On January 10, 2013, the California Court of Appeal in Fortman v. Förvaltningsbolaget Insulan AB, Case No. B237818, decided the issue of whether bystander recovery for negligent infliction of emotional distress (“NIED”) is barred when plaintiff could not experience a contemporaneous sensory awareness that the defendant company’s defective product was the cause of the victim’s injuries. The Court of Appeal affirmed the trial court’s granting summary judgment in favor of the defendant because NIED recovery requires that plaintiff be aware, at least in a general sense, of what is causing the injury to the victim.
Barbara Fortman and her brother, Robert Myers, were scuba diving and beginning their ascent to the surface. Myers sank to the bottom of the ocean and landed on his back. As the two began to ascend, Myers’s eyes were open but he was non-responsive. About halfway to the surface, Myers’s air regulator fell out of his mouth. When the two reached the surface, Myers was transported to a care facility where he was pronounced dead. Fortman believed her brother had suffered a heart attack. After investigation, Fortman learned that Myers’s scuba gear’s malfunctioning caused his death. Fortman filed suit against the manufacturer for NIED under a bystander theory of recovery.
In reaching its holding, the Court of Appeal applied the requirements for bystander recovery as set out in Thing v. La Chusa (1989) 48 Cal.3d 644, 667-68: plaintiff (1) must be closely related to the injured victim, (2) 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 (3) must, as a result, suffer serious emotional distress. The Court of Appeal noted that to satisfy the second requirement, plaintiff must “experience a contemporaneous awareness of the causal connection between the defendant’s infliction of the harm and the injuries suffered by the close relative.” Thus, because it was undisputed that Fortman believed Myers had a heart attack, she could not satisfy the second requirement, and could not recover damages for NIED.
Fortman illustrates that a bystander plaintiff’s theory of NIED for product defect will succeed only if plaintiff is aware that the product is causing the victim’s injuries at the time of the injury producing accident. A bystander who does not know the cause of the victim’s injuries at the time they occur, but who later finds out that the product caused the victim’s injuries, will not recover for NIED. However, the court made clear that Fortman does not stand for the proposition that a bystander plaintiff can never recover damages under a NIED theory after perceiving a product related injury.
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