Daily Blast January 10, 2013

On January 10, 2013, in a products liability case, the California Court of Appeal, Second Appellate District, Division Three (LA) rejected an attempt to expand bystander recovery for negligent infliction of emotional distress (NIED) on a strict products liability theory when the plaintiff observes injuries sustained by a close relative arising from an unobservable product failure. In Fortman v. Förvaltingsbolaget Insulan AB (January 10, 2013, B237818) ____ Cal.App.4th _____, the court analyzed whether bystander recovery for NIED is barred when the bystander could not experience a contemporaneous sensory awareness that a company’s defective product was the cause of the injury. (Slip opn., p. 2.) The court relied upon the Supreme Court’s decision in Thing v. La Chusa (1989) Cal.3d 644 (“Thing”) to hold that bystander recovery is barred when the bystander “witnessed the injury, but did not meaningfully comprehend that the company’s defective product caused the injury.” (Ibid.)

The case arose out of a scuba diving accident involving the plaintiff’s brother. (Slip opn., p. 2.) A few minutes into the dive, plaintiff’s brother signaled to plaintiff to ascend, but during the ascent he stopped kicking and became unresponsive. (Id. at p. 3.) As they were approximately half way to the surface, the brother’s regulator fell out of his mouth. (Ibid.) Plaintiff’s brother was later pronounced dead. (Ibid.) Plaintiff sought to recover for the emotional distress she suffered when she witnessed the death of her brother. (Id. at p. 2.) Plaintiff testified that she thought her brother had a heart attack. (Ibid.) After an investigation of the scuba gear, it was determined that defendant’s product, a flow-restriction insert in the regulator, constricted the brother’s ability to breath underwater and caused his death. (Id. at p. 3-4, 15.) Defendant moved for summary judgment arguing that plaintiff could not have perceived her brother being injured by the company’s product. (Id. at p. 4.) The trial court granted defendant’s summary judgment motion. (Ibid.)

The Court of Appeal affirmed the trial court’s order granting summary judgment. (Slip opn., p. 2.)  The court explained that a bystander may recover damages for emotional distress caused by observing a negligently inflicted injury of a third person only if the plaintiff: “(1) is closely related to the injury victim; (2) is 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) as a result suffers serious emotional distress—a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances.”  (Id. at p. 5, emphasis in original, quoting Thing v. La Chusa, supra, 48 Cal.3d at pp. 667-668.)  Here, plaintiff did not satisfy the second Thing requirement. (Slip opn., p. 2.) Although defendant’s defective product caused the brother’s injury, it was undisputed that during the dive, plaintiff was not aware that the defendant’s defective product was causing her brother’s injury. (Id. at pp. 15-16.) Indeed, at the time of the accident, plaintiff believed that her brother had a heart attack. (Ibid.) Therefore, “as a matter of law cannot state an NIED claim under the bystander theory of recovery.” (Id. at p. 15.) 

Finally, the court rejected an attempt to expand bystander recovery “to hold a product manufacturer strictly liable for emotional distress when the plaintiff observes injuries sustained by a close relative arising from an unobservable product failure.” (Slip. opn., p. 16.) The court was limited to the requirements established by the Supreme Court in Thing, which provides “a more stringent definition of the contemporaneous awareness requirement.” (Ibid.) 

This is a good case to have in your arsenal not only for product liability cases, but for other cases where plaintiff is not contemporaneously aware of the cause of the injury.

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