You probably remember from law school the development of the law related to claims by bystanders for emotional distress at witnessing someone else suffer an injury. It originated in California with the famous case of Dillon v. Legg in which a mother saw a car hit one of her daughters. In that case, the mother was not within the so-called zone of danger and would not have recovered under the applicable doctrine at the time, but the court adopted a new approach to the question. Under the new approach, a bystander outside the zone of danger could support a claim if she could show that she had a close personal relationship with the victim, that she had a contemporaneous sensory observance of the accident and that she was present at the scene of the accident.
Since that case was decided, the new approach was slowly adopted by a small majority of jurisdictions and law professors like me have explored the different possible consequences of its application by creating hypos involving all sorts of complicated scenarios. In one of my hypos, for example, I ask the students, what if the mother is watching the Olympics on TV and witnesses an accident to the daughter on TV
Some jurisdictions have also explored different variations of the scenario. For example, some have decided cases explaining how this type of claim should be decided if the plaintiff is away from the scene of the accident and only hears about it from someone else who witnesses it, or if the plaintiff does not see the accident, but sees its aftermath, or if the plaintiff does not see the accident but hears it, and so on.
I am writing about this today because I just saw an article in the ABA Journal reporting that a new case in California has finally decided one of the typical law school hypos: what if the plaintiff is not at the scene but has a contemporaneous sensory observance of it by "technology."
In this new case, the court held that a mother who heard her daughter’s car crash while giving her directions by cellphone has a right to recover. The case is called Downey v City of Riverside, and you can read it here.
In my opinion, the decision is not surprising. Granted the plaintiff was not "present at the scene" as originally required by Dillon v Legg, but I always thought that the element of having a contemporaneous sensory observance would become more important if the technology involved could at least provide some support for a feeling of "presence" at the scene. In the end, however, it seems that the trajectory of the doctrine is heading toward minimizing the need for presence at the scene as long as the element of a contemporaneous sensory observance is strong.
As always, it is interesting to see how the common law expands and contracts as time goes on and it will be interesting to see where the courts go from here.
