VERNON F. SHEPARD et al., Petitioners, v. THE SUPERIOR COURT OF ALAMEDA COUNTY, Respondent; RONALD RANDALL PORTER et al., Real Parties in Interest, 76 Cal. App. 3d 16

Opinion TAYLOR, P. J. Petitioners seek a writ of mandate to compel respondent court to vacate its order sustaining without leave to amend the Ford Motor Company’s demurrer to their causes of action seeking recovery in strict liability and warranty for physical injuries resulting from emotional shock suffered in witnessing the infliction of injuries and death upon close family members. We have concluded that petitioners are entitled to relief by prerogative writ.

The facts which give rise to the action are alleged in the complaint as follows: On October 17, 1976, at approximately 2 a.m., the Shepard' family, returning home from a holiday in Reno, was proceeding in a westerly direction on Interstate Highway 80. Vernon Shepard was driving; his wife, Gloria, was a passenger in the right front seat; and their two minor children, Jean and Vernon III, were asleep in the rear carrying area of the family’s 1975 Ford Pinto wagon.

Gibson and Porter, operating their automobile on Interstate Highway 80 in the same direction as the Shepards, lost control and negligently struck the left side of the Shepard Pinto. Because of a defect in the manufacture and/or design of the locking mechanism of the Pinto’s rear door by Ford, the door opened and Jean and Vernon III were thrown onto the highway. The Gibson-Porter automobile ran over Jean, resulting in her death. Vernon, Gloria and Vernon III observed the accident and Jean’s injuries and death, causing them mental shock, suffering and accompanying physical injuries. In Dillon v.

Legg (1968) 68 Cal.2d 728 [69 Cal.Rptr. 72, 441 P.2d 912, 29 A.L.R.3d 1316], the court upheld a cause of action for physical injuries flowing from a mother’s emotional trauma in witnessing the death of her child. The court suggested that the cause of action should be sustained whenever the injury was reasonably foreseeable, “excluding the remote and unexpected” (p. 741).

In order to limit the “otherwise potentially infinite liability” which might flow from every negligent act, the court listed the factors to be considered in determining reasonable foreseeability and whether the defendant owed the plaintiff a duty of due care. They are: “

(1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it.

(2) 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.

(3) Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.” (Pp. 740-741.) In Dillon and subsequent cases, the court has carefully limited its ruling to a case in which the plaintiff has suffered actual physical injury as a result of witnessing the infliction of injury upon a family member (Dillon, supra, p. 740; Justus v. Atchison (1977) 19 Cal.3d 564, 582 [139 Cal.Rptr. 97, 565 P.2d 122]; Borer v. American Airlines, Inc. (1977) 19 Cal.3d 441, 450 [138 Cal.Rptr. 302, 563 P.2d 858]; Krouse v.

Graham (1977) 19 Cal.3d 59, 76 [137 Cal.Rptr. 863, 562 P.2d 1022]; Capelouto v. Kaiser Foundation Hospitals (1972) 7 Cal.3d 889, 892, fn. 1 [103 Cal.Rptr. 856, 500 P.2d 880]; Hair v. County of Monterey (1975) 45 Cal.App.3d 538, 542-544 [119 Cal.Rptr. 639]). Petitioners’ complaint alleged that Vernon Shepard was the father and Gloria Shepard the mother of Jean Shepard, and that Vernon Shepard III was the brother of Jean; that petitioners were together in the Pinto at the time of the accident, and that petitioners suffered emotional shock and physical injuries by observing the death of Jean and injuries to Vernon.

These allegations satisfy the criteria to sustain the cause of action in negligence set forth in Dillon.

Respondent court, however, accepted Ford’s contention that petitioners were limited to recovery under the theory of negligence by reason of the court’s statement in Dillon that “The basis for such claims must be the adjudicated liability and fault of defendant; that liability and fault must be the foundation for the tortfeasor’s duty of due care to third parties who, as a consequence of such negligence, sustain emotional trauma.” (Dillon, supra, p. 733.) We point out that in Dillon, there was no attempt to establish a case of strict liability and thus the issue before the court in the instant case was not even presented.

Petitioners here contend that Ford owes a duty to petitioners on the related theories of strict liability and warranty. We agree. Under Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57 [27 Cal.Rptr. 697, 377 P.2d 897, 13 A.L.R.3d 1049], a manufacturer is strictly liable in tort when an

article he places on the market, knowing that it is to be used without inspection, proves to have a defect that causes injury to a human being (p. 62). To establish the manufacturer’s liability, it is sufficient that plaintiff prove that, while using the product in the way it was intended to be used, he was injured as a result of a defect in design and manufacture, of which he was not aware. In Elmore v.

American Motors Corp. (1969) 70 Cal.2d 578, 586 [75 Cal.Rptr. 652, 451 P.2d 84], the court extended the doctrine of strict liability to cover injuries to bystanders, finding such injuries to be “ ‘a perfectly foreseeable risk of the maker’s enterprise.’ ” (P. 586.) Under the theory of strict liability, as in negligence, the injury and harm must be “reasonably foreseeable” (Cronin v. J. B. E. Olson Corp. (1972) 8 Cal.3d 121, 126 [104 Cal.Rptr. 433, 501 P.2d 1153]).

Vehicle manufacturers must take into consideration the possibility of accidents resulting in injury which are reasonably foreseeable from the defective design and manufacture of their products (Horn v. General Motors Corp. (1976) 17 Cal.3d 359, 366 [13] Cal.Rptr. 78, 551 P.2d 398]). It has been held that a plaintiff in a products liability case may seek recovery at the same time on theories of strict liability in tort and in negligence for physical injuries directly inflicted (Jiminez v. Sears, Roebuck & Co. (1971) 4 Cal.3d 379, 387 [93 Cal.Rptr. 769, 482 P.2d 681, 52 A.L.R.3d 92]).

The court in Jiminez concluded that “No valid reason appears to require a plaintiff to elect whether to proceed on the theory of strict liability in tort or on the theory of negligence” (p. 387). We see no logical reason why the same rule of multiple theories of recovery should not be extended to those who suffer physical injuries indirectly as a result of emotional shock, as contended in this case. By alleging the presence of the requirements listed in Dillon, petitioners have stated a sufficient cause of action.

The injuries complained of are as much a foreseeable consequence of a defect in design and manufacture as of the negligence of the driver (Dillon, supra, p. 741) and the “potentially infinite liability” upon manufacturers, which Ford fears, will not arise by reason of the restrictions imposed by the court in Dillon which would apply equally to negligence, strict liability and warranty cases.

To permit recovery against the negligent driver and exempt the manufacturer responsible for the defective condition contributing to the injuries would defy common sense and be inconsistent with the realities of modern society. It would jeopardize “the viability of the judicial process for ascertaining liability for tortious conduct itself’ (Dillon, supra, pp. 747-748; Kriegler v. Eichler Homes, Inc. (1969) 269 Cal.App.2d 224, 227 [74 Cal.Rptr. 749]).

Our conclusion is in consonance with the stated purpose of the courts in adopting the doctrine of strict liability, .i.e., “to relieve the plaintiff from problems of proof inherent in pursuing negligence [citation] and warranty [citation] remedies, and thereby ‘to insure that the costs of injuries resulting from defective products are borne by the manufacturers. . . .’ [Citation.]” (Cronin v. J. B. E. Olson Corp., supra, p. 133.) Let a peremptory writ of mandate issue as prayed for in the petition. Rouse, J., concurred.