Negligent infliction of emotional distress: how “present” is present?

GUEST COLUMN

Mom is talking to her daughter on the phone as daughter drives through a busy intersection. Mom hears a collision through the phone, then hears people in the background helping her daughter. Mom realizes that daughter was injured in an accident. Is mom ‘present’ at the scene of the collision such that she can present a claim for negligent infliction of emotional distress?

Yes, according to the California Court of Appeal in the recent decision of Downey v. City of Riverside. Mom must plead facts proving that she was aware of the negligent conduct that injured her daughter as it occurred.

Negligent Infliction of Emotional Distress: Dillon v. Legg (1968)

To understand the current law of negligent infliction of emotional distress, or NIED, a brief review of its history is helpful. NIED is not an independent tort. It is the tort of negligence, with the traditional elements of duty, breach, causation, and damages. (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 72.) Essentially, if Defendant is negligent and hurts Plaintiff, Bystander who witnessed the incident can argue that Defendant’s conduct negligently inflicted emotional distress.

The primary case, as you may recall from law school, is Dillon v. Legg (1968) 68 Cal.2d 728. In Dillon, a child crossing the street was tragically hit by a car and killed. The child’s mother sued the driver, arguing that she suffered emotional trauma witnessing the event from across the street. The trial court dismissed the case because under the then-current rule, the mother was not physically close enough to the collision to have been considered within the “zone of danger.” The holding produced an unusual result: The deceased child’s sibling who was crossing behind her sister and who also witnessed the collision could maintain an NIED claim, but their mother across the street could not.

The California Supreme Court reasoned that even if a mother is not physically within the zone of danger, it is not beyond contemplation that the child’s mother will be somewhere in the vicinity and will suffer serious shock witnessing such a traumatic event. The “hopeless artificiality” of the zone of danger rule led the Supreme Court to question its prior precedent and overrule the zone of danger rule.

Thing v. LaChusa (1989)

The holding in Dillon led courts to grapple with NIED for the next two decades. There were no bright line rules until the California Supreme Court established them in Thing v. LaChusa (1989) 48 Cal.3d 644. The issue in Thing was whether a mother could claim NIED for a collision involving her son that she did not witness. The Court answered this question in the negative. The court’s bright line rules for NIED, which have not changed since, are:

1) Plaintiff is closely related to the victim;

2) Plaintiff is present at the scene of the injury and is then-aware that it is causing injury to the victim; and

3) As a result, plaintiff suffers serious emotional distress.

Applied to the facts of Thing, the court held that the mother could not maintain a claim for NIED. The mother was not present at the scene at the time of the collision, but instead arrived afterwards once her son was already injured and unconscious. As sad as these facts were, the mother did not contemporaneously or sensorily perceive the incident, and thus the second NIED element was not met.

Bird v. Saenz (2002)

Another key case that interpreted the second element of NIED was Bird v. Saenz (2002) 28 Cal.4th 910. Bird was a medical malpractice wrongful death case. Plaintiffs were the children of a decedent who suffered a fatal blood loss during a surgical procedure. The plaintiffs were not physically present in the operating room, but they saw hospital staff wheeling their unconscious mother down the corridor to get to another operating room after allegedly injuring her. The Court noted that the plaintiffs were present after the injury-producing event, but that was not enough. Since they were not present in the operating room and were not contemporaneously aware of medical personnel’s negligent conduct as it occurred, plaintiffs could not maintain their claim for NIED.

Fortman v. Forvaltningsbolaget Insulan AB (2013)

What happens when a bystander is physically present, but does not necessarily know that the defendant’s negligence caused an injury? This common scenario is highly fact specific. Fortman v. Forvaltningsbolaget Insulan AB (2013) 212 Cal.App.4th 830 is instructive. In Fortman, a brother and sister went scuba-diving together off the coast of Catalina. While under water, sister witnessed her brother suffer what she thought was a heart attack. Brother lost consciousness and tragically died.

Sister later learned that her brother actually drowned. During discovery, she also learned that an equipment malfunction was responsible for his death. Her NIED claim failed. Although she was contemporaneously present and witnessed her brother’s death under the water, she had no contemporaneous awareness of the causal connection between the company’s defective product and her brother’s death.

Downey v. City of Riverside (2023)

This background discussion brings us to Downey v. City of Riverside (2023). Plaintiff sued the City of Riverside and an adjacent landowner after her daughter was seriously injured driving through a busy intersection. Plaintiff was on the phone with her daughter and was familiar with the intersection. During the conversation, plaintiff heard a loud crash, then her daughter stopped talking. Another individual then got on the phone and told plaintiff to call 911.

But was plaintiff “present” at the scene by virtue of being on the phone? Citing Bird, the Court noted that a plaintiff’s visual perception of an event is not necessarily required: a viable NIED claim may be stated by a plaintiff who perceives an event by other senses as long as they contemporaneously understand the event caused injury to their close relative. What’s crucial is the plaintiff must allege facts showing an awareness of the causal connection between the defendant’s negligent conduct and the resulting injury as it occurs.

Conclusion

Negligent infliction of emotional distress has vexed many litigants and courts since its recognition by the California Supreme Court almost 60 years ago. As technology continues to improve our lives, the contours of existing NIED doctrine continue to be tested. Whether it’s on Zoom, FaceTime, Snapchat, or the old-fashioned telephone, the definition of who is “present” at the scene of an accident continues to change. Plaintiffs must show a contemporaneous awareness of the causal connection between the defendant’s negligence and their resulting emotional distress. This element is crucial to maintain a successful NIED claim in California.