Fortman v. Förvaltningsbolaget Insulan AB
212 Cal. App. 4th 830
| Cal. Ct. App. | 2013Background
- Fortman witnessed her brother Myers’s scuba death off Catalina Island; she initially believed a heart attack occurred.
- Myers’s regulator had a flow-restriction insert from SI Tech that impeded air supply.
- Investigators later found the insert in the regulator, linked to the injury, though not visible on product schematics.
- Fortman was present at the scene and observed the injury but did not perceive the defect as the cause.
- The trial court granted summary judgment for the company, adopting the view that Fortman lacked contemporaneous understanding of the causal link.
- The court held Thing’s second requirement foreclosed by Fortman’s failure to perceive the product defect as causing the injury.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Can Fortman recover NIED as a bystander under Thing? | Fortman observed the accident and need only observe the event, not its cause. | Fortman cannot establish contemporaneous awareness of the causal link between the product and injury. | No; Fortman cannot satisfy the second Thing requirement; summary judgment affirmed. |
Key Cases Cited
- Thing v. La Chusa, 48 Cal.3d 644 (Cal. 1989) (mandatory three-part bystander NIED test; second requirement—contemporaneous awareness of causation)
- Dillon v. Legg, 68 Cal.2d 728 (Cal. 1968) (duty/foreseeability framework guiding bystander recovery)
- Ochoa v. Superior Court, 39 Cal.3d 159 (Cal. 1985) (contemporaneous awareness anchoring bystander recovery)
- Bird v. Saenz, 28 Cal.4th 910 (Cal. 2002) (limits bystander recovery in medical malpractice cases; contemporaneous perception of negligence vs. harm)
- Golstein v. Superior Court, 223 Cal.App.3d 1415 (Cal. App. 1990) (cont contemporaneous perception essential when injury-producing event cannot be observed)
- Wilks v. Horn, 2 Cal.App.4th 1264 (Cal. App. 1992) (contemporaneous perception of injury required)
- Ortiz v. HPM Corp., 234 Cal.App.3d 178 (Cal. App. 1991) (observed injury-causing event; vaccines second Thing requirement satisfied if causal awareness present)
- Shepard v. Superior Court, 76 Cal.App.3d 16 (Cal. App. 1977) (pre-Thing view allowing bystander NIED against product manufacturers; superseded by Thing)
- In re Air Crash Disaster Near Cerritos, California, 967 F.2d 1421 (9th Cir. 1992) (federal interpretation aligning with California bystander standards)
- Zuniga v. Housing Authority, 41 Cal.App.4th 82 (Cal. App. 1995) (permissive scope for bystander NIED in certain fire scenarios; emphasizes contemporaneous event awareness)