Scherr v. Hilton Hotels

California Court of Appeal · Torts

TortsNegligent infliction of emotional distressBystander liabilitynegligent infliction of emotional distressNIEDbystanderDillon v. Leggcontemporaneous perception

Facts

While in Los Angeles, Karen Scherr watched live television news coverage of a fire at the Las Vegas Hilton Hotel. Her husband, Victor Scherr, was a guest there and suffered physical injuries in the fire. Karen alleged negligent infliction of emotional distress based on her viewing of the fire as a bystander. Her pleading did not allege that the broadcast showed her husband being injured or explain how and when she learned of his condition.

Issue

Can a spouse state a bystander claim for negligent infliction of emotional distress when she contemporaneously watches a live television broadcast of the accident scene but does not actually and contemporaneously perceive the infliction of injury on her husband?

Rule

Under Dillon v. Legg as applied here, bystander recovery for negligent infliction of emotional distress depends on close relationship, proximity, and direct emotional impact from sensory and contemporaneous observance of the accident, but the decisive requirement is contemporaneous perception of the infliction of injury on the closely related victim. Perception of mere danger or endangerment, without witnessing or otherwise percipiently apprehending the injury as it occurs, is insufficient.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Phoenix, Lena Ortiz was at home watching a live local news feed of a warehouse collapse at Desert Mesa Logistics, where her adult son Mateo was working the night shift. The footage showed smoke, sirens, and workers running out, but it never showed Mateo or anyone being struck. Two hours later, Lena learned Mateo had suffered a crushed leg inside the building.

If Lena sues Desert Mesa Logistics for negligent infliction of emotional distress as a bystander, which is the strongest argument against her claim under the governing rule?

Explanation. The controlling rule requires contemporaneous perception of the infliction of injury on a closely related person, not merely awareness that the person is in danger. Even if the live feed made Lena’s observation sensory and contemporaneous as to the collapse itself, the footage never showed Mateo being injured and did not otherwise permit her to percipiently apprehend his injury as it occurred. The majority opinion treated the medium of television as secondary and rejected recovery where the plaintiff knew only that a loved one was somewhere in danger. (Derived from Scherr v. Hilton Hotels (n.d.).)