Who Can Recover forNegligent Infliction of Emotional Distress?

In the recent unanimous decision by the California Supreme Court in Downey v. City of Riverside, the Court considered the extent that close relatives can recover for negligent infliction of emotional distress.

Since the 1968 decision in Dillon v. Legg, 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. 

Recovery for negligent infliction of emotional distress is available, however, 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. 

In the prototypical case, exemplified by the facts of Dillon, a parent watches as a negligent driver collides with her child. The parent, who is contemporaneously aware of both the driver’s negligent conduct and the child’s resulting injury, is permitted to sue the driver for her emotional trauma. 

The facts of this case required the Supreme Court to consider a new question about emotional distress recovery: 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?

Plaintiff Jayde Downey was giving driving directions to her daughter over cell phone when her daughter was severely injured in a car crash. Downey heard the collision and its immediate aftermath, but she could not see what had caused it. She claimed that the fault lies partially with individuals and entities responsible for the condition of the roadway where the crash occurred and sued them for negligent infliction of emotional distress. 

The Court of Appeal concluded, however, that Downey was not entitled to recover emotional distress damages against the defendants unless at the time of the crash she was aware of a causal connection between her daughter’s injuries and the defendants’ alleged negligence in maintaining the intersection. 

The Supreme Court concluded this was error. For purposes of clearing the awareness threshold for emotional distress recovery, it is awareness of an event that is injuring the victim — not awareness of the defendant’s role in causing the injury — that matters. 

In some cases, as in Dillon, these two things may be effectively the same. 

In many medical malpractice cases, for instance, a bystander ordinarily will not be aware that injury is being inflicted on the victim without also being aware that medical practitioners are, through their deficient care, causing harm. 

But when a bystander witnesses what any layperson would understand to be an injury-producing event — such as a car accident, explosion, or fire — the bystander may bring a claim for negligent infliction of emotional distress based on the emotional trauma of witnessing injuries inflicted on a close relative. 

This is true even if the bystander was not aware at the time of the role the defendant played in causing the victim’s injury. 

Jayde Downey’s daughter, Malyah Jane Vance, was driving in the City of Riverside when her vehicle was struck by another car.

Vance was seriously injured as a result of the collision. At the time of the collision, Downey was talking to Vance by cell phone to give her driving directions to an office close to the intersection. 

On her end of the line, Downey heard Vance suddenly gasp, then say “Oh!” in fear or shock. A split second later, Downey heard the sounds of an explosive metal-on-metal vehicular crash, shattering glass, and rubber tires skidding or dragging across asphalt. 

Downey knew from the sounds she heard that Vance had been involved in a car crash. As the sound of tires dragging across asphalt faded, Downey — having heard no sounds or vocalizations from Vance — understood that Vance was injured so seriously that she could not speak. 

This was confirmed by a stranger who rushed to the scene to help and told Downey over the phone to quiet down so that he could “find a pulse.” 

After the crash, Downey and Vance sued the driver of the other car involved in the collision. 

They also sued the City of Riverside and Ara and Vahram Sevacherian, the owners of private property adjacent to the intersection where the crash occurred. 

Among other things, their complaint sought recovery for negligent infliction of emotional distress on Downey, who suffered emotional trauma as a result of hearing her daughter’s accident occur in real time. 

Downey alleged the City was at least in part responsible for the accident, and thus for Downey’s emotional distress, because the traffic markings, signals, warnings, medians, and fixtures thereon (or lack thereof), were so located constructed, placed, designed, repaired, maintained, used, and otherwise defective in design, manufacture and warning that they constituted a dangerous condition of public property that created an unreasonable and foreseeable risk of injury and harm to occupants of vehicles in the intersection.

Downey alleged the Sevacherians, too, contributed to the accident by failing to trim vegetation on their property, which had obstructed the view of traffic. 

The City and the Sevacherians demurred to the complaint. They argued that Downey could not allege a negligent infliction of emotional distress claim against them because at the time of the collision she was not aware of how their alleged negligence had caused the collision. 

Agreeing with the defendants, the trial court sustained the demurrers without leave to amend. It explained that the complaint’s allegations were insufficient to show that Downey had a contemporaneous awareness of the injury-producing event — not just the harm Vance suffered, but also the causal connection between defendants’ tortious conduct and the injuries Vance suffered.

On appeal, Downey argued that it was unnecessary for her to show contemporaneous awareness of the defendants’ tortious conduct to state a claim for negligent infliction of emotional distress. In a divided decision, the Court of Appeal rejected the argument. 

Negligent infliction of emotional distress is not an independent tort, but the tort of negligence, to which traditional elements of duty, breach of duty, causation, and damages apply. 

Although negligent infliction of emotional distress is a species of the long-established tort of negligence, its origins are considerably more recent. As previously explained, the recognition of a bystander’s claim for the negligent infliction of emotional distress was the outgrowth of two significant developments in California tort law. 

The first development was the recognition of the infliction of emotional distress as a discrete tort cause of action. 

Although the law had previously recognized emotional distress as a significant component of a plaintiff’s damages for various established torts such as assault and false imprisonment, the court for the first time accepted both freedom from emotional distress as an interest worthy of protection in its own right, and the proposition that it is possible to quantify and compensate for the invasion of that interest, even when unaccompanied by physical harm. 

The second development concerned the treatment of emotional distress claims in cases involving negligence— particularly in cases involving emotional harms resulting from negligently inflicted physical injury to another. 

For many years, the general rule in California was that no recovery is permitted for a mental or emotional disturbance, or for a bodily injury or illness resulting therefrom, in the absence of a contemporaneous bodily contact or independent cause of action, or an element of willfulness, wantonness, or maliciousness, in cases in which there is no injury other than one to a third person, even though recovery would have been permitted had the wrong been directed against the plaintiff.

Unless the plaintiff personally suffered bodily injury as a result of the defendant’s negligence or was in the “zone of danger” and suffered physical injury as a result of emotional trauma, damages for emotional distress were not recoverable in negligence actions. 

This general rule significantly limited the recovery available for mental or emotional disturbances caused by another’s danger, or sympathy for another’s suffering when that suffering was negligently inflicted. 

Plaintiffs traumatized by having witnessed a loved one being injured or killed in an accident could recover for the trauma only if the plaintiffs were also physically injured, or else were so close to the accident that they feared for their own safety. 

As a result of Dillon, the law in California — and now elsewhere — 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.

To fill this gap, the Supreme Court in a previous decision articulated 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, said plaintiff: (1) is closely related to the injury victim; (2) 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 (3) 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, the Supreme Court held that the mother who had not witnessed her son being struck by a car could not recover emotional distress damages because she could not satisfy the second requirement. 

This case likewise turns on the second requirement, that the bystander plaintiff be present at the scene of the injury-producing event at the time it occurs and be then aware that it is causing injury to the victim. 

The question is 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.

In answering the question presented, the Supreme Court emphasized that the requirements pertain to just one element of the negligence claim, which is the scope of the duty that an alleged tortfeasor owes to relatives of a victim who suffer emotional distress upon observing an event that injures the victim. 

A plaintiff who can satisfy the requirements will not prevail unless the plaintiff proves not only that the defendant owed the plaintiff a duty but also that the defendant’s breach of that duty caused the plaintiff’s damages. 

There can be no recovery for emotional distress caused by the negligent infliction of injury on a third party unless the plaintiff contemporaneously understands that the injury-causing event is in fact causing injury to the victim. 

Recognizing that the Supreme Court has not 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. It saw no persuasive reason to do so. 

It is, of course, true that not all forms of emotional trauma associated with harm to a loved one are compensable. The plaintiff must have suffered trauma from perceiving the injury-producing event, itself rather than on viewing or learning about the injurious consequences of the defendant’s conduct. 

But this means only that the emotional trauma must be the result of directly witnessing and understanding that harm is being done — not the result of learning of the harm after the fact. 

A plaintiff is not merely experiencing the results of an injury-causing event when that plaintiff witnesses an accident or other event that has resulted in severe injury to a loved one. 

The emotional trauma that comes from witnessing such an accident exists regardless of whether the plaintiff is aware at the time of the accident of all the individuals or entities that have contributed to the accident through their conduct. 

The telecommunications technology has created more scenarios where potential plaintiffs might witness a loved one being injured.  Thus, the Supreme Court declined to superimpose an additional limitation that would require awareness not only of the injury-producing event.

The Court of Appeal concluded that Downey was “present” at the scene of the car crash because “she contemporaneously sensed auditorily the accident and the fact Vance was injured.” 

Neither precedent nor considerations of tort policy support requiring plaintiffs asserting bystander emotional distress claims to show contemporaneous perception of the causal link between the defendant’s conduct and the victim’s injuries. 

Here, Downey 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. 

Downey has also alleged that she understood that her daughter was seriously injured because she could no longer hear her after the crash and a stranger indicated difficulty in finding a pulse.

LESSONS:

1.         A plaintiff may recover damages for emotional distress caused by observing the negligently inflicted injury of a third person if, but only if, said plaintiff: (1) is closely related to the injury victim; (2) 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 (3) 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.

2.         A plaintiff who can satisfy the requirements will not prevail unless the plaintiff proves not only that the defendant owed the plaintiff a duty but also that the defendant’s breach of that duty caused the plaintiff’s damages. 

3.         There can be no recovery for emotional distress caused by the negligent infliction of injury on a third party unless the plaintiff contemporaneously understands that the injury-causing event is in fact causing injury to the victim. 

4.         Neither precedent nor considerations of tort policy support requiring plaintiffs asserting bystander emotional distress claims to show contemporaneous perception of the causal link between the defendant’s conduct and the victim’s injuries.