces in any disaster, act heroically, or, as the complaint suggests here, act heroically and then go into depression. There will always be some trauma, of course. How much, again, is unpredictable.
The fourth factor is the moral blame attached to the defendant’s conduct. This factor weighs heavily against liability. Plane crashes, much more so than car crashes, tend to be fatal. There is far more reckless driving than reckless flying. Plane crashes are usually the result of some tragic error in the maintenance or operation of the plane—at worst, negligence in light of a very high standard of required performance—rather than any kind of moral indifference to the possibility of injury. Nothing is to be gained by extending the liability attendant upon air crashes to the emotional distress of ground spectators.
Next there is the policy of preventing future harm, to which the same considerations apply as moral blame. The high likelihood of death and the inevitable liability which will come to those physically affected is more than sufficient to deter “future harm.” Beyond that, there is a regulatory apparatus devoted to air safety which, in quality and intensity of care, is already [660]disproportionate to the safety apparatus which regulates automotive traffic.9 Extending liability for plane crashes to emotionally distressed bystanders— bystanders in the literal sense—accomplishes virtually nothing in the way of marginally increased deterrence.
The final two factors—the extent of the burden to the defendant and the general macroeconomic consequence (if we may be so bold as to so characterize the final factor) to the community—also weigh against liability. The actuarial unpredictability of emotional distress damages could add significantly to the cost of insuring air transportation. A federal district court summed up the problem nicely when it declared: “This Court is not prepared to extend [the airline’s] direct duty to all the non-passengers it’s [sic] planes fly over on a daily basis. To hold airlines responsible for the possible emotional injury for such a large and indeterminate group of people would be to expose airlines to ‘virtually limitless . . . tort liability.’ ” (Air Crash Disaster at Cove Neck Long Island, N.Y. (E.D.N.Y. 1995) 885 F.Supp. 434, 440.)
Air crashes are inevitably going to be very expensive disasters. They usually make the newspapers in a way that car crashes don’t. Most air crashes are going to involve some collateral damage to surrounding property and pose a serious risk to bystanders of tangible harm from flying debris. The demands on the insurance pool for recovery are going to be correspondingly greater, and in a context where insurance availability is going to be exhausted. Extending liability to those who suffer the emotional distress of several moments of fear just before the crash will merely dilute the pool of recovery, as well as make air transportation harder to insure.
In short, the factors which determine duty weigh, on balance, against liability for emotional distress damages to otherwise unhurt bystanders. What factors tilt in the direction of liability don’t tilt very far; the factors against weigh decidedly against.
Prior Cases and the “Zone of Danger"
In In re Air Crash Disaster Near Cerritos, Cal., supra, 973 F.2d 1490, a couple at home heard two loud noises and suffered severe shock and fright [661]when two airplanes collided in midair and crashed one hundred yards away. The Ninth Circuit concluded that California law would permit the couple to recover for their emotional distress damages, albeit with one judge dissenting because the couple did not actually witness the crash.10 (See id. at p. 1491 & fns. 1 & 2.) In doing so, the Ninth Circuit relied on a series of cases which can appear, at least on first blush, to support the broad proposition that California tort law permits recovery for emotional distress whenever one reasonably fears for one’s own safety. And indeed, the dissenting judge nicely encapsulated what her colleagues were saying when she wrote: “As Judge Canby explains, for years the California courts have recognized recovery for emotional distress on account of reasonable fear for one’s own safety. See Lindley v. Knowlton 179 Cal. 298, 176 P. 440 (1918); Webb v. Francis J. Lewald Coal Co., 214 Cal. 182, 4 P.2d 532 (1931), partially overruled on other grounds, San Francisco v. Superior Court, 37 Cal.2d 227, 231 P.2d 26 (1951); Cook v. Maier 33 Cal.App.2d 581, 92 P.2d 434 (1939); see also Amaya v. Home Ice, Fuel & Supply Co., 59 Cal.2d 295, 300-04, 29 Cal.Rptr. 33, 379 P.2d 513 (1963) (acknowledging Lindley and Webb but declining to extend recovery to fear for safety of others), partially overruled by Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 (1968); Vanoni v. Western Airlines, 247 Cal.App.2d 793, 56 Cal.Rptr. 115 (1967). These cases have never been overruled, and I agree with the majority that they remain good law.” (In re Air Crash Disaster Near Cerritos, Cal., supra, 973 F.2d at p. 1494 (dis. opn. of Rymer, J.).)
With due respect to the Ninth Circuit, we must disagree that California tort case law may be read for the broad proposition that emotional distress damages are available whenever one reasonably fears for one’s own safety because of the negligence of another, regardless of actual circumstances or context. The proposition is simply too broad. A moment’s reflection should reveal that there are too many situations in modem life when one can reasonably be scared for one’s own safety. Permitting a lawsuit for just that fright would clog the courts and make transportation and commerce impossible. Duty is a question of law which depends on the “ ‘foreseeability of the risk and upon a weighing of policy considerations for and against the imposition of liability.’ ” (Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc., supra, 48 Cal.3d at p. 588, quoting Slaughter v. Legal Process & Courier Service (1984) 162 Cal.App.3d 1236, 1249 [209 Cal.Rptr. 189].) The law can hardly permit a major tort suit for unpredictable emotional [662]distress damages for every near-miss and otherwise uneventful unsafe lane change.11
Scratch a great legal problem and you are likely to find a great philosophical problem. The question of emotional distress damages implicates nothing less than the mind-body problem in philosophy.12 We are not about to try to solve that great quandary here,13 but there is no way one can read the cases in the emotional distress area without recognizing that the mind-body problem was the core preoccupation of the fear-for-one’s-own-safety cases relied on by the Ninth Circuit in Air Crash Disaster Near Cerritos. Those cases were not classic “duty cases,” in the tradition of Burgess, Christensen and Biakanja. Rather, the focus of those cases was merely the rejection of a per se rule against physical damages arising out of emotional distress given the particular facts at hand.
[663]The fountainhead case in the area is the late 19th century decision, Sloane v. Southern Cal. Ry. Co. (1896) 111 Cal. 668 [44 P. 320]. Indeed, plaintiffs rely on Sloane here. Sloane involved a claim for mental suffering on the part of a passenger on a train who tried to travel from North Pomona to San Diego via San Bernardino. On the Pomona-San Bernardino leg of the trip a conductor took her ticket, but gave her no transfer ticket or receipt. She had to change trains in San Bernardino, but she was forced to leave in East Riverside when the conductor on that train found she had no ticket. She walked to her sister-in-law’s in Colton from East Riverside, and later sued the railroad. After a relatively large award against the railroad for its “wrongful acts committed ... in violation of its contract” (id. at p. 677) (so large, in fact, that the award itself was reversed by the Supreme Court, see id. at pp. 687-688), the railroad appealed the judgment on the ground that “mere mental anxiety, unaccompanied with bodily injury or apprehended peril, does not afford a right of action.” (Id. at p. 679.) The high court’s answer to the contention was: The plaintiff wasn’t suing for mere mental anxiety, but physical harm as well. “The real question presented by the objections and exception of the appellant is, whether the subsequent nervous disturbance of the plaintiff was a suffering of the body or of the mind. The interdependence of the mind and body is in many respects so close that it is impossible to distinguish their respective influence upon each other. It must be conceded that a nervous shock or paroxysm, or a disturbance of the nervous system, is distinct from mental anguish, and falls within the physiological, rather than the psychological, branch of the human organism.” (Id. at p. 680, italics added.)
The passage from Sloane, if read carefully, suggests that the Supreme Court casually accepted an almost “Cartesian” view that there is a mental world wholly divorced from the physical body, but simply located the particular damages in the Sloane case on the “body” side of the divide. Thus the implication was that if the damages were really “mental” there would have been no recovery. (Cf. Fluharty v. Fluharty, supra, 59 Cal.App.4th 484, 498 (dis. opn. of Raye, J.) [reference to “the angst of earlier years when claims for emotional distress were met with universal disdain”].)
The other cases relied on in Air Crash Disaster Near Cerritos simply repeated the Sloane rationale. That is, these courts assumed that the trauma leading to the emotional distress caused some unspecified “nerve damage” or “shock to the nerves” which took the case out of the emotional and into the physical.
In Lindley v. Knowlton (1918) 179 Cal. 298 [176 P. 440], a 165-pound chimpanzee attacked the plaintiff’s children. The plaintiff had to fight the [664]chimpanzee off. (See id. at p. 299.) The defendant argued the injuries were solely mental (ibid..), which the court, quoting Sloane, rejected, reasoning that the “ ‘nerves and nerve centers of the body’ ” were “ ‘part of the physical system.’ ” (Lindley, supra, 179 Cal. at pp. 300-301, quoting Sloane v. Southern Cal. Ry. Co., supra, 111 Cal. at p. 680.)
Webb v. Francis J. Lewald Coal Co. (1931) 214 Cal. 182 [4 P.2d 532, 77 A.L.R. 675] gave the same cursory treatment to the problem. There a truck collided with a street car, then smashed into the front of a building. A woman working on the mezzanine floor of the building experienced “an immediate nervous collapse,” which then led to “continued extreme nervousness, headaches, sleeplessness, [and] loss of weight.” (Id. at p. 184.) Most of the opinion centered on a physician who had examined the plaintiff but whom the defendant sought to have testify. In a short paragraph near the beginning (and in several paragraphs devoted to showing harmless error after the discussion involving the physician) the court simply assumed that the plaintiff’s “physical condition” had been implicated (see ibid.) because the “injury complained of was to the nervous system of respondent.” (Id. at p. 187.)
Cook v. Maier (1939) 33 Cal.App.2d 581 [92 P.2d 434] followed the same suit. A car crashed into another, ran up onto a vacant lot, collided with a trash burner, then ran into a rock and board fence and the corner of plaintiff’s house, causing debris to be thrown in the direction and “ ‘about the person’ ” of the plaintiff, who was on her way to the trash burner. (Id. at p. 582.) The court framed the question as whether “damages may be permitted for physical injuries as the result of fright and nervous shock, without bodily contact.” (Id. at p. 584.) Against a premise that “[fjright alone is not an ‘injury,’ ” the court juxtaposed the idea that there was “[s]omething more than mere fright” alleged. (Id. at pp. 583, 584 italics added.) And again, relying on Sloane, that “something more” was damage to the nervous system.
Ditto Vanoni v. Western Airlines (1967) 247 Cal.App.2d 793 [56 Cal.Rptr. 115]. There a commercial airliner was being flown in such a manner (the opinion doesn’t say exactly how) as to cause its passengers to fear it was going to crash. (Id. at p. 794.) The court operated from the premise that “there can be no recovery for emotional distress or mental suffering unaccompanied by physical harm arising from acts which are solely negligent in nature” (id. at p. 795), then set about—again via a quotation from Sloane (see id. at p. 796)—to decide the case on the ground that “ ‘shock’ ” created by the fear really was a “physical injury” as distinct from an emotional or mental one. (See id. at p. 797.)
[665]Thus, when our Supreme Court had occasion, in Thing v. La Chusa, supra, 48 Cal.3d 644, to describe Webb and Lindley, it said that they represented “physical injury as a result of the emotional trauma.” (Id. at p. 651, italics added.) The court might as well have said the same thing about Sloane, Cook and Vanoni.
If the rationale of the Sloane-Lindley-Webb-Cook-Vanoni cases seems strained, it is because it is, and the time has come to recognize that fact. The emotional distress-nerve damage dichotomy can be misleading. Since nerves carry all sensory phenomena to the brain, every stimulus is going to have a “physical” effect in terms of actual signals transmitted through the nervous system. This means that every stimulus generating an emotional effect— which is pretty much all stimuli—can also be said to lead to a “physical” effect, and therefore constitute a “physical” injury. Any emotional distress can be styled “nervous shock.” Yet it cannot be denied that there is a difference between a pinched nerve and one which has been a conduit for an emotionally traumatic experience based on fright. In one, the harm is direct, centered on the nerve itself. In the other, the trauma is based on how the brain interprets certain stimuli, as distinct from the stimuli itself.14 The nervous-shock-equals-physical-injury rationale swallows up any distinction between what the ordinary person would think of as emotional distress (without convoluted references to nerve synapses) and (for want of a better word) “hard” or palpable damages, like an ensuing heart attack.
The point may be illustrated by reference to what one might think is the ordinarily prosaic world of insurance coverage law. For years, one of the great “recurring issues” in liability insurance coverage was whether the words “bodily injury” in a commercial general liability (CGL) insurance policy obligated an insurer to cover claims arising out of economic or business torts where the bodily injury claim was based on emotional distress. (See Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 10 [44 Cal.Rptr.2d 370, 900 P.2d 619].) It is now settled that the words do not so obligate. Thus a company founder who was upset that he was forced out of the company he built (Waller, supra, 11 Cal.4th at p. 30); investors, including many senior citizens, who lost their life savings in investment scams (Keating v. National Union Fire Ins. (9th Cir. 1993) 995 F.2d 154, 156; Chatton v. National Union Fire Ins. Co. (1992) 10 Cal.App.4th 846 [13 Cal.Rptr.2d 318]); and an employee who was left without health insurance when she got into an auto accident (Aim Insurance Co. v. Culcasi (1991) 229 [666]Cal.App.3d 209 [280 Cal.Rptr. 766]) were all held not to have stated claims for “bodily injury.”
Yet can it be denied that people who have lost their economic hopes and security, or who are left in the lurch without health insurance and who are then injured in an accident are going to experience some “physical” manifestations of their emotional distress? Sleepless nights, heart palpitations, a horrible feeling in the pit of one’s stomach—these are “bodily” phenomena if one were to take the words “bodily injury” with a dogged literality. Certainly one must experience “nervous shock” upon hearing that one’s life savings have been sunk into a worthless investment. The point is, as the Molien decision alluded to, the “attempted distinction between physical and psychological injury” is artificial; one cannot extrapolate the “nervous shock” rationale into infinity or there will be no limits on liability. (See Molien v. Kaiser Foundation Hospitals, supra, 27 Cal.3d at pp. 929-930.)
In short, there is no shortcut to analyzing the actual duty and the gravamen of the claim in each case. There are cases where “shock” is clearly not compensable and cases where maybe it should be. Teenagers have been known to get heart palpitations when their boyfriends or girlfriends leave them. On the other hand, pregnant women have been known to suffer miscarriages when they witnessed their spouses injured in a car crash (e.g., Reed v. Moore (1957) 156 Cal.App.2d 43 [319 P.2d 80].) The law obviously must differentiate between the two.15
Cases are not authority for propositions which they did not decide. (Roberts v. City of Palmdale (1993) 5 Cal.4th 363, 372 [20 Cal.Rptr.2d 330, 853 P.2d 496].) While the Sloane-Lindley-Webb-Cook-Vanoni line of cases equated emotional distress with “nervous shock” and nervous shock with the sort of palpable physical injuries that no one would question were recoverable, none of them ever considered the crucial question we have before us: The duty of an airplane operator vis-à-vis otherwise untouched bystanders for emotional distress, regardless of whether that emotional [667]distress can be artificially characterized as “nervous shock.”16 Indeed, neither did the Ninth Circuit in Air Crash Disaster Near Cerritos. Rather, the Ninth Circuit simply assumed that because California courts had allowed, in Judge Rymer’s words, recoveries “for emotional distress on account of reasonable fear for one’s own safety,” plaintiffs could recover. There was no consideration of the scope of duty of an airplane operator.17
Ironically, the recent decision of Wooden v. Raveling, supra, 61 Cal.App.4th 1035 follows much the same pattern. The facts in Wooden are reminiscent of Webb, i.e., a car crash that comes onto the plaintiff’s property and placed the plaintiff in fear of personal injury. (See Wooden, supra, 61 Cal.App.4th at p. 1036.) Just as Sloane, Webb and Lindley were content to rebut the idea that the plaintiff was merely seeking emotional distress, Wooden rested its decision on rebutting the requirements articulated in Bro. The Wooden decision is essentially devoted to the idea that the requirements which the Bro court articulated for so-called “direct victim” liability for emotional distress damages are inconsistent with Potter v. Firestone Tire & Rubber Co., supra, 6 Cal.4th 965. We will not now try to figure out which of the two cases represents the better view, which case is more consistent with Potter, or whether the two cases might be reconciled. We do not rest our decision on the Bro requirements.
It is enough, rather, simply to note two aspects of the Wooden decision which distinguish it from the case at hand. One, there is a difference between car crashes and airplane crashes as they relate to bystanders. Automobile drivers necessarily must be highly aware of the surrounding area and nearby property through which they drive. Freeways pose different risks than residential streets. Children might dart out into a narrow alley; one must drive slowly to avoid them. No such necessity attaches on a wide stretch of open highway in the desert.
The risk to bystanders is different in air travel. Most of the time, after all, when a plane is flying, the safety of bystanders on the ground is irrelevant [668]from the point of view of the operators and owners of the plane. It is only relevant when a crash is otherwise inevitable.
Two, Wooden did not analyze the bystander’s fear for her own safety in context of the seven factors which our high court has traditionally used to delineate duty. The case thus hardly stands for the proposition that these seven factors would mandate a broad or inflexible fear-for-one’ s-own-safety or “zone of danger” rule, particularly as regards an air crash case.
In sum, case law does not require imposition of a duty on operators of airlines to avoid the emotional trauma inherent in any crash to otherwise unhurt bystanders. We write on a clean slate.
Disposition
The judgment is affirmed.
Bedsworth, J., concurred.
The defendants’ motion to strike the reply brief as containing facts not in record is hereby denied as moot. Our facts are taken from the complaint, not the reply brief.
The Air Crash Disaster court categorized the case as a “direct victim” one. (See In re Air Crash Disaster Near Cerritos, Cal., supra, 973 F.2d at p. 1494.) There is thus no way that it can be reconciled with Bro. Fortunately for us, and as we explain below, we need not attempt to reconcile the two cases. We do not rest our result on simply assigning the plaintiffs’ claim to the “direct victim” category.
Perhaps—but only perhaps—the very attempt to articulate one set of consistent common law general rules in the area is a grail which will never be found. Time will tell.
Notwithstanding Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916 [167 Cal.Rptr. 831, 616 P.2d 813, 16 A.L.R.4th 518]. Molien has become the Marie Celeste of emotional distress law: It is an empty vessel, but not yet sunk. While not overruled, its discussion of duty has been limited to its own facts. (Burgess v. Superior Court, supra, 2 Cal.4th at p. 1074.)
While plaintiffs may have felt some heat, wind and vibration in the few moments before the crash, it would be a gross distortion of their complaint to suggest that they are claiming anything in addition to their emotional distress for being exposed to the possibility of death or injury in an impending plane crash.
The story is in the Titwillow song near the end of the operetta. (Gilbert & Sullivan, The Mikado (1885).)
See Saving Private Ryan (Dreamworks SKG 1998); compare Speir, Application and Use of Post-Traumatic Stress Disorder as a Defense to Criminal Conduct (June 1989) 1989 Army L. 17, 17 (noting that “most people” do not develop posttraumatic stress disorder after extremely traumatic events).
For example, see People v. Lockett (1983) 121 Misc.2d 549 [468 N.Y.S.2d 802], in which the court accepted a plea bargain in a criminal case based on the defendant not being responsible because he was suffering from posttraumatic stress disorder (PTSD) induced by his service in Vietnam while he was in the Air Force. When his Air Force file was examined it turned out that he had never been in Vietnam. (See id. at pp. 803-804.) See also Speir, Application and Use of Post-Traumatic Stress Disorder as a Defense to Criminal Conduct, supra, 1989 Army L. 17, 19 (“The ease with which a savvy defendant can fake PTSD symptoms has been recognized by medical researchers, and there are documented instances in which a defendant’s plan to fake PTSD to avoid conviction was frustrated only by his own indiscretion. [Fn. omitted.]”).
See Note, Solving America’s General Aviation Crisis: The Advantages of Federal Preemption Over Tort Reform (1995) 80 Cornell L. Rev. 747, 749 (“General aviation is one of the most intensely regulated industries in the United States. Since its enactment of the Federal Aviation Act of 1958, Congress has regulated nearly every aspect of the manufacture and operation of general aviation aircraft for the purpose of ensuring ‘the highest degree of safety.’ [Fns. omitted.]”). The “crisis” in the title refers to the strains on American aircraft manufacturers created by conflicts between state tort law and federal regulations.
See 973 F.2d at page 1496, making the point that no California case had “gone so far" as to allow emotional distress recovery “when the causal link between the event and the threatened injury is not contemporaneously comprehended” (dis. opn. of Rymer, J.).
Breathes there a soul who has not witnessed an accident or two over the past few years? Or at least had a driver come speeding up from behind and momentarily worried that a crash was imminent? The bottom line of our dissenting colleague’s analysis is that all witnesses to an accident who momentarily fear for their safety but who otherwise escape—indeed, those who fear for their safety even when there is no accident but merely a close call—-may sue the wrongdoer for money as compensation for emotional distress. Wow! If this were the law, insurance premiums would skyrocket and the courts would groan from the sheer weight of litigation. The ultimate lawyers’ paradise would have arrived: everyone would be suing everyone.
This is hardly esoteric stuff. The law reviews are full of it. Plug in “mind” “body” “Plato” and “dualism” in just the same sentence into a law review data base and you will find no less than 74 documents. (E.g., Barresi, Advocacy, Frame, and the Intergenerational Imperative: A Reply to Professor Weiss on “Beyond Fairness to Future Generations” (1998) 11 Tul. Envtl. L. J. 425, 428 [reference to “Cartesian dualism, the tendency inherent in Western thought to erect a philosophical barrier between mind and body, between matter and spirit, and between the physical world and the intellectual one”]; Miller, DNA Blueprints, Personhood, and Genetic Privacy (1998) 8 Health Matrix 179, 190-191 [contrasting views of Aristotle, Descartes and Hume on the self]; Sells, Saving Icarus (Feb. 1998) 23 Mont. Law. 1, 26 [reference to “the tired dualism of matter and spirit”]; Smith, Machine Intelligence and Legal Reasoning (1998) 73 Chi.-Kent L. Rev. 277, 279 [“Descartes’ error was in concluding that intelligence can exist independently of the human body”]; Handsley, Mental Injury Occasioned by Harm to Another: A Feminist Critique (1996) 14 Law & Ineq. J. 391, 467, fn. 333 [“Liberal philosophy also rested on the ‘metaphysical dualism’ of the mind-body split.”].)
Justice Puglia opined in Merenda v. Superior Court (1992) 3 Cal.App.4th 1, 8 [4 Cal.Rptr.2d 87] that the “disparate” body of cases dealing with emotional distress damages is not really amenable to a “tight, coherent, conceptual scheme.” The difficulty of the philosophical problem provides a clue as to why it has been so difficult for the courts to propound a unified legal theory when it comes to emotional distress—why, for example, some of the opinions seem to labor (e.g., “Justice Spencer agonized as she worked through an exhaustive discussion of the authorities” [Bro v. Glaser, supra, 22 Cal.App.4th at p. 1419, referring to Schwarz v. Regents of University of California (1990) 226 Cal.App.3d 149 [276 Cal.Rptr. 470]]) in the area. When the core issue is one over which some of the finest minds in human intellectual history have disagreed (e.g., Descartes and Hume), jurists are not necessarily going to have an easy time of it either.
For example, in the case before us, an employee sitting in an isolated and soundproof conference room might have been wholly oblivious to the impending crash. For those who became aware of the impending crash, the shock value depended on the brain to interpret certain stimuli as possible impending death.
Which is not to say that even in the latter situation the courts have had an easy time of being consistent. Reed actually held that the woman could not recover because the negligent act was not “directed at” her, but at her husband, which is how the Court of Appeal distinguished Sloane. (Reed v. Moore, supra, 156 Cal.App.2d at p. 45.) But then again, as Justice Peters noted in his dissent in Amaya v. Home Ice, Fuel & Supply Co. (1963) 59 Cal.2d 295, 318 [29 Cal.Rptr. 33, 379 P.2d 513], the facts in Amaya (mother witnessed truck run over her boy) were “very close” to Reed, which also held there could be no recovery, yet Amaya was overruled by Dillon v. Legg (1968) 68 Cal.2d 728, 748 [69 Cal.Rptr. 72, 441 P.2d 912, 29 A.L.R.3d 1316] (mother witnessed child killed by negligent driver). Fortunately, the present case can be dealt with without proposing a grand scheme trying to reconcile everything that the Supreme Court and various panels of the Court of Appeal have ever written on the subject.
Thus our decision today might be different if the plaintiffs had all suffered heart attacks. However, we need not address the problem of whether a “hard” or palpable phenomenon, like a heart attack, brought on in a bystander to a plane crash by fear of being hurt in a plane crash, is recoverable. We need only note that the number of otherwise untouched bystanders who suffer heart attacks as a result of the fear of being hurt in a plane crash is going to be far fewer than the number of otherwise untouched bystanders who, as in the present case, really suffer only fear itself.
Our dissenting colleague acknowledges that the 1896 Sloan decision is not “precisely” on point, but extrapolates the principle of liability bn which that decision was based into an inflexible rule which mandates liability for mere fear any time there is negligent conduct. As we have already indicated, that broad idea is untenable in the light of what our high court has said in the 100 years since that venerable case.