The Lawletter Vol 46 No 5
The concept of bystander liability was first recognized by American courts in the landmark California case of Dillon v. Legg, 68 Cal. 2d 728, 441 P.2d 912 (1968). Today, most courts allow recovery under this doctrine, also known as negligent infliction of emotional distress ("NIED"). Under this theory of liability, a tortfeasor can sometimes be held liable to a bystander who experiences emotional distress from observing a direct injury to another person. Under Dillon, bystander liability was limited by foreseeability, and courts would take into account such factors as (1) whether the plaintiff was located near the scene of the accident as opposed to a distance away from it; (2) whether the shock resulted from a direct emotional impact upon the plaintiff from the sensory and contemporaneous observance of the accident rather than learning of the accident from others after its occurrence; and (3) whether the plaintiff and the victim were closely related, as contrasted with an absence of any relationship or only a distant relationship.
A recent case from California has greatly expanded the potential scope of bystander liability claims. In Ko v. Maxim Healthcare Services, Inc., 58 Cal. App. 5th 1144, 272 Cal. Rptr. 3d 906 (2020), as modified (Jan. 14, 2021), review denied (Apr. 21, 2021), parents were attending a basketball game when they decided to use a phone application to observe a live-stream audio and video feed from a "nanny cam" located in their home. While watching the nanny cam, they observed their disabled son being abused by a nurse whom they had hired to care for the child. They sued the nurse and her employer for battery, assault, negligence, and NEID. The Ko court traced the evolving history of NEID and concluded that the parents could meet the requirement that a bystander must personally and contemporaneously perceive the injury-producing event and its traumatic consequences. Id. at 1159, 272 Cal. Rptr. 3d at 918-19. The court noted that "the ubiquity of home surveillance systems and videoconferencing applications since the advent of internet-enabled smartphones has manifestly changed the manner in which families spend time together and monitor their children." Id. at 1158, 272 Cal. Rptr. 3d at 917. The court reasoned that the child’s parents "were virtually present through modern technology that streamed the audio and video," id. at 1159, 272 Cal. Rptr. 3d at 919, and so they personally and contemporaneously perceived the injury-producing event and its traumatic consequences.