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Court of Appeal, Second District, Division 3, California.

Kevin CHEN et al., Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; PRUDENTIAL HOMES CORPORATION, et al.

No. B106956.

Decided: April 10, 1997

Steven A. Lerman and Barry I. Dunn, for Petitioner. No appearance by Respondent. Haight, Brown & Bonesteel, Thomas N. Charchut, Santa Monica, Mark S. Lester, Riverside, and Michael S. Kelly, for Real Parties in Interest.

Petitioners and plaintiffs Julie and Kevin Chen, and Jeffrey Chen, a minor, suing by and through his guardian ad litem Kevin Chen (“petitioners”), have petitioned for a writ of mandate directing the trial court to vacate its order granting a summary adjudication of issues to defendants and real parties in interest Prudential Homes Corporation, Prudential Residential Services Limited Partnership and Prudential Relocation Management (hereafter for convenience referred to as “respondents”).   The order was granted after the trial court determined that petitioners' cause of action against defendants for negligent infliction of emotional distress had no basis in law.   The principal question with which we are confronted is whether plaintiff bystanders may recover for emotional distress suffered as the result of an injury to a loved family member due to an accident not seen by them but which occurred in their presence and of which they were aware through other senses.

We issued an alternative writ of mandate to the trial court and stayed proceedings in the action in order to consider that question.   Upon review of the facts of the case and the controlling authority, we conclude that the required bystander perception and presence may be established through senses other than the visual.   We therefore find the summary adjudication in respondents' favor was improperly granted.   We grant petitioners' petition for a peremptory writ of mandate and direct the trial court to vacate its order granting summary adjudication of issues and to enter an order denying that motion.


The facts of this case are both straightforward and tragic.   On April 30, 1995, petitioners Julie Chen and Kevin Chen took their children Lucy Chen, and the minor petitioner Jeffrey Chen, to a house which the parent petitioners had purchased from respondents.   Kevin Chen's parents were also there.   The family was waiting for escrow to close and had gone to the house to take measurements for carpeting.   While the parents were at the house with their two young children (Lucy was three years old at the time and Jeffrey was nine) an unsecured, heavy “center island”/storage cabinet in the kitchen tipped over on Lucy and crushed her.   The family lifted the island off of Lucy and she began bleeding from her mouth.   The family gave first aid and called 911.   Deputy sheriffs rushed Lucy to the hospital.   Despite extensive medical efforts, Lucy died as a result of her injuries.

None of the petitioners actually saw the center island fall on Lucy. At the precise moment it happened, Lucy, Jeffrey and Kevin Chen's parents (or perhaps just his mother) were in the kitchen.   Julie and Kevin Chen were in rooms bordering the kitchen;  Julie was in the dining room and Kevin was in the living room.   It is not clear if there is a full wall between the kitchen and dining room.   When Julie and Kevin heard the crashing noise, they immediately ran to the kitchen.

Petitioners sued respondents, the sellers of the house and others for wrongful death and negligent infliction of emotional distress.   The trial court, in ruling on respondents' motion for summary adjudication of the negligent infliction of emotional distress cause of action, ruled that petitioners had no such cause of action because none of them had actually witnessed Lucy's injury and death.1  By that, the court meant that none of the petitioners had seen the center island fall on Lucy, nor were they actually aware, at the precise moment when they heard the crash, that Lucy was actually being crushed.

Thereafter, petitioners filed a petition for writ relief and we issued an alternative writ and stay order on November 14, 1996 and set the matter for hearing.


 In Thing v. La Chusa, supra, 48 Cal.3d 644, 257 Cal.Rptr. 865, 771 P.2d 814, the court addressed those situations where a bystander witnesses another's injury and suffers emotional distress because of the incident.   The court analyzed various previous cases involving bystander emotional distress claims, and concluded that the situations in which the bystander could recover on a cause of action for the negligent infliction of emotional distress should be limited.

The Supreme Court stated that “In the absence of physical injury or impact to the plaintiff himself, damages for emotional distress should be recoverable 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 emotional distress beyond that which would be anticipated in a disinterested witness.”  (Id. at p. 647, 257 Cal.Rptr. 865, 771 P.2d 814.)   The Thing court quoted from its earlier decision in Ochoa v. Superior Court (1985) 39 Cal.3d 159, 216 Cal.Rptr. 661, 703 P.2d 1.

“Ochoa v. Superior Court [at p. 165, footnote 6, 216 Cal.Rptr. 661, 703 P.2d 1], offers additional guidance, justifying what we acknowledge must be arbitrary lines to similarly limit the class of potential plaintiffs if emotional injury absent physical harm is to continue to be a recoverable item of damages in a negligence action.   The impact of personally observing the injury-producing event in most, although concededly not all, cases distinguishes the plaintiff's resultant emotional distress from the emotion felt when one learns of the injury or death of a loved one from another, or observes pain and suffering but not the traumatic cause of the injury.   Greater certainty and a more reasonable limit on the exposure to liability for negligent conduct is possible by limiting the right to recover for negligently caused emotional distress to plaintiffs who personally and contemporaneously perceive the injury-producing event and its traumatic consequences.”  (Thing v. La Chusa, supra, 48 Cal.3d at p. 666, 257 Cal.Rptr. 865, 771 P.2d 814, fn. omitted, italics added.)

The portion of footnote 6 from Ochoa, which the Thing court favorably mentioned (and quoted in its own footnote 9) states:  “[A] distinction between distress caused by personal observation of the injury and by hearing of the tragedy from another is justified because compensation should be limited to abnormal life experiences which cause emotional distress.   While receiving news that a loved one has been injured or has died may cause emotional distress, it is the type of experience for which in a general way one is prepared, an experience which is common.   By contrast few persons are forced to witness the death or injury of a loved one or to suddenly come upon the scene without warning in situations where tortious conduct is involved.”   (Ochoa v. Superior Court (l985) 39 Cal.3d 159, 165, fn. 6, 216 Cal.Rptr. 661, 703 P.2d 1.) The Thing court concluded:  “The elements which justify and simultaneously limit an award of damages for emotional distress caused by awareness of the negligent infliction of injury to a close relative are those noted in Ochoa-the traumatic emotional effect on the plaintiff who contemporaneously observes both the event or conduct that causes serious injury to a close relative and the injury itself.”  (Thing v. LaChusa, supra, 48 Cal.3d at p. 667, 257 Cal.Rptr. 865, 771 P.2d 814;  italics added.)

We thus see that the Thing court was concerned with limiting damages for the negligent infliction of emotional distress to those situations where a person who is closely related to the victim,2 contemporaneously observes or perceives the disturbing event and the painful consequences (injury or death) to the victim.   However, nowhere does the court state that the initial few seconds of the injury-causing event must be witnessed visually.3  Indeed, the court, in setting out the facts of the case before it, specifically stated that the plaintiff in that case “neither saw nor heard the accident” in which her minor son was injured.   Rather, she “became aware of the injury to her son when told by a daughter that [her son] had been struck by a car.”  (Thing v. La Chusa, supra, 48 Cal.3d at p. 647, 257 Cal.Rptr. 865, 771 P.2d 814.)   The court determined the mother could not state a cause of action for negligent infliction of emotional distress.

The Thing court used the verbs “observe” and “perceive” in expressing the desired connection between the injury and the plaintiff's awareness of it.   The Random House Compact Unabridged Dictionary (Special 2d ed. 1996) page l338 first defines the word “observe” as follows:  “to see, watch, perceive, or notice.”   One can observe and perceive by more than one sense.   One can hear the event, as petitioners' evidence shows occurred in the instant case.   Petitioners presented evidence that they heard the crash of the center island and then ran to see Lucy under it.   Such evidence would support a compelling inference that they reached the scene of their daughter's injury within a very few seconds.

This is clearly not the situation which Ochoa and Thing held would not support a cause of action for negligent infliction of emotional distress, to wit, learning of the injury or death from another, or observing the pain and suffering but not the traumatic cause of the injury.   Here, petitioners heard the crash in the house, then within seconds they saw the center island on top of Lucy, and they saw the consequences to her of the accident.   At the same moment that Lucy's parents heard the crash in the house, they were aware that their two small children were in that same house (Kevin Chen testified at his deposition that he saw Lucy go into the kitchen one or two minutes before the accident and did not see her come out).   Their “perception” of their daughter's injury must necessarily include their immediate mental association of those two circumstances, i.e., hearing the crash and being aware of the proximity of their children to the crash.   Clearly their reaction to the noise would include immediate fear for their children's well-being.

In addition, this case is similar to Ortiz v. HPM Corp. (1991) 234 Cal.App.3d 178, 285 Cal.Rptr. 728, where a husband and wife worked at a certain company.   Husband was a foreman, and was responsible for production and for keeping plastic injection molding machines running.   Wife was a machine operator.   One day the wife noticed that machine number 11 had stopped working and went to tell her husband, who was at machine 12.   Wife observed that her husband “was inside the mold area” of that machine and was “pressed between the cylinder and a stationary part of the machine;  the machine was still running.   Blood was dripping down his arm and his body was limp.”   Husband was eventually freed, but he had suffered serious injuries.   Applying Thing to the facts of the case, the Ortiz court reversed a nonsuit granted against wife.   The court stated:  “In this case, as in Ochoa, the injury-producing event continued for a period of time, and the plaintiff personally observed the event while it still was occurring.   We do not believe that the bright line drawn in Thing v. La Chusa was intended to deny recovery to a plaintiff who personally observed an injury-producing event in progress.”  (Id. at p. 185, 285 Cal.Rptr. 728.)   The court rejected the defendant's contention that if oxygen deprivation was the permanent injury suffered by husband, wife could not have perceived it and thus could not bring herself within Thing.   The court stated:  “[Wife] saw the occurrence which caused her husband's injury, and she was fully aware that he was being injured.”  (Id. at p. 186, 285 Cal.Rptr. 728.)   Thus, the court concluded the jury could find “that the injury-producing event was still occurring at the time [wife] discovered [husband] trapped in the machine, and that she was then aware that it was causing injury to him, so as to meet the contemporaneous observation requirement for a claim of negligent infliction of emotional distress.”  (Ibid.)

We find no reason to not apply that “ongoing injury-producing event” analysis to this case in petitioners' favor.  Thing requires the plaintiff to show that he or she was present when the injury-causing event occurred and knew it was causing injury.   Here, within the span of a few seconds, the petitioners heard the crash, knew Lucy could be in danger, and then actually saw Lucy under the weight of the island counter.   There is no evidence, nor is there any reason to infer, that they did not know she was suffering injury.   Indeed, the opposite inference is compelling.

Further, as we have emphasized, petitioners had auditory perception of the very beginning of the injury.   Can anyone doubt that a parent who hears such a crash in the house and knows his or her child is about will naturally be concerned that the child may be harmed?   Here, petitioners' visual perception was within seconds of their auditory perception.   We reject respondents' assertion that Ortiz is distinguishable on the fact that in Ortiz the damaging machine was still running when the wife observed her husband whereas here, “the fallen counter had come to place of rest [and the] plaintiffs saw only the injurious consequences of the occurrence for which the law does not permit a recovery.”   The Ortiz court noted that when the wife found her husband, “The machine was still running at that time;  its pressure system was on, and it was exerting pressure on Mr. Ortiz, particularly across his chest.”   Here, the counter was still on top of Lucy when petitioners discovered her, exerting pressure on her.   This is not like a situation where a defectively installed door closes on a child's hand, the child is able to open it and the parent later comes upon the scene and sees the child's bruised and bloody hand.

We do not believe that Fife v. Astenius (1991) 232 Cal.App.3d 1090, 284 Cal.Rptr. 16, so heavily relied upon by respondents, controls this case.   There, the parents and brothers of a vehicle crash victim heard the crash and saw debris flying.   The father and brothers immediately went out to the street to see the accident and upon doing so, discovered their family member was a victim in the crash.   Then they informed the mother.   The Fife court ruled these facts did not satisfy Thing's requirement that the plaintiff in a cause of action for negligent infliction of emotional distress be “present at the scene of the injury-producing event at the time it occurs and [be] then aware that it is causing injury to the victim.”  (Thing v. La Chusa, supra, 48 Cal.3d at p. 647, 257 Cal.Rptr. 865, 771 P.2d 814.)   The court stated that even if the plaintiffs could be considered to be present at the scene, they could not recover because they did not know their family member was involved in the accident when they heard the collision.  Fife is distinguishable on its facts.   There, the plaintiffs had no reason to know that a family member might be injured in the accident.   Further, by the time they discovered that she was, the accident was over.   Here, petitioners had every reason to believe that a child who was roaming about in the house might be injured.4  Further, the injury producing event-the presence of the heavy center island on top of Lucy-was ongoing.

 Under Ochoa and Thing an emotional distress recovery may be allowed for a “bystander” plaintiff's personal and contemporaneous perception of the “injury producing event and its traumatic consequences.”  (Thing, supra, 48 Cal.3d at p. 666, 257 Cal.Rptr. 865, 771 P.2d 814.)   However, it is not necessary that such perception must be solely visual.   Other senses and circumstances may combine to establish the “presence” of the bystander plaintiff.   The record before us reflects that the petitioners did indeed experience and suffer a contemporaneous perception of their daughter's fatal injury.   They were “there” in every real sense of that word.


The alternative writ is discharged.   The peremptory writ is granted.   The stay order heretofore issued will be lifted upon issuance of the remittitur by this court.   The matter is remanded to the trial court with directions to vacate its order granting respondents' motion for summary adjudication, to enter an order denying that motion, and to conduct further proceedings not inconsistent with the views expressed herein.   Petitioners shall recover their costs in this writ proceeding.


1.   The trial court had a difficult time with this case, but finally concluded that plaintiffs' showing did not meet the requirements spelled out by the Supreme Court in Thing v. La Chusa (1989) 48 Cal.3d 644, 257 Cal.Rptr. 865, 771 P.2d 814.   The trial court explained its ruling in the following terms:  “As I struggled with this, certainly, it has tremendous emotional appeal.   It's very tempting to be result-oriented and to say these people that came in when the dust hadn't even settled yet, it was only moments, it was so close, why not let them have this additional remedy against the defendants.  [¶] But the problem is that we must apply the law and we must do so evenly and not with regard to the ultimate results so much as whether the facts that apply here justify it under the circumstances.  [¶] What I mean by the ultimate result is not for emotional reasons.   You make a very emotional argument, and emotionally I think we all agree with you and we say, wait a minute, any parent who has to struggle with this and then loses the child and has-is never going to be able to put the bloody scene out of their minds, that parent ought to be able to recover.   I can't disagree with that․  [¶]․  The facts are not there to satisfy the element that's set forth in Thing versus La Chusa, at least until such time as the Supreme Court wants to expand it or finesse it a little bit more.   And maybe this is the case they are going to do it with.  [¶] But, otherwise, I see no difference between this and a collision where the parents run out within seconds, the tires are still spinning down the road, and within seconds they see that their father was in this accident.  [¶] And the courts say, no, I am sorry, you do not come within the circle of those to whom any duty is owed, even though it's certainly predictable that the family members who see their loved one bleeding and dying before their very eyes are going to suffer tremendous emotional trauma.”

2.   The Thing court stated that, “In most cases no justification exists for permitting recovery for [negligent infliction of emotional distress] by persons who are only distantly related to the injury victim.   Absent exceptional circumstances, recovery should be limited to relatives residing in the same household, or parents, siblings, children, and grandparents of the victim.”  (Thing v. La Chusa, supra, 48 Cal.3d at p. 668, fn. 10, 257 Cal.Rptr. 865, 771 P.2d 814.)

3.   Are we to believe that blind persons are generally foreclosed from suing for negligent infliction of emotional distress when their loved ones are injured by the negligence of another?

4.   Respondents argue that the evidence in this case does not demonstrate the same level of certainty and contemporary awareness reflected in the cases of Wilks v. Hom (1992) 2 Cal.App.4th 1264, 3 Cal.Rptr.2d 803 and In Re Air Crash Disaster Near Cerritos, California v. Estrada (9th Cir.1992) 967 F.2d 1421.   We disagree.   Indeed, respondents' argument really amounts to nothing more than a quibble about the real significance of the slight factual difference between those cases and this one.   In Wilks, a mother was present in the house when an explosion in her daughter's bedroom resulted in injury to the daughter.   Although not an “eyewitness” to the injury, the likelihood of injury was high.   As the court said, the mother “was most evidently present at the scene of the accident, was personally impressed by the explosion at the same instant damage was done to her child, and instantly knew of the likely severe damage to the child.”  (2 Cal.App.4th at p. 1271, 3 Cal.Rptr.2d 803;  italics added.)   In Estrada, a mother returned from a trip to the store to find her home engulfed in flames as the result of an airplane crash.   When she had left for the store her husband was still in his pajamas and her children still in bed.   The likelihood of injury to her family was quite high and she was a contemporaneous observer of its continuing nature.   Whatever factual distinction may be made between these cases and the one before us, it does not demonstrate a meaningful difference with respect to the plaintiffs' contemporaneous appreciation of the high likelihood of serious injury to their child.

CROSKEY, Associate Justice.

KLEIN, P.J., and KITCHING, J., concur.