Court Rejects Plaintiff’s Plea to Extend Negligent Infliction of Emotional Distress for Bystanders

October 6, 2010

The role technology plays in negligent infliction of emotional distress claims was at the heart of a case successfully handled by Stephen K. Anderson and Gina E. Och. The case arose out of injuries allegedly sustained by Plaintiff Michaela Kellner in February 2007, when she slipped, or tripped, and fell down a set of stairs that she was descending on premises owned by Defendant California College of the Arts, which is located in Oakland, California.

Michaela Kellner was talking to her mother, Sheryl Kellner, on her mobile phone when the incident occurred. As a result, Sheryl Kellner claimed that she was “present” at the scene of her daughter’s fall, and sustained emotional distress premised on her status as a “bystander.” Prominent San Francisco plaintiff attorney Christopher Dolan argued that, with the advancement of technology, experiencing the injury of her daughter via a cell phone satisfied the requirements for Sheryl Kellner to be considered a bystander. Plaintiff used the example of people watching loved ones perish on television during the 9/11 attacks to support her argument.

In their Motion for Summary Judgment, Mr. Anderson and Ms. Och countered plaintiff’s argument with recent case law limiting the scope of negligent infliction of emotional distress based on a bystander theory. The basic elements, as set forth in Thing v. La Chusa, 48 Cal.3d 644, 663-664 (1989), are:

• plaintiff must be closely related to the victim,
• plaintiff must be 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
• as a result, suffers emotional distress beyond that which would be anticipated in a disinterested witness.

The defense argued that, while Sheryl Kellner is closely related to Michaela Kellner as her mother, and although she heard some commotion over the telephone at the alleged moment of the incident, there was absolutely no showing that she had an appropriate level of sensory awareness at the scene of the injury-producing event, or that she was then aware that California College of Arts was causing her daughter harm. The Superior Court agreed with the defense and granted its Motion for Summary Judgment.