Dillon v. Legg

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Dillon v. Legg
CA SC seal.png
Court Supreme Court of California
Full case name Margery M. Dillon v. David Luther Legg
Decided June 21 1968
Citation(s) 68 Cal.2d 728
441 P.2d 912
69 Cal.Rptr. 72
29 A.L.R.3d 1316
A bystander that suffers damages by the conduct of a negligent tortfeasor can recover for negligent infliction of emotional distress.
Court membership
Chief Judge Roger J. Traynor
Associate Judges Mathew Tobriner, Raymond E. Peters, Stanley Mosk, Raymond L. Sullivan, Louis H. Burke, Marshal F. McComb
Case opinions
Majority Tobriner, joined by Peters, Mosk, Sullivan
Dissent Traynor
Dissent Burke, joined by McComb

Dillon v. Legg, 68 Cal. 2d 728 (1968), was a case decided by the Supreme Court of California that established the tort of negligent infliction of emotional distress. To date, it is the most persuasive decision of the most persuasive state supreme court in the United States: Dillon has been favorably cited and followed by at least twenty reported out-of-state appellate decisions, more than any other California appellate decision.[1]

Factual background[edit]

A mother and her daughter witnessed the death of her other child in a car accident caused by a negligent driver. The mother and daughter sued for emotional distress as a result of witnessing the accident. The trial court dismissed the claim under the prevailing zone of danger rule - the plaintiff needed to be in physical danger of the accident itself to recover for emotional distress.[2][3]

Opinion of the Court[edit]

Majority opinion[edit]

The court relied on foreseeability in order to establish whether or not a negligent defendant owed a duty of care to a bystander. The court urged a case by case analysis of several factors to determine if foreseeability would create a duty to a bystander:

  • Whether the plaintiff was near the scene of the accident,
  • Whether the plaintiff suffered an emotional shock from contemporaneously observing the accident, and
  • Whether the plaintiff is closely related to the victim

Using these criteria, the court determined that it was foreseeable that the negligent operation of an automobile could cause emotional distress to a mother witnessing the injury of her child in an accident.[4]

Traynor's dissent[edit]

In his dissenting opinion, Justice Traynor asserted that the case should have been decided according to the zone of danger rule enunciated in the case Amaya v. Home Ice, Fuel & Supply Co.[5]

Burke's dissent[edit]

In dissent, Justice Burke asserted that the majority had adopted arguments that were previously rejected in Amaya. Burke criticized the guidelines offered by the majority as insufficient protection against possibly limitless liability. Burke viewed the limitations on liability inherent in the zone of danger rule as logical and necessary, and thought that such a pronounced change in liability rules should be adopted by the legislature and not the courts.[6]


  1. ^ Jake Dear and Edward W. Jessen, " Followed Rates" and Leading State Cases, 1940-2005, 41 U.C. Davis L. Rev. 683, 694(2007).
  2. ^ Henderson, J.A. et al. The Torts Process, Seventh Edition. Aspen Publishers, New York, NY: 2007, p. 305
  3. ^ Meyer, Robert G.; Christopher M. Weaver (December 15, 2005). Law and mental health: a case-based approach. Guilford Press. ISBN 1-59385-221-5. 
  4. ^ Henderson, J.A. et al., p. 307
  5. ^ Dillon v. Legg, 68 Cal.2d 728, 748 (1968)
  6. ^ Dillon, 68 Cal.2d at 749-52

External links[edit]