More than half a century after establishing — in Dillon v. Legg (1968) 68 Cal.2d 728 — liability for negligent infliction of emotional distress on a witness to a relative’s accident and after numerous follow-up decisions discussing limits on that liability, the Supreme Court today addresses the topic again, in a case arising from yet another factual scenario. In Downey v. City of Riverside, the court allows a mother to seek damages for emotional distress she suffered when her daughter was injured in a car crash while driving and talking to her mother on the phone. The crash was allegedly caused by defendants responsible for a dangerous roadway condition in Riverside.
The court’s unanimous opinion by Justice Leondra Kruger repeats that liability to a bystander is appropriate “only if the plaintiff ‘is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim.’ ” The question addressed is whether the mother had to have been contemporaneously aware not only of her daughter’s harm but also of the connection between the dangerous conditions and the harm. The court concludes, “For purposes of clearing the awareness threshold for emotional distress recovery, it is awareness of an event that is injuring the victim — not awareness of the defendant’s role in causing the injury — that matters.” “The emotional trauma that comes from witnessing . . . an accident [that severely injures a loved one] exists regardless of whether the plaintiff is aware at the time of the accident of all the individuals or entities that have contributed to the accident through their conduct.”
If you thought that this opinion would finally exhaust all possible NIED issues, not so fast. The court specifically leaves unanswered whether the mother “was ‘present’ at the scene” and whether “she had contemporaneous awareness of both the accident and the fact [her daughter] was injured because she heard the accident and its immediate aftermath over the phone.” That the mother was “virtually ‘present’ at the injury-producing event” and was contemporaneously aware of the accident and her daughter’s injuries “have not been challenged here and we express no view on them,” the court says. Drafters of law school moot court problems and first-year writing assignments everywhere are breathing sighs of relief.
The court reverses a partially divided Fourth District, Division One, Court of Appeal, published opinion.
