Ko v. Maxim Healthcare Services, Inc.

Filed 12/23/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
DYANA KO et al., B293672
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC665656)
v.
MAXIM HEALTHCARE
SERVICES, INC., et al.,
Defendants and
Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Robert B. Broadbelt III, Judge. Reversed and
remanded with directions.
Law Offices of Steven P. Chang, Steven P. Chang, Gene H.
Shioda and Heidi M. Cheng for Plaintiffs and Appellants.
Lewis Brisbois Bisgaard & Smith, Jeffrey A. Miller,
Wendy S. Dowse, Matthew S. Pascale, and Vijay J. Patèl for
Defendant and Respondent Maxim Healthcare Services, Inc.
Beach Cowdrey Jenkins, Sean D. Cowdrey and Darryl C.
Hottinger for Defendant and Respondent Thelma Manalastas.
Dyana and Christopher Ko1 appeal from a judgment of
dismissal entered after the trial court sustained without leave to
amend the demurrers filed by defendants Maxim Healthcare
Services, Inc. (Maxim), and Thelma Manalastas to the Kos’ third
amended complaint. The Kos brought claims for negligence and
negligent infliction of emotional distress (NIED) alleging
Manalastas, a vocational nurse employed by Maxim who worked
as an in-home caregiver for the Kos’ disabled son Landon, abused
Landon while the Kos were out of the house. The Kos allege they
witnessed Manalastas abuse Landon in real time as they watched
the livestream of video and audio on Dyana’s smartphone from a
“nanny cam” in the home.2 The trial court ruled the Kos could
not state a cause of action for NIED because they were not
physically present when Landon was abused, and thus they could
not satisfy the requirement established by the Supreme Court in
Thing v. La Chusa (1989) 48 Cal.3d 644, 668 (Thing) that to
recover on an NIED claim, a bystander 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.”
On appeal the Kos contend their “virtual presence” during
Landon’s abuse through a real-time audiovisual connection
satisfies the requirement in Thing of contemporaneous presence.
1 We refer to Dyana and Christopher Ko together as the Kos
and to Dyana by her first name to avoid confusion. We refer to
the Kos’ son Landon Ko as Landon.
2 A “livestream” refers to “a broadcast of a live event
streamed over the Internet.” (Merriam-Webster’s Online Dict.
(2020) [as of Dec. 22, 2020], archived at .)
2
We agree. In the three decades since the Supreme Court decided
Thing, 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 NIED claim where a person
uses modern technology to contemporaneously perceive an event
causing injury to a close family member is consistent with the
Supreme Court’s requirements for NIED liability and the court’s
desire to establish a bright-line test for bystander recovery.
We reverse the judgment of dismissal and remand for
further proceedings.3
3 We affirm the trial court’s order sustaining Manalastas’s
demurrer to the Kos’ third cause of action for negligence. The
Kos have not presented any argument in their opening brief for
reversal and have therefore forfeited the issue. (People v. Bryant,
Smith and Wheeler (2014) 60 Cal.4th 335, 363 [“If a party’s briefs
do not provide legal argument and citation to authority on each
point raised, ‘“the court may treat it as waived, and pass it
without consideration.”’”]; Aptos Council v. County of Santa Cruz
(2017) 10 Cal.App.5th 266, 296, fn. 7 [“Issues not raised in the
appellant’s opening brief are deemed waived or abandoned.”].)
Further, in their reply brief the Kos clarify that they appealed
only with respect to whether under the Supreme Court’s holding
in Thing they can recover for emotional distress damages.
3
FACTUAL AND PROCEDURAL BACKGROUND
A. The Incident
In April 2017 Landon was two years old and had a genetic
disorder called Rubinstein-Taybi Syndrome.4 Landon suffered
from a number of health problems associated with the disorder,
including blindness in one eye, an inability to walk, difficulty
hearing, severe developmental delays, and the need for a feeding
tube. Landon required constant care and supervision. The Kos,
both of whom worked, had two other children, and they hired
Maxim to provide in-home caretaking services for Landon for
when they were at work or otherwise unavailable. Manalastas
was a California licensed vocational nurse employed by Maxim
who was one of the caregivers Maxim provided to the Kos.
Manalastas was a caregiver for Landon for more than a year
prior to the incident. The Kos alleged on information and belief
that Manalastas had a criminal record and Maxim failed to
perform an adequate background check on her.
On April 22, 2017 the Kos took their two older children to a
youth basketball tournament. During the tournament Dyana
“opened a phone application that allows her to live-stream video
and audio from her home that is being shot in real time on a
‘nanny cam.’” Thereafter, the Kos “watched and heard in shock
and horror, while the incident was happening in real time, as . . .
Manalastas physically assaulted Landon by acts including
hitting, slapping, pinching and shaking Landon in a violent
manner.” The Kos called 911 to report the abuse, and police
4 The facts are taken from the operative third amended
complaint.
4
officers were dispatched to the Kos’ residence. The Kos drove
home and showed the police officers video of Manalastas abusing
Landon, leading to Manalastas’s arrest. Dyana reported the
abuse to Maxim, which reassigned Manalastas but did not
terminate her.
The Kos allege on information and belief that Manalastas’s
abuse caused Landon to have one of his eyes surgically removed
and other physical injuries. Landon passed away on April 24,
2018, during the pendency of this action.
B. Procedural History
The Kos filed this action on June 21, 2017 alleging on
behalf of Landon claims for battery, assault, and negligence, and
a claim for NIED on behalf of the Kos. After Landon passed
away, the court granted the Kos leave to file a third amended
complaint realleging the first two causes of actions for battery
and assault as survivor claims on behalf of Landon’s estate, the
third cause of action for negligence on behalf of the Kos and
Landon’s estate, and their fourth cause of action for NIED. On
June 21, 2018 the Kos filed the operative third amended
complaint.
Maxim demurred to the fourth cause of action for NIED,
and it filed a motion to strike all references to general damages
and pain and suffering in the survivor causes of action pursuant
to Code of Civil Procedure section 377.34.5 Manalastas demurred
5 Code of Civil Procedure section 377.34 provides, “In an
action or proceeding by a decedent’s personal representative or
successor in interest on the decedent’s cause of action, the
damages recoverable are limited to the loss or damage that the
5
to the causes of action for NIED and negligence, and, similar to
Maxim, moved to strike the allegations of Landon’s pain and
suffering.
After hearing argument, the trial court sustained Maxim’s
and Manalastas’s demurrers and granted their motions to strike.
The court found with respect to the Kos’ fourth cause of action for
NIED, citing to Thing, supra, 48 Cal.3d at page 668, that “it is
required to follow existing case law, which provides that NIED
bystander liability is limited to circumstances where a plaintiff is
physically ‘present at the scene of the injury producing event at
the time it occurs.’” The court noted the “appellate courts have
not defined what it means to be ‘present at the scene’ or the
parameters of this element,” and “[i]t is unclear how existing case
law on NIED applies to existing technology, such as live-
streaming video and audio on smart phones,” but the “cases
upholding NIED liability have only involved plaintiffs with some
physical proximity to the injury-producing event at the time it
occurred.” The court suggested “[o]ne approach might be to deem
[the presence] element satisfied as long as a plaintiff can show
that he or she contemporaneously observed an injury-producing
event at the time it occurred,” but the court concluded “it is not
this court’s role to change, but instead to follow, existing law as
stated by the California Supreme Court and the Court of Appeal.”
The court denied leave to amend, finding the Kos had failed to
show how they could amend the complaint to state an NIED
claim. The court also sustained without leave to amend
Manalastas’s demurrer to the third cause of action for negligence,
decedent sustained or incurred before death . . . and do not
include damages for pain, suffering, or disfigurement.”
6
finding Manalastas did not owe a duty to the Kos and the claim
was merged into the Kos’ NIED cause of action.
On August 28, 2018 the trial court entered an order
sustaining without leave to amend defendants’ demurrers to the
fourth cause of action for NIED and Manalastas’s demurrer to
the Kos’ third cause of action for negligence and granting the
motions to strike. On November 2, 2018 the Kos filed a notice of
appeal from a “[j]udgment of dismissal after an order sustaining
a demurrer” and an order “[d]ismissing Plaintiffs’ individual
causes of action for negligence and/or negligent infliction of
emotional distress.” However the trial court had not yet entered
a judgment or order of dismissal.
On November 10, 2020, at the request of the Kos, the clerk
entered a dismissal without prejudice of their remaining third
cause of action for negligence against Maxim. On the same date
the trial court entered a judgment in favor of Maxim and
Manalastas on the Kos’ fourth cause of action for NIED and in
favor of Manalastas on the Kos’ third cause of action for
negligence.6 We consider the Kos’ premature notice of appeal a
valid “notice of appeal filed after judgment is rendered but before
it is entered,” and treat the notice as filed immediately after
6 The judgment is signed by Judge Deirdre Hill. On
November 3, 2020 we issued an order directing the Kos to file
with this court a file-stamped copy of a signed judgment or order
of dismissal as to their claims against Maxim or Manalastas, or
we would dismiss their appeal. On November 11 the Kos
requested we take judicial notice of the November 10, 2020
judgment and voluntary dismissal of the Kos’ third cause of
action for negligence against Maxim. We grant the Kos’ request
pursuant to Evidence Code sections 452, subdivision (d), and 459,
subdivision (a).
7
entry of judgment. (Cal. Rules of Court, rule 8.104(d)(1); see
Valdez v. Seidner-Miller, Inc. (2019) 33 Cal.App.5th 600, 607.)
DISCUSSION
A. Standard of Review
“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.] Where the demurrer was sustained without leave to
amend, we consider whether the plaintiff could cure the defect by
an amendment.” (T.H. v. Novartis Pharmaceuticals Corp. (2017)
4 Cal.5th 145, 162; accord, Centinela Freeman Emergency
Medical Associates v. Health Net of California, Inc. (2016)
1 Cal.5th 994, 1010.) “In making this determination, we must
accept the facts pleaded as true and give the complaint a
reasonable interpretation.” (Mathews v. Becerra (2019) 8 Cal.5th
756, 762; accord, Lee v. Hanley (2015) 61 Cal.4th 1225, 1230.) “A
judgment of dismissal after a demurrer has been sustained
without leave to amend will be affirmed if proper on any grounds
stated in the demurrer, whether or not the court acted on that
ground.” (Carman v. Alvord (1982) 31 Cal.3d 318, 324; accord,
Heshejin v. Rostami (2020) 54 Cal.App.5th 984, 992.)
A trial court abuses its discretion by sustaining a demurrer
without leave to amend where “‘there is a reasonable possibility
that the defect can be cured by amendment.’” (Loeffler v. Target
Corp. (2014) 58 Cal.4th 1081, 1100; accord, City of Dinuba v.
County of Tulare (2007) 41 Cal.4th 859, 865.) “‘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
8
appeal.’” (Sierra Palms Homeowners Assn. v. Metro Gold Line
Foothill Extension Construction Authority (2018) 19 Cal.App.5th
1127, 1132; accord, Aubry v. Tri-City Hospital Dist. (1992)
2 Cal.4th 962, 971.)
B. Bystander NIED Claims
1. Dillon v. Legg and its progeny
The California Supreme Court first recognized a
bystander’s claim to recover emotional distress damages for
injuries negligently caused to a family member in Dillon v. Legg
(1968) 68 Cal.2d 728 (Dillon). Prior to Dillon, “in negligence
cases the right to recover for emotional distress had been limited
to circumstances in which the victim was himself injured and
emotional distress was a ‘parasitic’ item of damages, or if a
plaintiff who had been in the ‘zone of danger’ did not suffer injury
from impact, but did suffer physical injury as a result of the
emotional trauma.” (Thing, supra, 48 Cal.3d at p. 651; see
Amaya v. Home Ice, Fuel & Supply Co. (1963) 59 Cal.2d 295, 302
(Amaya) [mother could not recover for physical injury caused by
emotional shock from watching the driver of a delivery truck run
over her 17-month-old son as she stood nearby and watched
helplessly because she was not in the zone of danger], overruled
by Dillon, at pp. 732-733.)
In Dillon, the Supreme Court overruled Amaya, and it held
the plaintiff mother could recover for the emotional shock and
physical injury resulting from watching the defendant
negligently run over her young daughter who was crossing the
street, where the mother was “‘in close proximity to the . . .
collision and personally witnessed said collision,’” although she
was not within the zone of danger and did not fear for her own
9
safety.7 (Dillon, supra, 68 Cal.2d at pp. 731-733.) The Dillon
court rejected the premise of earlier opinions declining to
recognize bystander NIED claims that allowing recovery would
“invite fraudulent claims and it would involve the courts in the
hopeless task of defining the extent of the tortfeasor’s liability.”
(Id. at p. 730.) The court observed the law of torts would limit
“the otherwise potentially infinite liability” that could result from
allowing bystander NIED claims by holding a “defendant
amenable only for injuries to others which to defendant at the
time were reasonably foreseeable.” (Id. at p. 739.)
The Dillon court acknowledged that determination of
foreseeability would require a case-by-case analysis for which it
could not establish an “immutable rule.” (Dillon, supra,
68 Cal.2d at p. 740.) But the court enunciated three factors to
guide the courts in determining reasonable foreseeability: “In
determining . . . whether defendant should reasonably foresee the
injury to plaintiff, or, in other terminology, whether defendant
owes plaintiff a duty of due care, the courts will take into account
such factors as the following: (1) Whether plaintiff was located
near the scene of the accident as contrasted with one who was a
distance away from it. (2) Whether the shock resulted from a
direct emotional impact upon plaintiff from the sensory and
contemporaneous observance of the accident, as contrasted with
7 Dillon concerned NIED claims by both the mother and
sister of the victim. The trial court granted the defendant’s
motion for judgment on the pleadings as to the mother’s
emotional distress claim because she was not within the zone of
danger, but it denied the motion as to the surviving sister’s claim
because she may have been within the zone of danger or feared
for her own safety. (Dillon, supra, 68 Cal.2d at p. 732.)
10
learning of the accident from others after its occurrence.
(3) Whether plaintiff and the victim were closely related, as
contrasted with an absence of any relationship or the presence of
only a distant relationship.”8 (Id. at pp. 740-741.) With respect
to the first two factors, the Supreme Court explained, “[T]he
degree of foreseeability of the third person’s injury is far greater
in the case of his contemporaneous observance of the accident
than that in which he subsequently learns of it. The defendant is
more likely to foresee that shock to the nearby, witnessing
mother will cause physical harm than to anticipate that someone
distant from the accident will suffer more than a temporary
emotional reaction.” (Id. at p. 741.)
In the decades after Dillon was decided, the Supreme Court
and Courts of Appeal recognized viable NIED claims in
circumstances the Supreme Court in Thing later characterized as
an “expansive progression” that “created more uncertainty.”
(Thing, supra, 48 Cal.3d at p. 656.) In Krouse v. Graham (1977)
19 Cal.3d 59, 76 (Krouse), the Supreme Court held “the Dillon
8 The Dillon court limited its ruling to situations where, as
alleged there, the plaintiff suffers physical harm from an
emotional shock, explaining, “[W]e deal here with a case in which
plaintiff suffered a shock which resulted in physical injury and
we confine our ruling to that case.” (Dillon, supra, 68 Cal.2d at
p. 740.) In Molien v. Kaiser Foundation Hospitals (1980)
27 Cal.3d 916, 929-930 the Supreme Court expanded liability,
holding a plaintiff may recover for NIED absent any physical
manifestation of emotional distress, reasoning, “[T]he attempted
distinction between physical and psychological injury merely
clouds the issue. [W]hether the plaintiff has suffered a serious
and compensable injury should not turn on this artificial and
often arbitrary classification scheme.”
11
requirement of ‘sensory and contemporaneous observance of the
accident’ does not require a visual perception of the impact
causing the death or injury.” The court upheld a plaintiff
husband’s NIED claim where the defendant’s car crashed into
and killed the plaintiff’s wife as she was unloading groceries from
the family car and her husband sat in the driver’s seat,
explaining that “although [the husband] did not see [the wife]
struck by defendant’s automobile, he fully perceived the fact that
she had been so struck, for he knew her position an instant before
the impact, observed defendant’s vehicle approach her at a high
speed on a collision course, and realized that defendant’s car
must have struck her.” (Id. at p. 76.)
The Supreme Court again clarified Dillon’s second factor of
sensory and contemporaneous observance in Ochoa v. Superior
Court (1985) 39 Cal.3d 159, 167 (Ochoa), in which the court held
the second factor did not bar NIED claims that do not involve the
plaintiff’s observation of a “sudden occurrence.” The Supreme
Court held the trial court erred in sustaining a demurrer to an
NIED claim by a mother who watched her 13-year-old son suffer
excruciating pain from negligent treatment of his pneumonia
over several days in a juvenile detention facility. (Id. at pp. 163-
164.) The court concluded, “We are satisfied that when there is
observation of the defendant’s conduct and the child’s injury and
contemporaneous awareness the defendant’s conduct or lack
thereof is causing harm to the child, recovery is permitted.” (Id.
at p. 170.)
The Supreme Court in Thing later described its holdings in
Krouse and Ochoa as consistent with Thing’s revised
requirements for bystander NIED claims. (Thing, supra,
48 Cal.3d at pp. 656, 660-661, 668.) But the Thing court
12
disapproved the post-Dillon Court of Appeal opinions in
Archibald v. Braverman (1969) 275 Cal.App.2d 253 (Archibald)
and Nazaroff v. Superior Court (1978) 80 Cal.App.3d 553(Nazaroff). (Thing, at p. 668.) In Archibald, the Court of Appeal
held a mother could pursue an NIED claim against defendants
who provided to her 13-year-old son gunpowder that exploded
and severely injured her son. (Archibald, at pp. 254-255.) The
mother did not witness the explosion, but she appeared at the
scene within “moments” of the explosion to render aid to her son,
and upon observing his injuries, she suffered severe shock and
mental illness. (Id. at p. 255.) The Court of Appeal reasoned the
second Dillon factor of contemporaneous observance of the
accident was met where the mother’s shock was “fairly
contemporaneous with the accident” although she was not
present at the time of the accident. (Id. at p. 256.)
In Nazaroff, the Court of Appeal upheld a mother’s NIED
claim arising from the death of her three-year-old son where she
realized the boy must have fallen into a neighbor’s pool when she
heard a neighbor scream her son’s name, and as she ran to the
pool, she saw her son being pulled from the water and given
mouth-to-mouth resuscitation. (Nazaroff, supra, 80 Cal.App.3d
at p. 559.) The Court of Appeal reasoned it was not necessary for
the mother contemporaneously to observe the accident if she
suffered “the direct emotional impact from the contemporaneous
observation of the immediate consequences of the defendants’
negligent act, which was the proximate cause of the injury and
death of her son.” (Id. at p. 566.)
13
2. Thing and its progeny
As discussed, the Supreme Court in Thing, supra,
48 Cal.3d at pages 656 to 657 expressed concern the Dillon
guidelines had produced unpredictable outcomes and expanded
liability to allow recovery for emotional distress in situations
where plaintiffs were not present at the scene at the time of the
accident, instead learning of their loved one’s injury when they
later arrived at the scene. The Thing court observed, “If the
consequences of a negligent act are not limited an intolerable
burden is placed on society. A ‘bright line in this area of the law
is essential.’” (Thing, at p. 664.)
The Thing court replaced the Dillon factors with three
requirements to support a bystander NIED claim: “[A] plaintiff
may recover damages for emotional distress caused by observing
[a] 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.” (Thing, supra, 48 Cal.3d at pp. 667-668, fns.
omitted.)
In adopting these requirements, the Supreme Court
reasoned, relying on its earlier opinion in Ochoa, supra, 39 Cal.3d
at page 165, footnote 6, “The impact of personally observing the
injury-producing event in most, although concededly not all,
cases distinguishes the plaintiff’s resultant emotional distress
from the emotion felt when one learns of the injury or death of a
loved one from another, or observes pain and suffering but not
14
the traumatic cause of the injury. Greater certainty and a more
reasonable limit on the exposure to liability for negligent conduct
is possible by limiting the right to recover for negligently caused
emotional distress to plaintiffs who personally and
contemporaneously perceive the injury-producing event and its
traumatic consequences.” (Thing, supra, 48 Cal.3d at p. 666.)
Applying the three requirements, the Thing court concluded the
plaintiff mother could not recover for NIED where she was
nearby when her son was struck by a car, but first became aware
of the accident when she arrived and saw him bloody and
unconscious on the roadway. (Id. at pp. 647-648, 669.)
The Supreme Court revisited the second Thing
requirement of contemporaneous presence in Bird v. Saenz (2002)
28 Cal.4th 910 (Bird). There, the Supreme Court held the adult
daughters of a woman who suffered the negligent transection of
an artery during a medical procedure could not maintain NIED
claims against the mother’s doctors because they were not
present in the operating room and only learned of the accident
when they were later told by another surgeon of the accident,
even though they suffered emotional distress from learning their
mother had suffered a possible stroke, seeing her rushed to
surgery, and hearing an urgent call over the hospital loudspeaker
for a thoracic surgeon. (Id. at pp. 916-917.) The court explained,
“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
15
requirement does not aid plaintiffs here because they had no
sensory perception whatsoever of the transection at the time it
occurred.” (Ibid.; compare Keys v. Alta Bates Summit Medical
Center (2015) 235 Cal.App.4th 484, 487, 490-491 [substantial
evidence supported NIED judgment for sister and daughter of a
surgery patient who observed the patient’s inability to breathe
following improper intubation].)
The Kos in their opening brief survey the Court of Appeal
decisions over the last three decades that have construed the
second Thing requirement. The most analogous case is Wilks v.
Hom (1992) 2 Cal.App.4th 1264, 1270-1272 (Wilks), which the
Supreme Court cited with approval in Bird, supra, 28 Cal.4th at
page 916. In Wilks, a mother and her three young daughters
were in their home when a gas explosion killed one daughter and
severely burned another. (Wilks, at p. 1267.) The mother was
not in the same room as the daughters when the explosion
impacted them, but she was aware they were in their bedrooms
when she experienced the force of the explosion and saw a bright
flash from one of the girl’s rooms, causing her to be “sensorially
aware, in some important way, of the accident and the
necessarily inflicted injury to her child.” (Id. at p. 1271.) The
Wilks court concluded this was “sufficient to establish the
requirement that she personally and contemporaneously
perceived the injury-producing event and its traumatic
consequences.” (Id. at p. 1273.)
By contrast, in Ra v. Superior Court (2007) 154 Cal.App.4th
142, 144-145 (Ra), we concluded the plaintiff could not recover on
her NIED claim arising from her emotional distress upon hearing
a loud crash in a clothing store from the area where her husband
was shopping, then learning a sign had fallen on his head. We
16
concluded the plaintiff’s “fear for her husband’s safety at the time
she heard the loud bang emanating from the part of the store
where she knew he was shopping and her belief the possibility of
his injury was more likely than not are insufficient as a matter of
law to establish contemporaneous awareness of her husband’s
injuries at the time of the injury-producing accident within the
meaning of” Thing and Bird. (Ra, at pp. 152-153; accord, Fife v.
Astenius (1991) 232 Cal.App.3d 1090 [evidence plaintiffs heard
the sounds and saw debris from an automobile collision outside
their yard without realizing their sister had been injured until
they reached the accident minutes later was insufficient to
satisfy the second Thing requirement].)
Similarly, in Fortman v. Förvaltningsbolaget Insulan AB
(2013) 212 Cal.App.4th 830, 832-834 (Fortman), the Court of
Appeal concluded the sister of a deceased scuba diver could not
recover NIED damages from the manufacturer of allegedly
defective scuba diving equipment after she witnessed the death of
her brother during a dive because she contemporaneously
observed him falling unconscious but believed it was a heart
attack, not the result of defective equipment. Surveying Thing,
Ochoa, and Dillon, the court reasoned, “From these pertinent
bystander cases, it is clear that to satisfy the second Thing
requirement the plaintiff must experience a contemporaneous
sensory awareness of the causal connection between the
defendant’s infliction of harm and the injuries suffered by the
close relative.” (Fortman, at p. 836; accord, Golstein v. Superior
Court (1990) 223 Cal.App.3d 1415, 1427 [parents who watched as
their son underwent radiation therapy but only later discovered
he had been overexposed when he developed symptoms of
radiation poisoning could not recover for NIED].)
17
C. The Kos Alleged Sufficient Facts To Constitute an NIED
Claim Based on Their Virtual Contemporaneous Presence
During Landon’s Abuse
The Kos urge us to interpret the second Thing factor
requiring contemporaneous presence at the scene of an injury-
producing event to include “virtual presence” in light of the
technological advances that have occurred since Thing was
decided 30 years ago. Maxim and Manalastas argue for a
narrower interpretation of presence, noting the Supreme Court
and Courts of Appeal have never included within their
description of presence the concept of virtual presence.9 At least
not until now. We find the Kos’ argument persuasive.
We read the Thing requirement that a plaintiff be “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” (Thing,
supra, 48 Cal.3d at p. 669) in light of the court’s admonition that
9 Maxim argues the dictionary definition of “present” shows
that a person must be physically present, but even the Merriam-
Webster definition relied on by Maxim defines the adjective
“present” to mean “being in view or at hand.” (See Merriam-
Webster’s Online Dict. (2020) [as of Dec. 22, 2020], archived at
.) Maxim’s reliance on In re J.G.
(2008) 159 Cal.App.4th 1056, 1065, is similarly misplaced. The
Court of Appeal there concluded an inmate had a right to be
“‘physically present’” at a parole hearing (instead of a telephonic
appearance) where the Penal Code provided inmates had a right
“‘to be present’” and “‘personally appear’” at all parole suitability
hearings. (Ibid.) The statutory interpretation of the Penal Code
provision at issue in J.G. is not before us.
18
recovery for NIED must be limited to “plaintiffs who personally
and contemporaneously perceive the injury-producing event and
its traumatic consequences.” (Id. at p. 666.) The Thing court’s
effort to draw a bright line based on contemporaneous perception
is illustrated by its failure to disapprove Krouse, supra, 19 Cal.3d
59, in which the husband was not physically present outside the
car where his wife was killed, but he contemporaneously
perceived that she had been struck by seeing the defendant’s
approaching car and knowing where his wife was positioned, and
the court’s disapproval of Archibald, supra, 275 Cal.App.2d at
pages 254 to 255 and Nazaroff, supra, 80 Cal.App.3d at page 559,
in which the parents only learned of the injuries to their children
after the events (the explosion in Archibald and the son falling
into the pool in Nazaroff). The Bird court’s approval of Wilks,
supra, 2 Cal.App.4th at page 1273 (see Bird, supra, 28 Cal.4th at
pp. 916-917) is consistent with this bright line temporal
distinction—in Wilks, as in Krause, the plaintiff mother was not
present in the room where her daughters were impacted by the
gas explosion, but she “personally and contemporaneously
perceived the injury-producing event and its traumatic
consequences.” (Wilks, at p. 1273.)
We highlighted this distinction in Ra, supra,
154 Cal.App.4th at pages 152 to 153 in rejecting the wife’s NIED
claim because she lacked a “contemporaneous awareness of her
husband’s injuries at the time of the injury-producing accident”
(the falling sign), even though she heard the bang from where her
husband was shopping in the store and believed it was likely he
had been injured. (See Fortman, supra, 212 Cal.App.4th at
p. 836 [“From these pertinent bystander cases, it is clear that to
satisfy the second Thing requirement the plaintiff must
19
experience a contemporaneous sensory awareness of the causal
connection between the defendant’s infliction of harm and the
injuries suffered by the close relative.”].)
Our interpretation of the second requirement in Thing to
include virtual presence where there is a contemporaneous
perception of the injury-producing event is consistent with
allowing recovery for the parents here who observed the abuse of
their child as it happened through a livestream feed from their
nanny cam but denying recovery if the parents had walked into
their home moments after the abuse and observed their injured
son.10 As discussed, the Thing court emphasized that in most
cases “[t]he impact of personally observing the injury-producing
event . . . distinguishes the plaintiff’s resultant emotional distress
from the emotion felt when one learns of the injury or death of a
loved one from another, or observes pain and suffering but not
the traumatic cause of the injury.” (Thing, supra, 48 Cal.3d at
p. 666.)
Maxim argues that “remote surveillance is nothing new,
nor is watching events ‘happening live with video and audio,’”
and contends that “[i]ncreased convenience does not mean we are
any more able to be present in places where our bodies are not
than we were in 1989.” Maxim and Manalastas contend that
technology allowed live broadcasts decades ago, pointing to the
live broadcast of the fatal shooting of Lee Harvey Oswald in 1963,
the 1986 televised explosion of the space shuttle Challenger, and
the use of closed-circuit television in courtrooms prior to Thing.
10 Likewise, had the Kos observed the abuse of Landon by
viewing a recording of the abuse only after it happened, they
could not satisfy the requirement of contemporaneous perception
of the injury-producing event.
20
But the Supreme Court in 1989 could not have reasonably
anticipated the technological advances that now allow parents
(and other family members) to have a contemporaneous sensory
awareness of an event causing an injury to their child while not
in physical proximity to the child. Certainly live television and
remote video surveillance existed in 1989, but numerous
technological, regulatory, and commercial developments in image
capture (such as an Internet-enabled nanny cam), transmission
(including the streaming of audiovisual data over the Internet
and mobile data networks), and reception (such as on pocket-
sized smartphones with high resolution screens) were necessary
to create a world where parents could contemporaneously observe
their at-home child while attending a basketball game. Indeed,
the ubiquity of home surveillance systems and videoconferencing
applications since the advent of Internet-enabled smartphones
has manifestly changed the manner in which families spend time
together and monitor their children. (See, e.g., Riley v. California
(2014) 573 U.S. 373, 385 [“These cases require us to decide how
the search incident to arrest doctrine applies to modern cell
phones, which are now such a pervasive and insistent part of
daily life that the proverbial visitor from Mars might conclude
they were an important feature of human anatomy. A smart
phone of the sort taken from [the defendant] was unheard of ten
years ago; a significant majority of American adults now own
such phones. [Citation.] [Such] phones are based on technology
nearly inconceivable just a few decades ago . . . .”].)11
11 Manalastas argues that extending the second Thing
requirement to allow virtual presence without physical presence
would enable a plaintiff speaking on the telephone with the
21
In various areas of the law affecting traditional conceptions
of physical presence, the courts have been called upon to
interpret longstanding precedent in light of new technologies.
For example, in Kyllo v. U.S. (2001) 533 U.S. 27, 40, the United
States Supreme Court held that the use of a thermal-imaging
camera “to explore details of the home that would previously
have been unknowable without physical intrusion” constituted a
search under the Fourth Amendment. (See U.S. v. Jones (2012)
565 U.S. 400, 404 [“the Government’s installation of a [global
positioning system] device on a target’s vehicle, and its use of
that device to monitor the vehicle’s movements, constitutes a
‘search’” (fn. omitted)]; J.M. v. G.H. (2014) 228 Cal.App.4th 925,
939 [upholding family court order authorizing a mother to move
victim during an injury-producing event to recover for NIED,
even though the telephone was invented more than 100 years
before Thing. But the question of auditory presence was not at
issue in Thing, nor is it here. And certainly there may be
circumstances where auditory presence is sufficient. As the
Supreme Court acknowledged in Bird, supra, 28 Cal.4th at page
916, the second requirement in Thing of contemporaneous
awareness “has not been interpreted as requiring visual
perception of an impact on the victim.” Manalastas alternatively
posits that interpreting Thing’s requirements of presence at the
scene to include virtual presence would allow parents to recover
for NIED if they witness their child being injured during a
sporting event broadcast live on television, a scenario that would
have been possible when Thing was decided. That this
hypothetical scenario was not addressed in Thing does not mean
the Supreme Court would have drawn a line on NIED recovery
based on whether the parents witnessed the injury on television
rather than from the bleachers. This hypothetical scenario is
likewise not before us.
22
abroad with her son, finding son’s reduced time with his father
and stepbrother would be “mitigated by . . . the ability to
communicate electronically”]; In re Marriage of Lasich (2002)
99 Cal.App.4th 702, 711, disapproved on another ground by In re
Marriage of LaMusga (2004) 32 Cal.4th 1072, 1097 [approving
mother’s return to her native country with children, noting that
in addition to summer and holiday visits for father, mother would
“furnish both father and the minors with computer equipment,
‘net-meeting’ software, Internet service, and training for father
and the minors to video-conference at least twice a week”].)12
Where plaintiffs allege they were virtually present at the
scene of an injury-producing event sufficient for them to have a
12 Maxim and Manalastas rely on the Indiana Supreme
Court’s decision in Clifton v. McCammack (Ind. 2015) 43 N.E.3d
213, 215, in which the court held the plaintiff father could not
recover for NIED where he watched a television news story about
a fatal car crash near his home and feared his son was involved.
But in Clifton, as in Bird, supra, 28 Cal.4th at pages 921 to 922
and Ra, supra, 154 Cal.App.4th at pages 144 to 145, the father
did not learn that his son had been injured until after he arrived
on the scene 40 minutes after the accident. (Clifton, at p. 220.)
We are not aware of any case in California or elsewhere
addressing an NIED claim brought by a plaintiff who was
contemporaneously aware of an injury-causing event through
only a virtual presence. As the editors of the 2012 Restatement
Third of Torts observed, “Beyond the question of what aspects of
an accident must be perceived, [the Restatement] leaves for
future development whether the events must be perceived while
the plaintiff is physically present or whether contemporaneous
transmission by some medium is sufficiently equivalent to
physical presence. Continuing developments in communication
technology will no doubt affect the determination.” (Rest.3d
Torts (2012) § 48.)
23
contemporaneous sensory awareness of the event causing injury
to their loved one, they satisfy the second Thing requirement to
state a cause of action for NIED. Just as the Supreme Court has
ruled 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” (Bird, supra,28 Cal.4th at p. 916), so too can the Kos pursue an NIED claim
where, as alleged, they contemporaneously saw and heard
Landon’s abuse, but with their senses technologically extended
beyond the walls of their home.
Here, as alleged, the Kos were virtually present through
modern technology that streamed the audio and video on which
they watched Manalastas assaulting Landon in real time, and
thus “personally and contemporaneously perceive[d] the injury-
producing event and its traumatic consequences.” (Thing, supra,
48 Cal.3d at p. 666.) Based on these allegations, the Kos have
stated facts sufficient to constitute a cause of action for NIED.
(Thing, supra, 48 Cal.3d at pp. 666, 668.)
DISPOSITION
The judgment is reversed. The matter is remanded with
directions to the trial court to vacate its order sustaining without
leave to amend Maxim’s demurrer to the fourth cause of action
and Manalastas’s demurrer to the third and fourth causes of
action and to enter a new order overruling the demurrers to the
fourth cause of action and sustaining Manalastas’s demurrer to
the third cause of action without leave to amend. The Kos are to
recover their costs on appeal.
24
FEUER, J.
We concur:
PERLUSS, P. J.
RICHARDSON, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
25