Metropolitan News-Enterprise


Friday, October 30, 2020


Page 3


Ninth Circuit:

Father Has No Claim Based on USC Flunking His Son

Panel Rejects Plaintiff’s Insistence That University Is Liable for Causing Him Emotional Distress


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday affirmed a determination by the District Court for the Central District of California that a man has no cause of action for the emotional distress he allegedly suffered as the result of the University of Southern California spurning his pleas to relieve his son, a student there, of a disciplinary action against him.

A three-judge panel—comprised of Circuit Judges Michelle T. Friedland, M. Margaret McKeown, and Johnnie B. Rawlinson—upheld District Court Judge John A. Kronstadt’s dismissal, with prejudice, of a complaint filed by Witold Kowbel, a resident of Arizona, who sued in federal court based on diversity of citizenship.

His complaint stemmed from USC lowering his son Daniel Kowbel’s grade in a course from a “C” to an “F.” The action was based on the accusation by Associate Professor Burghardt Tenderich of USC’s Annenberg School for Communication and Journalism that “Daniel had misrepresented when [a] paper was written and submitted” in his course—a charge the Student Judicial Affairs and Community Standards sustained, with its finding affirmed in an appeal process.

Father’s Protest

Witold Kowbel protested to USC:

“Since Daniel Kowbel is my son I have actual knowledge he has suffered from anxiety and depression over the past several months and is on medication. By fabricating lies to support his complaint against Daniel Kowbel, Dr. Tenderich has knowingly hurt Daniel Kowbel by destabilizing his mental condition. A person on depression can be driven to suicide by being subject to a huge external stress. Since these lies were intentional to prove a complaint against Daniel they clearly are part of the external stress inflicted on Daniel by Dr. Tender[i]ch by his fraudulent complaint. These fabricated lies could have killed Daniel Kowbel.”

The university stuck to its determination and the father brought suit, contending that USC had both negligently and intentionally caused emotional distress to him. Along with USC, Ainsley Carry, USC’s vice president for student affairs, was a defendant.

Plaintiff’s Contentions

The plaintiff contended that USC’s misconduct was aimed not only at his son, but also at him, explaining in his complaint:

“i) USC knew Plaintiff would read these LIES since USC knew Daniel is always passing USC information in his case on Plaintiff, ii) USC knew that in Plaintiffs state of mind as stated above any LIES made by USC against Daniel could kill him since he suffers from depression and anxiety and is on medication, iii) USC knew that its conduct of making LIES would result in extreme and severe emotional distress directly inflicted on the Plaintiff not on the basis of witnessing an injury to Daniel but by the Fact that Plaintiff knew such lies could kill Daniel because he is suffering from depression and anxiety….”

Witold Kowbel alleged that he had “experienced a horrifying fright for his son’s life and paralyzing anxiety,” with that fright being “unbearable by any human standard,” adding:

“Plaintiff also suffered excruciating headache and the pain over the whole body. Plaintiff was not able to function and not able to sleep being paralyzed by the horrifying fright and anxiety. The fright and anxiety were so gripping and powerful that Plaintiff was afraid to leave the house. Plaintiff started to suffer from horrible obsessive-compulsive disorder and feared to be around people including any public places.”

Kronstad’s Decision

In granting the motion to dismiss on Oct. 22, 2019, Kronstadt said that the plaintiff’s claim for negligent infliction of emotional distress cannot stand, under California law, explaining:

 “There is no allegation that Daniel suffered any physical harm. Although ‘physical injury is not a prerequisite for recovering damages for serious emotional distress.’ this principle has been applied to allow recovery only in two limited circumstances. Recovery is permitted for the emotional distress of a bystander who witnesses a physical injury to a third person….recovery is also permitted for emotional distress of those who have suffered severe, emotional injuries caused by negligent acts directed toward them, not those directed at another person….However, there is no authority that supports such a claim where the plaintiff allegedly witnessed a third party suffering emotional harm.”

He said the claim for intentional infliction of emotional distress was infirm because “Plaintiff has not alleged that the conduct at issue was directed at him.”

Ninth Circuit Opinion

Yesterday’s Ninth Circuit opinion declares (with references to “Kowbel” being to Witold Kowbel):

“The district court properly dismissed Kowbel’s claim for intentional infliction of emotional distress…because Kowbel failed to allege facts sufficient to show extreme and outrageous conduct or that defendants’ actions were directed towards Kowbel….

“The district court properly dismissed Kowbel’s claim for negligent infliction of emotional distress…as a bystander because Kowbel failed to allege facts sufficient to show that he was present at the time of defendant’s allegedly negligent act and was contemporaneously aware that the act caused injury to his son….

“The district court did not abuse its discretion by dismissing Kowbel’s complaint without leave to amend because amendment would have been futile.”

The case is Kowbel v. University of Southern California, 19-56272.


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