California, There You Go, Right Back Where You Started From:  Expanding Liability ViaNegligent Infliction of Emotional Distress

Decades ago, California had a well-deserved reputation for inventing new varieties of tort liability.  California would hatch an idea to expand liability; law professors would churn out thought-pieces taking the theory in new and further directions; judges across the country would struggle with whether to adopt the concept or constrain it in some fashion; eventually some guardrails would be put into place—and then the cycle would repeat. 

The tort of negligent infliction of emotional distress (or “NIED” as some call it) was one such California tort liability invention.  As Bexis explained in discussing the tort in the product liability context back in 2011, negligent infliction of emotional distress differs from intentional infliction of emotional distress.  Intentional infliction of emotional distress is more firmly established, turning on “outrageous” conduct, the defendant’s knowledge or reckless disregard that emotional distress will result, and the severity of the plaintiff’s emotional distress.  (And of course, it is even more deeply established that plaintiffs can recover for their own emotional distress as one type of recoverable damages, once they have proven up a tort cause of action such as strict products liability or negligence.)

Negligent infliction of emotional distress really is a different thing entirely from both the tort of intentional infliction of emotional distress and ordinary emotional distress damages.  The plaintiff asserting the tort of negligent infliction of emotional distress is not the person who suffered the principal physical injury.  Rather, the negligent infliction of emotional distress plaintiff generally witnesses an injury being inflicting on someone else, but has not experienced any direct physical harm to himself or herself.  The Restatement characterizes negligent infliction of emotional distress as a claim derivative of that asserted by the directly-harmed and physically-injured plaintiff.  Rest.3d Torts, Liability for Physical and Emotional Harm, § 48.

In Dillon v. Legg, 68 Cal.2d 728 (1968), the California Supreme Court willed the claim of negligent infliction of emotional distress into existence in a case where a plaintiff-parent was emotionally traumatized by witnessing a driver collide with her child, even though the plaintiff-parent was a bystander—not only physically uninjured, but entirely outside the “zone of danger” and not at any risk of being hit herself. 

Following the California pattern, after Dillon minted this new claim, courts flailed around trying to define the scope of the tort and develop limiting principles.  Did the negligent infliction of emotional distress plaintiff have to be a relative?  If so, how close a relative?  What if the negligent infliction of emotional distress plaintiff heard the crash, but didn’t see it?  Did the emotional trauma have to manifest into at least some physical symptom, like a heart attack or migraines?  Or are mental health problems, like anxiety or depression, alone enough? And so on.  Put another way, “[d]ecisions following Dillon had, ‘like the pebble cast into the pond,’ expanded the bystander distress claim and ‘created ever widening circles of liability.’”

By the time it got to Thing v. La Chusa, 48 Cal.3d 644 (1989), even the California Supreme Court realized that the tort’s requirements were being too “relaxed on grounds that they . . . created arbitrary limitations on recovery,” and that courts were giving too “[l]ittle consideration . . .  to the importance of avoiding the limitless exposure to liability.”  Id. at 656.  Thus, Thing took a stab at some bright-line rules, including that recovery for negligent infliction of emotional distress would be available only if the plaintiff was present at the scene of the injury-producing event as it occurred, and also was aware that the victim was being injured.

California being California, though, Monday’s opinion in Downey v. City of Riverside, 2024 Cal. LEXIS 3887, 2024 WL 3491142 (Cal. July 22, 2024), brings negligent infliction of emotional distress right back where we started from:  Restarting the cycle by knocking down perceived arbitrary barriers to recovery, and once again moving toward limitless exposure to liability.

Downey, in some ways was a prototypical parent-child-car accident negligent infliction of emotional distress claim:  

Plaintiff “was giving driving directions to her daughter over cell phone when her daughter was severely injured in a car crash.  [Plaintiff] heard the collision and its immediate aftermath, but she could not see what had caused it.”

The Downey court presumed it was fine that the plaintiff had not seen the accident, and instead had only heard the collision “in real time” over the telephone.  The court also wasn’t troubled by the fact that what the plaintiff heard (crash noises, followed by a good Samaritan’s request for silence so he could listen for a pulse) arguably might be less distressing than visually observing traumatic wounds from a violent accident. 

What makes Downey most notable, however, is that the relevant negligent infliction of emotional distress claim was asserted not against the driver of the other car, but against a municipality and a property owner who allegedly had created road conditions that contributed to the accident.

The question Downey addressed thus was whether a negligent infliction of emotional distress claim can be pursued “if the plaintiff is aware that injury has been inflicted on the victim, but not of the defendant’s role in causing the injury.” 

And of course, California concluded that it did not matter that the Downey plaintiff had no “contemporary awareness” of the alleged road hazard, much less the existence of the municipality and property owner’s involvement in the condition of the road at the time of the crash—such defendants still could be sued for negligent infliction of emotional distress, even if their alleged roles came to light much later. 

Whether this is a decision consistent with Thing or sound as a matter of policy we will leave to the chattering classes.

What concerns us here is what this might mean for our area of interest, medical device and pharmaceutical product liability.  This is where Downey’s discussion of medical malpractice and product liability on the one hand, and negligent infliction of emotional distress on the other, comes in.

Traditionally, California has been skeptical of negligent infliction of emotional distress in the medical malpractice context.  For example, Bird v. Saenz, 28 Cal.4th 910 (2002), rejected negligent infliction of emotional distress for children of a surgical patient because they were not in the operating room to witness the physician mistakenly transect their mother’s artery, even though they saw their mother’s resulting physical distress later.  In Golstein v. Superior Court, 223 Cal.App.3d 1415 (1990), parents who watched their son receive a radiation treatment could not recover for negligent infliction of emotional distress because they did not at that time realize the dose would prove fatal.  And in Wright v. City of Los Angeles, 219 Cal.App.3d 318 (1990), watching a paramedic conduct a cursory exam, and fail to detect signs of sickle cell shock, did not support negligent infliction of emotional distress because there was no evidence the relative recognized the patient was being injured by the exam.

Similar concerns about what the plaintiff was, or was not, aware of has limited the utility of negligent infliction of emotional distress claims in product liability cases.  In Fortman v. Förvaltningsbolaget Insulan AB, 212 Cal.App.4th 830 (2013), for example, the claim was rejected even though the plaintiff saw her brother die because the plaintiff’s contemporaneous perception was that her brother was having a heart attack; her realization that the “true cause” of the accident was a product defect resulting in an equipment failure came later, and was not enough.

Negligent infliction of emotional distress was seen to be only “rarely” available in such cases, because medical malpractice and product liability injuries often are unlike “catastrophic events” like an explosion, traffic accident, or electrocution.  When the negligent medical treatment is provided—or when the allegedly defective product is made—those are “injury-causing events” that remain “essentially invisible to the plaintiff” as they occur.

But going forward, will that hold true, now that Downey has held that California does not require negligent infliction of emotional distress plaintiffs “to show contemporaneous perception of the causal link between the defendant’s conduct and the victim’s injuries”? 

Downey itself allowed a negligent infliction of emotional distress claim against defendants allegedly responsible for the road condition in a car crash case, even when the plaintiff had no contemporary awareness of the road condition, much less the defendant’s responsibility for it.  Just as the creation of road conditions is an injury-causing event that was “essentially invisible to the plaintiff as it occurs”, so too is the medical malpractice alleged in Bird or the product defect alleged in Fortman. 

Downey even puts a pin in the issue, noting that “whether the court analyzed” the negligent infliction of emotional distress issue in Fortman “correctly is beyond the scope of issues presented in this case”, and dropping a footnote to distinguish other “product-related injuries where a bystander would immediately perceive the event as injury-causing.”

It is little comfort that the California Supreme Court pays lip service to the recognition that “not all forms of emotional trauma associated with harm to a loved one are compensable” because Downey seems to suggest California has returned to the pre-Thing days of anything goes negligent infliction of emotional distress.  For our clients’ sake, we hope we are wrong about that.