Virtually witnessing negligence: does that affect your claim for Negligent Infliction of Emotional Distress?

If someone causes harm…not to you directly…but to someone you’re close to, it may open the door for a claim of “negligent infliction of emotional distress” (NIED). A lawsuit like this requires the Plaintiff to prove several things, and one requirement is that you observed the negligence of another person that caused injury to someone other than you (that you are closely related to). And that you are present at the scene when the injury occurs—aware the negligence caused this injury. This last part is the focus on the December 23, 2020 decision Ko . Maxim Healthcare Services, Inc.*

What happened in Ko?

The Ko family go out for an evening and have a nanny watching their child. While out, the Ko’s check their nanny-cam phone app to see and hear in real-time the nanny hit, slap, pinch, and shake “in a violent manner” their child. To note, sadly their child suffers from blindness in one eye, can’t walk, has difficulty hearing, needs a feeding tube, and has severe developmental delays. The Ko’s call 911 on the nanny and drive home to show police the video of the nanny assaulting their child.

The Ko’s file a lawsuit against the healthcare provider that employed Nanny claiming they suffered negligent infliction of emotional distress. Nanny claims basically “ah, but you only saw and heard it virtually and didn’t see it in-person, so you can’t claim NIED.” I know, I shook my head too. Especially after reading the Trial Court agreed with the Defendant.

So where do things go from here? What is the law?

For California, the main law here is from the 1989 case Thing v. La Chusa**. NIED requires Plaintiff prove 3 main things. That 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.

What about that second element?

That’s exactly what the Court grappled with here. What does it mean to be “present at the scene” with today’s technology? Here, “[t]he Kos urge us to interpret the second Thing factor requiring contemporaneous presence at the scene of an injury-producing event to include ‘virtual presence’ in light of the technological advances that have occurred since Thing was decided 30 years ago. [Defendants] Maxim and Manalastas argue for a narrower interpretation of presence, noting the Supreme Court and Courts of Appeal have never included within their description of presence the concept of virtual presence.”

The Court here sides with Ko: “they contemporaneously saw and heard Landon’s abuse, but with their senses technologically extended beyond the walls of their home.” And with that, we have some new law to help understand Thing and NIED overall.

The case continues. Although sadly the Ko’s child “passed away on April 24, 2018, during the pendency of this action.”

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*Court of Appeals of California, Second District, Division Seven.

**Thing v. La Chusa (1989) 48 Cal.3d 644

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    Eric Ganci, Esq.
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