William Fluharty picked up his phone on July 14, 1992 and heard the voice of his father, Jack, say, "I just blew your mother's head off and I am going to blow my head off." William and his wife raced the short distance to Jack's house, and found him standing in the driveway with a shotgun tucked under his chin. They also saw William's mother slumped over in a nearby parked car. William pleaded with Jack to put the gun down and after distracting Jack, lunged towards him. The two men wrestled for the gun and William was able to subdue Jack, but not before the gun discharged, slightly injuring William's wife.
Jack was convicted of murder and sentenced to prison. William and his brothers settled a wrongful death claim against Jack, essentially stripping him of all of his assets. William developed post traumatic stress disorder ("PTSD"). Subsequently, he brought an action against Jack relating to William's role in the events of July 14th. The trial court dismissed two of William's complaints alleging negligent infliction of emotional distress for William's witnessing of his mother's corpse and his father's attempted suicide, and then based on William's status as a "rescuer." William's third complaint alleged that he was entitled to damages for negligent infliction of emotional distress as a witness to his wife's injury both as a "bystander" and a "direct victim," as well as for assault and battery. The court ruled that the evidence did not support these charges. William appealed.
Holding: The trial court properly rejected the claims in all three complaints and the judgment for the defendant was affirmed. After noting that the theories for recovery for negligent infliction of emotional distress "lead into an analytical quagmire," the court first carefully detailed the current state of the law, identifying two theories for recovery: "[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."
Additionally, a party may recover as a direct victim (in the absence of any physical impact or injury) "where a duty arising from a preexisting relationship is negligently breached."
"I just blew your mother's bead off"
The court quickly dismissed the bystander claim, since William was not aware of his wife's injury "at or about the time it occurred." Moving to William's claim of liability as a direct victim, the court identified the key issue as being whether or not Jack owed William a duty of care under the circumstances. The court first noted that "heartache and emotional pain are an inherent staple of the parent-child relationship," and that the law imposes no relevant obligations in a parent-child relationship involving an adult child. Next, the court explained that while Jack's conduct may have been "morally reprehensible," his conduct in trying to hurt himself was not criminal. The court reasoned that finding a duty under the facts of this case would essentially be imposing a duty on parents to "refrain from conduct which would cause emotional distress to their. . . children." Such a duty would impose liability on a parent who summons an adult child for assistance after a car accident. Thus, the court held that under the circumstances, no duty of care existed, and as such William could not sustain a claim for negligent infliction of emotional distress as a direct victim.
| Rayna Rogers, D.O. Associate Professor of Child Psychiatry Univeristy of California |
Dr. Rogers comments: The notion of adult children suing their father for wrongful death under these circumstances makes sense. They can exact their "pound of flesh" emotionally from their father, while at the same time transferring the parental assets to the family, bypassing any probate or evidentiary snags which might have otherwise kept the resources in the hands of state bureaucrats. Beyond this, however, there is no psychological or financial reason for this suit.
The essential question of the duty of a parent to avoid behaving in ways which might be harmful to their adult offspring is intriguing. The majority opinion states "heartache and emotional pain are an inherent staple of the parent-child relationship. Nevertheless, parents are duty-bound by law in all 50 states to avoid causing harm to their minor children. Beyond the point of (supposed) developmental maturity, around age 18, these formerly protected individuals become "fair game" for any type of behavior the parents choose to employ. Theoretically, at least, by this age the offspring have developed some kind of coping mechanism sufficient to protect them from the slings and arrows of outrageous parental behavior.
In my experience as a child/adolescent psychiatrist, outrageous behavior does not generally arise de novo when parents are middle-aged or elderly. Certainly something such as a dementia can cause previously healthy persons to act with wanton disregard for the rights of others, but such does not seem to be the case in Fluharty. More likely, and more commonly, there has been marginal or worse parental functioning all along. Clearly William Fluharty, the son, had substantial antipathy toward his father prior to the homicide of his mother. The fact that he described himself as "curious" about his father's stated suicidal intent, rather than shocked or alarmed, suggests that whatever filial affection may have been present between them had long since died out. The most likely explanation for this fact, and indeed for the lawsuit being brought in the first place, is that Jack Fluharty, the father, had conducted himself all along in a manner which caused emotional distress to his children.
It is well known in child psychiatry that children are extraordinarily willing to forgive their parents for mistreatment. Even the most horrific child abuse is followed by the child's pleas to return to the parent, once the state has intervened. In Fluharty we do not know all of the outrageous things that may have transacted between parent and child. If we did, perhaps we could return to years past and point to behavior by Jack Fluharty which a court would find him duty-bound to cease. Surely if Mr. Fluharty had conducted himself throughout his life with an eye toward avoiding harm to his family, this case would never have occurred at all. William, like millions of other children of outrageous parents, will ultimately have to look inside himself to find the remedy; if any such remedy exists.
Theoretically at least, by age 18 children can cope with outrageous parental behavior.
 | Lawrence Levine, J.D. Professor of Law University of the Pacific |
Professor Levine comments: When a plaintiffs harm is psychic injury (as opposed to personal injury or property damage), courts throughout the country have long placed significant restrictions on the plaintiffs ability to recover. There has been a sense that emotional harm is easily feigned, hard to measure, and impossible to limit. Nonetheless, courts increasingly have been permitting recovery for emotional distress, and California courts have been at the forefront.
The Fluharty court's refusal to permit the plaintiff to recover for his emotional distress is surprising under California's liberalized emotional distress law. Indeed, it is hard to find a modern decision more contemptuous of emotional distress recovery than the majority opinion in Fluharty.
The majority's treatment of the plaintiffs direct victim claim is problematic. Under California law, the plaintiff can recover for his emotional distress (even without any physical injuries) provided that he or she has a preexisting relationship with the defendant. The question for the court, then, is whether the plaintiffs adult son has such a preexisting relationship with the father. It seems hard to deny that the family bond satisfies this requirement.
The majority demonstrates its suspicion of emotional distress when it questions whether the plaintiff has actually suffered harm here, a surprising assertion in light of the strong evidence of the genuineness of the injury. It would be hard to imagine a more harrowing set of facts for a son to confront, and in fact there is uncontroverted evidence that he suffered from severe post-traumatic stress disorder as a result of his ordeal.
It is clear the majority, is worried (properly) about excessive liability, and the implications of finding a duty in the intrafamilial context. The majority opinion expresses concern that disappointed parents and unhappy children will sue each other for emotional trauma. But under California law as it exists, recovery for emotional distress requires both a preexisting relationship and serious emotional distress. This latter element is designed to keep the trivial claims out of court and, though imperfect, is what current California law has to offer.
Experts need to be aware of special considerations when there are two accidents.
Later cases may need to refine the parameters of direct actions for emotional distress. But for now, under the current state of the law, it is hard to see how the plaintiff son, suffering from post-traumatic stress disorder as a consequence of observing his father's attempt to commit suicide, cannot be permitted to recover for his emotional distress as a direct victim.
