Products Liability: Negligent Infliction of Emotional Distress

Posted in Products Liability on May 16, 2013

Fortman v. Förvaltningsbolaget Insulan AB, (Second District, January 10, 2013) 212 Cal.App.4th 830, 151 Cal.Rptr.3d 320, 13 Cal. Daily Op. Serv. 437, 2013 Daily Journal D.A.R. 441

A woman who suffered severe emotional distress when she witnessed her brother drown while they were scuba diving together, filed a products liability action against the manufacturer of a component in the scuba gear known as a flow restriction insert. Asserting a claim for negligent infliction of emotional distress, the plaintiff alleged that the plastic component had become lodged in the decedent’s regulator during the dive, and had prevented him from getting enough air to breathe while underwater.

The defendant moved for summary judgment, contending that because the plaintiff believed at the time of the accident that her brother was having a heart attack, and that she was unaware that his injury was being caused by a defective product until after a subsequent investigation, her claim did not meet the requirement of Thing v. LaChusa (1989) 48 Cal.3d 644 that she be contemporaneously aware of what caused the injury. The trial court granted summary judgment and the court of appeal affirmed, holding that in a products liability action asserting a claim for negligent infliction of emotional distress “the plaintiff must have a contemporaneous awareness of the causal connection between the defendant’s product as causing harm and the resulting injury”:

“To satisfy the second Thing requirement, Fortman must be “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.” (Thing, supra, 48 Cal.3d at pp. 667–668, 257 Cal.Rptr. 865, 771 P.2d 814) The cause of Myers’s injury, or the “injury-producing event,” was the company’s defective product that constricted Myers’s ability to breathe underwater through his regulator. . . . It is undisputed that Fortman did not have a contemporaneous, understanding awareness that the company’s defective product was causing her brother’s injury. In fact, Fortman thought that her brother’s injury was caused by a heart attack.
. . .
To hold product manufacturers strictly liable for emotional distress based on the bystander’s perception of injuries caused by an unobservable product-related event would not be a choice of one policy over another. Rather, it would ignore the limits the Supreme Court has placed on bystander recovery.
. . .
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 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. (Thing, supra, 48 Cal.3d at pp. 667–668, 257 Cal.Rptr. 865, 771 P.2d 814) 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.” (Id. at p. 666, 257 Cal.Rptr. 865, 771 P.2d 814) Unless and until the Supreme Court revisits Thing, it is binding on this court.”