(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)
III THE DEFENDANTS VIOLATED TWO PRIMARY RIGHTS: (1) ONE INVOLVING INJURY TO THE CHILD AND (2) ONE INVOLVING INJURY TO THE MOTHER; THE MOTHER MAY ASSERT SEPARATE CAUSES OF ACTION FOR EACH VIOLATION OF A PRIMARY RIGHT
The Third District has explained that in tort law, damages flow from violations of primary rights *Skrbina v. Fleming Companies, Inc. (Cal.App. 3 Dist. 1996) 45 Cal.App.4th 1353, 1364.) As noted in the above discussion on Burgess, [a]ny negligence during delivery which causes injury to the fetus and resultant emotional anguish to the mother, therefore, breaches a duty owed directly to the mother. (Emphasis added.) (Burgess, supra, 2 Cal.4th at p. 1076.) And as noted above, the mother also suffered damages from her ruptured uterus. Consequently, the Defendants violated two primary rights ; each violation gives rise to a separate cause of action; the mother has a right now to collect separate damages for each violation.
The Third District explained the distinction between causes of action:
California defines a cause of action in accord with Pomeroy’s primary right theory. [Citation.] A cause of action consists of (1) a primary right possessed by the plaintiff and a corresponding primary duty imposed upon the defendant, and (2) a delict or wrong committed by the defendant which constitutes a breach of such primary right and duty. [Citation.]’ (Miranda v. Shell Oil Co. (1993) 17 Cal.App.4th 1651, 1658, 26 Cal.Rptr.2d 655; 4 Witkin, Cal. Procedure (3d ed. 1985) Pleading, § 23, pp. 66-67.)
The cause of action is based on the injury to the plaintiff, not on the legal theory or theories advanced to characterize it. (Emphasis added.) (Skrbina v. Fleming Companies, Inc., supra, 45 Cal.App.4th at p. 1364.) Here the mother suffered two injuries: (1) emotional distress because of injury to her child pursuant to Burgess and (2) physical injury because of her own injuries (Civil Code, § 1714).
And here, as the Third District noted, these two different causes of action are based upon two different injuries. And these two different injuries lead to two different causes of action:
[I]f a plaintiff alleges that the defendant’s single wrongful act invaded two different primary rights, he has stated two causes of action, and this is so even though the two invasions are pleaded in a single count of the complaint. (Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848, 1854-1855, 16 Cal.Rptr.2d 458; Freidberg v. Cox (1987) 197 Cal.App.3d 381, 388, 242 Cal.Rptr. 851; Zambrano v. Dorough (1986) 179 Cal.App.3d 169, 174, 224 Cal.Rptr. 323; 4 Witkin, op. cit. supra, § 25, p. 69.) (Emphasis added.) (Skrbina v. Fleming Companies, Inc., supra, 45 Cal.App.4th at p. 1364.) (See Part 7 of 8.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.