death act statutes." No reference to any particular statute is made in the complaint. In their response to Air Florida's motion to dismiss, however, plaintiffs argue only as to the wrongful death claim, and cite D.C.Code § 16-2701 as the basis for that claim. Evidently plaintiffs have conceded their survival act claim, although the Court nonetheless examines, below, whether plaintiffs may state such a cause of action.
Section 16-2702 of the District of Columbia Code provides that an action pursuant to D.C. Code § 16-2701 "shall be brought by and in the name of the personal representative of the deceased person." The term "personal representative" as used in this section is limited to officially appointed executors and administrators. Strother v. District of Columbia, 372 A.2d 1291, 1296 n.7 (D.C. 1977). Neither plaintiff qualifies as the decedent's personal representative. The decedent's widow, Susan A. Saunders, is the duly appointed personal representative of his estate. See Susan A. Saunders v. Air Florida, Inc., Civil Action No. 82-1049 (D.D.C., filed Apr. 15, 1982). Her action has been settled and dismissed. Consequently, neither plaintiff in the instant action may bring a wrongful death action on behalf of the decedent.
Nor do plaintiffs state a claim under the District of Columbia survival act, D.C. Code § 12-101. That statute provides that a cause of action that decedent would have had had he lived survives him in favor of his legal representative. If a decedent has left heirs-at-law, his legal representative shall be one of them. Strother v. District of Columbia, 372 A.2d at 1295-96 and 1296 n.6. As decedent left a widow and three children (see Amended Complaint, Susan A. Saunders v. Air Florida Inc., Civil Action No. 82-1049), his parents are not heirs of his under District of Columbia or California Law. See D.C. Code §§ 19-303, -305, -306; Cal. Prob. Code § 221. Moreover, as plaintiffs claim only damages suffered by them rather than losses of the decedent, they do not allege damages which are the proper subject of a survival action. D.C. Code § 12-101. Accordingly, plaintiffs' survival claim, as well as their wrongful death claim, shall be dismissed.
II. The Emotional Shock Claim
In this count, the male plaintiff asserts that he "was in close proximity to the hereinabove described incident and personally witnessed the injuries sustained by his son, 1st Lt. Michael Dean Saunders, via television communications." Complaint, para. 11. As a result, plaintiff alleges, he "sustained great emotional disturbance, shock, and injury to his nervous system which has caused, continued to cause, and will cause him great physical and mental pain and suffering in an amount to be proven at trial pursuant to rules of Court." Id. He also seeks damages in an indeterminate amount for costs of medical treatment and incidental expenses. Id. at P 12.
A. District of Columbia Law
Under the District of Columbia wrongful death act, the proper recovery is the amount of financial loss suffered by the spouse and next of kin as a result of the decedent's death. Runyon v. District of Columbia, 150 U.S. App. D.C. 228, 463 F.2d 1319, 1322 (D.C. Cir. 1972). There is no provision for the recovery by the decedent's survivors for mental suffering, grief, or anguish. Id. Plaintiff, however, argues that Runyon is inapplicable in that he has alleged a cause of action for negligent infliction of emotional distress "separate and distinct" from the statutory wrongful death claim.
None of the cases cited by plaintiff supports the proposition that under the law of the District of Columbia a person may state a cause of action for grief or emotional distress arising from watching the commission of an injury-causing negligent act against a third party. Parrish v. United States, 123 U.S. App. D.C. 149, 357 F.2d 828 (D.C. Cir. 1966), involved a claim for emotional distress by a victim of an automobile accident who had sustained physical injuries as a result therefrom, against the party who was alleged to have negligently caused the accident. It was not a case involving one person's grief about another's injuries. Rothenberg v. Aero Mayflower Transit Co., 495 F. Supp. 399 (D.C. Cir. 1980), cited by plaintiff, was a case in which the court denied a claim for punitive damages. As such, this was not an action for negligent conduct, but for intentional or reckless infliction of emotional distress. 495 F. Supp. at 407. Finally, neither did Waldon v. Covington, 415 A.2d 1070 (D.C. 1980) concern a claim for emotional distress arising from another's injuries. That was, inter alia, a survival action for intentional infliction of emotional distress against the plaintiff's deceased husband. 415 A.2d at 1075 n.17, 1076, 1078 n.24.
While plaintiff correctly notes that under Parrish the physical injury attendant to emotional distress need not be substantial in order for the emotional harm to be actionable, there must be some physical injury. Garber v. United States, 188 U.S. App. D.C. 172, 578 F.2d 414, 416 (D.C. Cir. 1978). However, plaintiff's allegations of physical injury are too tenuous to meet the requirements of Parrish. Moreover, where a cause of action for emotional distress has been allowed in the District of Columbia, it is the emotional distress which arises from the physical injury-causing impact, rather than the physical injury which arises from the emotional harm. Accordingly, there is no cause of action in the District of Columbia for negligent infliction of emotional shock occurring as the result of watching another's injury, even if such grief ultimately manifests itself physically in the plaintiff. The harm alleged by plaintiff is too unforeseeable for him to be able to state a claim against Air Florida.
B. California Law
California law provides an extremely limited exception to its general rule that no recovery may be had for emotional distress arising from the death of another. In Dillon v. Legg, 68 Cal.2d 728, 441 P.2d 912, 69 Cal. Rptr. 72 (1968), a mother sued a motorist for emotional shock arising from her having watched the defendant negligently run into her daughter, killing her. In reversing the trial court's judgment on the pleadings for the defendant on this issue, the California Supreme Court listed three factors for a court to consider in determining whether the harm was reasonably foreseeable rather than remote and unexpected: whether the plaintiff and the victim were closely related, whether the plaintiff was present at the scene of the accident as contrasted to one who was a distance away from it, and "whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence." 69 Cal. Rptr. at 79-80. "The evaluation of these factors," the court stated, "will indicate the degree of the defendant's foreseeability. . . ." Id. 69 Cal. Rptr. at 80-81. (Emphasis in original deleted.) The court went on to explain:
. . . the degree of foreseeability of the third party's injury is far greater in the case of his contemporaneous observance of the accident than that in which he subsequently learns of it. The defendant is more likely to foresee that shock to the nearby, witnessing mother will cause physical harm than to anticipate that someone distant from the accident will suffer more than a temporary emotional reaction.