A California couple that filed an emotional distress lawsuit after allegedly seeing their two-year-old special needs son being abused by a vocational nurse are being given another hearing due to a ruling by the California Court of Appeals.
Dyana and Christopher Ko brought claims of negligence and negligent infliction of emotional distress after watching nanny cam footage in real time that they alleged showed Thelma Manalastas – who was employed through Maxim Healthcare Services – abusing their son, according to court documents. The Kos were not in the home at the time, and witnessed audio and video of the event on Dyana Ko’s cell phone.
Yet, the suit was initially dismissed by the trial court based on California law that individuals have to be physically present to witness an event in order to claim negligent infliction of emotional distress, according to court documents. Judge Gail Ruderman Feuer of the Second District Court of Appeal wrote the opinion, holding that the Kos met the requirement through a virtual presence.
“In the three decades since the Supreme Court decided Thing, technology for virtual presence has developed dramatically, such that it is now common for families to experience events as they unfold through the livestreaming of video and audio,” Feuer wrote. “Recognition of an NIED claim where a person uses modern technology to contemporaneously perceive an event causing injury to a close family member is consistent with the Supreme Court’s requirements for NIED liability and the court’s desire to establish a bright-line test for bystander recovery.”
Heidi M. Cheng, with the Law Offices of Steven P. Chang, told the Southern California Record said the ruling follows existing precedent, but also establishes that virtual presence can be the same as physical presence.
“What is significant is that the court is recognizing that the purpose and intent of the presence requirement is that presence allows the contemporaneous awareness of the injury producing event, and that given the advancements of modern technology since Thing v. LaChusa, this element can and should now be established through virtual presence,” Cheng told the Record.