Hathaway

Petitioners, Gregory Lee Hathaway and Laura Jane Hathaway, seek a peremptory writ directing the superior court to set aside its order granting a partial summary judgment to the real party in interest, Frank Hendrix.

Petitioners are the father and mother of Michael Hathaway, age six, deceased. They commenced the underlying action against real party in interest and others for wrongful death, and in the fifth cause of action of their complaint sought to state a cause of action against real party in interest and others upon the theory of negligently inflicted emotional distress resulting in physical injuries. The court below granted real party’s motion for summary judgment on the fifth cause of action upon the ground that petitioners had not suffered emotional distress as a result of direct emotional impact from the sensory and contemporaneous observance of the accident which caused their son’s death as contrasted with learning of the accident from others after its occurrence. We agree and deny the writ.

Facts

Mr. Hathaway was the brother-in-law of Bill Clayton who rented his house from real party in interest. Hathaway and Clayton installed an evaporative cooler at the…