Can a Virtual Presence Satisfy the Requirements for Negligent Infliction of Emotional Distress?

While still a student, I wrote what would become my first published law journal article, which was on the topic of negligent infliction of emotional distress (“NIED”). Since then, I have remained fascinated by that particular tort. Part of my fascination derives from the somewhat arbitrary bases used for determining who may and who may not recover under the tort’s bystander standard. The catalyst for today’s discussion is a recent decision out of California that sought to answer the question of whether parents who saw and heard their child physically abused through a livestream nanny cam could recover directly for NIED. As the birthplace of NIED bystander law, it should come as no surprise that California remains on the forefront of developing it in the twenty-first century.

As we have previously discussed, there are a handful of different approaches to NIED utilized throughout the United States. As the doctrine evolved, courts determined that persons who suffered severe emotional distress as a result of having either been directly impacted or having been within the zone of the underlying danger could recover for the emotional shock regardless of whether they suffered any direct physical injury. Eventually, there was a push toward expanding the doctrine further to encompass closely related persons who, though not necessarily within the zone of danger or having suffered a direct physical impact, could recover for the shock of seeing a loved one seriously injured. In our prior discussion, we explained the evolution of the so-called relative bystander standard:

The continued growth in reliance on medical evidence spawned a third approach to emotional distress claims in the 1968 California case Dillon v. Legg. The Supreme Court of California in Dillon created the approach that has come to be known as the Relative Bystander Test for recovery. In addition to the person who was the direct victim of the negligent act, a person who was neither physically impacted nor even within imminent danger of the act could recover under certain circumstances. The Dillon factors were later modified by the Supreme Court of California in the 1989 decision Thing v. La Chusa. After Thing the Relative Bystander Test required a bystander seeking to recover for emotional distress to prove that he or she: (1) is closely related to the direct victim; (2) was present at the scene of the direct victim’s injury and was aware of the injury; and (3) that as a result the plaintiff suffered severe emotional distress.

Indiana adopted a similar approach in the 2000 decision Groves v. Taylor. The rationale for the adoption of the elements from Thing, as the Indiana Supreme Court explained in another opinion, alleviate “concerns of spurious claims and open-ended liability”. One interesting nuance of Indiana’s approach is that it is not actually as rigid as the standard adopted in Thing. Instead, Indiana allows a claim where the plaintiff does not witness the initial injury-causing event, but arrives to witness the aftermath of what has occurred, so long as plaintiff’s arrival exposes him or her to “the uninterrupted flow of events following closely on the heels of the accident.”

As technology changes and the ability to participate in events while not physically present expands, a question arises as to whether one who witnesses remotely what has occurred may meet the requirements for NIED. In 2015, the Indiana Supreme Court brushed up against this issue, but did not have to fully confront it in Clifton v. McCammack. There, a father was watching a local news broadcast when he learned that a fatal collision had occurred that he realized may, and in fact was, involving his son. But the arguments was not that the news broadcast itself was sufficient for the father to bring an NIED claim. Instead, the focus of the decision was whether the father arriving on the scene after having reason to believe that it may have involved his son removed his ability to make the claim. Depending on the degree of the scene shown on the news broadcast, perhaps, an argument could have been made that the vision on the broadcast alone was sufficient. It was not tried, so we do not know.

That takes us now to the new California case Ko v. Maxim Healthcare Services, Inc. There, the parents of a two-year old opened a livestreaming app to a nanny cam on their phone to discover an in-home care worker abusing their child. The parents called the police and drove home to tend to their child. They showed the video to police and the care worker was arrested. As a result of the situation, the parents brought a claim for NIED based on what they witnessed on the livestream, which was dismissed by the trial court. On review, the appellate court, however, reversed and reinstated the claim:

We read the Thing requirement that a plaintiff be “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” in light of the court’s admonition that recovery for NIED must be limited to “plaintiffs who personally and contemporaneously perceive the injury-producing event and its traumatic consequences.” . . .

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Our interpretation of the second requirement in Thing to include virtual presence where there is a contemporaneous perception of the injury-producing event is consistent with allowing recovery for the parents here who observed the abuse of their child as it happened through a livestream feed from their nanny cam but denying recovery if the parents had walked into their home moments after the abuse and observed their injured son. As discussed, the Thing court emphasized that in most cases “[t]he impact of personally observing the injury-producing event . . . distinguishes the plaintiff’s resultant emotional distress from the emotion felt when one learns of the injury or death of a loved one from another, or observes pain and suffering but not the traumatic cause of the injury.”

Maxim argues that “remote surveillance is nothing new, nor is watching events ‘happening live with video and audio,’” and contends that “[i]ncreased convenience does not mean we are any more able to be present in places where our bodies are not than we were in 1989.” Maxim and Manalastas contend that technology allowed live broadcasts decades ago, pointing to the live broadcast of the fatal shooting of Lee Harvey Oswald in 1963, the 1986 televised explosion of the space shuttle Challenger, and the use of closed-circuit television in courtrooms prior to Thing.

But the Supreme Court in 1989 could not have reasonably anticipated the technological advances that now allow parents (and other family members) to have a contemporaneous sensory awareness of an event causing an injury to their child while not in physical proximity to the child. Certainly live television and remote video surveillance existed in 1989, but numerous technological, regulatory, and commercial developments in image capture (such as an Internet-enabled nanny cam), transmission (including the streaming of audiovisual data over the Internet and mobile data networks), and reception (such as on pocket- sized smartphones with high resolution screens) were necessary to create a world where parents could contemporaneously observe their at-home child while attending a basketball game. Indeed, the ubiquity of home surveillance systems and videoconferencing applications since the advent of Internet-enabled smartphones has manifestly changed the manner in which families spend time together and monitor their children.

The reasoning of Ko appears sound in light of California caselaw. Moreover, given Indiana’s already more expansive approach to the circumstantial requirement than that of California, it seems Indiana would likely follow the lead of Ko under similar circumstances. A trickier question is whether Indiana would be how Indiana would handle a delay in recording. For example, what if a person activates his ring door camera a few minutes after the injury causing event only to see a video showing precisely what he would have seen had he activated it a few minutes earlier. Ko signals that California may not provide recovery in that scenario, writing in a footnote, “Likewise, had the Kos observed the abuse of Landon by viewing a recording of the abuse only after it happened, they could not satisfy the requirement of contemporaneous perception of the injury-producing event.” Because Indiana does not require actual contemporaneous observation of the injury-causing event, it would seem Indiana should allow such recovery, provided the would-be plaintiff is not already aware of what had happened, since Indiana “precludes recovery for emotional trauma that arises when a claimant learns of such an incident ‘through indirect means.’”

I am not aware of any cases prior to Ko that have addressed the issue and presume that Ko would have cited such cases if they existed. Standing on the precipice of what may be the next big shift in NIED law, I am compelled to prognosticate how it may impact caselaw in the future. I think most courts that have adopted the relative bystander standard will follow the lead of Ko. Of course, the courts that reject the approach of Dillon and Thing will likely not shift their caselaw simply due to the logic of Ko, but it seems sound reasoning that courts in Indiana and elsewhere would be wise to follow.

Join us again next time for further discussion of developments in the law.

Sources

• Dillon v. Legg, 68 Cal.2d 728 (1968) (Tobriner, J.).
• Thing v. LaChusa, 48 Cal.3d 644, 771 P.2d 814 (1989) (Eagleson, J.).
• Groves v. Taylor, 729 N.E.2d 569 (Ind. 2000) (Sullivan, J.).
• Clifton v. McCammack, 43 N.E.3d 213 (Ind. 2015) (Rush, C.J.).
• Ko v. Maxim Healthcare Serv., Inc., 58 Cal. App. 5th 1144 (2020) (Feuer, J.).
• Colin E. Flora, Special Relationship Bystander Test: A Rational Alternative to the Closely Related Requirement of Negligent Infliction of Emotional Distress for Bystanders, 39 Rutgers L. Rec. 28 (2012)Colin E. Flora, Damages Pt. 4: Damages for Negligently Inflicted Emotional Distress, Hoosier Litig. Blog (May 3, 2012).

*Disclaimer: The author is licensed to practice in the state of Indiana. The information contained above is provided for informational purposes only and should not be construed as legal advice on any subject matter. Laws vary by state and region. Furthermore, the law is constantly changing. Thus, the information above may no longer be accurate at this time. No reader of this content, clients or otherwise, should act or refrain from acting on the basis of any content included herein without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue.