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Negligent Infliction of Emotional Distress and Modern Technology

A recent case, Ko v. Maxim Healthcare Services, Inc. (Dec. 23, 2020, No. B293672) ___Cal.App.5th___ [2020 Cal. App. LEXIS 1222, touches on Negligent Infliction of Emotional Distress and how this type of claim may be evolving in the modern era.

Thing v. La Chusa, (1989) 48 Cal. 3d 644, is the governing case for NIED claims and held:

[A] plaintiff may recover damages for emotional distress caused by observing [a] negligently inflicted injury of a third person if, but only if, said plaintiff:

(1)          is closely related to the injury victim;

(2)          is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim; and

(3)          as a result suffers serious emotional distress—a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances.

It is the second of these elements that is the center of the new case, Ko v. Maxim Healthcare Services, Inc. (supra).

Dyana and Christopher Ko (The “Kos”) had a two-year-old son, Landon, with a genetic disorder which required him to have a feeding tube and require constant care and supervision.  Whenever the Kos were unavailable to be present with their son (e.g. while at work), they hired Maxim Healthcare Services, Inc. to provide them with an in-home healthcare provider.  In April of 2017, the Kos took their two older children to a youth basketball tournament.  During the tournament, Mrs. Ko used an app on her phone to view Landon at home with the healthcare provider via a “nanny cam.”  To her horror, she witnessed, in real time, Maxim’s nurse hitting, slapping, pinching, and shaking Landon.  She immediately called the police and gave them a copy of the video of the abuse.  Maxim reassigned the offending nurse but did not fire her.

As a result of the abuse, Landon had one of his eyes surgically removed and required treatment for other physical injuries – he ultimately passed away the following year.

The Kos filed suit against Maxim, alleging claims for battery, assault, and negligence on behalf of Landon.  The Kos also brough a claim for NIED for themselves, having witnessed the abuse via nanny cam.

Among other things, Maxim filed a demurrer to and motion to strike the cause of action for NIED, arguing that the Kos could not allege an NIED claim because they were not “present at the scene of the injury producing event at the time it occurs” – the second element in the Thing v. La Chusa (supra) analysis.  The Superior Court in Los Angeles agreed and granted the demurrer, without leave to amend.  The Kos appealed this ruling.

On appeal the Kos contended that their “virtual presence” during Landon’s abuse through a real-time audiovisual connection satisfies the requirement in Thing of contemporaneous presence.  The Appellate Court agreed, holding that, in the three decades since the Supreme Court decided Thing v. La Chusa (supra), technology for virtual presence has developed dramatically, such that it is now common for families to experience events as they unfold through the livestreaming of video and audio.  Recognition of an NIED claim where a person uses modern technology to contemporaneously perceive an event causing injury to a close family member is consistent with the Supreme Court’s requirements for NIED liability and the court’s desire to establish a bright-line test for bystander recovery.

The decision was reversed and remanded to the trial court.

If you or a loved one believe you have a case for negligent infliction of emotional distress, don’t hesitate to call Heiting & Irwin at (951) 682-6400 for a free consultation.

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