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

Judicial Council of California Civil Jury Instructions (2023 edition)

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1621.Negligence - Recovery of Damages for Emotional
Distress - No Physical Injury - Bystander - Essential Factual
Elements
[Name of plaintiff] claims that [he/she/nonbinary pronoun] suffered serious
emotional distress as a result of perceiving [an injury to/the death of]
[name of victim]. To establish this claim, [name of plaintiff] must prove all
of the following:
1. That [name of defendant] negligently caused [injury to/the death
of] [name of victim];
2. That when the [describe event, e.g., traffıc accident] that caused
[injury to/the death of] [name of victim] occurred, [name of
plaintiff] was [virtually] present at the scene [through [specify
technological means]];
3. That [name of plaintiff] was then aware that the [e.g., traffıc
accident] was causing [injury to/the death of] [name of victim];
4. That [name of plaintiff] suffered serious emotional distress; and
5. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s serious emotional distress.
[Name of plaintiff] need not have been then aware that [name of
defendant] had caused the [e.g., traffıc accident].
Emotional distress includes suffering, anguish, fright, horror,
nervousness, grief, anxiety, worry, shock, humiliation, and shame.
Serious emotional distress exists if an ordinary, reasonable person would
be unable to cope with it.
New September 2003; Revised December 2013, June 2014, December 2014,
December 2015, May 2022
Directions for Use
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
980
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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.
Include the optional language in element 2 only if the plaintiff claims virtual
presence at the scene through technological means, and specify the technology used
to assist the jury in understanding the concept of “virtual” presence. (See Ko v.
Maxim Healthcare Services, Inc. (2020) 58 Cal.App.5th 1144, 1159 [272 Cal.Rptr.3d
906].)
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.
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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].)
Sources and Authority
• “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.)
• “Where plaintiffs allege they were virtually present at the scene of an injury-
producing event sufficient for them to have a 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’, so too can the [plaintiffs] pursue an NIED claim where, as
alleged, they contemporaneously saw and heard [their child’s] abuse, but with
their senses technologically extended beyond the walls of their home.” (Ko,
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supra, 58 Cal.App.5th at p. 1159, internal citation omitted.)
• “[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
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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].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1144-1158
Croskey et al., California Practice Guide: Insurance Litigation, Ch. 11-F, Negligent
Infliction Of Emotional Distress, 11:101 (The Rutter Group)
1 Levy et al., California Torts, Ch. 5, Negligent Infliction of Emotional Distress,
§ 5.04 (Matthew Bender)
32 California Forms of Pleading and Practice, Ch. 362, Mental Suffering and
Emotional Distress, § 362.11 (Matthew Bender)
15 California Points and Authorities, Ch. 153, Mental Suffering and Emotional
Distress, §§ 153.31 et seq., 153.45 et seq. (Matthew Bender)
CACI No. 1621 EMOTIONAL DISTRESS
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