by Anthony N. DeMaria
California Appellate Court Limits Potential Plaintiffs For "Bystander" Claims of Negligent Infliction Of Emotional Distress (Rodriguez v. Kirchhoefel (2005) 128 Cal.App.4th 427).
In a 2005 decision, California’s Second District Court of Appeal addressed what had been an amorphous and undefined area of law: Which familial relations are close enough to qualify for a cause of action involving emotional distress damages to one’s relative for witnessing a negligent injury caused to another relative?1 The seminal Dillon v. Legg decision created a cause of action by one family member for emotional distress caused by watching an injury to another family member. The California Supreme Court held that the elements of such a claim include (1) that the plaintiff was located near the scene of the accident; (2) that the plaintiff suffered direct emotional impact and injury from the sensory and contemporaneous observation of the accident; and (3) that the plaintiff and the victim were closely related. (Dillon v. Legg, supra at 740-741.) Since that time, there has been debate over what relationships qualify as sufficiently "closely related" so that a plaintiff may pursue a negligent infliction of emotional distress cause of action. In a recent decision, Rodriguez v. Kirchhoefel (2005) 128 Cal.App.4th 427, one California appellate court has answered that question.
In Rodriguez, the Court addressed the Dillon close relation issue and delineated three clear categories of relatives with sufficiently close relations to qualify to pursue such a cause of action. The categories are:
1. Parents, siblings, children or grandparents of the victim, regardless of whether or not they reside with the victim;
2. Other relatives of the victim (other than parents, siblings, children or grandparents of the victim) if they reside with the victim; or
3. Other relatives of the victim (other than parents, siblings, children or grandparents of the victim), even if they do not reside with the victim, if "exceptional circumstances" are present.
Reviewing the court’s decision, plaintiffs who fall under the category of being parents, siblings, children or grandparents of an injured victim, who were at the scene of injury and had sensory and contemporaneous observation of the injury causing accident itself, automatically qualify for a Dillon v. Legg cause of action. In the second category, plaintiffs who are not parents, siblings, children or grandparents of the victim, but are relatives of the victim, must first prove that they resided with the victim at the time of the accident to qualify for a Dillon v. Legg cause of action (assuming presence at the accident scene and contemporaneous sensory observation of the accident).
The third category, however, remains somewhat nebulous, but appears difficult to achieve for plaintiffs who are not parents, siblings, children or grandparents of the victim and did not reside with the victim at the time of the injury. In this third category, a plaintiff must prove "exceptional circumstances," which appear well beyond those of a normal relative-relationship, in order to qualify to bring a Dillon cause of action. While no specific standard has been set for minimal "exceptional circumstances," the Rodriguez v. Kirchhoefel court did not refute the opinion in Trapp v. Schuyler Construction (1983) 149 Cal.App.3d 1140, 1142-1143, wherein a Dillon bystander claim on behalf of one cousin who witnessed an injury to another cousin with whom there had been a relationship analogous to that of a sibling had been found to be an insufficiently "close relationship" to bring a Dillon claim.
Similarly, the Rodriguez v. Kirchhoefel court did not disturb the case of Moon v. Guardian Postacute Services, Inc. (2002) 95 Cal.App.4th 1005, 1009 1014, wherein a son in law who witnessed a negligent injury caused to his mother in law was found not to have a relationship constituting "exceptional circumstances" in order to bring a bystander cause of action, even though his mother in law had formerly lived with him, he had stayed with her regularly and he took her to the doctor every week and arranged for her care, which eventually led to her injuries. As such, it appears that true "exceptional circumstances" will be difficult to establish in order to sustain a Dillon v. Legg bystander cause of action in the third category of relations delineated by the Court in Rodriguez, supra, at 433. It should be noted, however, that it does appear that relatives by law (in laws) can potentially qualify under categories 2 and 3, if the requisite elements are met (see, e.g., Moon v. Guardian Postacute Services, Inc., supra, at 1011).
California’s Second District Court of Appeal intended to clarify and limit the categories of relations sufficiently close to recover for bystander negligent infliction of emotional distress causes of action for the contemporaneous sensory observation of accidental injuries to relatives. The categories appear largely limited to spouses, parents, siblings, children and grandchildren, or a resident relative at the time of injury. All other categories of relatives will have an uphill battle to substantiate the appropriate "exceptional circumstances." Finally, under this standard non-relatives may not recover on such a claim regardless of the plaintiff’s relationship with the injured person.
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