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S.C. Clarifies Its Holdings in Dillon v. Legg and Progeny
Kruger Says, in Opinion for Unanimous Court, That Plaintiff Must Have Contemporary Awareness of Harm Being Inflicted on Close Relative but Need Not Know How a Party Later Named as a Defendant Contributed to Injury
By a MetNews Staff Writer
The California Supreme Court yesterday elaborated upon its 1968 decision in Dillon v. Legg in which it held that a person who witnesses a personal injury to a close relative has a cause of action for negligent infliction of emotional distress, declaring in a 7-0 opinion that the identity of the alleged tortfeasor and the role that person played in creating the harm need not be known at the time of the mishap.
Justice Leondra Kruger wrote:
“[W]hen 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.”
The court also decided that a bystander “witnesses” an accident by hearing on the telephone. Kruger remarked:
“We can assume…that current telecommunications technology has created more scenarios where potential plaintiffs might witness a loved one being injured.”
Telephone Conversation
The opinion reinstates a cause of action for emotional distress brought by Jayde Downey who was talking to her daughter by phone, giving her driving instructions, when a traffic accident occurred. Downey sued the driver of the other car, Evan Martin (who was not a party to the appeal), the City of Riverside, claiming it had created a accident dangerous condition, and Ara and Vahram Sevacherian, owners of property abutting the intersection where the accident occurred, maintaining that vegetation and trees on their property was overgrown, obstructing a view of traffic.
Riverside Superior Court Judge Harold W. Hopp sustained demurrers without leave to amend to the third amended complaint, ruling that the averments 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.”
Div. One of the Fourth District Court of Appeal on April 26, 2023, in a 2-1 decision, agreed with Hopp that the pleasing was infirm, but reversed in order to afford Downey an opportunity to amend. Justice Terry B. O’Rourke explained that Downey’s allegations, “without more, would compel us to conclude that Downey, who was not present at the scene, could not know at the time of the collision of the connection between defendants’ alleged negligent conduct and the collision or her daughter’s injuries.”
Dato’s Dissent
Justice William Dato authored a concurring and dissenting opinion in which he agreed with the decision to reverse but contended that the pleading, as it stood, was sufficient. He said:
“In a line of cases dating back to the seminal decision in Dillon v. Legg…, the Supreme Court has made clear emotional distress is compensable where a plaintiff closely related to the victim contemporaneously perceives the ‘injury-producing event’ and understands that it is causing injury to their loved one….
“Here, the immediate injury-producing event is the car crash. Downey contemporaneously perceived that event when she listened over the phone to the horrific sounds of the crash, understanding that her daughter’s vehicle had been hit and her daughter seriously injured. Those allegations are sufficient to state a cause of action. Nothing requires that she be aware of each and every separate act of negligence that may have contributed to the accident.”
1989 Decision
The city and the Sevacherians placed reliance on the California Supreme Court’s 1989 decision in Thing v. La Chusa. The court said there in a majority opinion:
“We conclude…that 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.”
The defendants in the case decided yesterday argued that the second element was not satisfied, the city saying that Downey had no contemporaneous awareness of the purported dangerous condition and the Sevacherians noting that Downey could not have known of the existence of vegetation or trees on their property.
Kruger pointed out:
“In Thing, the plaintiff was not allowed to recover because she had perceived neither the event nor the defendant’s injurious conduct.”
In that case, the plaintiff arrived at the scene of the accident after a collision occurred.
Requirements Met
Declaring the requirements set forth in Thing to be met, Kruger said:
“Neither our 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 has 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 who rushed to the scene told her to quiet down so that he could find a pulse.”
She continued:
“Thing does not require Downey to allege that she was aware of how the defendants may have contributed to that injury.
Bird v. Saenz
It is true that, as the state’s high court held in the 2002 decision in Bird v. Saenz, liability does not lie based on viewing the results of negligent conduct, Kruger said. But, she continued, “as cases like Thing make clear, 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.”
She declared:
“[N]either Bird nor subsequent cases have required contemporaneous awareness of the causal connection between each defendant’s conduct and a victim’s injury. On the contrary, several post-Thing cases have at least implicitly rejected such a requirement by allowing recovery for plaintiffs who have witnessed injurious explosions, fires, and other similar accidents, even if they could not have been aware at the time that the defendant had contributed to these disastrous events. The Court of Appeal in this case erred in reading the cases otherwise.”
The case is Downey v. City of Riverside, 2024 S.O.S. 2465.
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