Published Opinion on Bystander Claim for Emotional Distress Damages

October 1, 2007

Edmund G. Farrell, III Senior Partner in Charge of the Law & Appellate section of the firm, was successful in defeating a Petition for Writ of Mandate following the granting of a motion for summary adjudication. The opinion was ordered published by the Court of Appeals and can be found at Ra v. Superior Court (2007) 154 Cal.App.4th 142, 64 Cal.Rptr.3d 539.

In this case a store patron and his wife filed a complaint against the store alleging causes of action for negligent infliction of emotional distress to a bystander as to wife, with a related claim by patron for loss of consortium; and negligent infliction of emotional distress as to wife as a direct victim in the zone of danger, also with a loss of consortium claim by patron, after patron was struck in the head by a store sign while shopping in store with wife. The trial court granted summary adjudication in favor of the store as to the wife’s claims. The Court of Appeals, in denying a Petition for Writ of Mandate, held that the wife of the store patron was not a percipient witness to and did not have contemporaneous awareness of patron’s injuries, as required to establish a bystander claim for negligent infliction of emotional distress. Most importantly, the Court held that although a plaintiff may establish presence at the scene, for the purpose of a negligent infliction of emotional distress claim, through non-visual 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. The plaintiffs have filed a Petition for Review in the California Supreme Court.