CACI 1621 Negligence—Recovery of Damages for Emotional Distress—No Physical Injury—Bystander—Essential Factual Elements

New September 2003; Revised December 2013, June 2014, December 2014, December 2015

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Use this instruction in a negligence case if the only damages sought are for emotional distress. The doctrine of “negligent infliction of emotional distress” is not a separate tort or cause of action. It simply allows certain persons to recover damages for emotional distress only on a negligence cause of action even though they were not otherwise injured or harmed. (See Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 928 [167 Cal.Rptr. 831, 616 P.2d 813].)

A “bystander” case is one in which a plaintiff seeks recovery for damages for emotional distress suffered as a percipient witness of an injury to another person. If the plaintiff is a direct victim of tortious conduct, use CACI No. 1620, Negligence—Recovery of Damages for Emotional Distress—No Physical Injury—Direct Victim—Essential Factual Elements. For instructions for use for emotional distress arising from exposure to carcinogens, HIV, or AIDS, see CACI No. 1622, Negligence—Recovery of Damages for Emotional Distress—No Physical Injury—Fear of Cancer, HIV, or AIDS—Essential Factual Elements, and CACI No. 1623, Negligence—Recovery of Damages for Emotional Distress—No Physical Injury—Fear of Cancer, HIV, or AIDS—Malicious, Oppressive, or Fraudulent Conduct—Essential Factual Elements.

This instruction should be read in conjunction with instructions in the Negligence series (see CACI No. 400 et seq.) to further develop element 1.

Whether the plaintiff had a sufficiently close relationship with the victim should be determined as an issue of law because it is integral to the determination of whether a duty was owed to the plaintiff.

There is some uncertainty as to how the “event” should be defined in element 2 and then just exactly what the plaintiff must perceive in element 3. When the event is something dramatic and visible, such as a traffic accident or a fire, it would seem that the plaintiff need not know anything about why the event occurred. (See Wilks v. Hom (1992) 2 Cal.App.4th 1264, 1271 [3 Cal.Rptr.2d 803].) And the California Supreme Court has stated that the bystander plaintiff need not contemporaneously understand the defendant’s conduct as negligent, as opposed to harmful. (Bird v. Saenz (2002) 28 Cal.4th 910, 920 [123 Cal.Rptr.2d 465, 51 P.3d 324], original italics.)

But what constitutes perception of the event is less clear when the victim is clearly in observable distress, but the cause of that distress may not be observable. It has been held that the manufacture of a defective product is the event, which is not observable, despite the fact that the result was observable distress resulting in death. (See Fortman v. Förvaltningsbolaget Insulan AB (2013) 212 Cal.App.4th 830, 843–844 [151 Cal.Rptr.3d 320].) In another observable-distress case, medical negligence that led to distress resulting in death was found to be perceivable because the relatives who were present observed the decedent’s acute respiratory distress and were aware that defendant’s inadequate response caused her death. (See Keys v. Alta Bates Summit Medical Center (2015) 235 Cal.App.4th 484, 489–490 [185 Cal.Rptr.3d 313], emphasis added.) It might be argued that observable distress is the event and that the bystanders need not perceive anything about the cause of the distress. However, these cases indicate that is not the standard. But if it is not necessary to comprehend that negligence is causing the distress, it is not clear what it is that the bystander must perceive in element 3. Because of this uncertainty, the Advisory Committee has elected not to try to express element 3 any more specifically.

The explanation in the last paragraph of what constitutes “serious” emotional distress comes from the California Supreme Court. (See Molien, supra, 27 Cal.3d at p. 928.) In Wong v. Jing, an appellate court subsequently held that serious emotional distress from negligence without other injury is the same as “severe” emotional distress for the tort of intentional infliction of emotional distress. (Wong v. Jing (2010) 189 Cal.App.4th 1354, 1378 [117 Cal.Rptr.3d 747]; but see Keys, supra, 235 Cal.App.4th at p. 491 [finding last sentence of this instruction to be a correct description of the distress required].)

•“California’s rule that plaintiff’s fear for his own safety is compensable also presents a strong argument for the same rule as to fear for others; otherwise, some plaintiffs will falsely claim to have feared for themselves, and the honest parties unwilling to do so will be penalized. Moreover, it is incongruous and somewhat revolting to sanction recovery for the mother if she suffers shock from fear for her own safety and to deny it for shock from the witnessed death of her own daughter.” (Dillon v. Legg (1968) 68 Cal.2d 728, 738, fn. 4 [69 Cal.Rptr. 72, 441 P.2d 912].)

•“As an introductory note, we observe that plaintiffs … framed both negligence and negligent infliction of emotional distress causes of action. To be precise, however, ‘the [only] tort with which we are concerned is negligence. Negligent infliction of emotional distress is not an independent tort … .’ ” (Catsouras v. Department of California Highway Patrol (2010) 181 Cal.App.4th 856, 875–876 [104 Cal.Rptr.3d 352].)

•“In the absence of physical injury or impact to the plaintiff himself, damages for emotional distress should be recoverable only if the 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 emotional distress beyond that which would be anticipated in a disinterested witness.” (Thing v. La Chusa (1989) 48 Cal.3d 644, 647 [257 Cal.Rptr. 865, 771 P.2d 814].)

•“[T]o 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, supra, 212 Cal.App.4th at p. 836.)

•“[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.” (Bird, supra, 28 Cal.4th at p. 920.)

•“Bird does not categorically bar plaintiffs who witness acts of medical negligence from pursuing NIED claims. ‘This is not to say that a layperson can never perceive medical negligence or that one who does perceive it cannot assert a valid claim for NIED.’ Particularly, a NIED claim may arise when … caregivers fail ‘to respond significantly to symptoms obviously requiring immediate medical attention.’ ” (Keys, supra, 235 Cal.App.4th at p. 489.)

•“The injury-producing event here was defendant’s lack of acuity and response to [decedent]’s inability to breathe, a condition the plaintiffs observed and were aware was causing her injury.” (Keys, supra, 235 Cal.App.4th at p. 490.)

•“Thing does not require that the plaintiff have an awareness of what caused the injury-producing event, but the plaintiff must have an understanding perception of the ‘event as causing harm to the victim.’ ” (Fortman, supra, 212 Cal.App.4th at p. 841, fn. 4.)

•“[W]e also reject [plaintiff]’s attempt to expand bystander recovery 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. To do so would eviscerate the second Thing requirement.” (Fortman, supra, 212 Cal.App.4th at pp. 843–844.)

•“Absent exceptional circumstances, recovery should be limited to relatives residing in the same household, or parents, siblings, children, and grandparents of the victim.” (Thing, supra, 48 Cal.3d at p. 668, fn. 10.)

•“[A]n unmarried cohabitant may not recover damages for emotional distress based on such injury.” (Elden v. Sheldon (1988) 46 Cal.3d 267, 273 [250 Cal.Rptr. 254, 758 P.2d 582].)

•“Although a plaintiff may establish presence at the scene through nonvisual sensory perception, ‘someone who hears an accident but does not then know it is causing injury to a relative does not have a viable [bystander] claim for [negligent infliction of emotional distress], even if the missing knowledge is acquired moments later.’ ” (Ra v. Superior Court (2007) 154 Cal.App.4th 142, 149 [64 Cal.Rptr.3d 539], internal citation omitted.)

•“[I]t is not necessary that a plaintiff bystander actually have witnessed the infliction of injury to her child, provided 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.” (Wilks, supra, 2 Cal.App.4th at p. 1271.)

•“ ‘[S]erious mental distress may be found where a reasonable man, normally constituted, would be unable to adequately cope with the mental stress engendered by the circumstances of the case.’ ” (Molien, supra, 27 Cal.3d at pp. 927–928.)

•“In our view, this articulation of ‘serious emotional distress’ is functionally the same as the articulation of ‘severe emotional distress’ [as required for intentional infliction of emotional distress]. Indeed, given the meaning of both phrases, we can perceive no material distinction between them and can conceive of no reason why either would, or should, describe a greater or lesser degree of emotional distress than the other for purposes of establishing a tort claim seeking damages for such an injury.” (Wong, supra, 189 Cal.App.4th at p. 1378.)

•“We have no reason to question the jury’s conclusion that [plaintiffs] suffered serious emotional distress as a result of watching [decedent]’s struggle to breathe that led to her death. The jury was properly instructed, as explained in Thing, that ‘[s]erious emotional distress exists if an ordinary, reasonable person would be unable to cope with it.’ The instructions clarify that ‘Emotional distress includes suffering, anguish, fright, … nervousness, grief, anxiety, worry, shock … .’ Viewed through this lens there is no question that [plaintiffs’] testimony provides sufficient proof of serious emotional distress.” (Keys, supra, 235 Cal.App.4th at p. 491, internal citation omitted.)

•“[W]here a participant in a sport has expressly assumed the risk of injury from a defendant’s conduct, the defendant no longer owes a duty of care to bystanders with respect to the risk expressly assumed by the participant. The defendant can therefore assert the participant’s express assumption of the risk against the bystanders’ NIED claims.” (Eriksson v. Nunnink (2015) 233 Cal.App.4th 708, 731 [183 Cal.Rptr.3d 234].)