58 Cal.App.5th 1144
Cal. Ct. App.2020Background
- Landon, a two-year-old with severe disabilities, was cared for at home by Thelma Manalastas, a Maxim employee. Plaintiffs Dyana and Christopher Ko watched a nanny-cam livestream on Dyana’s smartphone while away from home.
- The Kos allege they witnessed in real time via livestream audio and video that Manalastas physically assaulted Landon; they called 911, police viewed the video, and Manalastas was arrested.
- The Kos sued for battery, assault, negligence, and negligent infliction of emotional distress (NIED); after Landon’s death the Kos repleaded survivor and individual claims and filed a third amended complaint.
- The trial court sustained demurrers by Maxim and Manalastas to the Kos’ NIED claim without leave to amend, reasoning Thing v. La Chusa requires physical presence at the scene; the court also sustained Manalastas’s demurrer to the Kos’ negligence claim.
- On appeal the Court of Appeal held contemporaneous virtual observation via livestream can satisfy Thing’s presence/awareness requirement for a bystander NIED claim, reversed the dismissal of the NIED claim, and remanded for further proceedings; it affirmed dismissal of the negligence claim against Manalastas.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether contemporaneous virtual observation (livestream audio/video) satisfies Thing’s requirement that a bystander be "present at the scene . . . and then aware" of the injury-producing event | Virtual presence via real‑time audiovisual transmission is functionally equivalent to physical presence and thus meets Thing’s contemporaneous perception requirement | Thing requires physical proximity/presence; virtual observation does not satisfy the "present at the scene" element | The court held virtual contemporaneous sensory perception via livestream can satisfy Thing’s second requirement when the plaintiff personally and contemporaneously perceives the injury-producing event and its traumatic consequences. |
| Whether the trial court properly sustained demurrers to the NIED claim without leave to amend | Kos argued the complaint, as pleaded, alleged contemporaneous virtual perception and thus states an NIED claim; amendment could not cure a rule-based bar | Defendants argued existing precedent forecloses recovery absent physical presence and demurrers were proper without leave | The court found the demurrers were wrongly sustained without leave as to the NIED cause of action, reversed that part of the judgment, and remanded with directions to overrule the demurrers to the NIED claim. |
| Whether Manalastas owed a duty to the Kos for a negligence claim (parents’ separate negligence claim) | (Not pursued on appeal) | Manalastas argued no duty to parents; negligence claim merged into NIED | The court affirmed the trial court’s dismissal of the Kos’ negligence claim against Manalastas (plaintiffs forfeited/abandoned this issue on appeal). |
Key Cases Cited
- Thing v. La Chusa, 48 Cal.3d 644 (Cal. 1989) (adopted bright‑line rule for bystander NIED: close relationship, presence at the scene with contemporaneous awareness, and serious emotional distress)
- Dillon v. Legg, 68 Cal.2d 728 (Cal. 1968) (recognized bystander NIED and articulated foreseeability factors later narrowed by Thing)
- Krouse v. Graham, 19 Cal.3d 59 (Cal. 1977) (held contemporaneous perception need not require direct visual perception of impact)
- Ochoa v. Superior Court, 39 Cal.3d 159 (Cal. 1985) (permitted recovery where plaintiff observed defendant’s conduct and injury over time with contemporaneous awareness)
- Bird v. Saenz, 28 Cal.4th 910 (Cal. 2002) (interpreted Thing’s presence requirement; sensory perception required but not necessarily visual impact)
- Wilks v. Hom, 2 Cal.App.4th 1264 (Cal. Ct. App. 1992) (found sensory awareness from an explosion sufficient for contemporaneous perception)
- Ra v. Superior Court, 154 Cal.App.4th 142 (Cal. Ct. App. 2007) (holding mere hearing of a crash without contemporaneous awareness of injury insufficient for Thing)
- Fortman v. Förvaltningsbolaget Insulan AB, 212 Cal.App.4th 830 (Cal. Ct. App. 2013) (reiterated that plaintiff must have contemporaneous sensory awareness of causal connection between defendant’s conduct and relative’s injury)