Weekly Law Resume - January 17, 2013: Torts – Negligent Infliction of Emotional Distress – Bystander Recovery

by Low, Ball & Lynch

Fortman v. Forvaltningsbolaget Insulan AB
Court of Appeal, Second District (January 10, 2013)

Closely related percipient witnesses may seek damages for emotional distress caused by observing a negligently inflicted injury on a third person. Such persons are required to be present at the scene of the injury-producing event at the time it occurs and aware that it is causing injury. This case considered whether a bystander who is aware a traumatic event was occurring, but not aware at the time that it was defendant’s fault can recover.

Barbara Fortman and her brother Robert Myers went scuba diving off the coast of Catalina Island. A few minutes into the dive, Myers signaled to Fortman that he wanted to ascend. He then sank to the bottom of the ocean floor, landing on his back. Myers’s eyes were wide open, but he was not responsive. At that point, Fortman thought her brother had a heart attack. However, after an investigation and report from the Sheriff’s department, she learned that a plastic flow-restriction insert manufactured by defendant Förvaltningsbolaget Insulan AB had become lodged in Myers’s second stage regulator preventing him from getting enough air to breathe while underwater.

Fortman and Myers’s heirs filed suit. Fortman sought to recover emotional distress damages, alleging that while her "brother was being fatally injured by defendants' defective and unsafe products . . . [she] was present at the time and place of the occurrences described herein, and contemporaneously observed, witnessed, and saw that her brother’s eyes bulged out of his head and that he was unresponsive to her signals, and perceived that her brother had stopped breathing and was being fatally injured by said products.” The defendant filed a motion for summary judgment. The trial court granted summary judgment, and Fortman appealed.

The Court of Appeal affirmed. The Court reviewed the history of bystander recovery of emotional distress injuries. The Supreme Court in Thing v. La Chusa (1989) 48 Cal.3d 644 had established three mandatory requirements to state a claim for negligent infliction of emotional distress (NIED) under the bystander theory of recovery. First, the plaintiff must be closely related to the victim. Secondly, plaintiff must be “present at the scene of the injury-producing event at the time it occurs and… then aware that it is causing injury to the victim.” Lastly, plaintiff must have suffered serious emotional distress as a result. The Court felt that plaintiff could not establish the second requirement. While Fortman may have seen her brother suffer injuries, it was undisputed that she did not have a contemporaneous, understanding awareness that the defendant’s defective product was causing her brother’s injury. In fact, Fortman thought that her brother’s injury was caused by a heart attack.

Plaintiff had relied on accident cases since Thing had been decided, in which bystander liability had been allowed, in support of her claim. However, the Court noted that in all cases where bystander recovery was allowed, the plaintiff was able to show that they contemporaneously perceived the injury causing event. For example, a woman who observed an airplane crash, felt the explosion, and then arrived home to find her home engulfed in flames and her husband and child in side. Or, in another case where a man arrived on scene after emergency personnel were already present, but a fire was still causing damage to her home, and “possibly still causing injury to his many relatives inside.” In each of these cases, the plaintiff contemporaneously understood that the event that they were witnessing was causing injury to a close relative.

Similarly, the Court looked at medical malpractice cases. Historically, plaintiffs have not been able to recover emotional distress on a bystander theory, even if they were present when their relative was undergoing treatment, if they did not perceive at the time of treatment that their relative suffered harm caused by a medical error.

Finally, the Court noted that in products liability cases since Thing, bystander liability was only allowed in cases where the plaintiff was able to observe the injury causing event and perceive that the malfunctioning product or equipment was itself the cause of pain or injury to their relative. The Court also offered examples of products cases where there might be such contemporaneous perception, such as where a plaintiff observes a back yard barbecue tank explode, injuring a loved one, or saw a ladder collapse, causing injury to a relative. In situations like that, the plaintiff would have the necessary contemporaneous awareness of the causal connection between the defendant’s product as causing harm and the resulting injury to the close relative.

While noting that the Thing decision had drawn “arbitrary” lines restricting bystander recovery, the Court of Appeal stated that nevertheless, those lines were binding. The Court of Appeal affirmed the granting of summary judgment.


This case discusses the bystander cases and the requirement of contemporaneous observance. It is an excellent case for a discussion of all of the cases in this area and will give the reader an understanding of where the lines are drawn in these types of cases.

For a copy of the complete decision see:


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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