An interesting issue of tort liability is presented by Ra v. Superior Court, case no. B19766 (2d Dist. August 15, 2007). The opening paragraph of the opinion does such a good job of framing the issue that I quote it in full here:
In Thing v. La Chusa (1989) 48 Cal.3d 644, 667 (Thing), the Supreme Court held only “closely related percipient witnesses” may seek damages for emotional distress caused by observing the negligently inflicted injury of a third person and specificallylimited recovery to a plaintiff who “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.” (Id. at p. 668.) Does the requirement of contemporary sensory awareness of the causal connection between the negligent conduct and the resulting injury limit recovery on a bystander claim to a plaintiff who clearly and distinctly perceived the injury being inflicted, or is recovery permitted for a plaintiff who was aware a traumatic event was occurring and believed it “more likely than not” her husband had been injured?
Here, the plaintiff did not visually witness the accident. She and her husband were in a store when a sign fell on his head. They were in different parts of the store when she heard a loud crash coming from the area of the store where she knew him to be.
The defendant moved for summary adjudication of the bystander claim on the ground that these facts do not satisfy the prerequisites of Thing. The court granted the motion over plaintiff’s argument that her belief that it was “more probable than not” that her husband had been injured presented a triable issue of fact.
The court denies the writ, finding plaintiff’s belief in her husband’s probable injury is insufficient to satisfy Thing. Bystanders found to have standing in previous cases despite their lack of visual perception of the accident had a “reasonable certainty” of injury to a close relation because of the nature of their perception, or came upon the scene while the injurious event was still in progress. Here, plaintiff had only a “more-likely-than-not fear” that her husband had been injured.
Note that this issue was decided on a writ petition, when it could have been appealed from a subsequent final judgment in the action. Apparently, the court felt this issue was of such importance that deciding it on a writ petition was appropriate.
The case also contains two lessons about writ practice. First, even though only plaintiff’s bystander claim was summarily adjudicated, her husband was a proper party to the petition for writ of mandate because his loss of consortium claim was dependent on the bystander claim, thus satisfying the requirement that he be “beneficially interested” in the order.
Second, even though the court applied de novo review to the summary adjudication motion, it did not reach one of plaintiff’s argument made in opposition to the motion because she did not raise it in her petition. Counsel cannot count on de novo review to reach every issue raised below. If you want the court to consider it, put it in the petition.