In Downey v. City of Riverside, published April 26, 2023, the Fourth District Court of Appeal, Division 1 reversed the dismissal of the defendant city after demurrer. The plaintiff was speaking to her daughter via cellphone, giving the daughter directions, when the daughter's vehicle collided with another vehicle at an intersection. The mother heard the collision, a long pause during which her daughter did not respond to her, and the statements of a person on the scene trying to find her daughter's pulse. The plaintiff and her daughter contended that the accident was caused by a dangerous condition of public property based on defective traffic markings, signals, warnings, medians, and fixtures. The trial court sustained the city's demurrer to the plaintiff mother's cause of action, on the ground that the complaint failed to establish contemporaneous sensory awareness of the connection between the city's tortious conduct and the daughter's injuries. After allowing one amendment, the trial court denied further leave to amend, and dismissed the case against the city.
The court majority agreed that the trial court properly sustained the demurrer. Although the plaintiff's sensory awareness of the daughter's injuries over the phone was sufficient to satisfy the element of bystander emotional distress requiring the plaintiff to be "present at the scene of the injury-causing event," the law also requires contemporaneous awareness of the causal connection between the tortfeasor's negligent conduct and the resulting injury. Here, the allegations in the complaint did not establish the plaintiff's contemporaneous or meaningful understanding of a causal connection between the alleged deficient traffic signals and markings and the accident. But the appellate court reversed the trial court's denial of leave to amend. On appeal, the plaintiff argued that she could allege additional facts establishing that she had familiarity with, and knowledge and awareness of, the intersection and the dangerous conditions created by the city. The court ruled that she should be given an opportunity to allege such facts.
One justice concurred in the result, but dissented from the majority's ruling that the demurrer was properly sustained.