California Bystander NIED Flashcards
Elements of CA Bystander NIED
To recover under California’s bystander theory of negligent infliction of emotional distress a plaintiff must prove that they are (1) closely related to the injury victim, and (2) present at the scene of the injury-producing event at the time it occurs (3) have contemporaneous sensory awareness of and a causal link between the defendant’s actions and victim’s injuries, and (4) as a result suffer emotional distress beyond that which would be anticipated in a disinterested witness.
Closely Related
Closely related refers to spouses, family members that live together in the same household, or parents, children, siblings, and grandparents unless an exceptional circumstance can be demonstrated.
Present at the scene
California courts have typically considered present to mean physically present at the scene of the accident-producing event. In some circumstances, the courts have gradually expanded the concept of “presence” treating virtual presence as similar to physical presence when real-time observation occurs
Contemporaneous Sensory Awareness
Contemporaneous means occurring in real-time and sensory awareness refers to sensory perception through one of the five senses such as sight, smell, or hearing. Sensory perception does not necessarily require perception by sight.
In Downey v. City of Riverside, the California Supreme Court clarified that for bystander NIED claims, “contemporaneous sensory awareness” requires the bystander to directly perceive the injury-causing event and understand it as injuring a close relative in real-time, but it does not require them to understand the defendant’s role in causing that injury at the moment it occurs.
Serious Emotional Distress
Courts consider serious emotional distress to mean distress beyond what is expected from witnessing a disturbing event or beyond the reaction expected from a disinterested bystander.
