California Civil Jury Instructions (CACI)

1621. Negligent Infliction of Emotional Distress—Bystander—Essential Factual Elements

[Name of plaintiff] claims that [he/she] suffered serious emotional distress as a result of perceiving [an injury to/the death of] [name of injury 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 injury victim];

2. That [name of plaintiff] was present at the scene of the injury when it occurred and was aware that [name of injury victim] was being injured;

3. That [name of plaintiff] suffered serious emotional distress; and

4. That [name of defendant]’s conduct was a substantial factor in causing [name of plaintiff]’s serious emotional distress.

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

Directions for Use

This instruction is for use in bystander cases, where a plaintiff seeks recovery for damages suffered as a percipient witness of injury to others. If the plaintiff is a direct victim of tortious conduct, use CACI No. 1620, Negligent Infliction of Emotional Distress—Direct Victim—Essential Factual Elements.

This instruction should be read in conjunction with either CACI No. 401, Basic Standard of Care, or CACI No. 418, Presumption of Negligence per se.

In element 2, the phrase “was being injured” is intended to reflect contemporaneous awareness of injury.

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.

Sources and Authority

  • A bystander who witnesses the negligent infliction of death or injury of another may recover for resulting emotional trauma even though he or she did not fear imminent physical harm. (Dillon v. Legg (1968) 68 Cal.2d 728, 746—747 [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].)
  • “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.)
  • The close relationship required between the plaintiff and the injury victim does not include the relationship found between unmarried cohabitants. (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 v. Hom (1992) 2 Cal.App.4th 1264, 1271 [3 Cal.Rptr.2d 803].)
  • “ ‘[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 v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 927—928 [167 Cal.Rptr. 831, 616 P.2d 813].)

Secondary Sources

5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1007—1021

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)