                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             MAR 26 2015

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

MARK LEE TAYLOR and PAMELA                       No. 12-17507
TAYLOR,
                                                 D.C. No. 4:10-cv-04659-SBA
              Plaintiffs - Appellants,

  v.                                             MEMORANDUM*

HONEYWELL INTERNATIONAL, INC.
and JEPPESEN SANDERSON, INC.,

              Defendants - Appellees.


                   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


        *
             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.
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.

                                         2
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




                                           3
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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