Negligent Infliction of Emotional Distress in the Zoom-era

 On December 23, 2020, the Second District Court of Appeal issued a contemporary view of claims alleging Negligent Infliction of Emotional Distress. In the last year, society has witnessed the evolution of stay-at-home to work-from-home environment which further demands electronic devices take a necessary role in the contemporary person's life. The electronic communications immediacy, reliability, and verifiability have become more weighty in our lives and in jurisprudence as well.

Landon Ko was born with Rubinstein-Taybi Syndrome which impacted his vision, ambulation, hearing, development and nutrition. His Parents, Diana and Christopher Ko, received assistance from medical providers who cared for Landon at their home. Maxim Healthcare Services, Inc. through Thelma Manalastas provided care for Landon at home. Landon's parents, as contemporaries of useful technologies, owned a nanny cam which surveyed the home while they were away. One day while the parents took their other two children to a game, Diana turned on the nanny cam application on her phone and witnessed as the supposed caregiver assaulted Landon. Diana and Christopher called the police, drove home, showed the video to the police and Thelma Manalastas was arrested. Landon lost his eye, and suffered tremendously from the injuries inflicted by Manalastas.

Kos as plaintiffs filed suit alleging assault, battery, negligence, and negligent infliction of emotional distress. The defendant caregiver organization demurred to the complaint seeking to strike the allegations for pain and suffering and demurring to the causes of action for negligent infliction of emotional distress. Manalastas demurred on the same grounds and against the negligence cause of action. 

The trial court sustained the demurrers as long-standing California case law has required a cause of action by a third party for negligent infliction of emotional distress witnessing a close relative injured by the acts of another, require a contemporary observance of the cause and effect of the injury to the relative. No California court had previously described a situation in which a person witnesses their close relative being injured via a live-streaming application.

The Second District comprehensively reviewed cases in California concerning Negligent Infliction of Emotional Distress cases, their history, and evolution in California jurisprudence, including, Dillon v. Legg (1968) 68 Cal.2d 728, Thing v. La Chusa (1989) 48 Cal.3d 644, Ochoa v. Superior Court (1985) 39 Cal.3d 159, Archibald v. Braverman (1969) 275 Cal.App.2d 253, Nazaroff v. Superior Court (1978) 80 Cal.App.3d 553, Wilks v. Hom (1992) 2 Cal.App.4th 1264. All of which discussed the second factor stated in Thing which requires the claimant "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." (Thing, supra, 48 Cal.3d at pp. 667-668.)

The Second District further relied on a series of cases which have stated the importance, relatedness, closeness, and appendix-role technology plays today, including in the context of unlawful search and seizure, (Riley v. California (2014) 573 U.S. 373, 385; Kyllo v. U.S. (2001) 533 U.S. 27, 40; U.S. v. Jones (2012) 565 U.S. 400, 404) in the context of family law visitation orders and move-away orders, (J.M. v. G.H. (2014) 227 Cal.App.4th 925, 939, In re Marriage of Lasich (2002) 99 Cal.App.4th 702, 711). 

Finally, the court held, "Where plaintiffs allege they were virtually present at the scene of an injury-producing event sufficient for them to have a contemporaneous sensory awareness of the event causing injury to their loved one, they satisfy the second Thing requirement to state a cause of action for NIED." 

The case is, Ko v. Maxim Healthcare Services, Inc. (Dec. 23, 2020 B293672) ___ Cal.App.5th __, which is available at <https://www.courts.ca.gov/opinions/documents/B293672.PDF>

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