Can a mother who heard the injury of her daughter occur over a cell phone sustain a cause of action for negligent infliction of emotional distress against not only the driver causing the injury, but also against the City and homeowner for allegedly allowing a dangerous conditions that plaintiffs claim contributed to the crash? In Downey v. City of Riverside (2023) 90 Cal.App.5th 1033, the court found that liability for negligent infliction of emotional distress cannot be imposed for the consequences of allegedly harmful conduct when she was neither present at the scene of the accident nor did she have knowledge at the time of the accident of the connection between the defendants’ alleged negligent conduct and her daughter’s injuries. Although the court noted that Downey potentially had perceived the incident through the cell phone, she did not successfully establish a causal connection between the alleged dangerous condition and the emotional damages she suffered as a result of the accident.

Background Facts

Vance Downey was traveling eastbound on Via Zapata and proceeding into the intersection of Via Zapata and Canyon Crest Drive in Riverside, California, when her car was hit by another vehicle driven by Evan Martin. At the time, her mother, Jayda Downey, had been giving her directions via phone and led her to the intersection where the crash occurred. Vance was seriously injured in the crash. The City of Riverside owned, managed, supervised, controlled, and/or maintained Canyon Crest Drive, which was at or near the intersection of Via Zapata. The Sevacherians owned, managed, supervised, controlled and/or maintained the property adjacent to the intersection.

At the time the accident occurred, Downey was on the phone with Vance. Downey heard Vance's reaction as the crash occurred and the sound of metal-on-metal as well as the shattering glass, skidding tires and loud explosive sounds that normally accompany a serious car accident. Downey immediately knew from what she heard over the phone that her daughter had been involved in the crash. After the sounds stopped, Vance went silent and Downey knew she must be injured. She immediately left her office and drove to the intersection she knew Vance had entered at the time of the crash. After several attempts to talk to her daughter on the phone with no response, Downey finally heard a male voice come on the line. He told her that he "got a breath" out of her daughter and asked her to call 911.

Downey and Vance later brought a claim against the City of Riverside and Martin alleging that the intersection posed a dangerous condition. They also claimed negligence, and negligent infliction of emotional distress. The basis of their case was that the City "created or permitted to exist, a dangerous condition of public property." They alleged that the combination of these conditions along with the road design and posted speed limit created a dangerous condition that contributed to the crash. Vance and Downey also claimed that the City knew of numerous other collisions that had occurred in the area before this one occurred.

The Plaintiffs later filed a second amended complaint and added the Sevacherians as parties. They lived adjacent to the location of the accident. Plaintiffs alleged that their failure to trim vegetation and trees on their property obstructed the view of drivers on the adjacent streets and played a part in causing the crash.

Negligent Infliction of Emotional Distress

The negligent infliction of emotional distress is a sub category of the tort of negligence. Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072. Thus, in determining whether negligent infliction of emotional distress has occurred, courts will examine the elements of negligence- duty, breach, cause, and injury- to determine if the tort occurred. Id. The California Supreme Court has attempted to put a limit on the class of potential plaintiffs who can recover under a theory of negligent emotional distress due to the potential wide- swath of individuals who could potentially be included in these types of claims. It accomplished this by establishing three mandatory requirements to successfully prove a claim for negligent infliction of emotional distress. "A plaintiff may recover damages for emotional distress caused by observing the negligently inflicted injury if said plaintiff is:

  • "Closely related to the injury victim
  • 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
  • As a result suffers serious emotional distress, a reaction beyond which would be anticipated in a disinterested witness and which is not an abnormal result to the circumstances." Bird at p.915; quoting Thing v. La Chusa (1989) 48 Cal,3d 644, 667-668.

Similar to the Bird case, the element at issue in this case is the second requirement. In the Thing case, the court found that,

"Where a plaintiff mother became aware that a car accident injured her minor child only when someone told her it had occurred, and she rushed to the scene to see her child injured and subconscious on the road…. under these facts, the plaintiff could not satisfy the requirement of having been present at the scene of the injury-producing event at the time it occurred and of having then been aware that it was causing injury to the victim." Bird used the Thing ruling to support its finding that the negligent actor should not be liable to "all persons who may have suffered emotional distress on viewing or learning about the injurious consequences of his conduct rather than on viewing the injury-producing event, itself." Id. at 916.

That said, the requirement that the plaintiff be contemporaneously aware of the event has not always been interpreted to mean that they had to actually see the victim as the injury occurred. "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." Thing at 916. "On the other hand, someone who hears an accident but does not then know it is causing injury to a relative does not have a viable claim for negligent infliction of emotional distress, even if the knowledge is acquired minutes later." Bird at 917. Thus the plaintiff must have a contemporaneous sensory awareness of the injury-producing episode and be aware that the victim was being injury at the time of the episode.

In Downey, the Plaintiff argued that it was foreseeable that the "dangerous condition" posed by the roadway and the overgrown shrubbery would result in an accident and subsequent injury. However, the decision in Delta Farms v. Superior Court (1983) 33 Cal.3d 699, on which the plaintiff relied, made clear that "foreseeability was not an adequate test to determine the right to recover for the negligent causing of an intangible injury." Thing also made clear that foreseeability was not an adequate test to determine the right to recover for the negligent causing of an intangible injury: “It is apparent that reliance on foreseeability of injury alone in finding a duty, and thus a right to recover, is not adequate when the damage sought are for an intangible injury." Recovery for negligent emotional distress must be limited. Even if Delta Farms still governed the question presented here, the Government Code definition of injury on which Delta Farms relies provides that an intangible injury is compensable only if it “is of a kind that the law would redress if it were inflicted by a private person.” (Delta Farms, supra, 33 Cal.3d at p. 711, italics added; see also Government Code section 810.8 [defining “injury”].) Thus, the relevant statutes currently in place, incorporate the limitations on liability for negligent infliction of emotional distress put in place by clear precedential rulings on this topic.

Downey's Claim Fails

Downey argues that the basis of her claim for negligent infliction of emotional distress is that she was contemporaneously present at the scene since she was on the phone with Vance and was aware of the injury-producing event while it was occurring. Second, she claims that "contemporaneous awareness of a casual connection between defendants' tortious misconduct and a victim's physical injuries is not an element of bystander negligent infliction of emotional distress claim arising from a motor vehicle collision."

The court agreed with Downey on the first point and determined that she did hear the accident while it was occurring and therefore was present at the moment of the crash, even if only via the phone. She also understood in those moments that her daughter was so seriously injured that she could not speak. The court was not convinced, however, that Downey's negligent infliction of emotional distress claims applied to the Sevacherians or the City because of a dangerous condition. Downey claimed that the Sevacherians failure to maintain their property caused the dangerous condition on the driveway that ultimately contributed to and/or caused her daughter's accident. The court could not find that the Downey's allegations establish Downey contemporaneously or meaningfully understood the causal connection between the defendants’ harmful conduct—their alleged deficient traffic signals/markings or insufficient landscaping—and Vance’s injury. There is no evidence that Downey was aware of any peril caused by the a dangerous condition at or near that intersection, or that the Sevacherian's landscaping somehow contributed to the occurrence of the accident before the event occurred. Even if the claimed dangerous conditions were visible and obvious, Downey was not physically present at the scene to observe them. The court concluded that in order to prevail on her action, Downey was required to show that she had a "contemporaneous sensory awareness of the casual connection between the defendant's negligent conduct and the resulting injury." Bird, supra, 28 Cal.4th at p. 918.

With that said, the court was careful to note that this conclusion does not mean that all cases for negligent infliction of emotional distress against a government entity or property owner stemming from a dangerous condition could never prevail. It is possible that a dangerous condition was so obvious and observable that it may produce a sufficient casual connection. However, that was not the case under the current facts. Therefore, Downey's claim failed.

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