MARLENE F. v. AFFILIATED PSYCHIATRIC MEDICAL CLINIC

ARGUELLES, J.[fn*] [fn*] Retired Associate Justice of the Supreme Court sitting under assignment by the Chairperson of the Judicial Council.

A majority of the court concludes that the plaintiff mothers can and have stated a cause of action here for the negligent infliction of emotional distress. Obviously, I agree. I write separately in addition to the majority opinion, however, to address another theory of recovery here, one that I believe is squarely raised on the facts and the pleadings of this case, and that should not go unmentioned. In brief, I believe that what we have before us is a case of outrageous conduct, atrocious and offensive acts committed within a relationship of trust, that might permit the imposition of liability for the intentional infliction of emotional distress, in addition to the other theories available.

Intentional infliction of emotional distress first found recognition as an independent tort in this state in State Rubbish etc. Assn. v. Siliznoff (1952) 38 Cal.2d 330 [ 240 P.2d 282]. In a unanimous opinion by Associate Justice (subsequently Chief Justice) Traynor, the court deemed it time to abandon the prior rule that "the interest in emotional and mental tranquility is not one that the law will protect from invasion in its own right." ( Id., at p. 336.) Noting that recovery had been allowed where the intentional infliction of emotional distress produced physical injury ( id., at p. 337) and that damages for mental suffering could constitute part of the recovery where a cause of action was otherwise established ( id., at p. 338), the court found it anomalous to deny recovery simply because the defendant had not committed some other recognized tort or because his intentional misconduct had not caused physical injury. ( Ibid.) Squarely rejecting the argument that administrative difficulties of proof justified the denial of relief ( id., at pp. 338-339), the court concluded that "a cause of action is established when it is shown that one, in the absence of any privilege, intentionally subjects another to the mental suffering incident to serious threats to his physical well-being, whether or not the threats are made under such circumstances as to constitute a technical assault." ( Id., at p. 336.)

In the years since Siliznoff, the tort has become firmly embedded in the law of this state, and the elements of the prima facie case are beyond question: "(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct." ( Cervantez v. J.C. Penney Co. (1979) 24 Cal.3d 579, 593 [156 Cal.Rptr. 198, 595 P.2d 975]; see Rest.2d Torts, § 46(1).) The one-time requirement that the plaintiff have suffered physical injuries from the defendant's conduct no longer obtains "in cases involving extreme and outrageous intentional invasions of one's mental and emotional tranquility." ( Alcorn v. Anbro Engineering, Inc., supra, 2 Cal.3d at p. 498.) And, as the above authorities make clear, recovery is not limited to cases in which the defendant in fact intended to cause emotional distress, but includes those cases in which the defendant acted with reckless disregard of the probability such distress would result.

Courts have, in a variety of contexts, recognized liability for the intentional infliction of emotional distress based on conduct no more egregious than is present here. (See Annot., Modern Status of Intentional Infliction of Mental Distress as Independent Tort: "Outrage" (1985) 38 A.L.R.4th 998.) In this state alone, such liability may be imposed for a security guard's false arrest of a store customer on shoplifting charges ( Cervantez v. J.C. Penney Co., supra, 27 Cal.3d 579), for racial epithets directed against an employee by his coworkers and supervisors ( Alcorn v. Anbro Engineering, Inc., supra, 2 Cal.3d 493), and for an insurer's attempt to deprive its insured of benefits due under a disability policy ( Fletcher v. Western National Life Ins. Co. (1970) 10 Cal.App.3d 376 [89 Cal.Rptr. 78, 47 A.L.R.3d 286]). The sexual molestation of a child is at least as serious a matter and is plainly outrageous under any definition of the term. (See, e.g., Croft by Croft v. Wicker (Alaska 1987) 737 P.2d 789, 793.)

But the tort, although recognized and applicable to a broad range of acts, is less frequently invoked to permit recovery for the emotional distress suffered by one not the immediate target of the defendant's conduct. Recovery has in general been limited, and the tort has ever narrowing parameters depending upon the potential plaintiff.

As framed in the Restatement Second of Torts section 46(1), recovery by the immediate target of the defendant's conduct tracks the principles expressed in Siliznoff, supra, 38 Cal.2d 330 : "One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm." Section 46(2), however, reflects the limitations on recovery by others: "Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress [¶] (a) to a member of such person's immediate family who is present at the time, whether or not such distress results in bodily harm, or [¶] (b) to any other person who is present at the time, if such distress results in bodily harm." (Italics added.)

The requirement of presence is justified primarily on the basis of perceived practical and administrative difficulties similar to those rejected in Siliznoff, supra, 38 Cal.2d at pages 338-339, as a reason for retaining the requirement of physical injury. "The limitation may be justified by the practical necessity of drawing the line somewhere, since the number of persons who may suffer emotional distress at the news of an assassination of the President is virtually unlimited, and the distress of a woman who is informed of her husband's murder ten years afterward may lack the guarantee of genuineness which her presence on the spot would afford." (Rest.2d Torts, § 46, com. l, p. 79.) But the Restatement is not absolute on this point; by a caveat to section 46, it leaves open the possibility of recovery in other situations: "The Institute expresses no opinion as to whether there may not be other circumstances under which the actor may be subject to liability for the intentional or reckless infliction of emotional distress." And the Restatement makes clear that the presence requirement is the subject of this caveat: "The Caveat is intended . . . to leave open the possibility of situations in which presence at the time may not be required." (Rest.2d Torts, § 46, com. l, p. 79.)

Courts have been slow to accept this invitation to determine whether the presence requirement should be dispensed with in certain situations. The prevailing rule appears still to be that absent family members may not recover for the distress caused by outrageous conduct aimed at another member of the family, but there is authority for the contrary point of view as well. We obtain little guidance from any of these cases, however, as most simply invoke or ignore the presence requirement without discussion, and none thoroughly considers whether the requirement plays a necessary role in the circumstances of a particular case. I would suggest that the fact a parent is not present when a child is molested by one occupying a position of trust should not stand as a bar to a cause of action for the intentional infliction of emotional distress, because no purpose is served by the presence requirement in such a case, whatever validity it might have in other situations.

In Delia S. v. Torres, supra, 134 Cal.App.3d 471, the Court of Appeal allowed a husband to recover for intentional infliction of emotional distress when his wife was raped by his friend. "One may reasonably infer that the violation and rape of one's wife, particularly by a friend, would have . . . profound and extreme emotional consequences. Thus, the wrong for which recovery was sought was personal to [the husband]. . . . [I]t is his relationship to the object of the act and the effect of the transgression on him personally which gives rise to the cause of action." ( Id., at p. 484.) One may similarly infer that the molestation of a child by the therapist to whose care the parent committed the child would have equally "profound and extreme emotional consequences" and that the presence requirement is not needed either to ensure the genuineness of the claim or to place reasonable bounds on recovery.

In Nancy P. v. D'Amato (1988) 401 Mass. 516 [ 517 N.E.2d 824], the Supreme Judicial Court of Massachusetts touched on this question in considering a claim for intentional infliction of emotional distress made by a mother whose daughter was molested by a neighbor. Although recovery was denied, primarily because there was insufficient evidence of severe emotional distress attributable to the molester's conduct, the court considered the import of Restatement Second of Torts section 46(2) and the caveat thereto and noted that "[a] custodial parent of a young child sexually abused by a trusted adult neighbor might present a particularly appealing case for not imposing a presence requirement." ( Nancy P., at p. 828.) I would agree, and would suggest that the case of a mother whose son was sexually abused by the therapist to whom she entrusted her child for treatment presents an even more compelling case.

In this vein, I find other significant points in the Restatement's commentary. First, the Restatement makes the point that "[t]he extreme and outrageous character of the conduct may arise from an abuse by the actor of a position, or a relation with the other, which gives him the actual or apparent authority over the other, or power to affect his interests." (Rest.2d Torts, § 46, com. e, p. 74.) The abuse of such authority in a relationship of trust also compounds the outrageousness of given conduct and makes less essential the presence requirement to limit the universe of potential claimants. Second, the Restatement also notes that "[t]he extreme and outrageous character of the conduct may arise from the actor's knowledge that the other is peculiarly susceptible to emotional distress, by reason of some physical or mental condition or peculiarity." (Rest.2d Torts, § 46, com. f, p. 75.) This factor is particularly relevant to the abuse of the therapeutic relationship, although the degree to which the therapist had knowledge of some particular mental condition of each mother would remain a matter for further inquiry at trial. Finally, the very nature of the conduct at issue in this case substantiates the genuineness of the mothers' claims and renders less necessary the practical limitation of the presence requirement, just as the enormity of the conduct at issue in a given case may render less significant the value of bodily harm in demonstrating that the distress was sufficiently severe to permit recovery. (Rest.2d Torts, § 46, com. k, p. 78; see 2 Harper et al., The Law of Torts (2d ed. 1986) § 9.1, p. 610.)

These factors render unnecessary the rigid presence requirement either as a practical limitation or as a means of verifying the authenticity of the mothers' claims. The allegations of the complaint encompass the essential elements of the tort of intentional infliction of emotional distress — that severe distress was actually and proximately caused by extreme and outrageous conduct of the therapist undertaken with reckless disregard of the probability of causing such distress. ( Cervantez v. J.C. Penney Co., supra, 24 Cal.3d at p. 593.) That the mothers framed their allegations in terms of negligent infliction of emotional distress is not dispositive. ( Barquis v. Merchants Collection Assn., supra, 7 Cal.3d at p. 103.) Nor do I see any other reason why the mothers should not be entitled to recover for the intentional infliction of emotional distress here.

The principle is well established that "[e]veryone is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care. . . ." (Civ. Code, § 1714, subd. (a).) "[I]n the absence of statutory provision declaring an exception to the fundamental principle enunciated by section 1714 of the Civil Code, no such exception should be made unless clearly supported by public policy. [Citations.] [¶] A departure from this fundamental principle involves the balancing of a number of considerations; the major ones are the foreseeability of harm to the plaintiff, 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, the policy of preventing future harm, the extent of the burden to the defendant and 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." ( Rowland v. Christian (1968) 69 Cal.2d 108, 112-113 [70 Cal.Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496].)

These principles, although normally invoked in evaluating the scope of liability for the negligent breach of a duty of care, strike me as relevant here as well in determining whether the fundamental principle of responsibility for the consequences of one's acts should be abrogated. Although I would suggest that liability for the consequences of willful acts ought, for the very reason that the acts were willful, to be broader than that imposed for the negligent failure to meet a duty of care, the Rowland factors at least establish a bottom line. That is, if those factors do not justify limiting liability, there is no need to consider whether a greater showing should be required to cut off liability for the consequences of a volitional act.

Taken as a whole, these factors support the mothers' entitlement to sue here for the emotional distress they suffered. The harm was foreseeable; the mothers suffered distress (the extent of which is obviously a question for the jury); the injury suffered by the mothers is closely, indeed immediately, connected with the therapist's conduct; moral blame plainly attaches to his conduct; and the burden on the defendant is nothing that society would conclude should not be borne. While it is true that insurance may not be readily available for the risk and that imposing liability may serve but slightly the policy of preventing future harm as the children's own claims more directly serve this end, even these factors do not suggest strong reason for declining to impose liability for the emotional distress naturally flowing from the therapist's misconduct. Denominating the therapist's acts as an intentional tort might perhaps affect the prospects of insurance coverage, but his underlying acts were plainly willful however one characterizes the tort and, as to the mothers, the point is not that he acted with the specific intent to cause harm but that he acted with reckless disregard of the possibility they would be injured.

I would stress that I do not propose here some unbounded theory of liability for parental distress occasioned by injuries, even intentional injuries, to a child. I will not attempt to determine whether — and, if so, what — other intentional torts might justify imposing liability on the tortfeasor for the infliction of emotional distress. A playground fight is one matter; a brutal assault on a defenseless child might be another. After all, an essential element of the tort is "extreme and outrageous" conduct. ( Cervantez v. J.C. Penney Co., supra, 24 Cal.3d at p. 593.) Nor would I now attempt to definitively determine what class of persons might recover in which circumstances, although I agree that recovery ought at the least to be limited to "a member of [the injured] person's immediate family" (Rest.2d Torts, § 46(2)(a), p. 72), and I might question whether liability should run further than to the parents or guardians of an abused child. But I see no principled basis for precluding a cause of action for the intentional infliction of emotional distress on facts similar to those of this case. That the mothers were not present when their children were molested is simply irrelevant, and the therapist's molestation of their sons was outrageous conduct arguably actionable as the intentional, as well as the negligent, infliction of emotional distress. Although the two torts have different elements (see Ochoa v. Superior Court (1985) 39 Cal.3d 159, 165, fn. 5 [216 Cal.Rptr. 661, 703 P.2d 1]), there is no reason why both may not be established in a single case if the harm results from extreme and outrageous conduct that also breaches a duty of care. (See id., at p. 196, fn. 13 (conc. and dis. opn. of Bird, C.J.); cf. Waters v. Bourhis (1985) 40 Cal.3d 424, 434 [220 Cal.Rptr. 666, 709 P.2d 469] [psychiatrist's sexual misconduct with patient may constitute intentional tort as well as malpractice].) I think this is such a case.

Mosk, J., concurred.

EAGLESON, J.

I concur in the judgment. I do so because the complaint alleges facts to establish a psychotherapist/patient relationship between the plaintiff mothers and the defendants. That relationship gives rise to a duty on the part of defendants to refrain from conduct that foreseeably may aggravate the condition for which treatment was sought or inhibit the therapist's ability to successfully treat the patient. Because it is foreseeable that sexual misconduct with another family member who is also under treatment by the therapist will do so, that misconduct is professional malpractice. ( Richard H. v. Larry D. (1988) 198 Cal.App.3d 591, 596 [243 Cal.Rptr. 807]; Mazza v. Huffaker (1983) 61 N.C. App. 170 [ 300 S.E.2d 833, 837-838]; Horak v. Biris (1985) 130 Ill. App.3d 140 [ 474 N.E.2d 13, 58 A.L.R.4th 965].)

I do not, however, agree that a "direct victim" theory of liability or Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916 [167 Cal.Rptr. 831, 616 P.2d 813, 16 A.L.R.4th 518], has any relevance to the plaintiffs' right to recover. The conclusion of the trial court that the mothers had not stated a cause of action under Molien was correct. The court erred only in failing to recognize that the allegations of the complaint did state a cause of action for professional malpractice.

As the majority recognize, Molien did not establish an independent cause of action for infliction of serious emotional distress. Since there was no breach of a professional relationship between the defendant and the plaintiff, the justification for permitting recovery in that case was the defendant's assumption of a duty to the plaintiff when he directed that his diagnosis of a sexually transmitted disease be communicated to plaintiff.

Although purporting to deny the existence of a cause of action for negligent infliction of emotional distress, by suggesting that Molien is authority for, or somehow relevant to, permitting recovery here, the majority in fact perpetuate the mistaken view that such a cause of action may exist. (See, e.g., Accounts Adjustment Bureau v. Cooperman (1984) 158 Cal.App.3d 844, 848 [204 Cal.Rptr. 881]; Fischer, Tort Law: Expanding the Scope of Recovery Without Loss of Jury Control (1983) 11 Hofstra L.Rev. 937, 951; Schwartz, Economic Loss in American Tort Law: The Examples of J'Aire and of Products Liability (1986) 23 San Diego L.Rev. 37, 39, fn. 13; Comment, Negligent Infliction of Emotional Distress: New Horizons After Molien v. Kaiser Foundation Hospitals (1982) 13 Pacific L.J. 179, 180; Comment, Negligent Infliction of Emotional Distress as an Independent Cause of Action in California: Do Defendants Face Unlimited Liability? (1982) 22 Santa Clara L.Rev. 181; Prosser and Keeton on Torts (5th ed. 1984) pp. 364-365.)

The majority's reliance on Molien in this case, and its suggestion that permitting recovery is somehow novel although not a "dramatic step" are inexplicable. The explanation in Molien that the plaintiff was a "direct victim" did no more than distinguish and explain why the Molien plaintiff had not stated a cause of action as a "bystander" victim whose emotional distress injury was caused by observation of an injury to another. ( Dillon v. Legg (1968) 68 Cal.2d 728 [69 Cal.Rptr. 72, 441 P.2d 912, 29 A.L.R.3d 1316].) Identification of the plaintiff as a "direct victim" of the defendant's negligence did not, however, explain the source of the duty which obligated the defendant for emotional distress damages — recovery which is normally permitted only as an item of "parasitic" damages when the defendant is liable for another injury. The majority's explanation here that the therapist's "tortious conduct" was directed at both the children and their mothers suffers from the same defect. It does not identify any tort other than negligence that supports the recovery of damages for emotional distress, and thus supports negligent infliction of emotional distress as an independent cause of action.

Neither reliance on, nor analogy to, Molien is appropriate in this case. Each of the mothers stated a cause of action for professional malpractice. When a professional relationship involves counseling or therapy for the purpose of treating an emotional or psychiatric condition, the right to recover for malpractice which worsens that condition and in so doing causes severe emotional distress is clear. Indeed, the majority cite ample authority for such recovery, but for reasons that are unclear, refuse to acknowledge that professional malpractice is the sole basis for holding that the mothers stated a cause of action in their complaint.

I cannot join the majority in suggesting that Molien v. Kaiser Foundation Hospitals, supra, 27 Cal.3d 916, is relevant here, or has any application beyond its facts. I agree, however, that the plaintiff mothers have stated a cause of action — for professional malpractice — in which damages for severe emotional distress may be recovered. I, therefore, concur in the judgment.

Lucas, C.J., and Panelli, J., concurred.