Downey v. City of Riverside ( 2023 )

Filed 4/26/23
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
JAYDE DOWNEY, D080377
Plaintiff and Appellant,
v. (Super. Ct. No. RIC1905830)
CITY OF RIVERSIDE et al.,
Defendants and Respondents.
APPEAL from orders of the Superior Court of Riverside County, Harold
W. Hopp, Judge. Reversed and remanded with directions.
Rizio Lipinsky Law Firm, Greg Rizio and Eric I. Ryanen for Plaintiff
and Appellant.
Phaedra Norton, City Attorney, Michel A. Verska, Senior Deputy City
Attorney and Cecila Rojas, Deputy City Attorney for Defendant and
Respondent City of Riverside.
CP Law Group, Gary H. Klein and Shelby Kennick for Defendants and
Respondents Ara and Vahram Sevacherian.
1
Plaintiff and appellant Jayde Downey 1 appeals from orders of
dismissal entered after the trial court sustained without leave to amend the
demurrers of defendants and respondent Ara and Vahram Sevacherian (at
times collectively Sevacherian) and the City of Riverside (City) to Downey’s
operative complaint alleging causes of action for dangerous condition of
property and negligence arising out of an automobile collision involving
Downey’s daughter, Vance. In that pleading, Downey alleged the collision
occurred “because [City] created or permitted to exist, a dangerous condition
of public property” and because Sevacherian maintained vegetation and trees
on their property so as to cause an unsafe obstruction to the view of vehicular
traffic. She alleged that because she was on the phone with Vance and heard
the sounds of the crash and its aftermath, she was “present, or virtually
present” at the scene when the collision happened and had
“contemporaneous, sensory awareness of the connection between the injury-
causing traffic collision and the grievous injury suffered by [Vance] as a
result . . . , thereby causing . . . Downey . . . serious emotional injuries and
damages . . . .”
The trial court ruled Downey’s allegations were “insufficient to show
that Downey had a contemporaneous awareness of the injury-producing
event—not just the harm Vance suffered, but also the causal connection
between defendants’ tortious conduct and the injuries Vance suffered.”
Downey contends the court erred; that because she contemporaneously
perceived the event causing injury to Vance, she adequately alleged a claim
for negligent infliction of emotional distress as a bystander. According to
1 Downey advises that she mistakenly listed her daughter Malyah Vance
as an appellant on her notice of appeal, as the trial court did not dismiss
Vance’s complaint. We refer to Downey as the sole appellant.
2
Downey, that cause of action does not require as an element that the plaintiff
visualize the event or show knowledge of the connection between the tortious
nature of the defendants’ conduct and the victim’s physical injuries.
The actual negligent acts or omissions of City and Sevacherian on
which Downey bases her complaint are their property maintenance and/or
control, which allegedly created dangerous conditions causing the accident.
Under Bird v. Saenz (2002) 28 Cal.4th 910, 921 (Bird), such allegations,
without more, would compel us to conclude that Downey, who was not
present at the scene, could not know at the time of the collision of the
connection between defendants’ alleged negligent conduct and the collision or
her daughter’s injuries. Under Bird, liability for negligent infliction of
emotional distress cannot be imposed for the consequences of City and
Sevacherian’s assertedly harmful conduct. Bird held that it is not enough for
a plaintiff to observe “ ‘the results of the defendant’s infliction of harm,’
however ‘direct and contemporaneous’ ” as “[s]uch a rule would eviscerate the
requirement . . . that the plaintiff must be contemporaneously aware of the
connection between the injury-producing event and the victim’s injuries.”
(Ibid.)
However here, Downey at oral argument argued she can allege
additional facts to cure the defect, namely, her familiarity with and
knowledge and awareness of the intersection and the dangerous conditions
created by City and Sevacherian. Under these circumstances, Downey should
be given an opportunity to allege facts establishing she had the requisite
“ ‘contemporaneous sensory awareness of the causal connection between the
negligent conduct and the resulting injury.’ ” (Bird, supra, 28 Cal.4th at
p. 918.) Accordingly, we reverse the orders sustaining the demurrers without
3
leave to amend and direct the trial court to overrule the demurrers with leave
to amend.
FACTUAL AND PROCEDURAL BACKGROUND
We state the facts from the well-pleaded allegations of the operative
third amended complaint. (Zolly v. City of Oakland (2022) 13 Cal.5th 780,
786.)
In December 2018, Vance was driving eastbound on Via Zapata and
entering the intersection of Via Zapata and Canyon Crest Drive when her
vehicle was struck by a vehicle owned and operated by Evan Martin, who was
traveling southbound on Canyon Crest Drive. Vance suffered serious
personal injuries as a result of the collision. Canyon Crest Drive and Via
Zapata are public streets in Riverside. City owned, managed, supervised,
controlled, and/or maintained Canyon Crest Drive at or near the intersection
at Via Zapata. Sevacherian owned, managed, supervised, controlled, and/or
maintained the real property adjacent to the intersection.
At the time of the collision, Downey was on the phone with Vance
giving her directions to get to a realtor’s office close to the intersection.
Downey knew Vance was close to the Via Zapata/Canyon Crest Drive
intersection and would have to stop there. Downey heard Vance in a self-talk
voice say something like “I’m gonna go left, I’m gonna go left, OK . . . OK . . .
OK”—in a manner and tone that Downey understood was consistent with
Vance waiting to turn left and mentally “checking off” traffic on Canyon Crest
Drive as the traffic approached and cleared the intersection before she could
turn. Then, in rapid succession, Downey heard Vance take an audibly sharp,
gasping breath; her frightened or shocked exclamation: “Oh!”; and the
simultaneous, or near-simultaneous sounds of an explosive metal-on-metal
vehicular crash; shattering glass; and rubber tires skidding or dragging
4
across asphalt. Downey had not heard the sounds of skidding tires or
squealing brakes in the seconds immediately preceding the impact. Then and
there, Downey knew from the combination of the sounds she heard, and from
having directed Vance where to drive, that Vance had been injured in a high-
velocity motor vehicle collision at or near Via Zapata at Canyon Crest Drive.
As the sound of tires skidding or dragging across asphalt diminished,
and having heard no sounds or vocalizations from Vance, Downey understood
Vance was injured so seriously she could not speak. Downey immediately left
her office, telling people there something like, “I have to go, my daughter has
been in a car accident, I have to go.” As Downey ran to her car and started
driving toward the scene of the incident, she called out to Vance. For a time,
Downey heard nothing, but then heard the sound of rustling in Vance’s car.
Downey started screaming into her phone, “Can you hear me? Can you hear
me? I can hear you, can you hear me?” She then heard a male voice say
something like, “Would you stop? I’m trying to find a pulse.” Downey waited,
then asked, “Is she alive?” Moments later, the man said, “She breathed. I
got a breath.” He then said something like: “What I am going to tell you to
do is going to be the hardest thing you will ever do in your life. I want you to
hang up your phone and call 911, and have them respond to Via Zapata and
Canyon Crest Drive in Riverside.”
In November 2019, Downey and Vance sued City and Martin alleging
causes of action for dangerous condition of public property, negligence, and
negligent infliction of emotional distress.2 As to City, they alleged in part
that the “collision occurred because [City] created, or permitted to exist, a
dangerous condition of public property; and/or its employees negligently and
2 They also originally sued the County of Riverside, but the County was
not named as a defendant in their operative third amended complaint.
5
carelessly committed, or omitted, acts, so as to cause injury and damage to”
them in that “[t]he traffic markings, signals, warnings, medians, and fixtures
thereon (or lack thereof), were so located constructed, placed, designed,
repaired, maintained, used, and otherwise defective in design, manufacture
and warning that they constituted a dangerous condition of public property”
because “they created an unreasonable and foreseeable risk of injury and
harm to occupants of vehicles in the intersection.” They alleged that “[a]ll of
these conditions, combined with the condition of the pavement, road design
and the speed limit, created a dangerous condition of public property” and
“the road itself and the surrounding area was so constructed, placed,
designed, repaired, maintained, used, and otherwise defective in design,
manufacture and warning that the involved section of road constituted a
dangerous condition of public property [by] creat[ing] an unreasonable and
foreseeable risk of injury and harm to occupants of vehicles in the
intersection.” They alleged City knew of numerous collisions in or about the
intersection before the accident, and had sufficient time and resources to
correct the conditions and take preventative measures. Downey alleged she
was on the telephone with Vance and heard the collision through the phone.
Plaintiffs eventually filed a second amended complaint adding the
Sevacherians as parties. They alleged the Sevacherians maintained their
property—particularly by failing to trim vegetation and trees—in such a
condition to make it unsafe by obstructing the view of traffic turning from Via
Zapata onto Canyon Crest Drive and causing the collision between Vance and
Martin. City answered the complaint, but the Sevacherians demurred on
grounds Downey did not see the injury-producing event at the time it
occurred. The court then considered supplemental briefing concerning
Downey’s claim for negligent infliction of emotional distress. In that briefing,
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the Sevacherians argued case law required that Downey have a
“contemporaneous perception of what caused the injury to their close relative
(i.e. an awareness of the causal connection between the defendant’s infliction
of harm and the injury)” and Downey could not allege she was aware that the
condition of their property caused Vance’s injury.
The court sustained the Sevacherians’ demurrer with leave to amend.
In part, it stated that “[t]he essence of bystander recovery is that the plaintiff
experiences a contemporary sensory awareness of the connection between an
injury-causing event and a close relative’s injury.” The court ruled Downey’s
allegations were insufficient: “. . . Downey alleges she heard a collision and
‘first responders’ attempts to revive her daughter.’ . . . [She] cites no decision
that holds that an auditory perception alone, without further awareness of an
injury-causing event, is sufficient.”
Downey and Vance filed a third amended complaint. In addition to the
specific allegations about her call with Vance before, during and after the
collision, Downey alleged she at all relevant times “was present, or virtually
present, at the scene of the collision, at the time of the collision and, then and
there, had contemporaneous, sensory awareness of the connection between
the injury-causing traffic collision and the grievous injury suffered by her
daughter as a result of the collision, thereby causing [Downey] suffered [sic]
serious emotional injuries and damages as a result of these events and
conditions at the scene . . . .”
Both City and the Sevacherians filed demurrers. City argued Downey
could not allege the elements required for bystander recovery of negligent
infliction of emotional distress: “The crux of plaintiffs’ complaint against the
City is that cars parked on Canyon Crest Drive obstructed Vance’s view and
the speed limit on Canyon Crest [Drive] was too high. . . . Downey was on the
7
phone with Vance but was not at the scene and therefore she was unable to
use any of her senses to perceive any alleged dangerous roadway conditions
at the time of Vance’s traffic collision, especially any parked cars that
allegedly blocked Vance’s view or how fast any cars were traveling on Canyon
Crest Drive.” (Some capitalization omitted.) It asked the court to sustain its
demurrer without leave to amend as Downey had been provided an
opportunity to amend her complaint on those issues.
In opposition to City’s demurrer, Downey and Vance argued Downey
had experienced the collision between Vance and Martin as it actually
occurred, and was aware not only of that event but also the subsequent first
responder attempts to revive Vance. They argued it was through the nature
of modern technology that Downey was “sensorily present at the scene” and
as a result suffered serious emotional injuries and damages. According to
plaintiffs, while a plaintiff “must be contemporaneously aware of the injury-
producing event and that it is causing harm to plaintiffs [sic] relative,
contemporaneous awareness of the exact manner in which defendant’s
tortious conduct caused the event and resulting injuries is not an element of
the [negligent infliction of emotional distress] claim.” They argued plaintiffs
need not show he or she knew of the exact nature of the defendant’s tortious
conduct. They made the same arguments in opposition to the Sevacherians’
demurrer.
The court sustained the demurrers without leave to amend. It ruled
that while plaintiffs had added certain facts to the operative complaint,
namely allegations that Downey was “present, or virtually present at the
scene of the collision, and . . . had contemporaneous, sensory awareness of the
connection between the injury-causing traffic collision and the grievous injury
suffered by [Vance] as a result of the collision”—the allegations were
8
“insufficient to show that Downey had a contemporaneous awareness of the
injury producing event—not just the harm Vance suffered, but also the causal
connection between defendants’ tortious conduct and the injuries Vance
suffered.” Plaintiffs timely filed this appeal.3
DISCUSSION
I. Standard of Review
The review standard is settled. “ ‘In reviewing an order sustaining a
demurrer, we examine the operative complaint de novo to determine whether
it alleges facts sufficient to state a cause of action under any legal theory.’
[Citation.] ‘ “ ‘ “We treat the demurrer as admitting all material facts
properly pleaded, but not contentions, deductions or conclusions of fact or
law. . . . We also consider matters which may be judicially noticed.” . . .
Further, we give the complaint a reasonable interpretation, reading it as a
whole and its parts in their context.’ ” ’ ” (Mathews v. Becerra (2019) 8
Cal.5th 756, 768; see also Zhang v. Superior Court (2013) 57 Cal.4th 364,
370.)
“ ‘If the complaint states a cause of action under any theory, regardless
of the title under which the factual basis for relief is stated, that aspect of the
complaint is good against a demurrer. “[W]e are not limited to plaintiffs’
theory of recovery in testing the sufficiency of their complaint against a
demurrer, but instead must determine if the factual allegations of the
complaint are adequate to state a cause of action under any legal
3 The court entered orders dismissing City and the Sevacherians with
prejudice from the third amended complaint, as the case apparently
proceeded against Martin. Though Downey’s notice of appeal refers to a
judgment entered following the sustaining of a demurrer, we construe the
notice of appeal as referring to the October and November 2021 orders
dismissing City and the Sevacherians.
9
theory . . . .” ’ ” (Zhang v. Superior Court, supra, 57 Cal.4th at p. 370, see also
id. at p. 383.) “We review the trial court’s ruling, not the reasons stated for
the ruling. [Citations.] The rationale for this standard is that there can be
no prejudice from an error in logic or reasoning if the decision itself is
correct.” (Mireskandari v. Gallagher (2020) 59 Cal.App.5th 346, 357-358; see
also Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980-981.)
When a demurrer is sustained without leave to amend, “ ‘we decide
whether there is a reasonable possibility that the defect can be cured by
amendment: if it can be, the trial court has abused its discretion and we
reverse; if not, there has been no abuse of discretion and we affirm.’ ” (Zelig
v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.) “ ‘ “The plaintiff has
the burden of proving that [an] amendment would cure the legal defect, and
may [even] meet this burden [for the first time] on appeal.” ’ ” (Ko v. Maxim
Healthcare Services, Inc. (2020) 58 Cal.App.5th 1144, 1150.)
II. Legal Principles Pertaining to a Cause of Action for
Negligent Infliction of Emotional Distress to a Bystander
The negligent causing of emotional distress is not an independent tort,
but the tort of negligence. (Burgess v. Superior Court (1992) 2 Cal.4th 1064,
1072.) As such, “the traditional elements of duty, breach of duty, causation,
and damages apply.” (Ibid.; Fortman v. Förvaltningsbolaget Insulan AB
(2013) 212 Cal.App.4th 830, 834 (Fortman); McMahon v. Craig (2009) 176
Cal.App.4th 1502, 1509.) For claims of negligence that are alleged to have
caused emotional distress to a percipient witness to the harm, “the class of
potential plaintiffs could be limitless, resulting in the imposition of liability
out of all proportion to the culpability of the defendant . . . .” (Burgess, at
p. 1073.) As a result, the California Supreme Court has put in place “three
mandatory requirements” (Bird, supra, 28 Cal.4th at p. 915; Fortman, at
10
p. 835) to circumscribe the class of bystanders to whom a defendant owes a
duty of care to avoid negligently inflicting emotional distress. (Burgess, at
p. 1073.) “ ‘[A] plaintiff may recover damages for emotional distress caused
by observing the negligently inflicted injury of a third person if, but only if,
said plaintiff: (1) is closely related to the injury victim; (2) 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; and (3) as a result suffers serious
emotional distress—a reaction beyond that which would be anticipated in a
disinterested witness and which is not an abnormal response to the
circumstances.’ ” (Bird, at p. 915, quoting Thing v. La Chusa (1989) 48
Cal.3d 644, 667-668 (Thing).)
At issue here, as in Bird, is the second requirement. (Bird, supra, 28
Cal.4th at p. 916.) Bird considered in the summary judgment context a claim
of negligent infliction of emotional distress against treating physicians based
on alleged medical malpractice. (Id. at p. 912.) The plaintiffs, daughters of a
woman undergoing a surgical procedure to insert a venous catheter,
presented evidence that two of them witnessed their mother, who appeared
blue, being rushed down a hallway surrounded by doctors. (Id. at p. 913.)
Doctors told the two plaintiffs (one of whom had arrived at the hospital after
the first had been told about the transection) that their mother’s artery or
vein had been nicked or transected and related to one of them that doctors
had to insert a drainage tube into their mother’s chest to keep her alive until
a vascular surgeon’s arrival. (Ibid.) The plaintiffs alleged “they ‘were all
present at the scene of the injury-producing events at issue herein at the time
when they occurred’ and that they ‘were all aware that Defendants, and each
of them, were causing injury to their mother . . . .’ ” (Id. at p. 914.) In
opposing summary judgment, they admitted they were not present in the
11
operating room when their mother’s artery was transected, but argued the
“relevant injury-producing event” also included the doctors’ failure to
diagnose and treat the damaged artery. (Ibid.) The two plaintiffs presented
declarations stating that by the time the second daughter had arrived at the
hospital, both knew their mother was severely injured and that the injury
was continuing, and that at the time she was rolled through the hallway to
surgery, both were aware she was bleeding to death as they watched. (Ibid.)
The Court of Appeal concluded the evidence presented a triable issue of
fact precluding summary judgment, but the Supreme Court disagreed and
reversed. (Bird, supra, 28 Cal.4th at pp. 912, 914.) Bird reviewed its earlier
decisions on the negligent infliction claim, focusing on the requirement of a
plaintiff’s presence and perception of injury. It acknowledged that it had held
in Thing, supra, 48 Cal.3d 644 that a negligent infliction of emotional
distress claim failed where a plaintiff mother became aware that a car
accident injured her minor child only when someone told her it had occurred,
and she rushed to the scene to see her child injured and unconscious on the
road. (Bird, at p. 916.) “Under these facts, the plaintiff could not satisfy the
requirement of having been present at the scene of the injury-producing
event at the time it occurred and of having then been aware that it was
causing injury to the victim.” (Ibid., citing Thing, supra, 48 Cal.3d at p. 668.)
The Bird court explained that in Thing, it had disapproved cases suggesting
a “negligent actor is liable to all persons ‘who may have suffered emotional
distress on viewing or learning about the injurious consequences of his
conduct’ rather than on viewing the injury-producing event, itself.” (Bird, at
p. 916, quoting Thing, at p. 668, disapproving Nazaroff v. Superior Court
(1978) 80 Cal.App.3d 553 and Archibald v. Braverman (1969) 275 Cal.App.2d
253.) It noted both Nazaroff and Archibald permitted such claims by
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plaintiffs “who had seen the immediate aftereffects of injury-producing
events”—in Nazaroff, seeing a child being pulled out of a pool and being
resuscitated and in Archibald, viewing injuries moments after gunpowder
exploded in a child’s hand—“but not the events themselves.” (Bird, at p. 916,
fn. 2.)
Under these principles, the plaintiffs could not state a claim based on
the transection of their mother’s artery, as none of them were present in the
operating room at the time that event occurred, and they first learned of an
accident when a physician told them and they “saw some of the injurious
consequences.” (Bird, supra, 28 Cal.4th at p. 916.) The court continued:
“To be sure, Thing’s requirement that the plaintiff be contemporaneously
aware of the injury-producing event has not been interpreted as requiring
visual perception of an impact on the victim. A plaintiff may recover based
on an event perceived by other senses, so long as the event is
contemporaneously understood as causing injury to a close relative.
[Citation.] But this slight degree of flexibility in the second Thing
requirement does not aid plaintiff here because they had no sensory
perception whatsoever of the transection at the time it occurred. 4 Thus,
defining the injury-producing event as the transection, plaintiffs’ claim falls
squarely within the category of cases the second Thing requirement was
intended to bar.” (Bird, at pp. 916-917.) In stating this rule, the court noted:
“On the other hand, someone who hears an accident but does not then know
it is causing injury to a relative does not have a viable claim for [negligent
4 Bird’s reliance on Wilks v. Hom (1992) 2 Cal.App.4th 1264, 1272-1273
for this principle was limited to observing that any sensory perception
permits a plaintiff to recover for negligent infliction of emotional distress.
(Bird, supra, 28 Cal.4th at pp. 916-917.) Bird did not purport to draw any
broader conclusions from Wilks, which involved a jury instruction challenge.
13
infliction of emotional distress], even if the missing knowledge is acquired
moments later.” (Id. at p. 917, fn. 3.)
The court turned to the plaintiffs’ attempt to redefine the injury-
producing event as the doctors’ failure to diagnose their mother’s injury and
treat it while it was occurring. (Bird, supra, 28 Cal.4th at p. 917.) “The
problem with defining the injury-producing event as defendants’ failure to
diagnose and treat the damaged artery is that plaintiffs could not
meaningfully have perceived any such failure. Except in the most obvious
cases, a misdiagnosis is beyond the awareness of lay bystanders. . . . Even if
plaintiffs believed, as they stated in their declarations, that their mother was
bleeding to death, they had no reason to know that the care she was receiving
to diagnose and correct the cause of the problem was inadequate. While they
eventually became aware that one injury-producing event—the transected
artery—had occurred, they had no basis for believing that another, subtler
event was occurring in its wake.” (Ibid.)
The court explained it was not holding a layperson could never perceive
medical negligence, using an example of a layperson witnessing the mistaken
amputation of a relative’s sound limb. (Bird, supra, 28 Cal.4th at p. 918.)
But it emphasized the same could not be assumed of medical malpractice
generally. (Ibid.) It found another medical malpractice case—Golstein v.
Superior Court (1990) 223 Cal.App.3d 1415 (Golstein)—to be “on point . . . .”
In Golstein, parents watched their child undergo radiation therapy, and
learned later when he developed radiation poisoning that he had been
lethally overexposed at the time. (Bird, at p. 918.) Thus, “[w]hile the
plaintiffs had observed the procedure that was later determined to have been
an injury-producing event, they were not then aware the treatment was
causing injury.” (Ibid.) The Golstein plaintiffs had argued it was unjust to
14
deny them recovery in a situation where the fatal dosage of radiation was
invisible, when the rules originated with visible events such as accidents.
(Bird, at p. 918.) Bird favorably cited the Golstein Court of Appeal’s
reasoning rejecting the point: “Were it not for Thing[, supra, 48 Cal.3d 644],
. . . the plaintiffs ‘would have a compelling case. However, we interpret
Thing’s policy statement as a requirement that [negligent infliction of
emotional distress] plaintiffs experience a contemporaneous sensory
awareness of the causal connection between the negligent conduct and the
resulting injury. . . . [T]he plaintiff must be “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 . . . .” ’ ” (Bird, at p. 918, quoting Golstein, at
pp. 1427-1428, quoting Thing, at p. 668.)
Bird went on to discuss other medical malpractice cases decided after
Thing, including Wright v. City of Los Angeles (1990) 219 Cal.App.3d 318(Wright), and the main case plaintiffs relied on, Ochoa v. Superior Court
(1985) 39 Cal.3d 159 (Ochoa). Bird pointed out that in Wright, the court held
a plaintiff could not maintain a negligent infliction of emotional distress
claim when she watched a paramedic conduct an exam that did not detect a
type of shock. “While the relative was ‘present at the scene at the time the
injury-producing event occurred,’ there was no evidence ‘he was then aware
[that the decedent] was being injured by [the paramedic’s] negligent
conduct.’ ” (Bird, supra, 28 Cal.4th at p. 919, quoting Wright, at p. 350.) In
Ochoa, a mother sued authorities in a juvenile detention facility after they
ignored her son’s serious symptoms of pneumonia. (Bird, at p. 919.)
According to Bird, Ochoa anticipated Thing’s formula when it held recovery
was permitted “ ‘when there is observation of the defendant’s conduct and the
child’s injury and contemporaneous awareness the defendant’s conduct or lack
15
thereof is causing harm to the child . . . .’ ” (Bird, at p. 919, quoting Ochoa, at
p. 170.) Bird explained that in Ochoa, unlike other cases, the injury-
producing event was the authorities’ failure to respond significantly to
symptoms requiring immediate medical attention, an omission that “is not
necessarily hidden from the understanding awareness of a layperson” unlike
a misdiagnosis, unsuccessful treatment, or treatment that in retrospect turns
out to have been inappropriate. (Bird, at pp. 919-920.)
Bird discussed another case that it held “cannot be reconciled” with
Thing, in which a mother held her child as he was injected with an
incorrectly prepared intravenous solution and saw him convulse and
eventually lapse into a coma. (Bird, supra, 28 Cal.4th at p. 920, discussing
Mobaldi v. Regents of University of California (1976) 55 Cal.App.3d 573(Mobaldi).) The Mobaldi court found “ ‘no significance in the plaintiff’s lack
of awareness that the defendant’s conduct inflicting the injury is negligent’ ”
as long as her “ ‘observation of the results of the defendant’s infliction of
harm . . . is direct and contemporaneous . . . .’ ” (Bird, at p. 921, citing
Mobaldi, at p. 583.) Bird criticized that conclusion, observing it did not
survive its decision in Thing: “Mobaldi . . . may well have been correct in
saying that a plaintiff need not contemporaneously understand the
defendant’s conduct as negligent, as opposed to harmful. But the court
confused awareness of negligence, a legal conclusion, with contemporaneous,
understanding awareness of the event as causing harm to the victim. To
borrow the Mobaldi court’s own example, the bystander to the fatal traffic
accident knows the driver’s conduct has killed the child, even though she may
not know the driver was drunk. One takes a giant leap beyond that point,
however, by imposing liability for [negligent infliction of emotional distress]
based on nothing more than a bystander’s ‘observation of the results of the
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defendant’s infliction of harm,’ however ‘direct and contemporaneous.’
[Citation.] Such a rule would eviscerate the requirement of Thing . . . that
the plaintiff must be contemporaneously aware of the connection between the
injury-producing event and the victim’s injuries.” (Bird, at pp. 920-921.)
Bird again adopted the Golstein court’s analysis of Mobaldi: “ ‘The actual
negligent act [in Mobaldi]’ . . . ‘was not simply the injection itself, but the use
of the wrong solution, an act which plaintiff, as a medical layperson, could
not meaningfully perceive: what appeared to her as an innocent-seeming
injection was actually the conduit of medical negligence and the cause of her
child’s injuries. Unlike an explosion, traffic accident, or electrocution, the
injury-causing event in Mobaldi was essentially invisible to the plaintiff and
not a component of her emotional trauma.’ ” (Bird, at p. 921, quoting
Golstein, supra, 223 Cal.App.3d at p. 1423.)
Following Bird, the court in Fortman addressed a negligent infliction of
emotional distress claim in a strict products liability context, holding a
plaintiff did not have a viable claim where she witnessed her brother die
while scuba diving due to an equipment malfunction. (Fortman, supra, 212
Cal.App.4th at p. 832.) At the time, the plaintiff believed her brother was
having a heart attack, but she later learned a product manufactured by the
defendant had become lodged in his breathing equipment, preventing him
from getting enough air. (Ibid.) Explaining it was bound and limited by the
mandatory guidelines discussed above (Bird, supra, 28 Cal.4th at p. 915;
Thing, supra, 48 Cal.3d 644), the court reviewing a summary judgment held
the second factor was not met: “Fortman witnessed her brother’s injury, but
like the parents in Golstein[, supra, 223 Cal.App.3d 1415] who were unaware
of the radiation overdose, Fortman had no contemporaneous awareness of the
causal connection between the company’s defective product and her brother’s
17
injuries.” (Fortman, at p. 845.) It declined “to hold a product manufacturer
strictly liable for emotional distress when the plaintiff observes injuries
sustained by a close relative arising from an unobservable product failure” or
it otherwise “would eviscerate the second Thing requirement.” (Fortman, at
p. 844.)5
Fortman acknowledged that the plaintiff’s emotional distress was no
less grievous than that of a plaintiff who had a viable claim, but it explained
it was bound by Thing: “Thing drew a line by limiting the class of potential
plaintiffs in [negligent infliction of emotional distress] cases, precluding
recovery when the bystander lacks contemporaneous awareness of the injury-
producing event. [Citation.] The Supreme Court in Thing admittedly created
an arbitrary distinction on bystander recovery, stating ‘drawing arbitrary
lines is unavoidable if we are to limit liability and establish meaningful rules
for application by litigants and lower courts.’ ” (Fortman, supra, 212
Cal.App.4th at pp. 845-846.)
5 Fortman distinguished another products liability case, Ortiz v. HPM
(1991) 234 Cal.App.3d 178, involving a plaintiff’s lawsuit against a plastic
injection molding machine manufacturer to recover emotional injuries she
suffered when she saw her husband trapped in the machine. (Fortman,
supra, 212 Cal.App.4th at p. 842.) At the time the plaintiff arrived at the
scene, the machine was still operating and an air cylinder was pressing
across her husband’s chest. (Fortman, at pp. 842-843, citing Ortiz, 234
Cal.App.4th at p. 184.) Fortman pointed out that in Ortiz, the plaintiff
satisfied the second Thing prong because she was aware the defendant’s
machine was injuring her husband even though she could not perceive the
full extent of his injuries related to oxygen deprivation. (Fortman, at p. 843,
citing Ortiz, at p. 186.)
18
III. Analysis
A. Downey’s Reliance on Delta Farms Reclamation District v. Superior Court
We begin with a brief and undeveloped point Downey makes in the
portion of her brief relating the elements of a bystander negligent infliction of
emotional distress claim. She cites a case predating Bird and Thing, Delta
Farms Reclamation District v. Superior Court (1983) 33 Cal.3d 699 (Delta
Farms), for the proposition that “[b]ystander emotional distress falls within
the ambit of liability under Government Code [section] 835 for dangerous
condition of public property.”
To the extent Downey intends by the point that she can maintain a
negligent infliction of emotional distress cause of action based on the
allegations of her complaint merely because she alleges a dangerous
condition of public property, we cannot agree that such a cursory assertion,
without more analysis, establishes that proposition.
But Delta Farms no longer governs the question of whether a plaintiff
may state a cause of action for negligent infliction of emotional distress in the
context of a government claim for a dangerous condition of public property.
In that case, the plaintiffs, two mothers and an aunt who witnessed their 15-
year-old daughters and niece drown on public property, alleged that the girls
stepped off a hidden shelf in a waterway, and that the defendant knew or
should have known of the dangerous condition, knew visitors frequented the
area and were likely to wade or swim there, but failed to warn of the latent
dangers. (Delta Farms, supra, 33 Cal.3d at p. 702.) On a demurrer, the
California Supreme Court rejected the defendant’s contention that recovery
for negligent infliction of emotional distress by the relatives who witnessed
the drownings was not covered by statute and was thus barred by
Government Code section 815. It said: “[Government Code s]ection 835
19
imposes liability for a ‘dangerous condition [which] created a reasonably
foreseeable risk of the kind of injury which was incurred . . . .’ The term
‘injury’ is defined in [Government Code] section 810.8 as meaning ‘death,
injury to a person, damage to or loss of property, or any other injury that a
person may suffer to his person, reputation, character, feelings or estate, of
such nature that it would be actionable if inflicted by a private person.’ A
‘dangerous condition’ is defined in [Government Code] section 830 as
meaning a ‘condition of property that creates a substantial . . . risk of injury
when such property . . . is used with due care in a manner in which it is
reasonably foreseeable that it will be used.’ The Law Revision Comment to
[Government Code] section 830 makes it clear that the injury resulting from
a dangerous condition may be an emotional one: ‘The definition of
“dangerous condition” is quite broad because it incorporates the broad
definition of “injury” contained in [Government Code s]ection 810.8. Thus the
danger involved need not be a danger of physical injury; it may be a danger of
injury to intangible interests so long as the injury is of a kind that the law
would redress if it were inflicted by a private person.’ ” (Delta Farms, at
pp. 710-711, italics added.)
The Delta Farms court continued: “Under these provisions, an injury to
‘feelings’ is compensable if it ‘is of the kind that the law would redress if it
were inflicted by a private person.’ This imports a common law meaning into
the statute which would include emotional distress.” (Delta Farms, supra, 33
Cal.3d at p. 711.) Citing Molien v. Kaiser Foundation Hospitals (1980) 27
Cal.3d 916 and Dillon v. Legg (1968) 68 Cal.2d 728, the Delta Farms court
stated: “Emotional distress is a compensable injury when inflicted by a
private person if the risk of such harm to plaintiff was reasonably foreseeable
to defendant. [Citation.] This test of liability dovetails with the requirement
20
of [Government Code] section 835 that the ‘dangerous condition created a
reasonably foreseeable risk of the kind of injury which was incurred.’ ” (Delta
Farms, at p. 711.) The court concluded: “Real parties have alleged such a
foreseeable risk. It is predictable that adult relatives would accompany
children who are wading in the canal and that they would suffer emotional
distress from watching them drown. [Government Code s]ection 835
encompasses that type of injury.” (Ibid.)
But after Delta Farms, the court limited the parameters of a negligent
infliction of emotional distress claim in Thing, supra, 48 Cal.3d 644, and
specifically rejected the “nonexclusive guidelines” it had set out in Dillon v.
Legg, supra, 68 Cal.2d 728 to assess foreseeability and thus duty. (See Bird¸
supra, 28 Cal.4th at p. 915.) Thing made clear that foreseeability was not an
adequate test to determine the right to recover for the negligent causing of an
intangible injury: “It is apparent that reliance on foreseeability of injury
alone in finding a duty, and thus a right to recover, is not adequate when the
damage sought are for an intangible injury. In order to avoid limitless
liability out of all proportion to the degree of a defendant’s negligence, and
against which it is impossible to insure without imposing unacceptable costs
on those among whom the risk is spread, the right to recover for negligently
caused emotional distress must be limited.” (Thing, at p. 6646; see also
6 Thing also said: “Even if it is ‘foreseeable’ that persons other than
closely related percipient witnesses may suffer emotional distress, this fact
does not justify the imposition of what threatens to become unlimited liability
for emotional distress on a defendant whose conduct is simply negligent. Nor
does such abstract ‘foreseeability’ warrant continued reliance on the
assumption that the limits of liability will become any clearer if lower courts
are permitted to continue approaching the issue on a ‘case-to-case’ basis some
20 years after Dillon [v. Legg, supra, 68 Cal.2d 728].” (Thing, supra, 47
Cal.3d at p. 667.)
21
Burgess, supra, 2 Cal.4th at p. 1074 [“The great weight of this criticism [of
Molien v. Kaiser Foundation Hospitals, supra, 27 Cal.3d 916] has centered
upon the perception that Molien introduced a new method for determining
the existence of duty, limited only by the concept of foreseeability. To the
extent that Molien . . . stands for this proposition, it should not be relied
upon and its discussion of duty is limited to its facts. As recognized in Thing,
‘it is clear that foreseeability of the injury alone is not a useful “guideline” or
a meaningful restriction on the scope of [an action for damages for
negligently inflicted emotional distress]’ ”].)
Even if Delta Farms still governed the question presented here, the
Government Code definition of injury on which Delta Farms relies provides
that an intangible injury is compensable only if it “is of a kind that the law
would redress if it were inflicted by a private person.” (Delta Farms, supra, 33
Cal.3d at p. 711, italics added; see also Government Code section 810.8
[defining “injury”].) Thus, the pertinent statutes now incorporate the
limitations on liability for negligent infliction of emotional distress put in
place by Thing and Bird. We turn to whether Downey’s allegations in the
present complaint state such a claim given those restrictions.
B. Under the Allegations of the Present Complaint, Downey Cannot Maintain
a Cause of Action for Negligent Infliction of Emotional Distress
Downey advances two contentions to challenge the court’s order. First,
she argues that with modern technology, she was in fact present at the scene
and contemporaneously aware of the event causing injury to Vance. Second,
she maintains that “contemporaneous awareness of a causal connection
between defendants’ tortious misconduct and [a] victim’s physical injuries is
not an element of a bystander [negligent infliction of emotional distress]
claim arising from a motor vehicle collision.”
22
We agree Downey has adequately alleged she contemporaneously
sensed auditorily the accident and the fact Vance was injured. But our
agreement on that point does not resolve whether the complaint, as presently
styled, alleges a viable negligent infliction of emotional distress cause of
action against City and Sevacherian. As set out above, Bird establishes that
a plaintiff’s visual perception of an event is not necessarily required: a viable
negligent infliction of emotional distress claim may be stated by a plaintiff
who perceives an event by “other senses” as long as they contemporaneously
understand the event caused injury to their close relative. (Bird, supra, 28
Cal.4th at pp. 916-917; see also Fortman, supra, 212 Cal.App.4th at p. 841.)
Downey alleges she heard “the simultaneous, or near-simultaneous sounds of
an explosive metal-on-metal vehicular crash; shattering glass; and rubber
tires skidding or dragging across asphalt” and when that diminished, she
heard “no sounds or vocalizations from her daughter” and thus “understood
her daughter was injured so seriously she could not speak.” She further
alleged a man told her telephonically he was trying to “find a pulse” and to
call 911. Given these allegations, Downey would have no impediment to
assert a claim for negligent infliction of emotional distress merely because
she perceived the car accident and its injurious aftermath via listening to it
on her phone, at least as against the negligent actors involved in the crash.
(Accord, Ko v. Maxim Healthcare Services, supra, 58 Cal.App.5th at pp. 1146-
1147 [parents stated a cause of action by allegations they watched a
livestream video with audio of a healthcare worker abuse their son;
“technology for virtual presence has developed dramatically, such that it is
now common for families to experience events as they unfold through the
livestreaming of video and audio. Recognition of an [negligent infliction of
emotional distress] claim where a person uses modern technology to
23
contemporaneously perceive an event causing injury to a close family member
is consistent with the Supreme Court’s requirements for [such] liability and
the court’s desire to establish a bright-line test for bystander recovery”].)
But Downey’s claim at issue on appeal is against City and Sevacherian
for negligence in maintaining certain alleged dangerous conditions on their
property. We take guidance from Bird’s discussion of Ochoa, Wright and
Golstein in the medical malpractice context, and Fortman in the products
liability context. Bird approvingly cited authority indicating the focus must
be on the defendant’s “ ‘actual negligent act’ ” (Bird, supra, 28 Cal.4th at
p. 921, quoting Golstein, supra, 223 Cal.App.3d at p. 1423) and plaintiff’s
“ ‘contemporaneous sensory awareness of the causal connection between the
negligent conduct and the resulting injury.’ ” (Bird, at p. 918, quoting
Golstein, at pp. 1427-1428, italics added; accord, Fortman, supra, 212
Cal.App.4th at p. 845 [focusing on the plaintiff’s “awareness of the causal
connection between the company’s defective product and her brother’s
injuries”, italics added].)
Downey’s complaint shows the actual act alleged to be negligent is the
defendants’ maintenance of a dangerous condition on their property, which
ultimately was alleged to have caused the automobile collision. In these
circumstances, we cannot say the present allegations establish Downey
contemporaneously or meaningfully understood the causal connection
between the defendants’ harmful conduct—their deficient traffic
signals/markings or insufficient landscaping—and Vance’s injury. In this
way, these circumstances are like those in Bird and other medical
24
malpractice cases and Fortman in which the plaintiffs were unable to
perceive the defendant’s conduct as causing the harm suffered by the victim. 7
Downey relies on a California law practice guide and Ochoa’s
discussion of Mobaldi to argue that a plaintiff to state a viable negligent
infliction of emotional distress claim need not show he or she knew of the
tortious nature of the defendant’s conduct. As Bird explained, Mobaldi was
not necessarily incorrect in permitting liability where a bystander knows a
driver’s conduct has killed the victim, even though he or she may not know
the driver was drunk. (Bird, supra, 28 Cal.4th at pp. 920-921.) But
extending that reasoning to this context of a claimed negligent maintenance
of a dangerous property condition, we cannot reach the same result, as there
are no allegations showing at the time of the accident, Downey was “then
aware” (Golstein, 223 Cal.App.3d at p. 1428) that City’s or Sevacherian’s acts
or omissions with respect to the traffic markings at the intersection or
landscaping of surrounding property caused the accident or injured Vance.
Even if the claimed dangerous conditions were visible and obvious, Downey’s
complaint establishes she was not physically present at the scene to observe
them.
Bird also made clear in disapproving Mobaldi that one cannot impose
liability for negligent infliction of emotional distress “based on nothing more
than a bystander’s ‘observation of the results of the defendant’s infliction of
harm’ however ‘direct and contemporaneous.’ ” (Bird, supra, 28 Cal.4th at
p. 921.) Such is the case here, where the alleged result or consequence of City
and Sevacherian’s claimed negligence was the accident.
Downey asks us to follow federal authorities, In re Air Crash Disaster
Near Cerritos, Cal., On August 31, 1986 (9th Cir.1992) 967 F.2d 1421 and
Walsh v. Tehachapi Unified School District (E.D.Cal., Aug. 26, 2013, No.
25
7 The dissent characterizes our opinion as “effectively adopt[ing] a rule
that bystander-plaintiffs must allege and prove that they were aware of each
defendant’s allegedly tortious conduct.” (Dis. opn. at p. 4.) We do not hold
the plaintiff must know the precise nature of the defendant’s negligence; we
apply the Bird court’s analysis in a similar unique context—a complaint
alleging defendant’s maintenance of a dangerous condition of property caused
a car accident—to hold that a plaintiff must be aware of the connection
between the defendant’s conduct and the injury. This conclusion is in fact
supported by Ochoa, supra, 39 Cal.3d 159, which the dissent asserts
expressly disclaimed any suggestion that a bystander plaintiff must be aware
of the tortious nature of the defendant’s actions. (Dis. opn. at p. 4.) Ochoa
actually holds that recovery for negligent infliction of emotional distress is
permitted “when there is observation of the defendant’s conduct and the
[accident victim’s] injury and the contemporaneous awareness the
defendant’s conduct or lack thereof is causing harm to the [victim] . . . .”
(Ochoa, at p. 170.) In other words, the court permits recovery where the
plaintiff connected the injury with the defendant’s conduct. That is not the
case here as to these defendants, unless Downey is somehow familiar with
the problems with the intersection and surrounding landscaping and the
connection between those conditions and the accident. Our conclusion is also
supported by Thing, supra, 48 Cal.3d 644, which addressed Ochoa’s
observation that a plaintiff need not be aware that the defendant’s conduct
was tortious. After acknowledging Ochoa’s language to that effect, Thing
clarified that, “In sum, however, as to ‘bystander’ [negligent infliction of
emotional distress] actions, Ochoa held only that recovery would be permitted
if the plaintiff observes both the defendant’s conduct and the resultant injury,
and is aware at that time that the conduct is causing the injury.” (Thing, at
p. 661.) Thing held that the Court of Appeal in that case erred by concluding
Ochoa stood for the proposition that a negligent infliction of emotional
distress plaintiff need not witness the defendant’s conduct. The dissent’s
rule, which disregards the “specific acts underlying [plaintiff’s negligent
infliction of emotional distress] claim” deemed important in Bird (Bird,
supra, 28 Cal.4th at p. 912), would result in the “ ‘ever widening circles of
liability’ ” the California Supreme Court had sought to avoid by putting its
limitations in place. (See Bird, at p. 914.) For example, if the driver hit
Downey’s daughter’s vehicle because he was under the influence of
medication prescribed by a physician or as a result of an undiagnosed
medical condition, Downey could maintain a cause of action against that
physician merely because she perceived the car accident, having no
knowledge or awareness whatsoever of the physician’s role in it.
26
1:11–cv–01489 LJO JLT) 2013 WL 4517887, as well as Zuniga v. Housing
Authority (1995) 41 Cal.App.4th 82, questioned on other grounds in Zelig v.
County of Los Angeles (2002) 27 Cal.4th 1112, 1138-1139.) In Fortman,
supra, 212 Cal.App.4th 830, the court examined Air Crash Disaster and
Zuniga, and found them distinguishable as not involving a “injury-producing
event that cannot be contemporaneously perceived.” (Fortman, supra, 212
Cal.App.4th at p. 839.) We are not bound by lower federal decisions,
including those of the Ninth Circuit. (People v. Avena (1996) 13 Cal.4th 394,
431; McLaughlin v. Walnut Properties, Inc. (2004) 119 Cal.App.4th 293, 297.)
But we agree with Fortman. Fortman viewed the “injury-producing event” as
defendant’s assertedly negligent act, there, the manufacture of a defective
product, which could not be contemporaneously perceived by the plaintiff.
(See Fortman, at p. 845 [“Fortman had no contemporaneous awareness of the
causal connection between the company’s defective product and her brother’s
injuries,” italics added].) Because here, the complaint does not presently
allege defendants’ negligent acts that caused the accident were observable to
Downey at the time of the collision, the cited cases are inapposite.8
8 We decline to follow Walsh v. Tehachapi Unified School District, supra,
2013 WL 4517887 to the extent it is inconsistent with our conclusions.
Downey points out Walsh states that Bird and Fortman “do not stand . . . for
the much broader proposition that a plaintiff must be aware of the causal
connection between the victim’s injuries and the defendant’s negligent
conduct.” She would have us follow Walsh and limit Bird and Fortman to the
scenario where the negligent act and the injury-producing event are the
same. We cannot ignore Bird and Fortman’s focus on the defendant’s
negligent conduct or the actual negligent act. In our view, Bird plainly
interprets the second Thing prong to require contemporaneous perception of
a causal connection between the defendant’s negligent act and the injury
suffered to impose negligent infliction of emotional distress liability.
27
Downey also cites Keys v. Alta Bates Summit Medical Center (2015) 235
Cal.App.4th 484, but in this appeal after a jury trial, the Court of Appeal
upheld a verdict in favor of plaintiffs who viewed their mother/sister struggle
to breath after surgery and witnessed inadequate efforts by the respiratory
therapist to assist the situation. (Keys, at p. 489.) The court held the jury
could reasonably infer, under jury instructions given in that case, that the
plaintiffs were aware that the defendants’ inadequate response caused the
victim’s death and thus substantial evidence supported the judgment. (Id. at
pp. 490-491 [defining the “injury-producing event” as the “defendant’s lack of
acuity and response to [the mother’s] inability to breathe, a condition
plaintiffs observed and were aware was causing her injury”].)9
As Fortman did, we acknowledge that we must follow the California
Supreme Court’s mandates in creating a policy-based “clear rule under which
liability may be determined” (Thing, supra, 48 Cal.3d at p. 664) in negligent
infliction of emotional distress cases. (See also id. at p. 666 [drawing
arbitrary lines is unavoidable if we are to limit liability and establish
meaningful rules for application by litigants and lower courts]; Southern
California Gas Leak Cases (2019) 7 Cal.5th 391, 410 [characterizing Thing as
imposing “a hard-and-fast rule”].) Doing so here, we conclude Downey must
allege facts showing she had “ ‘contemporaneous sensory awareness of the
causal connection between the [defendant’s] negligent conduct and the
resulting injury.’ ” (Bird, supra, 28 Cal.4th at p. 918.) The complaint as
9 A dissenting justice in Keys disagreed that recovery was permissible,
pointing to Bird’s approving discussion of Wright and Golstein, and stating
“Plaintiffs’ lack of awareness that the cause of [the mother’s] continued
suffering was defendant’s failure to correctly diagnose the cause of her stridor
. . . thus precludes [negligent infliction of emotional distress] recovery.” (Keys
v. Alta Bates Summit Medical Center, supra, 235 Cal.App.4th at pp. 493-494.)
28
presently styled does not contain such facts and thus it does not state a
negligent infliction of emotional distress cause of action.
IV. Downey Should Be Granted Leave to Amend
Like the conclusion of Bird with regard to medical malpractice cases,
our conclusion does not mean a plaintiff can never state a claim for negligent
infliction of emotional distress against a government entity or property owner
stemming from a dangerous property condition. There may be instances
where a dangerous condition is obvious and observable to a bystander, who
perceives the causal connection between that condition and the injury
sustained by their loved one.
Because the trial court in this case sustained the demurrers without
leave to amend, we must decide whether there is a reasonable possibility that
Downey can cure the defects by amendment. (San Diego Unified School Dist.
v. Yee (2018) 30 Cal.App.5th 723, 742.) At oral argument, Downey argued
that she can allege additional facts establishing that she had familiarity
with, and knowledge and awareness of, the intersection and the dangerous
conditions created by City and Sevacherian. Under these circumstances,
Downey should be given an opportunity to allege facts showing she had the
requisite “ ‘contemporaneous sensory awareness of the causal connection
between the [defendants’] negligent conduct and the resulting injury’ ” (Bird,
supra, 28 Cal.4th at p. 918) so as to support a cause of action for negligent
infliction of emotional distress against City or Sevacherian.
Accordingly, we reverse the orders sustaining City’s and Sevacherian’s
demurrers without leave to amend and direct the trial court to overrule the
demurrers with leave to amend.
29
DISPOSITION
The orders are reversed. The matter is remanded to the trial court
with directions to enter a new order overruling City’s and Sevacherian’s
demurrers with leave to amend consistent with this opinion. The parties
shall bear their own costs on appeal.
O’ROURKE, J.
I CONCUR:
McCONNELL, P. J.
30
Dato, J., Concurring and Dissenting.
Plaintiff Jayde Downey is a mother-bystander claiming she suffered the
negligent infliction of emotional distress (NIED) as she listened by phone to
the sounds of a car crash involving her daughter’s vehicle and another
motorist at an allegedly dangerous intersection. I concur in the majority’s
decision to reverse the judgment of dismissal after the trial court sustained
defendants’ demurrer without leave to amend. I respectfully disagree,
however, that there is any need for Downey to further amend her complaint.
In my view, the Supreme Court’s decision in Bird v. Saenz (2002) 28 Cal.4th
910 (Bird) does not require that Downey plead or prove that she “kn[e]w at
the time of the collision of the connection between defendants’ alleged
negligent conduct and the collision or her daughter’s injuries.” (Maj. opn. at
p. 3.) Rather, in a line of cases dating back to the seminal decision in Dillon
v. Legg (1968) 68 Cal.2d 728 (Dillon), the Supreme Court has made clear
emotional distress is compensable where a plaintiff closely related to the
victim contemporaneously perceives the “injury-producing event” and
understands that it is causing injury to their loved one. (See Bird, at p. 916
[“A plaintiff may recover based on an event perceived by other senses so long
as the event is contemporaneously understood as causing injury to a close
relative.”]; see also Thing v. La Chusa (1989) 48 Cal.3d 644, 647 (Thing).)
Here, the immediate injury-producing event is the car crash. Downey
contemporaneously perceived that event when she listened over the phone to
the horrific sounds of the crash, understanding that her daughter’s vehicle
had been hit and her daughter seriously injured. Those allegations are
sufficient to state a cause of action. Nothing requires that she be aware of
each and every separate act of negligence that may have contributed to the
accident.
1
I
The majority opinion’s conclusion that Downey’s complaint as currently
pled does not state a cause of action is based almost entirely on its reading of
Bird. So it is important to recognize at the outset that Bird is a medical
negligence case and did not involve any crash, explosion, or other similar
traumatic event where it is a simple matter to identify the injury-producing
occurrence. Courts have struggled with how to adapt the principles of Dillon
and Thing—automobile accident cases—to claims like medical malpractice
where there is seldom a readily-perceptible traumatic incident. The plaintiffs
in Bird did not witness the immediate injury-producing event, which
occurred during a surgical procedure behind closed doors. (Bird, supra, 28
Cal.4th at pp. 912, 916.) It was in the response to plaintiffs’ attempt to
“redefine the injury-producing event” that the court made the comments on
which the majority opinion relies for its conclusion.
The Supreme Court understood that its discussion in Bird was
necessarily contextual. Justice Werdegar made a point of characterizing the
action as a medical negligence case in the first sentence of, and repeatedly
throughout, her opinion. (28 Cal.4th at pp. 912, 917–922.) Indeed, the
majority opinion here acknowledges the “medical malpractice context” of Bird
and several Court of Appeal decisions on which it relies. (Maj. opn. at p. 26.)
Yet the majority then seek to draw guidance from analyses in those decisions
divorced from the medical negligence context on which they were based.
That medical negligence claims are different from auto accident cases is
evident in the majority’s reliance on language from Golstein v. Superior Court
(1990) 223 Cal.App.3d 1415 (Golstein), a medical malpractice case. There,
the parents of a boy being treated for cancer claimed NIED after witnessing
an alleged overdose of radiation that ultimately resulted in their son’s death.
2
Although agreeing with the medical practitioner defendants that their
demurrer was properly sustained without leave to amend, the Golstein court
warned about the “imperfect adaptation of ‘accident’ language and concepts
to the medical setting.” (Id. at p. 1423.) On three separate occasions, the
opinion was careful to distinguish medical negligence cases from “the
standard accident scenario” involving “an explosion, traffic accident, or
electrocution.” (Id. at pp. 1421, 1423; see also id. at p. 1427 [differentiating
“rules having their origins in fact patterns involving visible events such as
accidents”].)
Although it has sometimes been a challenge to define appropriate
limitations in NIED cases where there is no “accident” for the bystander to
experience, until now the rules have been clear where the plaintiff
contemporaneously perceives a victim’s traumatic injury in the classic Dillon
accident scenario. Recovery is allowed where the plaintiff (1) is closely
related to the injury victim; (2) contemporaneously perceives the accident and
is then aware that it is causing injury to the victim; and (3) as a result suffers
serious emotional distress beyond what would have been experienced by a
disinterested witness.
II
The majority opinion agrees that Downey “contemporaneously sensed”
the accident and the fact that her daughter had been injured. (Maj. opn. at
p. 24.) But believing it significant that the demurrer was filed by the City of
Riverside and adjacent property owners, rather than by the driver of the
second car, it reads out of context Bird’s approving citation of language from
Golstein as indicating that the focus must be on whether the plaintiff
perceived “the defendant’s ‘ “actual negligent act.” ’ ” (Maj. opn. at p. 27.)
From this premise, it concludes that Downey has not stated a claim because,
3
as currently pled, her complaint does not allege she knew anything about the
improper design and maintenance of the intersection or maintenance of the
adjacent property.
The majority effectively adopt a rule that bystander-plaintiffs must
allege and prove they were aware of each defendant’s allegedly tortious
conduct. Thus in this case, Downey would be required to allege that she
knew about the City’s dangerous design and/or maintenance of the
intersection where the crash occurred, as well as the overgrown vegetation on
a nearby piece of property that obstructed the vision of motorists.
In addition to being based on language in medical negligence cases
taken out of context, the more fundamental problem with the majority’s
proposed rule is that it has already been rejected by the Supreme Court. In
Ochoa v. Superior Court (1985) 39 Cal.3d 159 (Ochoa), the court expressly
disclaimed any suggestion that a bystander-plaintiff “must be aware of the
tortious nature of defendant’s actions.” (Id. at p. 170.) “Such a requirement,”
in the court’s view, “would lead to the anomalous result that a mother who
viewed her child being struck by a car could not recover because she did not
realize that the driver was intoxicated.” (Ibid.)
Downey’s allegations against Martin, the driver of the vehicle that
collided with her daughter, are not directly before us. Still, the majority
opinion seems to assume that she has adequately pled such a claim. But
even this assumption is problematic in light of the majority’s requirement
that plaintiff be aware of the defendant’s “negligent act.” How can someone
listening on a phone know what Martin did or did not do? And what if
Martin were to claim that a passenger in the car, with whom he was arguing,
grabbed the steering wheel, causing the vehicle to veer off course? Is Downey
precluded from stating a claim against the passenger because she couldn’t
4
possibly know about the passenger’s involvement? Or if Martin says he
couldn’t stop because of faulty brakes repaired by a negligent mechanic? Is
the mechanic insulated from a claim by Downey? None of these questions are
relevant if the focus is, as it should be, on whether the bystander-plaintiff
contemporaneously perceived the injury-producing event, defined as the
automobile accident.
III
The ability of a bystander-plaintiff to recover for NIED in a traumatic
incident situation has come before the Supreme Court in only a handful of
post-Dillon cases, and even fewer have directly addressed the
contemporaneous perception requirement. (See Krouse v. Graham (1977) 19
Cal.3d 59, 76 [affirming principle that “ ‘sensory and contemporaneous
observance of the accident’ ” does not require visual perception, but reversing
for error in jury instructions on damages]; Elden v. Sheldon (1988) 46 Cal.3d
267, 277 [NIED claim does not extend to unmarried cohabitant].) As the
majority opinion here appears to recognize, the decision in Delta Farms
Reclamation Dist. v. Superior Court (1983) 33 Cal.3d 699 fully supports the
notion that parents who witness their child being injured as a result of a
dangerous condition of property can recover for NIED. (Id. at p. 711.) The
only other Supreme Court opinions to consider the perception issue—Hoyem
v. Manhattan Beach City Sch. Dist. (1978) 22 Cal.3d 508, 522, and Thing,
supra, 48 Cal.3d at page 647—focused on whether the “contemporaneous”
perception requirement was satisfied by a mother who did not see the
vehicle-pedestrian collision, but arrived at the scene afterwards and saw her
injured child lying in the hospital (Hoyem) or in the street (Thing).
5
None of these Supreme Court cases suggest that a bystander-plaintiff
must perceive anything other than the accident that causes injury to their
loved one. Indeed, the court noted in Thing that what justifies the award of
emotional distress damages is “the traumatic emotional effect on the plaintiff
who contemporaneously observes both the event or conduct that causes
serious injury to a close relative and the injury itself.” (Thing, supra, 48
Cal.3d at p. 667, italics added.) Phrased in the disjunctive, Thing makes
clear it is enough that the bystander-plaintiff contemporaneously perceives
the accident; she need not also be aware of the underlying negligent cause.
For this reason, comments in Ochoa and Thing to the effect that recovery is
permitted when the bystander-plaintiff perceives “both the defendant’s
conduct and the resultant injury” (Thing, at p. 661; see also Ochoa, supra, 39
Cal.3d at p. 170) do not equate to a requirement that the plaintiff observe
each defendant’s negligent act.
Other courts, applying the principles set forth in Thing and Bird, have
similarly focused on plaintiff’s perception of the injury-producing event in
cases that involve a traumatic accident. In Ortiz v. HPM Corp. (1991) 234
Cal.App.3d 178, a husband and wife both worked for a company that used
plastic injection molding machines. After she observed her husband become
trapped in one of the machines, the wife sued various defendants for NIED.
The employer settled, and her remaining claims proceeded to trial against
the machine’s manufacturer, the original purchaser, and the used equipment
dealer who purchased the machine from the original purchaser. The Ortiz
court reversed nonsuits in favor of each of those defendants, focusing on the
fact that the plaintiff perceived the accident while it was happening. It held
that the evidence would support a finding that “the injury-producing event
was still occurring at the time Mrs. Ortiz discovered Mr. Ortiz trapped in the
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machine, and that she was then aware that it was causing injury to him, so
as to meet the contemporaneous observation requirement for a claim of
negligent infliction of emotional distress.” (Id. at p. 186.) The court did not
require—indeed, Mrs. Ortiz could not have alleged—that she was aware of
how each defendant’s negligent act contributed to the ultimate injury.
The Ninth Circuit Court of Appeals reached a similar conclusion in In
re Air Crash Disaster Near Cerritos (9th Cir. 1992) 967 F.2d 1421, where the
plaintiff-mother returning from the store heard and felt an explosion, which
she soon learned was the result of a commercial airliner crashing into her
home. She saw her home engulfed in flames, knowing her husband and
children were inside. The explosion occurred after a midair collision between
the airliner and a private plane. The plaintiff sued the pilot of the private
plane and federal air traffic controllers, alleging NIED. Applying California
law and specifically Thing, the Ninth Circuit affirmed a judgment in favor of
the plaintiff even though she could not have been aware of the negligent acts
by the private pilot or the air traffic controllers. In the appellate court’s view,
the district court properly focused on plaintiff’s contemporaneous perception
of the explosion and fire, not the individual acts of negligence by the
respective defendants. It concluded that plaintiff “was at the scene of the
injury-producing event and found that she was aware that her family was
being injured.” (In re Air Crash, at p. 1423.)
The identical argument adopted by the trial court in this case and
endorsed by the majority opinion, based on a misreading of Bird, was
presented to the federal district court in Walsh v. Tehachapi Unified School
Dist. (E.D.Cal., Aug. 26, 2013, No. 1:11-cv-01489 LJO JLT) 2013 WL
4517887. Rejecting it, the Walsh court explained that Bird “simply appl[ies]
what Thing already requires: a plaintiff must be aware at the time of the
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injury-producing event of a causal connection between the victim's injuries
and the injury-producing event.” (Walsh, at p. *8.) It added that to the extent
Bird’s analysis “focused on a defendant’s negligent conduct, it was only
because the court first identified the negligent conduct as the injury-
producing event, thereby making the two interchangeable. The two,
however, do not always occur in tandem and are not always synonymous with
one another. And when the two do diverge, it is the injury-producing event
that matters.” (Walsh, at p. *8.) The injury-producing event in this case is
an automobile collision, which the majority concede Downey perceived.
I believe this court’s decision in Wilks v. Hom (1992) 2 Cal.App.4th
1264 (Wilks), strongly supports the conclusion that Downey’s existing
complaint states a bystander cause of action for NIED. In Wilks, a mother
sued her landlord, among others, after one of her daughters died and another
was severely injured following an explosion in their home caused by an
improperly installed propane stove. The mother was also in the home at the
time of the explosion. The explosion was triggered from an electrical socket
as a vacuum cleaner plug was removed. Although the mother was in a
different room, we concluded that “she personally and contemporaneously
perceived the injury-producing event and its traumatic consequences.” (Id. at
p. 1273.) The opinion contains no discussion of the nature of the landlord’s
“negligent acts” or how the plaintiff was aware of them. Rather, affirming
the judgment in favor of the mother and approving the NIED jury
instruction, we simply stated it was sufficient that “the plaintiff was at the
scene of the accident and was sensorially aware, in some important way, of
the accident and the necessarily inflicted injury to her child.” (Id. at p. 1271,
italics added.)
8
Similarly here, Downey’s complaint alleges she was “sensorially
aware,” by virtue of the phone call, “of the accident and the necessarily
inflicted injury to her child.” (Wilks, supra, 2 Cal.App.4th at p.1271, italics
added.) Thus, she contemporaneously perceived the injury-producing event,
which she “understood as causing injury to a close relative.” (Bird, supra, 28
Cal.4th at p. 916, citing Wilks, supra, 2 Cal.App.4th at pp. 1272–1273.)
Nothing more is required to satisfy her pleading burden.
I would reverse the judgment of dismissal with instructions to overrule
defendants’ demurrer.
DATO, J.
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