MARK LEE TAYLOR and PAMELA TAYLOR v. HONEYWELL INTERNATIONAL, INC. and JEPPESEN SANDERSON, INC.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARK LEE TAYLOR and PAMELA
TAYLOR,
Plaintiffs - Appellants,
v.
HONEYWELL INTERNATIONAL, INC.
and JEPPESEN SANDERSON, INC.,
Defendants - Appellees.
No. 12-17507
D.C. No. 4:10-cv-04659-SBA
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Saundra B. Armstrong, District Judge, Presiding
Argued and Submitted March 11, 2015
San Francisco, California
Before: W. FLETCHER, DAVIS ** , and CHRISTEN, Circuit Judges.
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
FILED
MAR 26 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Andre M. Davis, Senior Circuit Judge for the U.S.
Court of Appeals for the Fourth Circuit, sitting by designation.

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and loss of consortium.1 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, 831
P.2d 1197, 1200–01 (Cal. 1992) (en banc); Molien v. Kaiser Found. Hosps., 616
P.2d 813, 821 (Cal. 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 Taylors’ 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 (2007), the record
1 The parties are familiar with the facts, so we do not recount them here.
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shows a genuine dispute of material fact on the question whether Mark “reasonably
fear[ed] 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., 863 P.2d
795, 833 (Cal. 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, 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, 71 Cal. Rptr. 2d 891, 897–98 (Cal. Ct. App. 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
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proposition that a plaintiff’s 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.
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