While Bob and his wife, Sally, were jogging in Balboa Park in San Diego, a car driven by Axel suddenly careened off the one-way road striking Bob and narrowly missing Sally. Sally saw the car coming, but was unable to warn Bob in time and witnessed him being struck. While Sally is not injured, she suffered severe emotional distress from seeing her husband being critically injured. Sally sues Axel on the above facts, claiming a right to damages for negligent infliction of emotional distress. Axel moves to dismiss the complaint under Rule 437c of the California Rules of Civil Procedure.
Assume the California law bars recovery for emotional injuries without accompanying physical impact, but Sally has worded her complaint generally, alleging Axel negligently drove his automobile and such negligence proximately caused injuries to Sally, for which she claims damages. Axel moves for failure to state a claim. What type of motion should Axel file, and will his motion be denied or granted? Give your reasons for your opinion.
Suppose that is support of Axel's motion he provides sworn testimony from Sally's deposition wherein she admitted she was not struck by his car. Sally responds to Axel's motion with an affidavit stating in detail the emotional injuries she suffered and how they manifested. She also submits evidence of lost wages and authenticated bills for psychological care due to her emotional injuries. Give your opinion as to the outcome of the motion based on these facts.

Answer rating: 100% (QA)

Type of Motion Axel Should File Axel should file a motion to dismiss for failure to state a claim un... View the full answer