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Recent decision on bystander claims for negligent infliction of
emotional distress
(August 15, 2007) |
In Ra v. Superior Court (Presidio International Inc.) (August 15,
2007) 07 C.D.O.S. 9604, the Court of Appeal for the Second Appellate
District closely followed the guidelines set out by the Supreme
Court in Thing v. LaChusa, namely, that a “closely related
percipient witness” must have a contemporaneous sensory awareness of
the causal connection between the negligent conduct and the
witnessed injury to the victim. The Ra court held that a bystander
claim for NIED could not be made by someone who believed it “more
likely than not” that her husband had been injured during the event.
In so holding, the appellate court denied appellant’s petition for a
writ of mandate directing the trial court to vacate its order
granting defendant’s summary adjudication on the NEID bystander
claim based upon Thing v. LaChusa.
The underlying action arose following an injury to Dr. Phil Jae Ra
at a store where his wife, Michelle, was also shopping. As the two
of them shopped in different departments, the wife heard “a loud
bang,” coming from the direction of where she knew her husband was
shopping. A sign had fallen from the ceiling of the store and struck
Dr. Ra, seriously injuring him. However, Mrs. Ra had not witnessed
the actual injury; the evidence showed that after she heard the
bang, she looked in the direction of where her husband was shopping
and saw him bending at the knees and holding his head in apparent
pain. She did not see the sign strike him, nor did she see the sign
on the ground after seeing and walking over to him.
Dr. and Mrs. Ra sued the owner of the store (Presidio) for a variety
of things, including negligent infliction of emotional distress to a
bystander as to Mrs. Ra. Presidio filed a motion for summary
adjudication as to Ra’s bystander claim “arguing Ra’s discovery
responses established she was not aware of her husband’s injuries at
the time of the accident, but only learned afterward the overhead
sign had fallen and struck him.” Presidio argued that under Thing,
“Ra’s after-the-fact perception of her husband’s injuries was
insufficient as a matter of law for recovery on a bystander
claim…which requires contemporaneous awareness of the injury and the
injury-causing event.”
In Thing v. LaChusa (1989) 48 Cal.3d 644, 667, the Supreme Court
articulated three criteria which a plaintiff must plead and prove to
recover under a bystander claim—that he or she “1) is closely
related to the injury victim; 2) is present at the scene of the
injury-producing event at the time it occurs and is then aware that
it is causing injury to the victim; and 3) as a result suffers
serious emotional distress—a reaction beyond that which would be
anticipated in a disinterested witness and which is not an abnormal
response to the circumstances.”
The appellate court agreed with Presidio that it was not enough that
Mrs. Ra had experienced a “reasonable fear of possible injury” to
her husband and that she believed “more likely than not” he had been
injured. Neither a “reasonable fear of possible injury” nor a
concern that “more likely than not” her husband had been injured
established the certainty of contemporaneous awareness and causation
required by Thing.
The Ra court was careful to point out that Thing does not require
the plaintiff to visually perceive harm to the victim. “A plaintiff
may recover based on an event perceived by other senses so long as
the event is contemporaneously understood as causing injury to a
close relative.” (Citing Bird v. Saenz.) However, it was clear that
“under controlling Supreme Court precedent the absence of
‘contemporaneous sensory awareness of the causal connection between
the [injury-producing event] and the resulting injury’ precludes
recovery.” In so finding, the appellate court ruled the trial court
properly concluded that Ra was not a percipient witness to her
husband’s injury, did not have contemporaneous awareness of it, and
therefore cannot recover NEID damages as a bystander under Thing.
“It is the traumatic effect of the perception of the infliction of
injury on a closely related person (whether visual or not) that is
actionable, not the observation of the consequences of the
occurrence or the contemporaneous perception of endangerment, which,
‘while potentially stressful, is insufficient to cause legally
cognizable harm.’”
Though it did not involve a claim of medical negligence, the Ra
decision will be helpful to defendants in any personal injury case
in which a plaintiff is seeking NIED damages but does not meet the
requirements of Thing. It contains a good discussion of Thing, and
opinions by other courts that have sought to limit NIED liability to
bystanders. One can only hope for plaintiffs as forthright as Mrs.
Ra—in footnote 7 the court said: “Ra concedes, with commendable
candor, the extent of her knowledge at the time of the accident was
that injury to her husband was ‘more likely than not’ and does not
purport to be able to prove she was reasonably certain he had been
injured.” |
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