State Supreme Court clarifies the negligent infliction of emotional distress doctrine

Mom is talking to her daughter on the phone as daughter drives through a busy intersection. Mom hears a collision through the phone, then the line goes silent. Eventually, mom hears a commotion and realizes her daughter is unconscious and seriously injured. Mom sues for negligent infliction of emotional distress.

Last year, the California Court of Appeal ruled in Downey v. City of Riverside that while mom was technically "present" at the scene, she must plead facts proving that she was aware of the causal connection between the defendant's negligence and her daughter's injuries. This is a difficult element to satisfy, as most of the time bystanders perceive the results of negligent conduct and not the negligent conduct itself.

Last month, the California Supreme Court overruled the Court of Appeal. Under established negligent infliction of emotional distress doctrine, mom does not need to show how defendants contributed to her daughter's injuries. Moving forward, a bystander may bring a claim for negligent infliction of emotional distress even if the bystander was not aware of the role defendant played in causing the victim's injury.

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

Negligent infliction of emotional distress, or 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 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 said she could not. The bright line rules for NIED, which have not changed since, are:

• Plaintiff is closely related to the victim;

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

• 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.

Downey v. City of Riverside

In Downey, the plaintiff sued the City of Riverside and an adjacent landowner after her daughter was seriously injured in a collision. Plaintiff was on the phone with her daughter and heard a loud crash. Her daughter stopped talking, then another individual got on the phone and told plaintiff to call 911. Plaintiff sued the City of Riverside and an adjacent landowner, arguing that overgrown landscaping obstructed motorists' visibility at the intersection. The Court of Appeal ruled that the plaintiff must allege facts showing an awareness of the causal connection between the defendant's negligent conduct and the resulting injury. Since the plaintiff was unaware at the time of the crash that it was caused in part by the landowner's overgrown landscape, plaintiff could not establish her claim for NIED.

The California Supreme Court disagreed. The unanimous opinion held that under Thing and associated NIED doctrine, a bystander need not show a contemporaneous perception of the causal link between the defendant's conduct and the victim's injuries. A bystander does not need to demonstrate how defendant may have contributed to the injury. As long as the bystander is present at the scene and is aware that the victim suffered an injury, bystander can present a claim for NIED.

Conclusion

Negligent infliction of emotional distress has vexed litigants and courts since its recognition by the California Supreme Court almost 60 years ago. As technology continues to improve our lives, NIED doctrine continues to be tested. Whether it's on Zoom, FaceTime, Snapchat, Instagram Live, or the old-fashioned telephone, the definition of who is "present" at the scene of an accident continues to change. The California Supreme Court has clarified that a bystander may bring a claim for negligent infliction of emotional distress even if the bystander was not aware of the role defendant played in causing the victim's injury. Courts in California will likely allow more bystander NIED claims to proceed as a result of Downey v. City of Riverside.