Downey v. City of Riverside

Plaintiff’s daughter was in an auto accident while on a phone call with plaintiff. During the call, sounds of the auto crash and its aftermath were audible. Plaintiff sued defendants, alleging the accident was caused by defendants’ negligent maintenance of a dangerous condition on the property where the accident occurred and that plaintiff suffered emotional distress as a contemporaneous observer because she heard the sounds of the crash and its aftermath.

Defendants demurred, claiming that plaintiff’s hearing the sounds of her daughter’s accident on the phone could not meet the requirement that plaintiff perceive the injury-producing event at the time it occurred. Plaintiff responded that she was sensorily present—through the technology of her phone—at the scene. The trial court sustained the demurrers without leave to amend on grounds that plaintiff’s complaint was insufficient to show her contemporaneous awareness of both the harm that the daughter suffered, and the causal connection between the defendants’ tortious conduct and her injuries. Plaintiff appealed.

The Court of Appeal reversed. The court agreed that to state a claim for bystander emotional distress, plaintiff must allege a “ ‘contemporaneous sensory awareness of the causal connection between the negligent conduct and the resulting injury.’ ” Here, the allegedly negligent acts were the defendants’ maintenance of deficient traffic signals and markings and insufficient landscaping. Plaintiff failed to allege the requisite contemporaneous sensory awareness because she did not allege that she was “aware” at the time of the phone call that defendants’ deficient traffic signals and markings and insufficient landscaping caused the accident or injured her daughter. The court held that liability for bystander emotional distress requires more than “a bystander’s ‘observation of the results of the defendant’s infliction of harm’ however ‘direct and contemporaneous.’ ” 

Nonetheless, the court reversed because it found there was a reasonable possibility that the defect in the complaint could be cured by amendment and that the trial court therefore abused its discretion by sustaining the defendants’ demurrers without leave to amend. 

Dissent 

A dissenting opinion argued that the majority improperly requires a bystander emotional distress plaintiff to allege and prove they were aware of each defendant’s allegedly tortious conduct. The dissent argued that it should be enough for a plaintiff to allege that—by virtue of the phone call—she was “sensorially aware” “of the accident and the necessarily inflicted injury to her child.”