In Thing v. La Chusa the California Supreme Court has held that a plaintiff “may recover damages for emotional distress caused by observing the negligently inflicted injury of a third person if, but only if, said 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.”
May a sister recover as a bystander for the emotional distress she suffered when she witnessed the tragic death of her brother while they were scuba diving when she erroneously believed at the time of the incident that her brother had a heart attack – but later learned her brother’s death was caused by a defective regulator?
No. Thing requires a contemporaneous perception of what caused the injury. Since plaintiff sister did not meaningfully comprehend that a defective product caused the injury, she cannot satisfy the second Thing requirement. Fortman v. Förvaltningsbolaget Insulan AB.