Key Decisions

February 2013- Bystander Could Not Recover For NIED

(filed under: Key Decisions Archive | February 22, 2013)

Bystander Could Not Recover For NIED

Fortman v. Förvaltningsbolaget Insulan AB
(Cal. Ct. of App., 2d Dist.), filed January 10, 2013 


Barbara Fortman and her brother, Robert Myers, were scuba diving.  A few minutes into the dive, Myers signaled to Fortman that he wanted to ascend.  Fortman put her hand on Myers’ arm when they began their ascent, but she realized that despite kicking they were no longer ascending.  Fortman stopped kicking, and they sank to the bottom of the ocean floor where Myers landed on his back.  Myers’ eyes were wide open, but he was not responsive.  It was unclear whether Myers was still breathing.

Fortman then began to ascend with Myers, but Myers remained unresponsive during the ascent and approximately half way to the surface, Myers’ regulator fell out of his mouth.  Upon arriving to the surface, Fortman summoned help.  Myers was transported to the USC Hyperbaric Dive Chamber at Two Harbors on Catalina Island where he was pronounced dead.

Fortman thought Myers had a heart attack.  After an investigation into the incident, Fortman learned that her brother’s equipment malfunctioned due to a defect in one of the valves.

Fortman sued the manufacturer of the valve for negligent infliction of emotional distress.  It responded by filing a motion for summary judgment.  In its motion, the manufacturer argued that Fortman had no viable claim against it because she could not establish a contemporaneous awareness of the causal connection between the injury-producing event and the resulting injury.  The manufacturer maintained that while Fortman may have seen her brother suffer injuries, she could not have perceived that he was being injured by a defect in its product.

The trial court granted the motion.


The Court of Appeal affirmed.

Negligently causing emotional distress is not an independent tort; it is the tort of negligence to which traditional elements of duty, breach of duty, causation, and damages apply.  When emotional distress is the only injury a plaintiff alleges, the courts have determined that whether the plaintiff may recover emotional distress damages depends upon whether the defendant owes a duty to the plaintiff.

In terms of whether a defendant owes a bystander a duty of care, the California Supreme Court has ruled 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.”

Fortman was present when the valve failed, but was unaware of the failure or that it caused the injury.  Therefore, she did not satisfy the second requirement for maintaining an action for negligent infliction of emotional distress as a bystander.

Although the court ruled that Fortman could not state a cause of action under the particular circumstances, it was still possible for a bystander to state a cause of action for negligent infliction of emotional distress when an injury is the result of a defective product.  As examples, the court described a person present at a backyard barbecue who observed a propane tank connected to the barbecue explode and injure a close relative, and a person who observed a ladder collapse and injure a close relative.  It reasoned that “[s]uch accidents would not be beyond the plaintiff’s contemporaneous, understanding awareness of the event (i.e., product failure) inflicting harm to the victim.”  It reasoned “the plaintiff need not know the cause of the propane tank explosion or why the ladder collapsed. . . .  But the plaintiff must have a contemporaneous awareness of the causal connection between the defendant’s product as causing harm and the resulting injury to the close relative.”


The court’s ruling turned on a distinction other decisions have recognized. Nonetheless, the court did not seem to be happy with the result, commenting:

As we have stated, under the current state of the law, Fortman cannot recover for NIED.  But merely because the law denies compensation for Fortman’s injury, it does not mean her emotional injury is any less grievous than that of a plaintiff who is allowed to obtain legal redress.  To be sure, personally observing a loved one suffer injuries that result in his death can be emotionally devastating, irrespective of whether one is contemporaneously aware of the precise etiology of the loved one’s death.  Nonetheless, Thing [v. La Chusa (1989) 48 Cal.3d 644] drew a line by limiting the class of potential plaintiffs in NIED cases, precluding recovery when the bystander lacks contemporaneous awareness of the injury-producing event.  The Supreme Court in Thing admittedly created an arbitrary restriction on bystander recovery, stating “drawing arbitrary lines is unavoidable if we are to limit liability and establish meaningful rules for application by litigants and lower courts.”  Unless and until the Supreme Court revisits Thing, it is binding on this court.