Attorney Search
Advocacy at a Higher Level

Horvitz & Levy is a solutions-based firm focused on appellate success. We are distinguished by our commitment to responsive service and on-going innovation in the areas of civil appellate litigation, amicus curiae support, and trial strategy consultation.

Our firm history, honors and awards, and locations speak to our collaborative approach and commitment to serving clients as well as the outstanding legal resources we bring to bear.

LEARN MORE ABOUT HORVITZ & LEVY

December 28, 2020

Ko v. Maxim Healthcare Services, Inc. (Dec. 12, 2020, B293672) __ Cal.App.5th __ [2020 WL 7639590]

Plaintiffs brought claims for negligence and negligent infliction of emotional distress (NIED), alleging a vocational nurse who worked as an in-home caregiver for plaintiffs’ disabled son abused him while plaintiffs were away. Plaintiffs alleged they witnessed the nurse abusing their son in real time through the livestream of video and audio on their smartphone from a camera in the home. The trial court ruled that plaintiffs could not state a cause of action for NIED as bystanders because they were not physically present when the abuse occurred and thus could not satisfy the requirement of being “present at the scene of the injury-producing event at the time it occurs and . . . then aware that it is causing injury to the victim.” (See Thing v. La Chusa (1989) 48 Cal.3d 644, 688.)

The Court of Appeal reversed, holding that plaintiffs’ “virtual presence” during the abuse through a real-time audiovisual connection satisfied the requirement of contemporaneous presence. The court reasoned that technology for virtual presence has developed dramatically since the Supreme Court decided Thing and it is now common for families to experience events as they unfold through livestreaming of video and audio. “Where plaintiffs allege they were virtually present at the scene of an injury-producing event sufficient for them to have a contemporaneous sensory awareness of the event causing injury to their loved one,” they satisfy the contemporaneous presence requirement.