Negligent Infliction Of Emotional Distress
Negligent infliction of emotional distress is not an independent tort, but the tort of negligence, to which traditional elements of duty, breach of duty, causation, and damages apply. In Thing, a mother sought emotional distress damages caused by witnessing her injured son lying in a roadway after a car accident, although she had not seen or heard the accident itself. The Supreme Court of California stated in Thing: “[A] plaintiff may recover damages for emotional distress caused by observing the negligently inflicted injury of a third person if, but only if, said plaintiff: (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.” Applying these limits, the Supreme Court of California held that the mother who had not witnessed her son being struck by a car could not recover emotional distress damages because she could not satisfy the second requirement.
Before and after Thing, courts considering bystander emotional distress claims based on alleged medical negligence have not found a layperson’s observation of medical procedures to satisfy the requirement of contemporary awareness of the injury-producing event. The Supreme Court of California has held “recovery for negligent infliction of emotional distress in [medical malpractice] cases will be available only rarely because even a plaintiff present during the medical treatment of a close relative generally will not be able to show a contemporaneous awareness that a physician’s allegedly negligent conduct is causing harm: “Except in the most obvious cases, a misdiagnosis is beyond the awareness of lay bystanders” … Unlike catastrophic events like “‘an explosion, traffic accident, or electrocution,’” negligent medical treatment is an “‘injury-causing event’” that, because it ordinarily remains “‘essentially invisible to the plaintiff’” as it occurs, is not ordinarily “‘a component of her emotional trauma’” … Allowing recovery for “unperceived medical errors hidden in a course of treatment,” we explained, “cannot be reconciled with Thing’s requirement that the plaintiff be aware of the connection between the injury-producing event and the injury.””
Recent Supreme Court Of California Opinion
Underlying Facts
Plaintiff Jayde Downey was giving driving directions to her daughter over cell phone when her daughter was severely
injured in a car crash. Downey heard the collision and its immediate aftermath, but she could not see what had caused it. She claimed that the fault lies partially with individuals and entities responsible for the condition of the roadway where the crash occurred and had sued them for negligent infliction of emotional distress. The Court of Appeal concluded, however, that Downey was not entitled to recover emotional distress damages against these defendants unless at the time of the crash she was aware of a causal connection between her daughter’s injuries and the defendants’ alleged negligence in maintaining the intersection.
The Supreme Court of California stated in its July 22, 2024 Opinion: “Recognizing that we have not previously required
contemporaneous awareness of the defendant’s contribution to the injury, as distinct from awareness of the injury-causing event, the question becomes whether we should impose such a requirement now. We see no persuasive reason to do so … For purposes of clearing the awareness threshold for emotional distress recovery, it is awareness of an event that is injuring the victim — not awareness of the defendant’s role in causing the injury — that matters. In some cases, as in Dillon, these two things may be effectively the same. In many medical malpractice cases, for instance, a bystander ordinarily will not be aware that injury is being inflicted on the victim without also being aware that medical practitioners are, through their deficient care, causing harm. But when a bystander witnesses what any layperson would understand to be an injury-producing event — such as a car accident, explosion, or fire — the bystander may bring a claim for negligent infliction of emotional distress based on the emotional trauma of witnessing injuries inflicted on a close relative. This is true even if the bystander was not aware at the time of the role the defendant played in causing the victim’s injury.”
“In sum, we hold the following: Neither our precedent nor considerations of tort policy support requiring plaintiffs
asserting bystander emotional distress claims to show contemporaneous perception of the causal link between the
defendant’s conduct and the victim’s injuries. Here, Downey has alleged that when she was on the phone with her daughter she heard metal crashing against metal, glass shattering, and tires dragging on asphalt — from which she knew immediately that her daughter had been in a car accident. Downey has also alleged that she understood that her daughter was seriously injured because she could no longer hear her after the crash and a stranger who rushed to the scene told her to quiet down so that he could find a pulse. Thing does not require Downey to allege that she was aware of how the defendants may have contributed to that injury. The Court of Appeal erred in concluding otherwise.”
Source Downey v. City of Riverside, S280322.
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