A Change to the Bystander NIED Claim

On July 22, 2024, the California Supreme Court ruled in Downey v. City of Riverside (2024) 16 Cal.5th 539, that a bystander may assert a claim for Negligent Infliction of Emotional Distress (“NIED”) for a traumatic event heard through the phone. In a unanimous 7-0 opinion, the Court held that a bystander could “witness” an accident by hearing it, even if the bystander was not physically present and was unaware of the defendant’s role in causing the victim’s injury at the time of the incident.

Ordinarily, to establish a bystander claim for negligent infliction of emotional distress (NIED) in California, the plaintiff must demonstrate the following prima facie elements: (1) a close relationship with an injured party; (2) the plaintiff was present at the scene; (3) the plaintiff was aware of the injury; (4) the plaintiff suffered severe emotional distress; (5) Defendant's conduct caused the plaintiff’s emotional distress. Thing v. La Chusa (1989) 48 Cal.3d 644, 647.

The plaintiff must have been present at the scene of the injury or death, or in its immediate aftermath. The plaintiff must have been aware that the event was causing injury or death to the victim.

In Downey v. City of Riverside the California Supreme Court made a substantial change to the requirement that the plaintiffs was physically present at the scene, and the requirement that the plaintiff understand the defendant’s conduct in relation to the cause
of the injury.

Jayde Downey was giving driving directions to her daughter over cell phone when her daughter was severely injured in a car crash. Downey heard metal crashing against metal, glass shattering, and tires dragging on asphalt — from which she knew immediately that her daughter had been in a car accident. Downey also alleged that she understood that her daughter was seriously injured because she could no longer hear her after the crash and a stranger who rushed to the scene told her to quiet down so that he could find a pulse.

The Court clarified that “[f]or purposes of clearing the awareness threshold for emotional distress recovery, it is awareness of an event that is injuring the victim — not awareness of the defendant's role in causing the injury — that matters.” Downey, supra, 16 Cal.5th
at ___. On a case by case basis this could prove to be in favor of the bystander.