In 1989 the California Supreme Court allowed people to sue for the shock they suffered from seeing a close family member seriously injured by someone else. Now a state appeals court, for the first time, is allowing damage claims by parents who said they saw the frightening events by smartphone.
Since the 1989 ruling, which involved an auto accident, California courts have permitted such suits only by individuals who were present when a close relative was injured or killed. But the Second District Court of Appeal in Los Angeles said it was time for the law to recognize the technology that has made “virtual presence” a reality.
“It is now common for families to experience events as they unfold through the live-streaming of video and audio,” Justice Gail Ruderman Feuer said in a 3-0 ruling Wednesday. Allowing a suit for emotional distress “where a person uses modern technology to contemporaneously perceive an event causing injury to a close family member is consistent with the Supreme Court’s requirements” in the 1989 case, she said.
The case involved a lawsuit by Dyana and Christopher Ko against Thelma Manalastas, a nurse who was the caregiver for the Kos’ severely disabled young son, Landon, and Manalastas’ employer, Maxim Healthcare Services. The couple had installed a “nanny cam,” or closed-circuit camera to monitor the caregiver, and said they were watching and listening in April 2017, while on a trip with their two other children, when Manalastas hit, pinched and violently shook the 2-year-old boy.
The couple said they called the police and rushed home, where they found that their son had been badly injured and later needed to have one of his eyes surgically removed. They said Maxim reassigned Manalastas but kept her as an employee.
Landon died a year later of unrelated causes. His parents are no longer seeking damages for injuries to their son, but are suing for their own emotional distress from seeing and hearing the incident, said Sean Cowdrey, a lawyer for Manalastas.
A Los Angeles County judge dismissed the Kos’ suit because they had not been physically present, but it was reinstated by the appeals court.
When the court limited “bystander” suits in 1989 to close relatives who watched the events in person, the justices “could not have reasonably anticipated the technological advances that now allow parents (and other family members) to have a contemporaneous sensory awareness of an event causing an injury to their child while not in physical proximity to the child,” Feuer said.
She said technology has “changed the manner in which families spend time together and monitor their children.” In order to sue, Feuer said, family members must have “contemporaneous awareness” of the events — watching a video later would not be enough — but in some cases, merely hearing the injuries being inflicted and suffered might also be enough for a suit.
Cowdrey said Manalastas was considering an appeal to the state Supreme Court. Lawyers for the Kos and Maxim could not be reached for comment.
Bob Egelko is a San Francisco Chronicle staff writer. Email: begelko@sfchronicle.com Twitter: @BobEgelko
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December 28, 2020 at 11:12AM
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California court allows lawsuits for emotional distress when events are seen virtually - San Francisco Chronicle
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