Bystander Actions: Did Plaintiff Really See The Incident?

Author: Janice Walshok

It is not uncommon for Plaintiffs to allege a bystander action alongside a personal injury action. Why not get more bang for your buck if you’re filing a lawsuit anyway? However, recent case law has signaled the court’s attempt to limit the recovery of damages for intangible harms, such as emotional distress, caused by unintentional conduct.

Under a bystander action, a plaintiff can only recover if: (a) the plaintiff was located in close proximity to the scene of the accident, (b) the plaintiff’s distress resulted from a “sensory and contemporaneous observance” of the accident, and (c) the plaintiff was closely related to the victim. (Dillon v. Legg (1968) 68 Cal.2d 728, 741.) Since Thing v. La Chusa, it is now well established in California that physical presence and personal awareness are essential requirements to sustain a bystander cause of action. (Thing v. La Chusa (1989) 48 Cal.3d 644, 668.) Specifically, the bystander must experience a contemporaneous sensory awareness of the causal connection between the defendant’s infliction of harm and the injuries suffered by the close relative. (Fortman v. Förvaltningsbolaget Insulan AB (2013) 212 Cal.App.4th 830, 836.)

The Second Appellate District in Fortman drew a hard line limiting the class of potential plaintiffs in bystander cases and reaffirmed the significance of the “sensory and contemporaneous observance” requirement for bystanders. There, a sister and brother were scuba diving together when the brother sank to the bottom of the ocean floor. The sister observed that her brother’s eyes were wide open, but noticed that he was not responsive. (Fortman v. Forvaltningsbolaget Insulan AB (2013) 212 Cal.App.4th 830, 833.) The sister ascended her brother to the surface and summoned help. The brother was later pronounced dead. The sister thought her brother had suffered a heart attack. However, an investigation revealed that the brother’s scuba diving equipment malfunctioned. (Fortman, supra, 212 Cal.App.4th at p. 833.)

The sister sued the manufacturer of the scuba diving equipment for negligent infliction of emotional distress. The trial court granted the manufacturer’s motion for summary judgment even though the sister observed her brother die because she was not aware of what caused the injury. The sister thought her brother had suffered a heart attack; she did not contemporaneously perceive his injuries were being caused by the company’s defective product. (Id. at p. 834.) The Court of Appeal affirmed the summary judgment.

In short, a bystander who does not know the cause of the victim’s injuries at the time they occur, but who later finds out the cause of the victim’s injuries, cannot recover damages under a bystander action. Keeping this in mind early in the litigation can help craft a discovery plan to uncover evidence that may lead to an early disposition of the case. For example, asking a bystander plaintiff at a deposition whether he heard the loud “boom” before seeing the collision may provide evidence to attack the bystander claim. This is because someone who hears the accident but does not know it is causing injury to a relative will not have a viable bystander claim, even if the missing knowledge is acquired moments later. (See e.g., Fife v. Astenius (1991) 232 Cal.App.3d 1090 [holding no viable claim for negligent infliction of emotional distress when parents and brothers of an accident victim heard a crash, saw debris fly above the wall separating their yard from the street, and ran outside to find their injured relative still inside the damaged vehicle.].) Asking the bystander plaintiff about any witnesses who may have alerted the bystander of the accident may reveal that the bystander plaintiff did not actually observe the accident until seconds later. Even if the evidence is not enough to succeed on a summary judgment motion, it may provide enough to leverage a reasonable pre-trial resolution.

ABOUT THE AUTHOR: Janice Walshok is an associate at Tyson & Mendes LLP. She has experience with conducting civil jury trials and specializes in insurance bad faith, premises liability, and high net worth insurance issues. Contact Janice at 858.263.4121 or

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