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Court of Appeal:
Orange County Might Be Liable for Reporting to Family Members Death of Person Who Was Alive
Justices Say Liability Is Not Precluded by 1989 California Supreme Court Decision
By a MetNews Staff Writer
A county can be held liable for the emotional distress suffered by the father and sister of a man who was reported by the Coroner’s Office to have died when, in fact, the decedent was another person, Div. Three of the Fourth District Court of Appeal held yesterday.
Damages are sought by Francis J. Kerrigan, father of the man mistakenly reported dead, and Carole E. Meikle, his sister. The error was discovered 17 days after the report was made when the mentally impaired family member, Francis M. Kerrigan (denominated “Frankie” in the opinion) showed up.
Justice Thomas A. Delaney authored the unpublished opinion affirming the denial by Orange Superior Court Judge Theodore R. Howard of a judgment notwithstanding the verdict (“JNOV”) sought by defendant Orange County on causes of action for negligence, rejecting the contention that liability is precluded based on the California Supreme Court’s 1989 decision in Thing v. La Chusa. There, it was held that a mother who did not witness an automobile striking her son, resulting in the child’s death, could not recover damages from the negligent driver for the emotional distress she suffered when she arrived at the scene of the accident.
Justice David Eagleson (now deceased) wrote:
“[T]he societal benefits of certainty in the law, as well as traditional concepts of tort law, dictate limitation of bystander recovery of damages for emotional distress. In the absence of physical injury or impact to the plaintiff himself, damages for emotional distress should be recoverable only if the plaintiff: (1) is closely related to the injury victim, (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim and, (3) as a result suffers emotional distress beyond that which would be anticipated in a disinterested witness.”
In its respondent’s/cross appellant’s brief, Orange County argued:
“In this case, it is undisputed that the Kerrigans suffered neither the death of (nor injury to) a relative. These facts are beyond debate and implicate the restriction for liability laid down in Thing. In short, the loss of a relative is part of life and we are expected to, and do, endure such losses.”
The county queried:
“How can Plaintiffs’ expressions of ‘emotional distress’ satisfy Thing when they admittedly did not witness the death or serious injury of a loved one? How can Plaintiffs’ expressions of “emotional distress” satisfy Thing when their loved one (Frankie) was never injured or killed by anyone (let alone a County employee)?”
Delaney pointed out:
“The instant case, however, is not a ‘bystander’ case. Rather, it is a ‘direct victim’ case….[W]ell-settled principles well-settled principles of negligence include that serious or severe emotional distress may be recovered in negligence actions.” While affirming the denial of the JNOV motion as to causes of action based on negligence, Delaney’s opinion also affirms Howard’s granting of such a motion as to intentional infliction of emotional distress based on lack of evidence of scienter, as well as approving his granting of a new trial as to negligence, based in part on the judge’s perception that Meikle’s testimony was not credible in certain respects.
The jury had awarded $1.2 million to Kerrigan (who died during pendency of the appeal, with Meikle serving as personal representative of the estate) and $400,000 to Meikle.
The mistake as to the identity of an apparently homeless man stemmed from a Fountain Valley informing the Coroner’s Office that he believed the decedent was Francis M. Kerrigan based on previous contacts with him. A Department of Motor Vehicles photo of the younger Kerrigan showed a close resemblance to the face of the dead man.
What the Coroner’s Office missed was that fingerprints showed the true identity of the decedent.
The case is Meikle v. County of Orange, G061912.
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