RA v. Superior Court
64 Cal.Rptr.3d 539, 154 Cal. App. 4th 142, 2007 Cal. App. LEXIS 1351 (2007)
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Rule of Law:
To recover for negligent infliction of emotional distress (NIED) as a bystander, a plaintiff must be contemporaneously aware that the injury-producing event is causing injury to the victim. A belief that it is 'more likely than not' that a relative was injured is insufficient to satisfy this requirement; the plaintiff must have a reasonable certainty of the injury as it occurs.
Facts:
- Michelle Ra and her husband, Dr. Phil Jae Ra, were shopping together in an Armani Exchange store.
- Ra was in the women's section, while her husband was approximately 10 to 15 feet away in the men's section.
- While facing away from her husband, Ra heard a 'loud bang' coming from the direction where he was located.
- The sound caused Ra to fear for her own safety and that of her husband.
- Immediately after hearing the bang, Ra turned toward the noise and saw her husband with his hand to his head, appearing to be in pain.
- A large overhead store sign had fallen and struck Dr. Ra; however, Ra did not see the sign fall or strike him.
Procedural Posture:
- Dr. Phil Jae Ra and Michelle Ra sued Presidio International Inc. in a state trial court.
- Michelle Ra's complaint included a cause of action for negligent infliction of emotional distress as a bystander.
- Following discovery, Presidio filed a motion for summary adjudication to dismiss the bystander claim.
- The trial court granted Presidio's motion, finding that Ra did not contemporaneously perceive the injury to her husband.
- Ra petitioned the Court of Appeal (an intermediate appellate court) for a writ of mandate to direct the trial court to vacate its order.
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Issue:
For a bystander claim for negligent infliction of emotional distress, does a plaintiff's belief that it was 'more likely than not' that a close relative was being injured satisfy the requirement of being contemporaneously aware that the injury-producing event is causing injury to the victim?
Opinions:
Majority - Perluss, P. J.
No. A plaintiff's belief that it was 'more likely than not' a relative was injured does not satisfy the requirement for contemporaneous awareness in a bystander NIED claim. The court held that under the test established in Thing v. La Chusa, a bystander plaintiff must personally and contemporaneously perceive the injury-producing event and be aware that it is causing injury to the victim. This requires a 'reasonable certainty' of injury, not mere fear or speculation. The court distinguished cases like Krouse and Wilks, where plaintiffs had a near-certainty of injury despite not visually witnessing the impact, from Ra's situation, which involved only a fear that injury was probable. Allowing recovery based on a 'more likely than not' standard would contravene Thing's policy of creating a clear limit on liability and would risk regressing to the 'ever widening circles of liability' the rule was designed to prevent. The court concluded that what Ra experienced at the moment of the bang was legally categorized as fear, not the perception of the infliction of injury, and is therefore not compensable as a bystander claim.
Analysis:
This case significantly clarifies and narrows the 'contemporaneous awareness' prong of the bystander NIED test established in Thing v. La Chusa. The court's holding reinforces that the standard is not subjective fear or probability, but a more objective 'reasonable certainty' that the injury is occurring. This decision makes it more difficult for plaintiffs who do not visually witness the injury-producing impact to succeed on a bystander claim, as they must demonstrate a sensory perception that provides a clear and distinct understanding of the injury as it happens. The ruling solidifies the court's intention to maintain a strict, bright-line rule to limit liability in such cases, prioritizing legal certainty over a more expansive, case-by-case analysis of a bystander's emotional state.
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