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Since 1968, California courts have recognized a plaintiff's right to recover in negligence for serious emotional distress suffered as a result of witnessing injuries inflicted on a close relative. But recovery for negligent infliction of emotional distress is available only if the plaintiff 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.
For example, a parent watches as a negligent driver collides with her child. The parent, who’s aware of both the driver's negligent conduct and the child's resulting injury at the same time, can sue the driver for her emotional trauma. But what if the plaintiff is aware that injury has been inflicted on the victim, but not of the defendant's role in causing the injury?
Background
The plaintiff was giving driving directions to her daughter over cell phone when her daughter was severely injured in a car crash in Riverside. The plaintiff heard the collision and its immediate aftermath, but she couldn’t see what had caused it.
On her end of the line, she heard her daughter suddenly gasp, then say “Oh!” in fear or shock. A split second later, she heard the sounds of an explosive metal-on-metal vehicular crash, shattering glass, and rubber tires skidding or dragging across asphalt. The plaintiff knew from this that her daughter had been involved in a car crash. As the sound of tires dragging across asphalt faded, the plaintiff—having heard no sounds or vocalizations from her daughter—understood that her daughter was injured so seriously that she couldn’t speak. This was confirmed by a stranger who responded to help and told the plaintiff over the phone to be quiet so he could “find a pulse.”
After the crash, the plaintiff and her daughter sued the driver of the other car involved in the collision. They also sued the City of Riverside and the owners of private property adjacent to the intersection where the crash happened. Among other things, their complaint sought recovery for negligent infliction of emotional distress on the plaintiff, who suffered emotional trauma as a result of hearing her daughter's accident in real time. She alleged the City was at least in part responsible for the accident, and thus for her emotional distress, because the traffic signals were a dangerous condition of public property that created an unreasonable and foreseeable risk of injury and harm to motorists at the intersection. She also alleged the property owners contributed to the accident by failing to trim the bushes on their property, which had obstructed the view of traffic.
The City and the property owners argued that the plaintiff couldn’t allege a negligent infliction of emotional distress claim against them because at the time of the collision she didn’t know how their alleged negligence caused the collision. The trial court agreed and said that the complaint's allegations were “insufficient to show that the plaintiff had a contemporaneous awareness of the injury-producing event—not just the harm her daughter suffered, but also the causal connection between defendants' tortious conduct and the injuries her daughter suffered.”
On appeal, the plaintiff argued that it wasn’t necessary for her to show contemporaneous awareness of the defendants' tortious conduct to state a claim for negligent infliction of emotional distress. The Court of Appeal rejected the argument.
What Must a Bystander Show to Recover for Emotional Distress?
Associate Supreme Court Justice Leondra R. Kruger explained in her opinion that the law in California recognizes that bystanders who witness a close relative being negligently injured have a cause of action for negligence and may recover damages for their trauma. However, the justice opined that courts must consider, among other things, whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence.
There are three essential limits on a bystander's recovery for negligently caused emotional distress. A plaintiff may recover damages for emotional distress caused by observing the negligently inflicted injury of a third person if, but only if, the plaintiff:
- is closely related to the injury victim;
- 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
- 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, in the past, the Supreme Court has held that a parent who hadn’t witnessed her child being struck by a car couldn’t recover emotional distress damages because she couldn’t satisfy the second requirement.
In this case, the question was whether, to satisfy this requirement, the plaintiff must understand not only that a close relative is suffering injury, but also that the defendant's negligent conduct or omissions have caused the injury.
Recognizing that the Supreme Court hasn’t 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 the Court should impose such a requirement now.
The Supreme Court held that neither its prior decisions nor considerations of tort policy support requiring plaintiffs asserting bystander emotional distress claims to show contemporaneous perception of the link between the defendant's conduct and the victim's injuries. Here, the plaintiff 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. She 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. She isn’t required to allege that she was aware of how the defendants may have contributed to that injury, the Supreme Court said. As a result, the Court of Appeal erred in concluding otherwise. The Supreme Court reversed the judgment of the Court of Appeal. Downey v. City of Riverside (Cal. Supreme Court 7/22/2024).
Bottom Line
For purposes of clearing the awareness threshold for emotional distress recovery, the Supreme Court said that it’s awareness of an event that is injuring the victim—not awareness of the defendant's role in causing the injury—that matters.
As a consequence of this easing of the standard, plaintiffs may have an easier time recovering for serious emotional distress suffered as a result of witnessing injuries inflicted on a close relative.