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December 3, 1991

JENNIFER MARTIN and ELIZABETH MARTIN, by and through their Guardian ad Litem, VIKKI MARTIN AND VIKKI MARTIN, individually, Plaintiffs,
UNITED STATES OF AMERICA, et al. Defendants.

The opinion of the court was delivered by: JAMES WARE


 This lawsuit raises two important issues of California law. First, under Dillon v. Legg, 68 Cal. 2d 728, 441 P.2d 912, 69 Cal. Rptr. 72 (Cal. 1968) and its progeny, can family members recover against a day care center for emotional distress suffered after learning that a six-year family member was abducted and raped while under the center's negligent supervision. Recent decisions of the California courts have refined and limited the standards for recovery for negligent infliction of emotional distress. This Court is asked to apply these standards to adjudicate claims in this case.

 Second, the Court is asked to decide if Proposition 51, the so-called "Deep Pocket" initiative passed by the California electorate in 1986, requires a proportionately low assessment of damages against the government by requiring a comparison of its negligent conduct with the intentional conduct of the kidnapper and rapist. This appears to be a matter of first impression.


 This lawsuit arises from an incident involving Jennifer Martin, a six-year old girl, who was abducted and raped on December 6, 1986 while on an outing with the Presidio of Monterey Youth Center ("Center"). Jennifer and eight other children were under the supervision of Sal Maene, Director of the Center. Maene took the children on an authorized field trip to Monterey Veterans Memorial Park. While at the park, due to Maene's negligence, Jennifer became separated from the group. She was abducted and raped by Gary Johnson. (See Exhibit "C" to Declaration of Robert M. Butler in Support of Defendant's Motion for Summary Judgment). Jennifer suffered serious emotional distress as a result of the incident.

 Jennifer seeks damages from the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. Section 1346 (b), 2691 et seq., on the ground that the supervisor of the Youth Center was negligent in his supervision of Jennifer and the other children.

 Jennifer's mother, Vikki Martin, has also filed a claim for negligent infliction of emotional distress which she suffered upon learning that her daughter had been kidnapped and raped. Finally, the victim's sister, Elizabeth Martin, who was also at the day care center, but who did not witness the abduction or rape, has also filed a claim for negligent infliction of emotional distress.

 The government has moved for summary judgment with respect to the claims of the mother and sister. The government argues that even if the supervisor of the Center was negligent, Jennifer's mother and sister were neither "bystanders" nor "direct victims" and thus may not recover for negligent infliction of emotional distress.

 In addition, the government contends that the California Fair Responsibility Act (Proposition 51) applies to any non-economic damages which may be awarded in this case. Proposition 51 provides that when liability of joint tortfeasors is based upon principles of comparative fault, the liability of each defendant for non-economic damages shall be several only and shall not be joint. The government states that Proposition 51 requires the court to award a relatively small amount of damages against it, because the damages caused by its negligent supervision are relatively minor in comparison to the damages caused by the serious criminal acts committed by the person who actually kidnapped and raped the child.

 For the reasons discussed more fully below, this Court grants the government's motion for summary adjudication barring the claims of Vikki and Elizabeth Martin. However, the Court finds that Proposition 51 is inapplicable to this case because the principles of comparative negligence do not apply to cases such as this where one tortfeasor is negligent and a co-tortfeasor is guilty of intentional misconduct.


 A. Summary Judgment

 Summary judgment should be granted where there is no genuine issue of any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The substantive law identifies which facts are material. A genuine issue is one in which the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, 477 U.S. 242, 248, 91 L. Ed. 2d 202 , 106 S. Ct. 2505 (1986). The evidence, and any inferences based on underlying facts, must be viewed in a light most favorable to the plaintiffs as opposing parties. Diaz v. American Telephone & Telegraph, 752 F.2d 1356, 1358 n.1 (9th Cir. 1985). Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538 , 106 S. Ct. 1348 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176 , 82 S. Ct. 993 (1962)).

 B. Applicable Law

 Under the Federal Tort Claims Act, the United States may be held liable for negligence of its agents or its employees. Liability is to be determined "in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. § 2674. Tort actions under the FTCA are to be governed by the "law of the place." 28 U.S.C. § 1346(b); Kangley v. United States, 788 F.2d 533 (9th Cir. 1986). Because the acts which are the subject of this action occurred in California, California law applies.


 A. Negligent Infliction of Emotional Distress

 A labyrinthine body of law has developed in California around actions for negligent infliction of emotional distress. Under California law, negligent infliction of emotional distress fails within the ambit of negligence actions. Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc., 48 Cal. 3d 583, 770 P.2d 278, 281, 257 Cal. Rptr. 98 (Cal. 1989) (quoting 6 Witkin, Summary of California Law Torts § 838 at 195 (9th ed. 1988)). Thus the criteria for establishing a cause of action for negligence must be met, i.e. duty, breach, causation, damage. It is a question of law as to whether a defendant owes a duty of care. Historically, foreseeability of risk has been the hallmark of recovery for negligent infliction of emotional distress. Dillon, 441 P.2d at 920 (allowing recovery and providing that the foreseeability "factor will be of prime concern in every case"). The California Supreme Court has stated that in determining whether a defendant owes a duty of care, policy considerations must be weighed and, in fact, policy considerations have been a chief consideration in the court's decisions. Marlene F., 770 P.2d at 281 (quoting Slaughter v. Legal Process & Courier Service, 162 Cal. App. 3d 1236, 209 Cal. Rptr. 189, 196 (Cal. App. 1984); Dillon, 441 P.2d at 916; Thing v. La Chusa, 48 Cal. 3d 644, 771 P.2d 814, 827-29, 257 Cal. Rptr. 865 (Cal. 1989) (discussing policy rationale for limiting recovery under negligent infliction of emotional distress); see also id. at 842 (Broussard, J., dissenting) (noting majority's "undue and what appears to be almost total reliance on policy rationale").

 Although criticized and circumscribed by relatively recent California Supreme Court decisions, California recognizes two theories of recovery for negligent infliction of emotional distress: "bystander/percipient witness" and "direct victim." See Thing, 48 Cal. 3d 644, 771 P.2d 814, 257 Cal. Rptr. 865 (Cal. 1989); Marlene F., 48 Cal. 3d 583, 770 P.2d 278, 257 Cal. Rptr. 98 (Cal. 1989); see also Schwarz v. Regents of University of California, 226 Cal. App. 3d 149, 276 Cal. Rptr. 470 (Cal. App. 1990) (reviewing limitation placed on bystander recovery for negligent infliction of emotional distress by Thing opinion, noting Thing's criticism of direct victim recovery but concluding that direct victim theory is still viable after Thing and Marlene F. decisions).

 Because of the amorphous if not contradictory character of this area of negligence and in an attempt to achieve a level of lucidity in the Court's decision, this order first briefly traces the history of the development of bystander and direct victim recovery. It then assesses ...

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