Bystander recovery for emotional distress barred because sister unaware that defendant's defective scuba-diving product caused brother's death, even though while diving with him she observed him to stop breathing.

January 15, 2013
By Justice Steven Vartabedian (Ret.) on January 15, 2013 6:00 AM |

scuba-diving.jpgWhen a person stops breathing, a typical reaction by one in that person's company is to think the person has had a heart attack. Of course that may not always be a correct assumption. In Fortman v. Forvaltningsbolaget Insulan AB, B23718 (Court of Appeal, Second Appellate District, Division 3, filed January 10, 2013), the emotionally devastated plaintiff thought her brother had suffered a heart attack as they were at the bottom of the ocean scuba diving together and he was unresponsive. After his death was investigated, she learned that her brother's scuba diving equipment had malfunctioned, depriving him of oxygen.

Plaintiff sued the defendant manufacturer for negligent infliction of emotional distress (NIED). The trial court granted defendants summary judgment finding that the NIED plaintiff must at least have a general sense of what is causing the injury; here, she did not contemporaneously perceive her brother's injuries were caused by the defendant's defective product. On plaintiff's appeal, the appellate court affirmed the summary judgment dismissing the case.

The Court of Appeal essentially states its hands are tied by the following language of the California Supreme Court in Thing v. La Chusa (1989) 48 Cal.3d 644667-668: that the 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." It concludes that recovery is barred as a matter of law because plaintiff here could not experience a contemporary sensory awareness that the company's defective product caused the brother's injuries.

The appellate court opinion presents an excellent survey of the various cases on the subject. No need to restate much of that here. I do think that it found most persuasive the high court's criticism of Mobaldi v. Regents of University of California (1976) 55 Cal.App.3d 573 in Bird v. Saenz ( 2002) 28 Cal. 4th 910. In Mobaldi, a child was injured by an incorrectly prepared intravenous solution. The mother watched as the child suffered convulsions and lapsed into a coma. The Mobaldi court found no significance in plaintiff mother's lack of awareness that defendant's conduct inflicting injury was negligent. Saenz agreed with Mobaldi that plaintiff need not contemporaneously understand the defendant's conduct was negligent, as opposed to harmful. But the high court disagreed with the reasoning that the bystander need only observe the aftermath of the defendant's infliction of harm, however direct and contemporaneous. One must view the actual event that causes the suffering; merely observing the suffering is not enough.

It will be interesting to see if the Supreme Court grants review in this case to further clarify this type of circumstance under the law of NIED. I think it is arguable that the Fortman situation is different than those cases precluding liability in that Ms.Fortman did view the actual event, her brother's oxygen deprivation; she simply immediately assumed the precise cause as a heart attack, rather than speculate that he lost oxygen due to defective equipment.