Negligent Infliction of Emotional Distress Satisfied by Virtual Presence

In a reflection of the realities of advanced technology, the California Court of Appeal in Ko, et al. v. Maxim Healthcare Services, Inc. (2020) 58 Cal.App.5th 1144, held that the virtual presence at the time of an injury-producing incident satisfies the California Supreme Court’s physical presence requirement for negligent infliction of emotional distress (“NIED”) claims.

In Thing v. La Chusa (1989) 48 Cal.3d 644, the California Supreme Court held that in the absence of physical injury or impact to the plaintiff, damages for emotional distress are 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 by a disinterested witness.

In Ko, the plaintiffs were the parents of three children. Their youngest child, Landon, was born with a severe disability. The Kos worked outside of the home and contracted with Maxim Healthcare Services (“Maxim”) to provide an in-home health care aide to care for Landon when they were at work or elsewhere. On April 22, 2017, the Kos took their two older children to a youth basketball tournament. During the tournament, Mrs. Ko opened a phone application that allowed her to live-stream video and audio from her home which was shot in real time on a “nanny cam.” The Kos then watched, in real time, as the health care aide physically abused their son.

The Kos filed a lawsuit alleging, among other causes of action, NIED. The trial court granted Maxim’s demurrer to the NIED cause of action, citing the Thing requirement of being physically present at the scene of the injury-producing event. The Kos appealed, arguing that virtual presence is a type of contemporaneous presence when the incident is viewed over a live stream. The Court of Appeal agreed with the Kos, and found that the second factor in Thing allowed NIED claims when the plaintiff is not physically present but has a contemporaneous perception of the injury producing event.

Ko is a logical interpretation of the Thing requirements in light of the ability to observe events remotely and in real time. The Kos were virtually present though modern technology that streamed audio and video which allowed them to watch the physical abuse of their son in real time. Thus, they “personally and contemporaneously perceived the injury producing event and its traumatic consequences” as required by Thing.

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