Personal Injury Lawyer Blog
(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this wrongful death/personal injury case and its proceedings.)
Paul Smith gags when he tries to drink water. Steven Davis has nightmares about his family dying. Mike Jones still has flashbacks during which he sees Sherrie Johnson in the room with him. All three of these men feel tremendous guilt that they survived the contest, and Sherrie did not. Under Fletcher, supra, it is the Court’s job at this juncture to determine whether, on the evidence, emotional distress can be found. Plaintiffs have each established not only that such emotional trauma can be found, but has been diagnosed at the clinical level, and is being treated by professionals. Against this scientific, clinical showing of severe emotional distress Defendants cannot show the absence of a triable issue as to any material fact. On that basis, the Motion must be denied.
Emotional Distress That Arises as a Consequence of Sherrie Johnson’s Death is Recoverable When Plaintiffs Were Exposed to the Same Risk of Harm
Defendants mistakenly rely on Thing v. La Chusa (1989) 48 Cal. 3d 644 and its progeny to argue that because none of the Plaintiffs were related to Sherrie Johnson or even actually witnessed her death. This completely misses the point. The line of cases cited by Defendant involves claims by plaintiffs who were not themselves the target of the same wrongful conduct that resulted in harm or injury to the other person. Here, each of the Smith Plaintiffs suffered physical injury as a result of participating in the same contest that killed Sherrie Johnson. Their physical symptoms ran the gamut from vomiting to nausea, discomfort, pain, headaches and skinned up arms and legs (Paul Smith, caused when he had to crawl to the bathroom).
California has long defined a bystander as one who claims, damages for emotional distress caused by observing the negligently inflicted injury of a third person. Thing, supra, 667-668.
Here, none of the Smith Plaintiffs claim IIED because they witnessed the death of Sherrie Johnson. Rather, their claims are based on participating in the same contest and being a victim of the same conduct that killed her. They are not bystanders; they are direct victims of an event that resulted in the death of one participant and injuries to others, including these three women. For that reason, none of the authorities cited by Defendants with respect to bystander liability relate to the claim for intentional infliction of emotional distress.
When the tortious conduct of the alleged wrongdoer is directed to the plaintiff, the injured plaintiff is not a bystander, and is not barred from recovery. See, e.g., Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 923. See also the extensive discussion of the history of direct victim vs. bystander liability in Thing, supra, 647-660. The Court observed that it had previously defined direct victim as arising in situations in which the defendant’s negligence is by its very nature directed at the plaintiff. Thing, supra, 660, citing Ochoa v. Superior Court (1985) 39 Cal.3d 159, 172. Here then, we have a factual setting where defendants’ conduct was directed at each of the Smith Plaintiffs. On these facts, it is entirely foreseeable that the Plaintiffs, having learned they escaped death by luck, chance, or the grace of God, would experience a litany of emotional woes, including harm of a serious enough nature to drive them into therapy with independent diagnoses of PTSD, depression, survivor guilt and severe anxiety. Because they are direct victims of Radio’s outrageous conduct any analysis of bystander liability has no place, and the Motion must be denied.
CONCLUSION
Plaintiffs note that this is the second bite Defendants have taken at the summary adjudication apple; on February 20, 2008 this Court denied Radio’s first motion to eliminate the Smith Plaintiffs IIED claims. Radio fares no better in this most recent attempt.
Radio fails utterly to show that there is no triable issue as to any material fact proffered in support of the Motion, and any minor showing they do make pales against the showing of disputed facts made by Plaintiffs. On such a weak showing, there is no plausible argument that Radio is entitled to judgment as a matter of law, including with respect to Radio’s mistaken bystander liability analysis, which has no application on these facts. For the reasons set forth above, the Motion must be denied in its entirety.