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

by Low, Ball & Lynch
Contact

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.

COMMENT

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:

http://www.courts.ca.gov/opinions/documents/B237818.PDF

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.

© Low, Ball & Lynch | Attorney Advertising

Written by:

Low, Ball & Lynch
Contact
more
less

Low, Ball & Lynch on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.