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Bystander Negligent Infliction of Emotional Distress

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Negligent Infliction of Emotional Distress in California & THING

In California, a family member may have a potential claim for negligent infliction of emotional distress (NIED) if they have witnessed a distressing event involving their immediate family member. However, specific requirements must be met to establish a valid NIED claim.

This happens more than you might think.  What if you are driving your children to school.  Another car runs a stop sign and strikes the front of your car.  You are not hurt and neither is your child.  Can you sue for "emotional distress"?  Can you sue just for your fear for your own safety but also your child's?  What if you are not driving but are on the street and see a car crash into your child's school bus?  Can you sue?   The horror movie title "Thing v. La Chusa" defines when under California law a bystander can sue for negligent infliction of emotional distress (NIED).

“Thing v. La Chusa” is a landmark case in California that dealt with the issue of negligent infliction of emotional distress (NIED). The case was heard in the California Supreme Court in 1989.

In this case, the plaintiff, Thing, was a mother who claimed to have suffered emotional distress after witnessing her child being injured in an automobile accident caused by the defendant, La Chusa. The plaintiff argued that she suffered severe emotional trauma as a result of witnessing the accident and sought compensation for her emotional distress.

The central issue in Thing v. La Chusa was whether a bystander who witnesses an accident but is not physically injured can recover damages for emotional distress under the theory of negligent infliction of emotional distress. The court had to determine the scope of liability and the requirements for establishing a claim for NIED.

The California Supreme Court established a set of guidelines for such claims, which are commonly known as the “Thing test.” The court held that a bystander who claims emotional distress must meet certain criteria, including:

Proximity: The bystander must be in close proximity to the accident or injury-causing event.
Direct sensory perception: The bystander must witness the event as it unfolds or its immediate aftermath.

Close relationship: The bystander must have a close familial relationship with the victim, such as being a parent or child.

The court concluded that a plaintiff who meets these criteria may recover damages for emotional distress caused by witnessing harm to a loved one, even without suffering physical injury themselves.

Under California law, there are two primary categories of NIED claims: “direct victim” and “bystander” claims. A family member’s claim would fall under the “bystander” category and with few exceptions the failure to see the harm take place cars recovery.

To successfully assert a bystander NIED claim in California, the following elements are generally required:

  1. Proximity: The family member must be located at the scene of the distressing event, or in its immediate aftermath, such that they were present and witnessed the event firsthand.
  2. Close relationship: The family member must have a close relationship with the injured party. Typically, this means a spouse, parent, child, or sibling relationship.
  3. Serious emotional distress: The family member must suffer severe emotional distress as a result of witnessing the distressing event. California courts have set a high threshold for what constitutes severe emotional distress. In California the severity of the stress is not just a damage item. It is an ELEMENT of the offense and must be proven or the claim fails.
  4. Negligence: The distressing event must have been caused by the defendant’s negligence or wrongful conduct.

Here is a case law cite that explains the rules in a different way:

[The] negligent causing of emotional distress is not an independent tort …
The traditional elements of duty, breach of duty, causation, and damages apply. Whether a
defendant owes a duty of care is a question of law. Its existence depends upon the foreseeability of
the risk and upon a weighing of policy considerations for and against imposition of liability.
(Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588 [257 Cal.Rptr.
98, 770 P.2d 278], internal citations omitted.)

In preparing the jury instruction on the topic the issue of what constitutes perceiving an event (of harm to another) is discussed.

There is some uncertainty as to how the “event” should be defined in element 2 and

then just exactly what the plaintiff must perceive in element 3. When the event is

something dramatic and visible, such as a traffic accident or a fire, it would seem

that the plaintiff need not know anything about why the event occurred. (See Wilks

v. Hom (1992) 2 Cal.App.4th 1264, 1271 [3 Cal.Rptr.2d 803].) And the California

Supreme Court has stated that the bystander plaintiff need not contemporaneously

understand the defendant’s conduct as negligent, as opposed to harmful. (Bird v.

Saenz (2002) 28 Cal.4th 910, 920 [123 Cal.Rptr.2d 465, 51 P.3d 324], original


But what constitutes perception of the event is less clear when the victim is clearly

in observable distress, but the cause of that distress may not be observable. It has

been held that the manufacture of a defective product is the event, which is not

observable, despite the fact that the result was observable distress resulting in death.

(See Fortman v. Förvaltningsbolaget Insulan AB (2013) 212 Cal.App.4th 830,

843-844 [151 Cal.Rptr.3d 320].) In another observable-distress case, medical

negligence that led to distress resulting in death was found to be perceivable

because the relatives who were present observed the decedent’s acute respiratory

distress and were aware that defendant’s inadequate response caused her death. (See

Keys v. Alta Bates Summit Medical Center (2015) 235 Cal.App.4th 484, 489-490

[185 Cal.Rptr.3d 313], emphasis added.) It might be argued that observable distress

is the event and that the bystanders need not perceive anything about the cause of

the distress. However, these cases indicate that is not the standard. But if it is not

necessary to comprehend that negligence is causing the distress, it is not clear what

it is that the bystander must perceive in element 3.

These are complex issues and the law is not settled in this area. If you have a bystander case, consult a lawyer with experience in this area.   Our personal injury lawyers have litigated very complex "Thing" NIED cases.   We have our main office in Lafayette, California (Contra Costa County) and take cases throughout California involving serious injuries.  Call us and we can provide you with the best personal injury representation or a referral to a qualified attorney in your area.


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