bystander claim in California

2007In Thing v. La Chusa (1989) 48 Cal.3d 644 [ 257 Cal.Rptr. 865 , 771 P.2d 814 ] (Thing), the Supreme Court held only “closely related percipient witnesses” may seek damages for emotional distress caused by observing the negligently inflicted injury of a third person and specifically limited recovery to a plaintiff who “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.” (Id. at pp. 667-668.) 1 Does the requirement of contemporary sensory awareness of the causal connection between the negligent conduct and the re

2007In Thing v. La Chusa (1989) 48 Cal.3d 644 [ 257 Cal.Rptr. 865 , 771 P.2d 814 ] (Thing), the Supreme Court held only “closely related percipient witnesses” may seek damages for emotional distress caused by observing the negligently inflicted injury of a third person and specifically limited recovery to a plaintiff who “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.” (Id. at pp. 667-668.) 1 Does the requirement of contemporary sensory awareness of the causal connection between the negligent conduct and the re

2007(Id. at p. 76 [“under such circumstances Benjamin must be deemed a percipient witness to the impact causing Elizabeth’s catastrophic injuries”].) Although the Supreme Court in Thing, supra, 48 Cal.3d at page 656 , suggested some of its language in Krouse was the root of the Courts of Appeal’s uncertainty regarding the scope of the bystander claim, in limiting the nonexclusive guidelines for the tort it had articulated in Dillon v. Legg (1968) 68 Cal.2d 728 [ 69 Cal.Rptr. 72 , 441 P.2d 912 ], the Thing court did not disapprove Krouse .

2007(Id. at p. 76 [“under such circumstances Benjamin must be deemed a percipient witness to the impact causing Elizabeth’s catastrophic injuries”].) Although the Supreme Court in Thing, supra, 48 Cal.3d at page 656 , suggested some of its language in Krouse was the root of the Courts of Appeal’s uncertainty regarding the scope of the bystander claim, in limiting the nonexclusive guidelines for the tort it had articulated in Dillon v. Legg (1968) 68 Cal.2d 728 [ 69 Cal.Rptr. 72 , 441 P.2d 912 ], the Thing court did not disapprove Krouse .

2013In disallowing the parents’ bystander claim, the court stated that an “understanding perception of the injury-causing event is an essential component of. . . recovery.” (Golstein v. Superior Court, supra, 223 Cal.App.3d at p. 1427 .) The parents were “informed of the excessive [radiation] after the fact” but “during the radiation therapy they were unaware [that their son] was being overexposed.” (Id. at p. 1418.) Thus, there was no “contemporaneous sensory awareness of the causal connection between the negligent conduct and the resulting injury.” (Id. at p. 1427.) The Golstein court noted that

2013(Golstein v. Superior Court, supra, 223 Cal.App.3d at p. 1427, fn. 3 .) The court opined that it was “reasonably certain the Supreme Court would not accept a conclusion which could apply Dillon recovery almost automatically to a medical malpractice plaintiff who observes only the suffering of the victim and not the actual event that causes that suffering.” (Ibid.) Golstein recognized that, although Thing did not discuss application of the mandatory requirements when the injury-producing event cannot be observed, Thing “purports to be a clarification of an entire field of law.” (Golstein v. Sup

2007(Wilks v. Hom, supra, 2 Cal.App.4th at p. 1273 .) In that instant the plaintiff-mother “personally and contemporaneously perceived the injury-producing event and its traumatic consequences.” (Ibid.) Notwithstanding the mother’s lack of visual or aural perception, she “instantly knew of the likely severe damage to the child.” (Id. at p. 1271.) Ra suggests her own contemporaneous awareness of Dr. Ra’s location within the Armani Exchange store, the loud bang emanating from that part of the store and the likelihood of injury to Dr. Ra, like the mother’s knowledge of “likely severe damage” to her c

2007(See Wilks v. Hom (1992) 2 Cal.App.4th 1264, 1270 [ 3 Cal.Rptr.2d 803 ]; Fife v. Astenius (1991) 232 Cal.App.3d 1090, 1093, fn. 2 [ 284 Cal.Rptr. 16 ]; see also Adams v. City of Fremont (1998) 68 Cal.App.4th 243, 318 [ 80 Cal.Rptr.2d 196 ] (dis. opn. of Kline, P. J.).) 7 Ra concedes, with commendable candor, the extent of her knowledge at the time of the accident was that injury to her husband was “more likely than not” and does not purport to be able to prove she was reasonably certain he had been injured. 8 Absolute certainty may exist in mathematical proofs, but human perception necessarily

2007(See Fife, supra, 232 Cal.App.3d at p. 1093 [strict adherence to Thing's requirement of contemporaneous observation is necessary to avoid “regressing to the ‘ever widening circles of liability’ [Thing] was trying to avoid”].) Indeed, if Ra’s contemporaneous awareness of a traumatic event and her more-likely-than-not fear for the safety of her husband were sufficient to allow her to proceed to trial on her cause of action for negligent infliction of emotional distress—that is, if the stress caused by a reasonably based fear for a loved one occasioned by witnessing an accident were legally cogni

2007(See Wilks v. Hom (1992) 2 Cal.App.4th 1264, 1270 [ 3 Cal.Rptr.2d 803 ]; Fife v. Astenius (1991) 232 Cal.App.3d 1090, 1093, fn. 2 [ 284 Cal.Rptr. 16 ]; see also Adams v. City of Fremont (1998) 68 Cal.App.4th 243, 318 [ 80 Cal.Rptr.2d 196 ] (dis. opn. of Kline, P. J.).) 7 Ra concedes, with commendable candor, the extent of her knowledge at the time of the accident was that injury to her husband was “more likely than not” and does not purport to be able to prove she was reasonably certain he had been injured. 8 Absolute certainty may exist in mathematical proofs, but human perception necessarily

2007(See Wilks v. Hom (1992) 2 Cal.App.4th 1264, 1270 [ 3 Cal.Rptr.2d 803 ]; Fife v. Astenius (1991) 232 Cal.App.3d 1090, 1093, fn. 2 [ 284 Cal.Rptr. 16 ]; see also Adams v. City of Fremont (1998) 68 Cal.App.4th 243, 318 [ 80 Cal.Rptr.2d 196 ] (dis. opn. of Kline, P. J.).) 7 Ra concedes, with commendable candor, the extent of her knowledge at the time of the accident was that injury to her husband was “more likely than not” and does not purport to be able to prove she was reasonably certain he had been injured. 8 Absolute certainty may exist in mathematical proofs, but human perception necessarily

2007(See Wilks v. Hom (1992) 2 Cal.App.4th 1264, 1270 [ 3 Cal.Rptr.2d 803 ]; Fife v. Astenius (1991) 232 Cal.App.3d 1090, 1093, fn. 2 [ 284 Cal.Rptr. 16 ]; see also Adams v. City of Fremont (1998) 68 Cal.App.4th 243, 318 [ 80 Cal.Rptr.2d 196 ] (dis. opn. of Kline, P. J.).) 7 Ra concedes, with commendable candor, the extent of her knowledge at the time of the accident was that injury to her husband was “more likely than not” and does not purport to be able to prove she was reasonably certain he had been injured. 8 Absolute certainty may exist in mathematical proofs, but human perception necessarily

2002Indeed, a case prior to Thing refused recovery for a bystander claim on behalf of a cousin even when it was alleged that the cousins had a relationship analogous to that of siblings. ( Trapp v. Schuyler Construction (1983) 149 Cal.App.3d 1140, 1142-1143 , 197 Cal.Rptr. 411 .) Although both parties did not cite this case, our court has permitted an uncle, who lived in the same household as his nephew and had a relationship akin to that of a parent and child, to sue for NIED when he observed his nephew being injured. ( Kriventsov v. San Rafael Taxicabs, Inc. (1986) 186 Cal.App.3d 1445, 1447 , 22

2002Indeed, a case prior to Thing refused recovery for a bystander claim on behalf of a cousin even when it was alleged that the cousins had a relationship analogous to that of siblings. ( Trapp v. Schuyler Construction (1983) 149 Cal.App.3d 1140, 1142-1143 , 197 Cal.Rptr. 411 .) Although both parties did not cite this case, our court has permitted an uncle, who lived in the same household as his nephew and had a relationship akin to that of a parent and child, to sue for NIED when he observed his nephew being injured. ( Kriventsov v. San Rafael Taxicabs, Inc. (1986) 186 Cal.App.3d 1445, 1447 , 22

1986(Ochoa v. Superior Court (1985) 39 Cal.3d 159, 166, 168 [ 216 Cal.Rptr. 661 , 703 P.2d 1 ].) 4 The “event” witnessed in a Dillon case need not, however, be a “brief and sudden occurrence” producing an immediate injury.

1986(Ochoa v. Superior Court (1985) 39 Cal.3d 159, 166, 168 [ 216 Cal.Rptr. 661 , 703 P.2d 1 ].) 4 The “event” witnessed in a Dillon case need not, however, be a “brief and sudden occurrence” producing an immediate injury.