Ko v. Maxim Healthcare Services, Inc. (2020) 58 Cal.App.5th 1144

“Virtual Presence” by Real-Time Livestreaming Satisfies the Contemporaneous Presence Requirement for a Bystander NIED Claim

Plaintiffs brought claims for negligence and negligent infliction of emotional distress (NIED), alleging a vocational nurse who worked as an in-home caregiver for plaintiffs’ disabled son abused him while plaintiffs were away. Plaintiffs alleged they witnessed the nurse abusing their son in real time as they watched the livestream of video and audio on their smartphone from a camera in the home. The trial court ruled that plaintiffs could not state a cause of action for NIED as bystanders because they were not physically present when the abuse occurred and thus could not satisfy the requirement of being “present at the scene of the injury-producing event at the time it occurs and . . . then aware that it is causing injury to the victim.” (See Thing v. La Chusa (1989) 48 Cal.3d 644, 688.)

The Court of Appeal reversed, holding that plaintiffs’ “virtual presence” during the abuse through a real-time audiovisual connection satisfied the requirement of contemporaneous presence. The court reasoned that technology for virtual presence has developed dramatically since the Supreme Court decided Thing and it is now common for families to experience events as they unfold through livestreaming of video and audio. “Where plaintiffs allege they were virtually present at the scene of an injury-producing event sufficient for them to have a contemporaneous sensory awareness of the event causing injury to their loved one,” they satisfy the contemporaneous presence requirement for NIED.

The bulletin describing this appellate decision was originally prepared for the California Society for Healthcare Attorneys (CSHA) by H. Thomas Watson and Peder K. Batalden, Horvitz & Levy LLP, and is republished with permission.

For more information regarding this bulletin, please contact H. Thomas Watson, Horvitz & Levy LLP, at 818-995-0800 or htwatson@horvitzlevy.com.