(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)
The defense cites Bird v. Saenz (2002) 28 Cal.4th 910. In Bird, the Supreme Court denied bystander emotional distress to plaintiffs who saw their decedent being briefly rushed through a hospital hallway in respiratory distress. The Supreme Court held that since the plaintiffs were not in the operating room – where a single specific act of negligence occurred – they were not bystanders. However, the the Supreme Court further discussed what can qualify as being a bystander – and visual perception of an impact on the victim is not required:
To be sure, Thing’s requirement that the plaintiff be contemporaneously aware of the injury-producing event has not been interpreted as requiring visual perception of an impact on the victim. A plaintiff may recover based on an event perceived by other senses so long as the event is contemporaneously understood as causing injury to a close relative. (Wilks v. Hom (1992 2 Cal.App.4th 1264, 1272-1273. (Bird, supra, 28 Cal.4th at p. 916.)
Here the Plaintiffs contemporaneously understood that viewing the decedent’s deterioration was watching injury to a close relative. In Byrd, the Supreme Court discussed Ochoa v. Superior Court (1985) 39 Cal.3d 159:
In that case [Ochoa], a boy confined in a juvenile detention facility died of pneumonia after authorities ignored his obviously serious symptoms, which included vomiting, coughing up blood, and excruciating pain. We permitted the mother, who observed the neglect and recognized it as harming her son, to sue as a bystander for NIED [negligent infliction of emotional distress].
Anticipating the formula we would later adopt in Thing, we explained that when there is observation of the defendant’s conduct and the child’s injury and contemporaneous awareness the defendant’s conduct or lack thereof is causing harm to the child, recovery is permitted. (Bird, supra, 28 Cal.4th at p. 919.) (See Part 6 of 6.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.