379 P.2d 513 (Cal. 1963)
Plaintiff Lillian Amaya appeals from a judgment of dismissal entered upon an order sustaining defendants' general demurrer to her complaint after she had declined an opportunity to amend.1 At the time of the events, Amaya was seven months pregnant and standing near her seventeen-month-old son James while watching over him when she observed the defendants' truck negligently bearing down upon the boy.2
She shouted a warning to the defendants, but they failed to stop the truck and ran over James, compelling her to stand helpless and watch her infant son be struck.3 As a direct and proximate result of the defendants' negligent operation of their truck, Amaya suffered an emotional shock and great mental disturbance, became violently ill and nauseous, and sustained injury to her body and nervous system.4
She further alleged on information and belief that such injuries would result in some permanent disability.5 She sought general damages in the amount of fifty thousand dollars along with medical expenses and other relief.6 It was stipulated that all the fright and shock she suffered was as a result of her fear for the safety of her child and not out of fear for her own safety.7
The trial court sustained the defendants' general demurrer to the complaint after Amaya declined an opportunity to amend.8 A judgment of dismissal was entered upon that order.9 Amaya appealed from the judgment to the Supreme Court of California.10 The Supreme Court decided the matter on March 12, 1963.11
Whether liability may be predicated on fright or nervous shock (with consequent bodily illness) induced solely by the plaintiff's apprehension of negligently caused danger or injury to a third person?12
As a general rule, no recovery is permitted for a mental or emotional disturbance, or for a bodily injury or illness resulting therefrom, in the absence of a contemporaneous bodily contact or independent cause of action, or an element of wilfulness, wantonness, or maliciousness, in cases in which there is no injury other than one to a third person, even though recovery would have been permitted had the wrong been directed against the plaintiff.13
No. The plaintiff was standing near her infant son when she observed the defendants' truck negligently bearing down upon him and ran over the boy.14 She suffered emotional shock and bodily illness as a direct result of fear for her child's safety alone.15 The court held that no duty was owed to the plaintiff for such shock induced by peril to a third person, following the rule of nonliability set forth in Reed v. Moore and other authorities.16
Related opinions on this issue
Joined by Gibson, C.j., And Peek, J.
Justice Peters dissented on the ground that the real issue was narrower than the majority framed it.19 The plaintiff was a mother who witnessed her seventeen-month-old infant child negligently run down by the defendant's truck in her immediate presence, and she suffered serious physical injuries from the resulting emotional shock.20 He argued that liability should exist in this limited situation because the shock and resulting permanent injuries were reasonably probable and reasonably foreseeable.21
Peters further contended that stare decisis should not bar reconsideration of the old rule of nonliability.22 The gradual erosion of earlier limitations, such as the impact rule and the zone-of-danger requirement in intentional tort cases, showed that the law had already moved toward broader recovery.23 He concluded that the zone-of-danger test was illogical and should be abandoned, and that the fundamental maxim that for every wrong there is a remedy supported allowing recovery here.24
Joined by Gibson, C.j., And Peek, J.
Justice Tobriner dissented on the ground that a mother may recover damages for physical injuries resulting from emotional shock caused by fear for the safety of her infant child.25 He argued that the proper approach is to recognize and grant recovery for an injury caused to one who suffers emotional distress.26 He maintained that such injury is foreseeable if a defendant's conduct encompasses potential risk of harm to a class of persons which includes the plaintiff.27
Tobriner maintained that the bases for refusal of relief, which we have discussed, do not actually touch upon the central issue of whether the defendant owed a duty of due care based on foreseeability of the emotional trauma.28 He concluded that it is not consonant with the reactions or the mores of the society of today to hold that the mother who suffers emotional distress upon the sight of her child's injury should not recover if the trier of fact finds such injury was reasonably foreseeable.29