TO: FROM: DATE: RE: I. Issue
Vinny Pacheco Benno Ashrafi, Section B2 September 22, 2003 Client Calkins: Damages for Negligent Infliction of Emotional Distress
In attending a mutton busting event where his daughter was injured outside the scope of his vision, did Mr. Calkins contemporaneously perceive 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. For a third party plaintiff to collect damages in a case of NIED he must have been contemporaneously aware of the injury-producing event and its traumatic consequences while such event was taking place. In this case Mr. Calkins 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. The event is open to any child between the ages of 5 & 6 weighing less than 50 pounds. Cathleen volunteered to ride a wild sheep in the competition and was outfitted for doing so by an organizer of the event, Jennifer Ganda, (“Jennifer”).
On the day of the event Jennifer loaded Cathleen onto the sheep at around 11:00 AM. The Sheep was equipped with a small, child-sized saddle on which Cathleen sat with her feet secured into the stirrups. As the sheep charged out of the chute it ran behind a large playhouse located in the northwest corner of the arena that is roughly 10 feet high X 30 feet wide X by 10 feet deep. While behind the playhouse Cathleen fell off the sheep but her right foot remained 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 playhouse. The sheep continued on out the other side and into the center of the arena. The emergency medical team was called in and it has been determined that Cathleen has been severely injured. Sharon Wright, (“Sharon”), was present directly below Calkins on the southern portion of the arena and had a similar vantage point as our client. Sharon saw the sheep run behind the playhouse and a few seconds later saw the sheep run out the other side with no child aboard. She then heard audience members laugh and a few seconds later heard people screaming as it had become evident an abnormal accident had occurred. She then saw Calkins break away from the audience screaming that he heard his daughter yell “Help! Daddy!” and that she was no longer on the sheep. Calkins could not be calmed and ran towards the playhouse to find his daughter 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). In analyzing the holdings more carefully, focus will be placed on the second element. 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 Bird the California Supreme Court makes two key elaborations on the second element of NIED. The court holds that vision is not the only means of “awareness”, the injury-producing event may be perceived by “other senses so long as the event is contemporaneously understood as causing injury to a close relative.” Id. at 916. They also 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 similarly 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 along with 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). 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. 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. Calkins had no indication of the injury taking place until seconds after the injury when his daughter screamed for help. 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, but does not learn of the severe injury until seconds after
it had occurred. 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. On the other hand, we may be able to show some president for awarding damages to “plaintiffs who had seen the immediate aftereffects of injury-producing events, but not the events themselves.” Bird at 916. Such awards had been permitted in previous cases of Archibald and Nazaroff but later courts have specifically disapproved of those holdings. Wilks at 1270. On balance the court is more likely to rule against Calkins on his claim for NIED because there is a lack of evidence showing that Calkins was aware of the severe injury inflicted to his daughter until after the injury had taken 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 that a severe injury was caused. More importantly our client must show that he was aware of such as they were occurring. The facts laid out before us do not show a prima facie case for NIED and I would not recommend pursuing the case with the limited information we have. I would recommend doing additional fact finding in order to establish such a claim. In every mutton busting event the child does fall off the sheep, we must find some information which would lead the court to believe that Mr. Calkins was aware of the severe injury being caused to his daughter while it was occurring. Based on the diagrams it appears some audience members were able to see the nature of the injury as it was occurring. If we can show that Mr. Calkins was able to gain some awareness or knowledge based on the reactions or signals from those audience members we would have a stronger case.