Mark Lee TAYLOR and Pamela Taylor, Plaintiffs-Appellants, v. HONEYWELL INTERNATIONAL, INC. and Jeppesen Sanderson, Inc., Defendants-Appellees, 599 F. App'x 664

MEMORANDUM This is an appeal of the district court’s decision to grant

summary judgment to Honeywell on the Taylors’ claims for negligent infliction of emotional distress and loss of consortium. We reverse the district court’s judgment and remand for further proceedings. 1. Mark Taylor’s claim for negligent infliction of emotional distress is not precluded as a matter of law. California law does not require physical injury for negligent infliction of emotional distress. See Burgess v. Superior Court, 2 Cal.4th 1064, 9 Cal.Rptr.2d 615, 831 P.2d 1197, 1200-01 (1992) (en banc); Molten v. Kaiser Found. Hosps., 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813, 821 (1980) (en banc).

When there is a breach of duty, “a person who is in the path of negligent conduct and reasonably fears for his or her own safety may recover for resulting emotional distress.” In re Air Crash Disaster Near Cerritos, Cal., 973 F.2d 1490, 1493 (9th Cir.1992). The district court concluded that Honeywell owed Mark a duty, and Honeywell does not contest that conclusion on appeal. Further, the record contains evidence supporting the Taylors’ claim that Mark experienced the threat of harm as a result of Honeywell’s allegedly defective flight management system.

There is also ample evidence supporting the Tay-lors’ claim that Mark suffers from post-traumatic stress disorder as a direct and proximate result. Particularly when viewed in the light most favorable to the Taylors, see Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007), the record shows a genuine dispute of material fact on the question whether Mark “reasonably fearfed] for his ... safety.” See Cerritos, 973 F.2d at 1493.

The fact that the flight crew avoided a crash does not negate the evidence showing that the alleged negligence subjected Mark “to an unreasonable risk of personal injury” such that “a reasonable person, in [his] position, would sustain serious emotional distress.” See Potter v. Firestone Tire & Rubber Co., 6 Cal.4th 965, 25 Cal. Rptr.2d 550, 863 P.2d 795, 833 (1993) (George, J., concurring and dissenting). This case is distinguishable from cases in which plaintiffs had opportunity to avoid the threat of harm entirely. See, e.g., Robinson v.

United States, 175 F.Supp.2d 1215, 1229 (E.D.Cal.2001) (denying relief under California law because a ten-minute warning “allowed [plaintiffs] adequate time to escape the specific threat of physical injury”). Here, it was impossible for Mark to avoid the threat posed by the allegedly defective flight management system. See Potter, 25 Cal.Rptr.2d 550, 863 P.2d at 833 (George, J., concurring and dissenting) (discussing hypothetical pedestrian narrowly avoiding speeding car and indicating that threat of injury is the relevant issue); Wooden v.

Raveling, 61 Cal.App.4th 1035, 71 Cal.Rptr.2d 891, 897-98 (1998) (quoting Potter hypothetical and holding plaintiff was not precluded from relief simply because car did not actually 'hit her). Honeywell cites no authority for the proposition that a plaintiffs professional training precludes him from recovering emotional distress damages as a matter of law. 2. The district court dismissed Pamela Taylor’s claim for loss of consortium because it was derivative of Mark’s claim. Because we reverse the dismissal of Mark’s claim, we likewise reverse the dismissal of Pamela’s derivative claim for loss of consortium.

REVERSED and REMANDED for further proceedings. This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3. . The parties are familiar with the facts, so we do not recount them here.