Negligence Case

MEMO

TO:​ Senior Partner

FROM: New Associate

Date: ​ June 25, 2014

RE: ​ Foster v. Sylvan – Assignment #5

File No:​ 6326.78151

ISSUE

​​

1. Does the relationship that Tom Collins (Collins) have with his niece Kathleen Foster

(Foster) which both reside in different residences and a substantial age gap of 17 years be considered to a closely related relationship in order to present a cause of action for bystander negligent infliction of emotional distress (BNEID).

2. Can Tom Collins (Collins) bring a cause of action for bystander negligent infliction of

emotional distress (BNIED) against a driver of a vehicle that struck his niece on her bicycle while Collins was also riding a bicycle but was approximately 20 feet ahead of the incident and 10 seconds further down the road, only hearing a crash occur but contemporaneously unaware of what had occurred?

CONCLUSION

1. No. Collins will not be able to successfully bring a cause of action for bystander negligent infliction of emotional distress as the relationship between (Collins) and (Foster) does not meet the rules of a closely related family member. Courts have held that in order to be considered closely related, the parties must be part of a nuclear family i.e. siblings, parent and child, grandparents, spouses, or there must be specific special circumstance such as an uncle that had raised a victim from childhood and domiciled in the same house.

2. No. Collins will not be able to successfully bring a cause of action for bystander negligent infliction of emotional distress because the instant case lacks the requirement for contemporary awareness of the accident as it happened as Collins heard but did not see the accident occur.

​​​​STATEMENT OF FACTS

On December 24, 2013, Tom Collins (Collins), and his niece Kathleen Foster (Foster) were riding their bikes through the winding roads of “Collins” rural neighborhood in Palo Alto on their way to lunch. As they approached the intersection of Oak Drive and park Way, “Collins” was about 20 feet ahead of “Foster”. Collins made it through the intersection and was just around the next turn when he heard a large crash. He immediately looked behind him but couldn’t see anything. It took him approximately 10 seconds to turn his bike around and ride back to the intersection. It was there that he found “Foster” lying in the road in front of a car. Her right leg had been severed at the knee and she was unconscious. The driver of the car, Dan Sylva (Sylva), admitted that he ran into “Foster” because he had been texting while driving at the time and had not seen her crossing the intersection until it was too late. Although he was not physically harmed in the accident, the event was extremely traumatic for “Collins”. “Foster” is his only niece and they are very close. He has required extreme psychological counseling ever since the incident.

​​​​​ DISCUSSION

I. “Collins” will not be able to have a valid cause of action for “BNIED” because he was not closely related to his niece, and he was not contemporary aware that his niece was struck by a car when riding her bicycle.

In order to recover for “BNIED as a bystander, the plaintiff must prove that (1) the plaintiff is closely related to the injured victim, (2) is contemporaneously aware by his or her sensory mechanism that it is causing injury to the victim when it occurs, (3) and as a result suffers serious emotional distress involving a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances. Ra v. Superior Court of Los Angeles, 154 Cal.App.4th 142 (2007).