TO: FROM: DATE: RE:
Vinny Pacheco Benno Ashrafi, Section B2 September 22, 2003 Client Calkins: Damages for Negligent Infliction of Emotional Distress
I.
Issue In attending a mutton busting event where he heard his daughter scream for help after
being injured outside the scope of his vision, was Mr. Calkins contemporaneously aware of the injury causing incident and its traumatic consequences, which would allow him to collect damages for negligent infliction of emotional distress. II. Brief Answer
Probably no. A third party plaintiff can collect damages in a case of NIED only if the plaintiff (1) is closely related to the injury victim; (2) is contemporaneously aware of the injury-producing event and its traumatic consequences; and (3) suffers serious emotional distress which is not abnormal. In this case Mr. Calkins satisfies the first element as he is the father of the injury victim. You have also indicated that he satisfies the third element. However, Mr. Calkins does not satisfy the entire second element as he may be able to show his contemporaneous awareness of such event but has little evidence to show his awareness of the traumatic consequences until after the injury occurred. III. Facts Our client Andrew Calkins, (“Calkins”), was vacationing in San Bernardino, California with his six-year-old daughter Cathleen. During the vacation Calkins took his daughter to a popular event at the local stock show known as “Mutton Busing.” Simply put, “Mutton Busting”
gives children an opportunity to participate in the rodeo by riding a wild sheep. Cathleen volunteered to ride a wild sheep in the competition and was involved in an unfortunate accident. The sheep Cathleen was riding ran behind an obstruction where Cathleen fell off with her right foot remaining attached in the stirrup. Cathleen was dragged for about 20 feet and was stepped on repeatedly by the sheep. Eventually her foot worked free and she came to a stop still behind the obstruction. The sheep continued out from behind the obstruction and the audience began laughing. Seconds later the audience began screaming and Mr. Calkins ran onto the floor of the area towards the obstruction. He heard Cathleen call for help and immediately thought something was wrong. He says he became very concerned a few seconds later. The emergency medical team was called in and it has been determined that Cathleen has been severely injured. IV. Discussion In 2002 the Supreme Court of California held that “a plaintiff may recover damages for emotional distress caused by observing the negligently inflicted injury of a third person if, but only if, said plaintiff: (1) is closely related to the injury victim; (2) 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; and (3) as a result suffers serious emotional distress-a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances.” Bird v. Sanz, 28 Cal. 4th 910, 915 (2002). The first element is met because Calkins is the father of the injury victim and you have asked me not to focus on the third element. In analyzing the holdings more carefully, focus will be placed on the second element. The plaintiffs in Bird are in a hospital waiting room while their mother is undergoing a minor operation. When the operation takes longer than expected the plaintiffs become concerned and learn from a doctor that an artery was mistakenly nicked. The court holds that in order to
collect damages for NIED the event must be “contemporaneously understood as causing injury to a close relative.” Id. at 916. They use the word “contemporaneously” to demonstrate that awareness of the event and the injury must be present as the event and injury are taking place. The plaintiffs in Bird did not recover because they were not aware of the injury-producing event, namely the nicking of an artery, at the time it occurred. They learned of the injury-producing event from a doctor after it had already occurred. Id. at 921. In a 1992 California Court of Appeals case, the court concluded “it is not necessary that a plaintiff bystander actually have witnessed the infliction of the injury to her child, provided that the plaintiff was at the scene of the accident and was sensorially aware, in some important way, of the accident and the necessarily inflicted . . .severe damage to the child.” Wilks v. Hom, 2 Cal. App. 4th 1264, 1271 (1992). In this case the plaintiff was awarded damages for NIED even though she did not directly witness the injury to her child. The plaintiff was in an adjacent room when a large explosion nearly demolished the entire house. In this case the plaintiff was aware of the explosion and the severity of damage inflicted to her child as it was happening because she knew where the child was in relation to the blast and was able to experience the magnitude of the blast herself. In the 1991 California case Fife v. Astenius, the court goes further into detail as to the timing of the injury-producing event and awareness of such event and injury. The court states, “Recovery is precluded when a plaintiff perceives an accident but is unaware of injury to a family member until minutes or even seconds later.” Fife v. Astenius, 232 Cal. 3d 1090, 1093 (1991). In this case the plaintiffs were sitting in the family room when they heard a car have a large accident in front of their house. They quickly ran outside to discover their daughter had been severely injured in the accident. Here the court reiterates that both the event/accident and the injury to family member must be perceived as such is taking place, even seconds of lapse will
preclude recovery. The plaintiff must “contemporaneously perceive the injury-producing event and its traumatic consequences.” Id. at 1092. Even though they were aware of an accident at the time it was taking place, the plaintiffs in this case were unable to “recover because they did not know [their daughter] was involved in the accident at the time they heard the collision.” Id. They learned their daughter was involved just seconds later. In sum, California courts award damages to third party plaintiffs in NIED cases only when those plaintiffs were sensorially aware of the injury-producing event and the severity of injury, as such event and injury were taking place. Here, the facts of Calkins case are similar to those of Bird and Fife and distinguishable from those of Wilks. Because he could not see his daughter, Calkins only indication of trouble was his daughter’s calling for help. He says he became very concerned seconds later and actually realized the extent of the injury even later when he reached his daughter. Calkins learned of the injury to his daughter after it took place much like the plaintiffs in Bird learning of the injury to their mother after the injury occurred. Comparing our case to that of Fife, we can see that one of the key components of the second element is missing in each case. The plaintiffs in Fife are aware of a severe injury but don’t learn that their daughter is involved until seconds after the injury. Calkins knows that his daughter is involved in some incident because he hears her call for help, but does not learn of the severe injury until seconds after it had occurred when he reaches his daughter. Like the plaintiffs in Fife, Calkins will most likely be excluded from receiving damages for NIED because of the lack of a key component. Unlike the plaintiff in Wilks, Calkins can not demonstrate his awareness of both the incident and the severe injury caused by the incident until after it had occurred. Calkins says
himself that he became seriously concerned after the injury, and that fact will exclude him from receiving damages for NIED. On the other hand, we may be able to make a case for Calkins by claiming that he misspoke. Upon hearing the cries for help Calkins says he thought something was wrong but meant he thought she was severely injured. Because of the distress Calkins is suffering from, he simply misspoke in setting forth the timeline of his emotions. On balance the court is more likely to rule against Calkins on his claim for NIED because he was not aware of the severity of the injury until after it had occurred. He heard his child call for help and could be fairly certain she fell of the sheep because that is what happens in every case of “Mutton Busting.” However, he did not have any reason to believe his daughter was severely hurt because he could not see her and he says himself that he did not become seriously concerned until after the injury took place. V. Conclusion In order to be awarded damages for NIED our client must show he was aware of the event causing injury to his daughter and the severity of such injury. More importantly our client must show that he was aware of such as they were occurring. Calkins was not able to see his daughter during the injury and his only indication something went wrong was his daughters call for help. Because he was not aware of the severity of the injury, as evidenced by his comments that he became seriously concerned later on, we do not have a prima facie case for NIED. I would recommend doing additional fact finding in order to establish such a claim. If we can show Mr. Calkins was able to gain some awareness or knowledge based on the reactions or signals from those audience members who could see the injury taking place we would have a stronger case.