Negligent Infliction of Emotional Distress from Hearing a Loved One Get Injured Over the Phone?

Imagine you’re on the phone with your daughter as she is driving to make an appointment with a realtor.  You know the route she is driving because she’s asking you for directions.  She approaches an intersection where she needs to make a left hand turn.  Traffic coming from the left and right do not have to stop at this intersection.  You know, from personal experience, that it is difficult to see the traffic coming from your left due to trees and branches and also that the traffic approaching from the left does so at a marked speed limit of 45mph and often travels faster than that.  Your daughter tells you via the phone that she is getting ready to make that left hand turn.  Suddenly, you head a scream, heard the sound of metal crashing into metal and what sounds like an explosion.  Your daughter is no longer responding to your voice yet the call has not been dropped.

This is the set of facts that underpins the recent Downey case (Downey v. City of Riverside (2023) 2023 Cal. App. LEXIS 318).

In that case, plaintiff Downey brought suit against the City of Riverside whose trees caused the obstruction which plaintiff alleged caused or contributed the collision that day.  Downey (the mother) alleged that she suffered emotional distress from the above-described telephone call and that, since the incident was partially the result of the City’s negligence, the City of Riverside was culpable for “Negligent Infliction of Emotional Distress” – a legal cause of action in California.

The City of Riverside demurred to the mother’s emotional distress claim, the demurrer was granted, and the plaintiff appealed.

Cases for Negligent Infliction of Emotional Distress (NIED) where the plaintiff themselves is not directly injured are referred to a bystander claims.  The jury instruction for such claims is embodied in CACI 1621.  It requires, among some other elements:

• that the plaintiff be present at the scene of the incident which caused injury or death to another.
• That the plaintiff is aware the incident is causing injury or death to the victim
• That the plaintiff suffered serious emotional distress as a result of this witnessing
• That the defendant’s negligent conduction was a substantial factor in causing the plaintiff’s serious emotional distress.

Previous cases on the topic have held that it is not enough for a plaintiff to observe the results of defendants infliction of harm, however direct and contemporaneous… plaintiff must be contemporaneously aware of the connection between the injury-producing event and the victim’s injuries. (Downey at 3.)

This connection is primarily what was the sticking point in the Downey case.  It should be noted that there was some discussion about whether the plaintiff was “present” at the incident being on the phone with her daughter who was injured.  This was quickly disposed of for the purposes of the appeal.

Defendants demurred on grounds Downey did not see the injury-producing event at the time it occurred. The court then considered supplemental briefing concerning Downey’s claim for negligent infliction of emotional distress. Defendants argued case law required that Downey have a “contemporaneous perception of what caused the injury to their close relative” and Downey could not allege she was aware that the condition of their property caused her daughter’s injury. (Downey, at 8-9)  It was on this basis that the trial Court granted the demurrer.

On Appeal, the Court ultimately held that granting the demurrer was inappropriate.  The Court agreed that the mother satisfied the element of being “present” at the scene, noting other cases that have found such in cases involving videoconferencing etc.  With respect to whether the plaintiff could sufficiently allege facts that she knew that the defendants’ negligent maintenance of the property (trees etc.) was the cause of the accident, the Court held:

Downey argued that she can allege additional facts establishing that she had familiarity with, and knowledge and awareness of, the intersection and the dangerous conditions created by City… Under these circumstances, Downey should be given an opportunity to allege facts showing she had the requisite “‘contemporaneous sensory awareness of the causal connection between the [defendants’] negligent conduct and the resulting injury’” (citation) so as to support a cause of action for negligent infliction of emotional distress against City…
(Downey v. City of Riverside 2023 Cal. App. LEXIS 318, at *37-38)

Thus, Downey will have another chance to amend her complaint.

What do you think?  Is this a reasonable outcome?

Negligent Infliction of Emotional Distress – especially when dealing with bystanders – is an ever-changing area of the law.  If you or a loved one think you may have a claim, call the experienced attorneys at Heiting & Irwin for a free consultation.