Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. SC 087221. Patricia L. Collins, Judge.
Geragos & Geragos, Mark J. Geragos and Tamar G. Arminak for Plaintiff and Appellant.
Cynthia L. Gillette for Defendants and Respondents Sunset Conglomerate Restaurants, Inc., Saddle Ranch Chop House, LLC and Saddle Ranch Operating Company, LLC.
ROTHSCHILD, J.
A friend of the plaintiff distributed nude photographs of the plaintiff at a restaurant that they and their friends frequented. Plaintiff sued the restaurant for negligent infliction of emotional distress on the theory it breached its duty to protect him from emotional harm. The trial court granted the restaurant’s motion for summary judgment on the grounds the restaurant did not owe a duty of care to plaintiff and, even if it did, plaintiff had no evidence the restaurant breached that duty.
We hold the proprietor of a restaurant does not assume a duty to its patrons to avoid inflicting emotional harm. Therefore, we affirm the judgment.
FACTS AND PROCEEDINGS BELOW
The following facts are undisputed.
Pierre Charbat had been a regular patron of the bar at the Saddle Ranch Chop House (Saddle Ranch) for approximately two years. He normally went there every Thursday and on weekends. He would meet a regular group of friends at the bar, have drinks and occasionally eat dinner.
On the night of the incident, Charbat arrived at Saddle Ranch at approximately 10:00 p.m. He met friends at the bar and ordered a drink. A few minutes later a waitress handed Charbat a paper folded in half and asked, “‘Oh, by the way, can I get your autograph?’” Charbat unfolded the paper and discovered it was a photograph of him in the nude. Charbat recognized the photograph as one that his friend, Bedros Kalaydjian, had taken. Kalaydjian had told Charbat that the negative and all copies of the picture had been destroyed.
The record does not contain a more detailed description of the photograph but the parties’ briefs on appeal agree the photo showed Charbat going “the Full Monty.”
At his deposition, Charbat testified: “My first reaction was I laughed, like what am I going to do, and then everybody started laughing[.]” His friend Kalaydjian said, “‘Look, I put them everywhere[.]’” When Charbat looked around he saw that copies of the photograph were on the bar and on tables as well as posted on the walls and above the doorway to the restrooms. The security guard at the door also had one. Charbat estimated there were roughly 40 of the pictures throughout the bar. Charbat told Kalaydjian, “‘This is a funny joke. I give you credit.’” There is no evidence in the record as to how long the photographs had been on view before Charbat arrived.
Charbat further testified that “all the guys [were] laughing at the picture, making a mockery of it, the waitress [was] laughing, the bartender [was] laughing.” As people continued to laugh, Charbat gathered the pictures, ripped them up and threw them away.
Charbat admitted that he did not see any Saddle Ranch employees place the pictures around the bar and that he did not ask any of his friends or Saddle Ranch employees for help in removing the pictures. He testified that as far as he knew, Kalaydjian was the only person who distributed the pictures. He also testified that after removing as many pictures as he could, he remained at the Saddle Ranch with Kalaydjian and other friends for “several hours.” At 1:00 or 1:30 a.m. Charbat and some of his friends left the Saddle Ranch and went to another bar.
Charbat testified that prior to the incident: “I used to frequent clubs four times a week, five time[s], three times.” After the incident, “[s]lowly, little by little I just didn’t go anymore.” “I dropped out of the scene, stopped going out, stopped doing everything.” He explained the reason he stopped going to clubs was because of the pictures. “[E]verybody goes to Saddle. So I wasn’t about to be the mockery of the whole town, ‘Oh, there’s the idiot with his picture posted all over Saddle Ranch.’” Instead of going to clubs Charbat went out on dates and “stayed very low key[.]” It took over a year from the incident for him to start going to clubs again.
In his action against Saddle Ranch, Charbat alleged that the defendant breached its duty “to exercise reasonable care to protect its patrons from [the] reasonably foreseeable criminal or tortious conduct of third persons . . . by encouraging, permitting and assisting . . . [Kalaydjian] in publishing, distributing and posting nude and compromising photographs of [p]laintiff all over the walls, counters and throughout the public establishment.” He concedes that Saddle Ranch did not cause him any physical injury or direct economic loss.
The trial court granted Saddle Ranch’s motion for summary judgment on the grounds that Saddle Ranch did not owe a duty of care to protect Charbat from emotional distress caused by Kalaydjian’s distribution of the nude photographs and even if it did owe such a duty Charbat had no evidence that it breached it.
Charbat filed a timely appeal from the judgment.
DISCUSSION
Negligent infliction of emotional distress is a form of negligence in which the plaintiff must establish the usual elements including the “essential element” of duty. (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984.) A plaintiff may recover for negligently inflicted emotional distress if (1) “the defendant has assumed a duty to plaintiff in which the emotional condition of the plaintiff is an object,” or (2) “the emotional distress arises out of the defendant’s breach of some other legal duty” (id. at p. 985) and (3) the defendant could reasonably foresee that its failure to exercise due care posed an unreasonable risk of “serious emotional harm” to the plaintiff. (Erlich v. Menezes (1999) 21 Cal.4th 543, 556; Friedman v. Merck & Co. (2003) 107 Cal.App.4th 454, 474.) Here, Charbat contends that Saddle Ranch assumed a duty to protect his emotional well-being while he was a patron at its establishment. We disagree.
In Christensen v. Superior Court (1991) 54 Cal.3d 868 and Huggins v. Longs Drug Stores California, Inc. (1993) 6 Cal.4th 124, our Supreme Court addressed the question whether the defendant assumed a duty of care for the emotional condition of the plaintiff. In Christensen, the court held that when handling human remains mortuaries and crematories assume such a duty to the decedents’ close relatives. In Huggins, the court held that in filling a prescription pharmacies do not assume such a duty to the patient or the patient’s agent.
In Christensen, the plaintiffs brought a class action on behalf of surviving spouses, other relatives, and designated representatives of decedents whose remains had been mishandled by defendants. In their negligence cause of action plaintiffs alleged that they suffered severe emotional distress resulting from defendants’ mutilating their decedents’ remains, performing multiple cremations in which they comingled their decedents’ remains with those of other decedents and with nonhuman residue “and by unceremoniously and disrespectfully handling [plaintiffs’] decedents’ remains . . . .” (Christensen v. Superior Court, supra,54 Cal.3d at p. 879.) The trial court issued an order limiting the class to those persons who contracted for mortuary or crematory services and individuals who possessed the statutory right to control the disposition of remains at the time of the decedent’s death. (Id. at p. 880.)
The Supreme Court reversed the trial court’s order. The high court held that the class of persons who may recover for emotional distress caused by the defendants’ mishandling of remains consists of “those close family members who were aware that funeral and/or crematory services were being performed, and on whose behalf or for whose benefit the services were rendered.” (Christensen v. Superior Court, supra,54 Cal.3d at p. 875.) In defining the class, the court looked to the nature of the duty owed by the defendants. The court concluded that the “defendants undertook not simply to provide an expeditious disposal of the remains of plaintiffs’ decedents[.] Rather, . . . defendants undertook to provide appropriate and dignified services of the type that bereaved family members normally anticipate.” (Id. at p. 886.) The court concluded that the survivors’ “‘reasonable expectation of dignity, tranquility, and personal consolation’” in the handling of their decedents’ remains is the “essence” of the relationship between them and the mortuary. (Id. at p. 887, fn. 17, quoting Leavitt, The Funeral Director’s Liability For Mental Anguish (1964) 15 Hastings L.J. 464, 491.) Therefore, the court held, that “by undertaking to provide mortuary services, the defendant . . . created a relationship between itself and the family of the decedent by virtue of which an affirmative duty arose to avoid [emotional] harm to the family members.” (Christensen v. Superior Court, supra,54 Cal.3d at p. 888.)
In Huggins, a pharmacist filling a prescription for an infant negligently wrote directions to administer five times the dosage ordered by the doctor. The child’s parents followed the pharmacist’s directions and the child became lethargic and unresponsive as a result of the overdose. The parents sued defendant for negligent infliction of emotional distress from having unwittingly injured their child by administering the prescription as directed. (Huggins v. Longs Drug Stores California, Inc., supra,6 Cal.4th at p. 126.)
The Supreme Court affirmed a judgment for the defendant. The court identified the duties of a pharmacist as selecting, measuring, and labeling prescribed medication in accordance with the doctor’s orders, bringing errors or problems with the prescription to the doctor’s attention, and advising patients about the proper use of prescribed drugs and their possible side effects. “Nothing in those duties,” the court held, “imposes any legal responsibility upon pharmacists for the emotional well-being of the patient’s parents, even if the pharmacist knows the patient is an infant and that the parents will be administering the medication.” (Huggins v. Longs Drug Stores California, Inc., supra, 6 Cal.4th at p. 132.)
As Christensen and Huggins demonstrate, a defendant will be found to have assumed a duty to protect the plaintiff’s emotional well-being if the “essence” of their relationship, or at least one of its “primary purposes,” is to protect the plaintiff’s emotional tranquility. (Christensen v. Superior Court, supra, 54 Cal.3d at p. 887, fn. 17; Greenberg, Negligent Infliction of Emotional Distress: A Proposal For A Consistent Theory Of Tort Recovery For Bystanders And Direct Victims (1992) 19 Pepperdine L. Rev. 1283, 1306-1307.)
In Christensen, the court concluded a mortuary’s duty to the decedent’s close family is not limited to its statutory duty to prepare the decedent’s body for burial. (Christensen v. Superior Court, supra, 54 Cal.3d at p. 886.) It also owes a duty to avoid emotional harm to the bereaved family by providing them “appropriate and dignified services.” (Ibid.) In Huggins, the court concluded a pharmacist’s duty to a patient is limited to selecting, measuring and labeling prescribed medicines, consulting with the patient’s doctor about possible errors or problems with the prescription, and advising patients about the proper use of prescribed drugs and their possible side effects. The court reasoned the pharmacist’s duty to advise the patient’s agent, such as a parent, about the proper use of the medication “has nothing to with the agent’s personal welfare[.]” Instead, the purpose of the duty is to assure that the pharmacist’s advice is put to use for the benefit of the patient. (Huggins v. Longs Drug Stores California, Inc., supra,6 Cal.4th at p. 132.
Turning to the case before us, restaurants and bars owe a duty to use reasonable care to see that the food and beverages they furnish are “free from injurious substances and fit for human consumption” (Rickner v. Ritz Restaurant Co. of Passaic (N.J. 1935) 181 A. 398, 399; and see Annot., Liability For Injury Or Death Allegedly Caused By Foreign Object In Food Or Food Product, (1992) 1 A.L.R. 5th 1, §§ 35-37.) Charbat has offered no authority for the proposition a restaurant or bar owes a duty to use reasonable care to protect the patron’s emotional well-being while dining or drinking.
Charbat maintains that restaurants and bars provide more than just food and drink to their customers; they also provide service. From this premise he draws the conclusion that restaurants and bars owe a duty of care in the management of their service to “protect[] . . . their guests’ emotional well-being.” We are not persuaded. The relationship between a restaurateur and a patron is not comparable to the relationship between a mortuary and a decedent’s close family. The emotional well-being of the restaurant’s patron is not the “essence” of their relationship nor is protection of the patron’s emotional well-being a “primary purpose” of the restaurant-patron relationship.
Furthermore, even if we were to conclude that in offering food and beverage to a patron a restaurant undertakes to provide appropriate service, that undertaking would not create a duty of care on the part of the restaurant for the patron’s emotional welfare.
As noted above, a cause of action for negligent infliction of emotional distress requires that the defendant could reasonably foresee its failure to exercise due care posed an unreasonable risk of “serious emotional harm” to the plaintiff. (Erlich v. Menezes, supra, 21 Cal.4th at p. 556; Friedman v. Merck & Co., supra, 107 Cal.App.4th at p. 474.) “‘[S]erious mental distress may be found where a reasonable man, normally constituted, would be unable to adequately cope with the mental stress engendered by the circumstances of the case.’” (Molien v. Kaiser Foundation Hospitals, (1980) 27 Cal.3d 916, 928, citation omitted.) A restaurateur could not reasonably foresee a patron would suffer “serious mental distress” because the waiter was rude or the coffee was cold. Indeed, it is difficult to imagine a deficiency in the service or environment of a restaurant or bar with which a reasonable person, normally constituted, would be unable to cope.
Because we have determined that Saddle Ranch did not owe a duty of care to Charbat it is unnecessary to address the trial court’s conclusion Charbat cannot establish breach of that duty.
DISPOSITION
The judgment is affirmed. Respondents are awarded their costs on appeal.
We concur: MALLANO, Acting P. J., JACKSON, J.
(Judge of the L. A. S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)