On January 26, 2001, Diane Alexis Whipple was savagely attacked and mauled to death by two Presa Canario dogs as she was opening the front door to her San Francisco apartment. The following March, Whipple's partner, Sharon Smith, commenced a wrongful death lawsuit against the dogs' owners, Marjorie Knoller and Robert Noel. Recognizing that under the current legal regime, Smith's suit would almost certainly be dismissed on demurrer because the two women were related by neither blood nor marriage, the California Legislature enacted section 1714.01 of the Civil Code, which would enable domestic partners, such as Smith, to sue for wrongful death. Going one step further, however, section 1714.01 also allows domestic partners to recover for negligent infliction of emotional distress. This Note examines the continuing validity of the California Supreme Court's negligent infliction of emotional distress jurisprudence, which has steadfastly restricted the right to recover to persons related to negligence victims by blood or marriage, in light of the enactment of Civil Code section 1714.01. This Note argues for the adoption of the approach taken by the New Jersey Supreme Court, under which the familial nature of the relationship between two persons must be assessed in determining whether one of them can recover for negligent infliction of emotional distress. Only the California Supreme Court's adoption of this approach for plaintiffs other than domestic partners will bring the Court's stance into line with that of the People of California, who, through their elected representatives, have expressed the view that persons other than blood relatives and spouses might deserve to recover for negligent infliction of emotional distress.
Michael Jay Gorback,
Negligent Infliction of Emotional Distress: Has the Legislative Response to Diane Whipple's Death Rendered the Hard-Line Stance of Elden and Thing Obsolete,
54 Hastings L.J. 273
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