Wilks v. Hom
92 Daily Journal DAR 955, 2 Cal. App. 4th 1264, 3 Cal. Rptr. 2d 803 (1992)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
A plaintiff may recover for negligent infliction of emotional distress (NIED) as a bystander if they are present at the scene of the injury-producing event and their sensory perception makes them contemporaneously aware that a close relative is being injured, even if they do not visually witness the injury as it occurs.
Facts:
- Kimberly Wilks and her three daughters, Janelle, Jessica, and Virginia, lived in a residence rented from George Hom and others.
- After about six months of residency, Wilks's boyfriend, Arthur Ayres, connected a propane stove to the home's previously unused propane system.
- On October 12, 1987, Wilks was in the living room with Janelle while her other daughters, Jessica and Virginia, were in their bedrooms.
- Wilks asked Virginia to unplug a vacuum cleaner cord from a socket located in Virginia's bedroom.
- As Virginia pulled the plug, a massive propane explosion occurred.
- Wilks and Janelle were blown out of the house by the force of the blast.
- Wilks re-entered the burning home to rescue her daughters, finding Jessica severely burned and Virginia fatally injured.
- Virginia died from her injuries several hours later.
Procedural Posture:
- Kimberly Wilks, as an individual and guardian, and Steven Donnelly sued the landlords (appellants) in a trial court for wrongful death and personal injuries.
- A jury found the appellants 85% responsible and awarded damages to the plaintiffs, including damages to Wilks for her emotional distress.
- The landlords (appellants) appealed the judgment to the Court of Appeal, challenging, among other things, the jury instructions that allowed Wilks to recover as a bystander for emotional distress.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does a plaintiff who is present at the scene of an accident and is sensorially aware that the accident is causing injury to a close relative satisfy the 'contemporaneous awareness' requirement for negligent infliction of emotional distress, even if they do not visually witness the injury?
Opinions:
Majority - Froehlich, J.
Yes, a plaintiff who is present at the scene and sensorially aware of the injury-producing event satisfies the contemporaneous awareness requirement. The rule for bystander recovery does not require that the plaintiff visually perceive the infliction of injury. Following the precedent in Krouse v. Graham, which was not disapproved by the clarifying case of Thing v. La Chusa, it is sufficient that the plaintiff was at the scene of the accident and was 'sensorially aware, in some important way, of the accident and the necessarily inflicted injury to her child.' In this case, although Wilks could not see her daughters at the moment of the explosion, she was present, personally experienced the blast, knew exactly where her daughters were, saw a flash emanate from their rooms, and heard a scream. This direct sensory perception made her contemporaneously aware that her children were being injured by the explosion, thus satisfying the requirements for bystander recovery for negligent infliction of emotional distress.
Analysis:
This decision clarifies the 'contemporaneous awareness' prong of the bystander recovery test established in Thing v. La Chusa. By holding that sensory awareness (hearing, feeling) is sufficient without direct visual perception, the court prevents an overly rigid application of the rule. This precedent ensures that plaintiffs who are at the scene and directly experience the trauma of an injury-producing event are not barred from recovery simply because their line of sight was obstructed. The ruling solidifies that the core of the requirement is the plaintiff's immediate, personal, and experiential awareness of the event and its consequences for the victim, not just a visual observation.
