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Barbara Fortman v. Forvaltningsbolaget Insulan Ab

January 10, 2013


APPEAL from a judgment of the Superior Court of Los Angeles County, Roy L. Paul, Judge. (Los Angeles County Super. Ct. No. NC043615)

The opinion of the court was delivered by: Aldrich, J.



Barbara Fortman seeks to recover as a bystander for the emotional distress she suffered when she witnessed the tragic death of her brother Robert Myers while they were scuba diving off the coast of Catalina Island. At the time of the accident, Fortman thought her brother had a heart attack. She later learned that a plastic flow-restriction insert manufactured by defendant Forvaltningsbolaget Insulan AB, doing business as SI Tech (the company), had become lodged in Myers's second stage regulator preventing him from getting enough air to breathe while underwater.

In Thing v. La Chusa (1989) 48 Cal.3d 644 (Thing), the Supreme Court established three mandatory requirements to state a claim for negligent infliction of emotional distress (NIED) under the bystander theory of recovery. Our focus is on the second Thing requirement, that is, the plaintiff must be "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." (Id. at pp. 667-668.) This tort was developed and refined in traffic accident cases in which recovery was limited to those plaintiffs who were present and contemporaneously perceived the causal connection between the accident and the injuries suffered by a close relative. We must determine whether bystander recovery for NIED is barred when Fortman could not experience a contemporaneous sensory awareness that the company's defective product was the cause of her brother's injuries.

We are bound by the limits to bystander recovery that the Supreme Court has articulated in Thing, which requires a contemporaneous perception of what caused the injury. When, as here, Fortman witnessed the injury, but did not meaningfully comprehend that the company's defective product caused the injury, she cannot satisfy the second Thing requirement. Accordingly, as a matter of law, Fortman does not have a viable NIED claim. The trial court properly granted the company's motion for summary judgment.


1. The Day of the Accident

On the day of the scuba-diving accident, Myers was wearing a Catalyst 360 dry suit. The dry suit came equipped with a low pressure hose that incorporated a small plastic flow-restriction insert. The company manufactured the hose and insert.

A few minutes into the dive, Myers signaled to Fortman that he wanted to ascend. Fortman put her hand on Myers's arm when they began their ascent, but she realized that despite kicking, they were no longer ascending. Fortman stopped kicking, and they sank to the bottom of the ocean floor where Myers landed on his back. Myers's eyes were wide open, but he was not responsive. Fortman is unclear whether Myers was still breathing. Fortman testified: "I didn't even know to look to see whether he's breathing. I mean, it didn't occur - - it didn't - - I didn't allow myself to think that there was really something wrong with him. I don't think he was still breathing."

Fortman tilted Myers's head back as they again began to ascend so that if his air flow were constricted he could breathe with his regulator. Myers remained unresponsive during the ascent and approximately half way to the surface, Myers's regulator fell out of his mouth. Upon arriving to the surface, Fortman summoned help. Myers was transported to the USC Hyperbaric Dive Chamber at Two Harbors on Catalina Island where he was pronounced dead.

Fortman testified that she thought Myers had a heart attack. After an investigation into the incident, Fortman learned that her brother's equipment malfunctioned.

2. The Investigation

The Los Angeles County Sheriff's Department investigated the scuba-diving accident. The investigators collected Myers's scuba gear. The second stage of the regulator was examined by technicians who found a black cylindrical-shaped object, known as a "flow restriction insert," in the regulator that did not appear on any of the product schematics. According to the investigation report, the flow-restriction insert was in a location "that would appear to restrict normal airflow." The insert came from the company's low-pressure dry suit hose. Investigators determined the flow-restriction insert caused the regulator to fail.


1. Complaint Seeking Bystander Recovery for Emotional Distress

Fortman and Myers's heirs filed suit. Fortman sought to recover emotional distress damages, alleging that while her "brother was being fatally injured by defendants' defective and unsafe products . . . [she] was present at the time and place of the occurrences described herein, and contemporaneously observed, witnessed, and saw that her brother's eyes bulged out of his head and that he was unresponsive to her signals, and perceived that her brother had stopped breathing and was being fatally injured by said products."

2. Motion for Summary Judgment

The company filed a motion for summary judgment, contending that Fortman could not establish a contemporaneous awareness of the causal connection between the injury-producing event and the resulting injury. The company maintained that while Fortman may have seen her brother suffer injuries, she could not have perceived that he was being injured by the company's product.

In response, Fortman conceded that she could not perceive the flow-restriction insert becoming lodged in Myers's second stage regulator. But Fortman argued to satisfy the second Thing requirement, she only had to establish that she observed the accident, not what caused the injury.

In a ten-page minute order, the trial court granted summary judgment. The court relied on medical negligence cases addressing bystander recovery in which the injury-producing event could not be perceived or could not be meaningfully understood to cause injury. The court concluded the " 'contemporaneous awareness' element [in Thing] requires not only that the NIED plaintiff perceive the injury as it occurs (which Plaintiff Fortman undisputably did . . .), but also that the NIED plaintiff be aware, at least in a general sense, of what is causing the injury." Based upon the undisputed facts, Fortman thought her brother had suffered a heart attack; she did not contemporaneously perceive his injuries were being caused by the company's defective product. Thus, the trial court concluded that Fortman had no viable NIED claim.

After judgment was entered in favor of the company, Fortman filed ...

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