Defense counsel will see the recently published California Court of Appeal, Second Appellate District, Division Three opinion as a victory for manufacturers of fatally defective products, but the reality is that it is an example of an arbitrary limitation resulting in an inequitable result for a sister who tragically witnessed the grizzly death of her brother due to a defectively manufactured product.

In Barbara Fortman v. Förvaltningsbolaget, the Court upheld the lower court’s summary judgment ruling denying Fortman’s negligent infliction of emotional distress (“NIED”) claim because she did not experience a contemporaneous sensory awareness that the Förvaltningsbolaget’s defective product was the cause of her brother’s death.

It has been well accepted in California that a plaintiff may seek to recover as a bystander for the emotional distress the plaintiff suffered from witnessing tragic injury to another person.  The elements to an NIED cause of action are simple.  A plaintiff may recover damages for emotional distress caused by observing the negligently inflicted injury to a third person if, but only if, the 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.  (Thing v. La Chusa, (1989) 48 Cal.3d 644.)  The Court dismissed Fortman’s NIED claim based on the second element.

On the day of the accident, the decedent was wearing a Catalyst 360 dry suit.  The dry suit came equipped with a low pressure hose that incorporated a small plastic flow-restriction insert that was manufactured by the defendant, Förvaltningsbolaget Insulan AB, doing business as SI Tech.  During their ascent, Fortman put her hand on her brother’s arm, 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 her brother landed on his back with his unresponsive eyes wide open staring into the dark abyss.  It was unclear if Fortman could tell whether her brother was still breathing.  Fortman tilted her brother’s head back as they again began to ascend so that if his airflow were constricted he could breathe with his regulator.  He remained unresponsive during the ascent and approximately half way to the surface, his regulator fell out of his mouth.  Upon arriving to the surface, Fortman summoned help.  Her brother was transported to the USC Hyperbaric Dive Chamber at Two Harbors on Catalina Island where he was pronounced dead.

Fortman testified that she thought her brother had a heart attack.  After an investigation into the incident, Fortman learned that her brother’s equipment malfunctioned.  Her brother’s airflow was restricted due to a defective flow-restriction insert that caused the regulator to fail.

Although the foregoing facts indicate a clear right to assert an NIED claim under Thing, Förvaltningsbolaget escaped NIED liability.  How?, one would ask.  Because Fortman did not know that it was the defective flow-restriction insert that was killing her brother during the ascent.  She thought that he might have had a heart attack.  Therefore, the Court reasoned, Fortman did not “experience a contemporaneous sensory awareness that the company’s defective product was the cause of her brother’s death,” which is a mandatory requirement under Thing.

This is an unjust outcome.  My frustration with the Court’s ruling arises out of the fact that had Fortman fortuitously testified that she thought that her brother’s suffocation was being caused by a failure of Förvaltningsbolaget’s regulator, Fortman most likely would have been allowed to proceed with her NIED claim because it would constitute a “contemporaneous sensory awareness” that the defective product was killing her brother.  Under both scenarios the same grizzly death is caused by a defective product, yet the outcomes would be different.

Even the Court seemed to recognize the unfairness of the ruling:  “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 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 inThing 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.