Negligent Infliction of Emotional Distress Claims by Parents of Minor Plaintiffs

California Supreme Court has recognized two theories to justify the recovery of damages for the negligent infliction of emotional distress (“NIED”) – in this discussion, emotional distress suffered by the adult plaintiffs by reason of their little children’s physical injury as a result of the negligence of defendants – under the “direct victim” and “bystander” approaches to emotional distress claims. NIED is not an independent tort in California; it is a claim for negligence, so the plaintiff must still prove duty, breach, causation and damages. Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072.

In most trial court decisions touching upon the “direct victim” theory, judges in overruling defendants’ demurrers to plaintiffs’ cause of action for NIED rely on Marlene F., et al. v. Affiliated Psychiatric Medical Clinic, Inc., et al. (1989) 48 Cal.3d 583 (the “Marlene F.” case) and Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, thereby framing at the outset defendants’ potential liability to plaintiffs for NIED arising out of their children’s illnesses, before the issue is challenged again by motions in limine. Thus, these cases must be in the toolbox of any plaintiff opposing motions to dismiss early on in the case.

In April 1989 the Supreme Court Decided Two Landmark Cases About NIED

On April 10 and April 27, 1989, the California Supreme Court issued two landmark decisions regarding the scope of potential liability for NIED, within two weeks of each other.

The Marlene F. Case

The Marlene F. case, supra, was decided first. The plaintiff mother, Marlene F., entrusted her son to a psychotherapist for treatment of emotional problems. Marlene F. also underwent psychotherapy with the same therapist to aid in her son’s therapy. The mother later learned that her son had been sexually molested by the therapist. She brought an action in which she sought damages for negligent infliction of emotional distress, because of the consequences that the therapist’s molestation of her son had upon her and the rest of her family. The Supreme Court determined that the mother had a claim for NIED for her emotional suffering caused by the therapist’s molestation of her son.

In reaching its decision and finding for the mother, the Supreme Court distinguished between claims for NIED under the “bystander witness” theory, citing Dillon v. Legg (1968) 68 Cal.2d 728, and the “direct victim” theory, citing Molien, supra. The majority of the Justices joined in the opinion by Justice Arguelles, and Justice Eagleson issued a concurring opinion in which the remaining Justices joined.

The Thing Case

The second major case was decided on April 27, 1989. It is the case upon which many defendants principally rely, Thing v. La Chusa, et al. (1989) 48 Cal.3d 644. In the Thing case, the Supreme Court observed that the “guidelines” established in the Dillon case applicable in “bystander witness” cases had become unworkable after almost 20 years’ experience with its factors based on duty and foreseeability. The Supreme Court concluded that it “…needed to be refined to create a greater certainty in this area of the law.” 48 Cal.3d at page 647. The Supreme Court spelled out three (actually four) factors that should be applied in “bystander” cases. In a “bystander” case a plaintiff must show:

• Plaintiff is closely related to the injury victim;
• Plaintiff: (a) is present at the scene of the injury-producing event at the time it occurs; and (b) is then aware that it (the injury-producing event) is causing injury to the victim; and
• Plaintiff suffers emotional distress beyond that which would be anticipated in a disinterested bystander. Thing, 48 Cal.3d 644 at pages 667-668.

A majority of the Court joined in Justice Eagleson’s decision; Justice Kaufman issued a concurring opinion calling for the outright reversal of Dillon; and Justices Mosk and Broussard each issued separate dissenting opinions.

The hallmark of a “bystander witness” case is that the injury to the third party usually arises out of a single isolated event. For example: a child is struck by a car; an individual is disfigured by a massive dose of radiation; or a sister scuba diving with her brother witnesses his death as a result of a malfunction of a component in his air supply. The scuba diver incident is what happened in Fortman v. Förvaltningsbolaget Insulan AB (2013) 212 Cal.App.4th 830. In the Fortman case, the plaintiff sister’s claim for NIED caused by her witnessing her brother’s death was struck down on summary judgment because she could not meet requirement 2(b) of the three (actually four) criteria the Thing Court adopted for “bystander witness” cases: she believed at the time that her brother was having a medical emergency and was not then aware that the defendant’s product was causing his injury.

The Supreme Court catalogued the different results the Dillon case-by-case approach had spawned. The Court nevertheless acknowledged the distinction between cases based on the “bystander witness” theory and those based on the “direct victim” theory at 48 Cal.3d 644, at page 658, citing Molien, supra. In Molien, a husband sued Kaiser Foundation Hospitals for NIED because his wife was misdiagnosed with syphilis and was treated for it with penicillin. Mr. Molien’s wife was instructed to tell her husband of the diagnosis, and he was tested for the disease. His wife believed she had contracted the disease from him. Mr. Molien endured enormous emotional turmoil and a broken marriage as a result of the false and negligent diagnosis. In distinguishing Molien from a “bystander witness” case, Justice Eagleson wrote:

“In finding the existence of a duty to the husband of the patient [the wife], the court reasoned that the risk of harm was reasonably foreseeable, and that the tortious conduct was directed at him as well as the patient. [citing Molien, 27 Cal.3d 916, at page 922]. The status of the plaintiff mother in Dillon was distinguished as she suffered her injury solely as a ‘percipient witness’ to the infliction of injury on another. She was therefore a ‘bystander’ rather than a ‘direct victim.’” 48 Cal.3d 644, at page 658.

What Is a “Direct Victim” Claim?

When plaintiffs, like Mr. Molien, were themselves also injured along with their children, and have a “direct victim” claim for NIED because of their children’s suffering, the claims are made even stronger. “‘Direct victim’ cases are cases in which the plaintiff’s claim of emotional distress is not based upon witnessing an injury to someone else, but rather is based upon the violation of a duty owed directly to the plaintiff.” (Wooden v. Raveling (1998) 61 Cal.App.4th 1035, 1038.) This theory thus implicates all defendants acting in concert, because the breach of the duty they owe the adult plaintiffs resulted in foreseeable injury to their minor children, giving rise to this claim of emotional distress against defendants.

In Burgess, for example, the Supreme Court allowed a mother to recover as a direct victim for the emotional distress she suffered when her child was injured during delivery, because her obstetrician owed a duty directly to her as a patient. Burgess, supra, 2 Cal.4th 1064.

Fighting the Invocation of the “Bystander” Theory by Defendants

When defendants invoke the “bystander witness” theory, be ready to fight this as a strawman under the authority of Dillon, supra, and its progeny, especially the narrow Supreme Court decision in Thing and the later decision in Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072-1073, which explained that “[B]ystander liability is premised upon a defendant’s violation of a duty not to negligently cause emotional distress to people who observe conduct which causes harm to another.”

The “bystander witness” theory of recovery thus invariably involves a single, injury-causing event, as opposed to the “direct victim” theory that looks at the breach of the duty that is owed to the adult plaintiffs by the defendants that caused injury to their minor children.

Distinguish the facts by noting, especially in premises liability notice-based cases, that no tank exploded on the property nor did any jet plane crash into the house, as occurred in the other “bystander” cases analyzed by the Fortman court in reviewing the grant of a motion for summary judgment.

This distinction is very potent in cases of environmental liability where a house, for instance, was infested with dangerous, life-threatening toxic molds that caused such plaintiffs to temporarily evacuate the house for a safe dwelling. In this sort of case, you will do well to buttress your argument by invoking a persistent and continuous breach of the implied warranty of habitability, especially if remediation did not work or was slow in being implemented.

In applying the Thing factors to any fact pattern, plaintiffs should be careful to emphasize the close relationship between the parents and the children involved, their continuous contemporaneous awareness of the causal connection between the injury-producing conditions, such as mold infestation, and the resulting injuries to their children, and to use medical evidence to support the plaintiffs’ dreadful fears and emotional stress – certainly to a degree “…beyond that which would be anticipated in a disinterested bystander.” Thing, 48 Cal.3d 644, at pages 667-668.

Frequently Asked Questions

What is negligent infliction of emotional distress in California?

It is not an independent tort in California but a claim for negligence, so the plaintiff must prove duty, breach, causation and damages (Burgess v. Superior Court (1992) 2 Cal.4th 1064). Recovery for emotional distress is allowed under either the bystander theory or the direct victim theory.

What is the difference between a bystander claim and a direct victim claim?

A bystander claim is based on witnessing an injury to someone else, usually in a single sudden event. A direct victim claim is based on the defendant’s breach of a duty owed directly to the plaintiff, as in Molien v. Kaiser Foundation Hospitals and Marlene F. v. Affiliated Psychiatric Medical Clinic.

What must a bystander prove under Thing v. La Chusa?

The plaintiff must show that they are closely related to the injury victim, that they were present at the scene when the injury-producing event occurred and were then aware that it was causing injury to the victim, and that they suffered serious emotional distress beyond what a disinterested witness would feel (Thing v. La Chusa (1989) 48 Cal.3d 644, 667-668).

Can a parent recover as a direct victim when their child is injured?

Yes, if the defendant owed a duty directly to the parent. In Marlene F., a mother whose son was molested by the therapist treating them both could recover, and in Burgess, a mother could recover for her distress when her obstetrician’s negligence injured her child during delivery.

Why did the sister’s bystander claim fail in Fortman?

In Fortman v. Förvaltningsbolaget Insulan AB (2013), the sister saw her brother die while scuba diving, but at the time she believed he was having a medical emergency and did not know that a defective product was causing his injury. Because she lacked contemporaneous awareness of the cause, she could not meet the Thing requirements.