At its core, NIED is nothing more than a standard negligenceclaim where the plaintiff has not suffered any direct physical injury. California courts have repeatedly stated thatthere is no independent tort of negligent infliction of emotional distress perse, but rather it is just a species of general negligence. See, e.g., Lawson v. ManagementActivities, Inc. (1999) 69 Cal.App.4th 652, 656-657.
Instead, the difficulty arises when trying to ascertain whohas standing to bring a claim for NIED. In order to prevent virtually limitless liability for any given event,the courts have placed significant restrictions on who can state a claim forNIED. Eligible plaintiffs have beendivided into two broad and separate groups: “bystanders” and “directvictims.” Bro v. Glaser (1994) 22Cal.App.4th 1398, 1416. In this column,I am limiting the discussion to “bystander” recovery.
Thing v. La Chusa (1989) 48 Cal.3d 644, is, ofcourse, the definitive case in regard to “bystander” recovery under NIED andthe starting point for any analysis concerning that subject. In Thing, the California Supreme Courtheld that in order to recover for negligent infliction of emotional distress asa bystander the plaintiff must plead and prove he or she (1) is closely relatedto the injury victim; (2) is present at the scene of the injury‑producing eventat the time it occurs and is then aware that it is causing injury to thevictim; and (3) as a result suffers serious emotional distress‑‑a reactionbeyond that which would be anticipated in a disinterested witness and which isnot an abnormal response to the circumstances. Id. at 668. These criteriaare reflected in the current CACI instruction dealing with “bystander” NIEDcases, CACI 1621.
Of these three requirements, it is the second one – the contemporaneousperception of the injury-producing event and its consequences – that has causedthe most analytical difficulty. Thiscriterion is not dependent on the plaintiff actually seeing the event inquestion. Rather, “[a] plaintiff mayrecover based on an event perceived by other senses so long as the event iscontemporaneously understood as causing injury to a close relative.” Bird v. Saenz (2002) 28 Cal.4th 910,916‑ 917.
An example of this concept can be found in Krouse v.Graham (1977) 19 Cal.3d 59. In Krouse,the plaintiff was seated in the front seat of his car while his wife unloadedgroceries from the back seat. A carapproached from the rear and struck the wife, resulting in her death. Althoughthe plaintiff did not see the car strike his wife, since "he knew [hiswife's] position an instant before the impact, observed defendant's vehicleapproach her at a high speed on a collision course, and realized thatdefendant's car must have struck her," the Supreme Court found him to be apercipient witness to the accident and therefore entitled to pursue a bystanderclaim. Id. at p. 76.
Similarly, in Wilks v. Hom (1992) 2 Cal.App.4th 1264,the court permitted recovery on a bystander claim asserted by a mother who,although she did not actually see or hear her daughters being injured, wasnonetheless aware an explosion she heard and felt was simultaneously harmingher daughters. The mother knew the exactlocation of the children immediately before the explosion, and their proximityto the origin of the blast, and she felt the walls moving, heard the windowsbeing blown out and saw a bright flash emanate from one of her daughters'bedrooms. Id. at p. 1273. In that instant, the court held, theplaintiff “personally and contemporaneously perceived the injury‑producingevent and its traumatic consequences.” Ibid.
Courts, however, have drawn a bright line distinctionbetween the above cases and those in which the plaintiff does not, or cannot,perceive both the injury-producing event and the harm it caused at the exactmoment the event happened. In the lattercircumstance recovery under an NIED theory is denied. For example, in Fife v. Astenius(1991) 232 Cal.App.3d 1090, a family had heard the sounds of a car collision,but did not realize a family member had been injured until they reached thescene of the accident moments later. Thecourt held this was insufficient to establish “contemporaneous perception”requirement. Id. at p. 1093. The plaintiffs in Fife argued that“contemporaneous” awareness did not necessarily require “simultaneous” awareness, but court rejected that claim. Ibid. As reiterated by the California Supreme Court in Bird v. Saenz, supra,28 Cal.4th at p. 910, fn. 3, “someone who hears an accident but does not thenknow it is causing injury to a relative does not have a viable [bystander]claim for [negligent infliction of emotional distress], even if the missingknowledge is acquired moments later.”
Likewise, in circumstances where it is not technicallypossible to both observe the injury-producing event at the time it occurs andthen know it was causing injury, courts are quick to reject NIED claims. See, e.g., Golstein v. Superior Court(1990) 223 Cal.App.3d 1415 [parents of a child with curable cancer could notstate NIED claim for watching as he underwent lethal dosage of radiationtherapy because injury was not discovered until later]; Bird v. Saenz, supra,28 Cal.4th 910 [No viable cause of action for NIED for witnessing complicationsresulting from allegedly botched surgery]. Those cases, particularly Bird since it is the California SupremeCourt’s most recent discussion of the issue, are essential reading where theability to perceive the injury-producing event is at issue.
The most recent appellate case to consider the parameters ofbystander NIED standing is Ra v. Superior Court (2007) 154 Cal.App.4th142. In Ra, the plaintiff arguedfor NIED because she was present in the retail store where her husband wasseriously injured by a falling sign, knew his location in the store immediatelybefore the accident, heard a loud crash emanate from that area and believed, asa result, it was “more likely than not” he had been injured. Id. at 145. She did not, however, know with reasonable certaintyher husband had been hurt until she turned and saw him immediatelythereafter. Id. The lower court granted the defendant’smotion for summary judgment on the NIED cause of action and the appellate courtupheld that result.
The plaintiff in Ra analogized her case to those ofthe plaintiffs in Krouse, supra, and Wilks, supra,but the court declined to accept the analogy, noting that the criticaldifference was in the case before it, the plaintiff did not actually know thather husband was injured at the time the incident occurred, but rather “believedat that time it was more likely than not [her husband] had been injured.” Ra v. Superior Court, supra,154 Cal.App.4th at p. 150. According tothe court, neither Krouse nor Wilks “supports such an expansiveinterpretation of the contemporaneous awareness requirement,” (Ra, supra,at p. 150) since in both of those cases, the plaintiff fully perceived the factthat the victim had been injured at the exact time the injury happened. See, Krouse, supra, at p. 75; Wilks,supra, at p. 1271.
The plaintiff in Ra also referenced Zuniga v.Housing Authority (1995) 41 Cal.App.4th 82 to support her contention abystander claim may be premised on contemporaneous knowledge of"possible" or "likely" injury as a consequence of atraumatic event, but the court rejected the plaintiff’s construction of Zuniga. In Zuniga, the plaintiff arrived at afire at his relatives' residence after the paramedics and fire departmentpersonnel were on the scene, and, while the fire was still causing damage, andpossibly still causing injury to his many relatives inside, the plaintiffwitnessed the body of his daughter being carried from the house. Id. at p. 103. Thus, according to the court in Ra,the plaintiff in Zuniga was contemporaneously aware of both the injury‑producingevent while it was still in progress and the death of his own child as aconsequence of the fire. Ra, supra,at p. 151. In contrast, the plaintiff inRa, although aware by virtue of the loud bang that some traumatic eventhad occurred, did not clearly and distinctly perceive the injurious impact ofthe overhead sign falling until she looked in her husband's direction after thesign was already on the ground. Id.
While the result in Ra may seem arbitrary (and indeedit is), it follows the clear trend established in California case law:
It is the traumatic effect of the perception of theinfliction of injury on a closely related person (whether visual or not) thatis actionable, not the observation of the consequences of the occurrence or thecontemporaneous perception of endangerment, which, while potentially stressful,is insufficient to cause legally cognizable harm. Ra, supra, at p. 152 (internalquotations and citations omitted).