Souza v. City of Antioch4/30/1997
2 Cal. App. 3d 1090, 284 Cal. Rptr. 16 (Fife), the parents and brothers of Meghan Fife sued Jennifer Astenius, who was driving the truck in which Meghan was riding when it collided with another car. The accident happened on the street directly behind Meghan's house. Her family members heard the crash and saw debris fly above a wall separating their yard from the street, but they did not know Meghan was involved in the accident until seconds later, when Meghan's father and brothers climbed the wall and found her still inside the truck. The Court of Appeal affirmed the trial court's grant of summary judgment in Astenius's favor, explaining, "recovery for NIED is possible only if a plaintiff is present at the scene of an accident and is then aware a family member is being injured. Recovery is precluded when a plaintiff perceives an accident but is unaware of injury to a family member until minutes or even seconds later. Therefore, the Fifes, even if considered present at the scene, cannot recover because they did not know Meghan was involved in the accident at the time they heard the collision." (Fife, (supra) , 232 Cal. App. 3d at p. 1093, fn. omitted.)
In contrast, the Court of Appeal reversed a judgment of nonsuit in Ortiz v. HPM Corp. (1991) 234 Cal. App. 3d 178, 285 Cal. Rptr. 728 (Ortiz). There, Mrs. Ortiz came upon her husband, bleeding, caught in a machine at the factory where they both worked. "In this case," the court noted, "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 observes an injury-producing event in progress. The limitation, instead, excludes those plaintiffs who come upon the scene after the event, and whose observation is solely of the consequences of the occurrence. (See, e.g., Hathaway v. Superior Court (1980) 112 Cal. App. 3d 728, 169 Cal. Rptr. 435, where recovery was denied to parents who came upon their child one minute after he received an electrical charge, since they observed only the dreadful consequences of the accident, not the accident itself; and Parsons v. Superior Court (1978) 81 Cal. App. 3d 506, 146 Cal. Rptr. 495, where recovery was denied to a mother and father who, while driving in the same direction as their daughters, came upon the wreckage of their daughters' car 'before the dust had settled' and found their mangled bodies, already dead or dying.)" (Ortiz, (supra) , 234 Cal. App. 3d at p. 185.)
In Wilks v. Hom (1992) 2 Cal. App. 4th 1264 (Wilks), a mother was allowed to recover against the landlord of a residence where an explosion occurred, killing one of her children. Mrs. Wilks had called to her seven-year-old daughter, Virginia, to pull the vacuum cleaner plug from the socket in Virginia's bedroom. As Virginia pulled the plug, there was an immediate explosion in her bedroom, which blew Wilks out of the house. Although Wilks did not see or hear her daughter being injured, the court allowed recovery because under the circumstances, she "had to have known at the time of the explosion that [Virginia was] experiencing injury." ( Id., 2 Cal. App. 4th at 1273.)
Similarly, in In re Air Crash Disaster Near Cerritos, Cal. (1992) 967 F.2d 1421 (Air Crash Disaster), the Ninth Circuit interpreted California law to allow recovery to a widow whose house was destroyed by fire after a jetliner crashed into it. When the plaintiff left her home to buy provisions at a nearby store, her husband was reading the newspaper in the living room, and her three children were still in bed. Returning home from the store, she saw, heard, and felt a big explosi
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