Using a “direct victim” theory to recover emotional distress damages
Four college friends are traveling down the road, coming back from a long-overdue reunion. It’s dark, late at night on a mountain road, and rain has just started to come down. As the car rounds the bend of a hairpin turn, the driver of this story looks down to locate the windshield wipers on the rental vehicle… when he looks back up, an oncoming vehicle that had drifted across the center lane divider, is coming right at them. The driver swerves, but a collision occurs and the four friends in their vehicle roll multiple times, finally coming to rest upside down on the side of the road. The driver, although alive for now, has suffered injuries so severe he ultimately does not survive. Two of the passengers in his vehicle have also suffered significant injuries but will survive the ordeal. Miraculously the fourth passenger escaped uninjured, but found himself trapped in the overturned vehicle, surrounded by the screams of his severely injured friends, where he remained trapped for hours until paramedics were finally able to extricate him.
Months go by and one day the fourth passenger, we will call him Mr. Smith, knocks on your door and tells you he wants you to take his case. He tells you he is still tortured by the incident, that he can’t get the images of his injured friends and their screams in that darkened overturned vehicle out of his head. He tells you that he is having nightmares, anxiety and believes he is suffering from post-traumatic stress disorder. There is no doubt that he has suffered and is continuing to suffer significant emotional distress but what can you do? Compared to his friends, Mr. Smith has escaped relatively unscathed. His physical injuries were minor and have all healed. The emotional distress he is experiencing isn’t due to any physical injuries he sustained, but is instead associated with the experience of witnessing the injuries to his friends. What do you do?
I’ll admit the above narrative may sound mildly on the melodramatic side, but the basic undercurrent of Mr. Smith’s case is quite common in our practices, an injury-causing event occurs involving multiple unrelated parties and all suffer severe emotional distress as a result. In Mr. Smith’s case, it is clear that he has significant emotional distress as a result of witnessing the injuries to his friends, and if Mr. Smith was related to them, there would be no doubt that he would have a straightforward negligent infliction of emotional distress claim (“NIED”) or Dillon v. Legg bystander claim. But since he is not related, one might quickly think, “Wait, this is a no brainer – no relation equals no claim.”
Thankfully for Mr. Smith and others in his situation, under the law it doesn’t matter that he is not related to any of his friends, because in this hypothetical Mr. Smith isn’t simply a “bystander” to an event, he is a “direct victim” of the event; even though he suffered no significant physical injuries, Mr. Smith can pursue a claim for negligent infliction of emotional distress based on his awareness of the injuries to his unrelated friends.
The purpose of this article is to provide some background on the well-established, but often overlooked, alternative grounds for maintaining an NIED claim under the “direct victim” theory as compared to the more well-known “bystander” theory. The information below will thus provide a brief discussion of the origination of both the “bystander” and “direct victim,” the NIED claims, as well as guidance on when to best employ the “direct victim” theory to recover for your clients in situations where other doors are closed.
“Direct victim” NIED claim compared to a “bystander” NIED claim
Simply put, the “direct victim” NIED theory allows a plaintiff to recover for all reasonably foreseeable emotional distress damages he or she has suffered due to a specific event regardless of whether those damages are related to physical injuries he or she has suffered or due to witnessing injuries to another. Whereas, under the “bystander” NIED theory, a plaintiff must pass a three-part specific test before he can recover for emotional distress damages resulting from witnessing injuries to another person. The reason for this difference is because a “direct victim” NIED claim is connected to a breach of a duty owed directly to the plaintiff making the claim and in a “bystander” context, the plaintiff suffers emotional distress not as a result of a breach of a duty owed to him or her, but owed to someone else; the bystander’s damages stem from witnessing that event. As discussed in more detail below, this difference is key, and can help you to obtain substantial recovery for your clients in a number of situations where a standard “bystander” claim would fail.
The doctrine of the “direct victim” NIED claim arose after the “bystander” theory was established in the well-known case, Dillon v. Legg (1968) 68 Cal.2d 728. In Dillon, the Supreme Court established an explicit test for when a bystander could seek emotional distress damages resulting from witnessing a traumatic event and the test was further defined in the subsequent decision, Thing v. La Chusa (1989) 48 Cal.3d 644. The test consists of three parts, and permits a plaintiff to recover damages for emotional distress at witnessing an injury to another only if: (1) plaintiff 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 emotional distress beyond that which would be anticipated in a disinterested witness. (Thing, 48 Cal.3d at pp. 688-89.)
The closely related requirement of the first prong of this test operates to seriously limit the potential plaintiffs, and in the Mr. Smith hypothetical is the hurdle that bars his claim under a “bystander” theory. The justification for imposing these limitations comes down to a foreseeability issue. The Supreme Court was worried about the endless number of potential claimants that could witness a traumatic event and then make an emotional-distress claim and therefore set forth restrictions to limit this number. In Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072, the Court explained its reasoning, stating:
Bystander liability is premised upon a defendant’s violation of a duty not to negligently cause emotional distress to people who observe conduct which causes harm to another. Because in such cases the class of potential plaintiffs could be limitless, resulting in the imposition of liability out of all proportion to the culpability of the defendant, this court has circumscribed the class of bystanders to whom a defendant owes a duty to avoid negligently inflicting emotional distress.
Wife’s incorrect syphilis diagnosis leads to divorce, NIED
Under a “ direct victim” theory for NIED however, this foreseeability problem of limitless plaintiffs does not exist. This is because a “direct victim” claim is predicated on a breach of a duty owed by a defendant directly to the person claiming the emotional-distress damages, and not on a breach of a duty to somebody else. The “direct victim” concept was first laid out by the Supreme Court in the seminal case Molien v. Kaiser Found. Hospitals (1980) 27 Cal.3d 916. Molien involved a case where a doctor incorrectly diagnosed a married woman with having syphilis. Plaintiff, her husband, was understandably severely distressed at the notion that his wife had contracted syphilis. Furthermore, after his own blood tests came back negative, he began to have suspicions that his wife had been having an affair. The stressors and tensions in their relationship were so severe it culminated in the dissolution of their marriage. Plaintiff, upon learning that the diagnosis was false, brought suit for NIED. Defendant claimed that the case was barred by Dillon because the husband was not present and did not witness an injury-producing event. The Supreme Court disagreed.
In reaching their determination, the Supreme Court didn’t look at the bright-line test set forth in Dillon, and instead looked at the intention behind the establishment of that three-part test. Specifically, the Supreme Court stated, “the significance of Dillon for the present action lies not in its delineation of guidelines fashioned for resolution of the precise issue then before us; rather, we apply its general principle of foreseeability… in the case at bar the risk of harm to plaintiff was reasonably foreseeable to defendants. It is easily predictable that an erroneous diagnosis of syphilis and its probable source would produce marital discord and resultant emotional distress to a married patient’s spouse.” (Molien, 27 Cal.3d at p. 923.) Therefore, the Supreme Court allowed the husband’s claim, holding that, “the negligent examination of plaintiff’s wife and the conduct flowing therefrom were objectively verifiable actions by defendants that foreseeably elicited serious emotional responses in plaintiff and served as a measure of the validity of plaintiff’s claim for emotional distress.” (Id at p. 916.)
Thus, in Molien, the Supreme Court created a new avenue of recovery for victims who suffer significant emotional distress due to their involvement in an incident but don’t fit within the confines of Dillon. The key takeaway from Molien, is that under a “direct victim” theory, the three-part test of Dillon does not apply, and instead the analysis is two part. First, was there a breach of a duty owed the plaintiff by the offending party? And second, if there was a breach, was it foreseeable that it would cause severe emotional distress? If these two conditions are met, then that party is able to recover for all reasonably foreseeable damages suffered as a result of that breach. What this means in a practical sense is that once the “direct victim” conditions are met by a party, he or she is able to maintain an NIED claim even if there is no relation.
Foster daughter’s death leads to NIED claim
To illustrate this concept in more detail, and to show how it would apply to the Mr. Smith hypothetical at the beginning of this article, I refer you to the California Court of Appeal case, Long v. PKS, Inc. (1993) 12 Cal.App.4th 1293. Long followed the guidance of the Supreme Court’s decision in Molien, but took it out of the context of a pre-existing doctor-patient relationship, and into the ordinary automobile collision tort-feasor situation. Long centered around a tragic two-vehicle collision in which one driver struck another vehicle with two occupants. The passenger in the vehicle that was struck was killed in the collision, and her death was witnessed by the driver. The driver was Nadine Long and the passenger who died was her 27-year-old foster daughter, Dianna Malgren, whom Long had never legally adopted.
After the collision, Long and her husband filed a complaint alleging five causes of action for negligence, wrongful death, “Dillon v. Legg,” loss of consortium and punitive damages. Defendant demurred to the wrongful death and “Dillon v. Legg” causes of action, stating they were improper because the Longs were unrelated to their foster daughter and were therefore not proper claimants. The demurrer was sustained with leave to amend, and the plaintiffs amended and included a cause of action for NIED, this time predicated on the theory that Nadine Long was a direct victim in the collision.
Defendant again demurred to this NIED claim and the trial court sustained. However, the Court of Appeal reversed and allowed Long to recover for the emotional distress at witnessing the fatal injuries to her foster daughter under the theory that she herself was a direct victim of the crash. The Court stated:
We are satisfied that once a plaintiff has been negligently placed within the area of physical risk and has actually sustained a physical impact, his cause of action for emotional distress is not limited to the psychological sequelae of fear for himself but rather comprehends all of the psychological sequelae which as a matter of reasonable foreseeability result from the episode as a whole. As one who suffered physical injury as a result of defendants’ negligence, Nadine Long was entitled to recover all reasonably foreseeable damages. Such damages included any emotional distress suffered as a result of witnessing the fatal injuries to Malgren.
(Long, 12 Cal.App.4th at p. 1301.)
For the purposes of everyday practice in the personal-injury context, the holding in Long is incredibly valuable. Long opened the door to permit anyone who was a “direct victim” of any injury-causing event who sustained an impact, whether from a motor vehicle collision, fall, industrial accident, or defective product, to recover all reasonably foreseeable damages that resulted. The key language in Long is that to qualify as a direct victim one needs to only have “sustained an impact” in the event, and does not have to have sustained physical injuries from that impact. Long therefore does not require that the claimed emotional injuries be in any way related to physical injuries he or she suffered. Instead, Long specifically included as recoverable damages, emotional distress damages for a direct victim suffered solely from witnessing injuries to another person involved in the same event. In Mr. Smith’s hypothetical, it was clearly reasonably foreseeable that he could suffer severe emotional distress after being involved in a motor vehicle collision, and witnessing serious and fatal injuries to his friends. Furthermore, it is clear that Mr. Smith was involved in the collision, and he did sustain “an impact,” even if that impact may not have resulted in any noteworthy injuries; therefore he is able to maintain a claim for NIED under a “direct victim” theory.
“Direct victim” is a powerful tool for NIED claim
In the right situation, the “direct victim” NIED claim can be a powerful tool and can help open up avenues of recovery for clients that would otherwise be foreclosed justice. For instance, in the Mr. Smith case, let’s assume that the driver who passed away was in fact Mr. Smith’s long-term girlfriend and the other two passengers were their children. On the sad facts of that case, Mr. Smith has for all intents and purposes lost his wife, and yet he has no ability to pursue a claim for her wrongful death, or a Dillon “bystander” claim, because they were never married. Under a “direct victim” theory, however, he is able to pursue an NIED claim and can recover all the reasonably foreseeable damages suffered by witnessing and experiencing her loss in that collision, a claim that would no doubt be significant.
The “direct victim” NIED claim applies to so many different situations – take a serious bus crash where the driver negligently causes a collision with 40 unrelated passengers on board. Under a “bystander” theory they are without a case unless they are related, whereas, under a “direct victim” theory each can pursue an NIED claim for all reasonably foreseeable emotional distress damages suffered due to being involved in the crash. The factual scenarios that can give rise to a “direct victim” claim are numerous and it is important to evaluate each factual scenario that comes through your door to see if it applies. Even product-liability cases provide an opportunity to apply the direct-victim theory. Even in situations where the user of a defective product suffers no direct physical harm, but instead witnesses the defective product cause harm to another.
This concept was addressed in Kately v. Wilkinson, (1983) 148 Cal.App.3d 576. Kately involved a boating accident caused by a defective steering column in the boat. The plaintiff had purchased a boat for waterskiing, and one day was out with family and friends using the boat for waterskiing. While plaintiff was driving the boat with her daughter as a passenger, the boat’s steering column locked and caused the boat to circle out of control in the water, ultimately striking and killing the friend of plaintiff’s daughter who had been waterskiing behind it. The mother and daughter were uninjured but brought claims for NIED against the boat manufacturer based on them witnessing the skier’s tragic death.
Despite plaintiffs having not pled their case as a bystander claim, the Court of Appeal concluded that the distress was the result of an incident involving a defective product, that the distress was foreseeable and that plaintiff, and likely her daughter, were direct victims. The Court of Appeal thus reversed the lower court’s dismissal stating, “Such distress is foreseeable regardless of the relationship between the plaintiff/operator of the boat and the victim. It is clearly predictable that the user of a defective product will feel guilt and responsibility for the injury or death of another .... This is not a type of emotional harm which people should be expected to absorb for their own good and that of society.” (Id., 148 Cal.App.3d at p. 588.) The court then remanded the matter for the lower court for consideration of plaintiffs’ claims under a “direct victim” theory.
As evidenced by these cases, as well as the Mr. Smith hypos, when applied properly the “direct victim” NIED claim is an incredibly useful tool to obtain recovery for your clients. At Panish Shea & Boyle LLP we have successfully obtained significant recoveries for clients that would otherwise be without compensation for their serious harms, because we were able to establish that they were “direct victim” claimants. In fact, our firm was recently involved in an auto-products roll-over and roof-crush − a case involving four unrelated plaintiffs, and significant emotional distress claims. Defendants brought a motion for summary adjudication to dismiss plaintiffs’ emotional-distress claims as barred because they were unrelated to one another. By asserting the “direct victim” theory, we were able to defeat the motion and obtain a significant recovery for our clients. (Please contact the author for sample briefing and pleadings on the “direct victim” NIED theory).
If you are not already using the direct-victim theory in your practice, it should be added to your arsenal and deployed to help recover full compensation for your clients in situations where they may otherwise be foreclosed from access to justice.
Ryan Casey is an associate at Panish Shea & Boyle, LLP in Los Angeles. He specializes in complex catastrophic personal injury, product liability, and wrongful death cases. Mr. Casey earned his undergraduate degree from UCLA and his law degree from Loyola Law School Los Angeles, where he participated in National Trial Competitions and was awarded the Karl Seuthe Trial Advocacy Award.
by the author.
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