Unpublished Disposition, 841 F.2d 1130 (9th Cir. 1988)

MEMORANDUM^* 

OVERVIEW

Captain Richard Willing committed suicide while actively serving in the United States Air Force. His widow brought this suit against the United States and the Air Force under the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq. ("FTCA") for wrongful death, negligent infliction of emotional distress, and loss of consortium. She asserted similar claims against several individual defendants under the federal district court's pendent jurisdiction.

When Captain Willing killed himself, he and Mrs. Willing were living in separate residences. Defendant Major Jones was Captain Willing's superior officer, mentor, and friend. Mrs. Willing's complaint alleges that Major Jones and other members of his family caused her husband to "forsake" her and depend on the Jones family for "emotional sustenance." She claims that the Jones family encouraged Captain Willing to frequently drink to excess and engage in an illicit relationship with Jones' stepdaughter.

According to the complaint, Captain Willing became depressed about his marriage and his Air Force duty assignment. Major Jones continued to associate with Captain Willing despite Mrs. Willing's request to "discontinue his actions causing [Mr. Willing] to be in an extremely dependent and precarious emotional state." [Complaint, VIII, page 4.] Mrs. Willing also conferred with Colonel Paul, Captain Willing's Wing Commander. One night, while drinking in Jones' company, Captain Willing indicated that he would commit suicide. Mrs. Willing complains that members of the Jones family, as well as other Air Force personnel, voluntarily assumed a duty of care to Captain Willing and breached that duty by allowing him to become severely depressed and to eventually kill himself. Mrs. Willing also alleged that the government inflicted mental distress upon her by negligently conducting the governmental investigation of Captain Willing's death.

The district court dismissed all of Mrs. Willing's causes of action. We have closely studied the convoluted and confusing briefs and arguments in this case and have concluded that Willing appeals only dismissal of claims for negligent infliction of emotional distress against (1) the private defendants and (2) the United States.

PRIVATE DEFENDANTS

Whether the district court had subject matter jurisdiction over the claims against the private defendants in this case presents a question of law reviewed de novo by this court. Peter Starr Prod. Co. v. Twin Continental Films, Inc., 783 F.2d 1440, 1442 (9th Cir. 1986).

Mrs. Willing does not allege any independent ground for federal jurisdiction over the state law claims against the private defendants, but contends that the court should assert its pendent jurisdiction over the claims because "a common nucleus of operative facts exist" in the state law claims and the FTCA claims against the United States government.

The district court properly dismissed the state law claims for lack of subject matter jurisdiction. To appeal this point approaches frivolity in light of the many statements by this court on the subject. For example, we recently stated:

In refusing to exercise pendent party jurisdiction, however, the district court was applying a long line of cases of this circuit. They hold that under a theory of pendent jurisdiction, a state claim against a defendant may be added to a pending claim over which the court already has jurisdiction, but that pendent jurisdiction does not permit a new party to be added to a case absent an independent jurisdictional basis. Safeco Insurance Co. v. Guyton, 692 F.2d 551, 555-56 (9th Cir. 1982); Munoz v. Small Business Administration, 644 F.2d 1361, 1365-66 (9th Cir. 1981); Ayala v. United States, 550 F.2d 1196, 1197 (9th Cir. 1977), cert. dismissed, 435 U.S. 982, 98 S. Ct. 1635, 56 L. Ed. 2d 76 (1978); Hymer v. Chai, 407 F.2d 136, 137-38 (9th Cir. 1969); Williams v. United States, 405 F.2d 951, 954 (9th Cir. 1969).

Carpenters Cal. Admin. Corp. v. D & L Camp Const. Co., 738 F.2d 999, 1000 (9th Cir. 1984).

UNITED STATES

The FTCA provides that the government "shall be ... in the same manner and to the same extent as a private individual under like circumstances...." 28 U.S.C. § 2674. Liability is to be determined "in accordance with the law of the place where the [negligent] act or omission occurred." 28 U.S.C. § 1346(b). In this case, the allegedly negligent acts occurred in California. Thus, the question for this court is whether, under California law, Mrs. Willing's allegations of negligent infliction of emotional distress based on the conduct of government personnel surrounding her husband's suicide state a claim for which a private individual could be liable.

Mrs. Willing's claims against the United States, for negligent infliction of emotional distress, are based first, on the conduct of government personnel prior to her husband's suicide, and second, on the conduct of government personnel subsequent to her husband's suicide. The district court dismissed the pre-suicide claim for lack of subject matter jurisdiction based on Feres v. United States, 340 U.S. 135 (1950), which bars FTCA claims "for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." Id. at 146. The post-suicide claim was dismissed for failure to state a claim under California law. Upon review, we find it unnecessary to reach the Feres question because neither the pre or post-suicide claim is actionable under California law.

An action may be dismissed for failure to state a claim only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Gibson v. United States, 781 F.2d 1334, 1337 (9th Cir. 1986) (citations omitted), cert. denied, --- U.S. ----, 107 S. Ct. 928 (1987). Our review is limited to the contents of the complaint, and all allegations of material fact must be taken as true and construed in the light most favorable to the non-moving party. Western Reserve Oil & Gas Co. v. New, 765 F.2d 1428, 1430 (9th Cir. 1985), cert. denied, 474 U.S. 1056 (1986).

The crucial question raised is whether the government owed Mrs. Willing a duty of care regarding the emotional distress she allegedly suffered. The existence of a duty primarily depends upon the foreseeability of the risk. Foreseeability is determined on a case-by-case basis. Ochoa v. Superior Court, 39 Cal. 3d 159, 166, 703 P.2d 1, 5, 216 Cal. Rptr. 661, 665 (1985).

In cases where the plaintiff was not within the zone of imminent physical danger, such as the present case, the California Supreme Court has recognized only two categories of plaintiffs that may be deemed foreseeable, and thereby capable of maintaining an action for negligent infliction of emotional distress. The first category of plaintiffs, "bystanders," are those who witness the negligent infliction of death or injury to another. See Dillon v. Legg, 68 Cal. 2d 728, 441 P.2d 912, 69 Cal. Rptr. 72 (1968). The second category of plaintiffs, "direct victims," are those who are themselves a primary target of the defendant's conduct. See Molien v. Kaiser Foundation Hospitals, 27 Cal. 3d 916, 616 P.2d 813, 167 Cal. Rptr. 831 (1980). Mrs. Willing's claims are based on the direct victim theory of liability.

Under this theory, Mrs. Willing's pre-suicide claim must fail. The alleged conduct of the government personnel was directed at Captain Willing. It was he who allegedly was encouraged to drink excessively and engage in an illicit relationship. As a direct result, Captain Willing allegedly became depressed, estranged from his wife, and suicidal. Nothing was done directly to Mrs. Willing. Any distress that she suffered was wholly derivative of what was being done to her husband and the changes she observed in his behavior.

Mrs. Willing's visit to the Air Force base and conversations with her husband's superior officers does not provide the direct linkage required under California law. Her distress was not caused by anything that was said to her during the visit. Compare Molien, 27 Cal. 3d 916, 616 P.2d 813, 167 Cal. Rptr. 831 (doctor misdiagnoses woman's condition and gives distressing report to husband--duty to husband); and Accounts Adjustment Bureau v. Cooperman, 158 Cal. App. 3d 844, 204 Cal. Rptr. 881 (1984) (doctor misdiagnoses child's condition and gives distressing report to parents--duty to parents); with Ochoa, 39 Cal. 3d 159, 703 P.2d 1, 216 Cal. Rptr. 661 (doctor misdiagnoses child's condition and gives encouraging report to mother--no duty to mother); and Kossell v. Superior Court, 186 Cal. App. 3d 1060, 231 Cal. Rptr. 183 (1986) (doctor misdiagnoses man's condition and gives encouraging report to wife--no duty to wife). Rather, her distress derived from the officers' failure to modify their behavior toward Captain Willing.

Mrs. Willing's visit did no more than inform her husband's superior officers that she was very concerned for her husband's well being. But this fact is insufficient to support a direct victim cause of action. In almost all cases it is foreseeable that negligent treatment of a person will implicate the interests of family members. California has never adopted such a "pure foreseeability" approach to the tort of negligent infliction of emotional distress. See Andalon v. Superior Court, 162 Cal. App. 3d 600, 609, 208 Cal. Rptr. 899, 903-04 (1984). Without conduct directed at Mrs. Willing, there simply cannot be liability under the direct victim theory. Therefore, dismissal of the pre-suicide claim, for failure to state a claim under California law, was proper.

The post-suicide claim does not suffer from the same infirmity. Mrs. Willing alleges, inter alia, that government personnel, during the investigation of her husband's suicide, withheld documents and the original suicide note that she had requested. As alleged, this conduct was directed toward Mrs. Willing, and was not merely derivative of her husband's ordeal.

In dismissing this claim, the district court briefly noted that Mrs. Willing and the military were not in a "special relationship" that justified extending the direct victim theory. [Order 22-23]. The California Supreme Court has not held that a special relationship must exist before this cause of action may be maintained. The special relationship concept was utilized by the Third District Court of Appeal in Andalon, 162 Cal. App. 3d 600, 208 Cal. Rptr. 899, and again in Newton v. Kaiser Hospital, 184 Cal. App. 3d 386, 228 Cal. Rptr. 890 (1986). It has, however, been rejected by the Second District in Martinez v. County of Los Angeles, 186 Cal. App. 3d 884, 892, 231 Cal. Rptr. 96, 102 (1986).

We decline to apply the special relationship as an absolute requirement. As the Dillon court stated, "no immutable rule can establish the extent of [an obligation hinging on foreseeability] for every circumstance in the future." 68 Cal. 2d at 740, 441 P.2d at 920, 69 Cal. Rptr. at 50. In keeping with the decisions in Dillon, Molien, and Ochoa, the special relationship appears to be but one way of simplifying the foreseeability analysis. Mrs. Willing, who has alleged injurious conduct directed at her, should not be denied her day in court merely because hers was not a contractual or doctor-patient relationship.

As a result, and accepting Mrs. Willing's allegations as true, we cannot say that the emotional distress she suffered was not foreseeable as a matter of law. However, the duty analysis does not end here. "While the foreseeability of harm is the initial, court-determined test of a duty of care, other policy factors may move the court to decide, as a matter of law, not to accord protection to the particular plaintiff." Allen v. Toten, 172 Cal. App. 3d 1079, 1087, 218 Cal. Rptr. 725, 730 (1985).

Beyond foreseeability, the major policy considerations to be balanced are:

[T]he 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, 69 Cal. 2d 108, 112-13, 443 P.2d 561, 564, 70 Cal. Rptr. 97, 100 (1968). In its alternative analysis, the district court evaluated each of the six considerations above and concluded that they weigh heavily against imposition of a duty in this case. [Order 24-26]. We agree.

The allegedly negligent investigation that gave rise to this claim simply does not engender the public outrage sufficiently to justify a duty under California law. Unlike medical malpractice, which is the genesis of most emotional distress claims, the conduct in this case is far from certain to produce injury. Nor is it clear that Mrs. Willing's alleged injury was produced by the negligent investigation. As the district court has stated:

Certainly, plaintiff suffered profound grief over the loss of her husband, but the failure to investigate, which is the predicate of this claim, is far less certain to result in emotional distress, but is much more likely to result in the kind of frustration which is frequently occasioned by confrontations with bureaucracy.

[Order 24]. Moreover, the moral blame that attaches to the conduct before us and the need to prevent its future occurrence are questionable. On the other hand, serious concerns over burdening the military, which underlie the Feres doctrine, are implicated.

Even if we assume that the government personnel were negligent in their investigation, not all negligence that causes injury is actionable. The duty analysis is a practical device to limit what would otherwise be boundless liability in tort law. See Allen, 172 Cal. App. 3d at 1086, 218 Cal. Rptr. at 729; Thompson v. County of Alameda, 27 Cal. 3d 741, 750, 614 P.2d 728, 167 Cal. Rptr. 70, 74 (1980). Our duty analysis leads us to the conclusion that the negligent investigation in this case should not produce liability as a matter of law despite the suffering it may have caused. The district court's dismissal was therefore proper.

AFFIRMED.