Moon

Ken Moon (Ken) challenges the lower court’s determination that he does not have a claim for the negligent infliction of emotional distress (NIED) after he observed Guardian Postacute Services, Inc. (Guardian) abuse his elderly mother-in-law. We agree with the lower court that he is not “closely related” (Dillon v. Legg (1968) 68 Cal.2d 728, 741 [ 69 Cal.Rptr. 72 , 441 P.2d 912 , 29 A.L.R.3d 1316 ] (Dillon); Thing v. La Chusa (1989) 48 Cal.3d 644, 655 [ 257 Cal.Rptr. 865 , 771 P.2d 814 ] (Thing)) and, therefore, cannot recover under a bystander claim. In addition, we conclude that he cannot, as a matter of law, allege a claim for NIED under the theory that he was a direct victim.

Background

Ken married his wife, Eileen Moon (Eileen), in October 1969. 1 Eileen is the daughter of Frances McMahon (McMahon); McMahon was born on March 28, 1911. Since the date of the Moons’ marriage, McMahon spent at least one month per year with the Moons in their home in Walnut Creek. Since 1979, McMahon had her own bedroom in the home. Between 1992 and 1993, she lived with the Moons for approximately four to five months.

*1008 On January 7, 1999, Guardian, a skilled nursing facility in…

I.

I concur with the conclusion of the majority opinion that Ken Moon (Moon) has failed to allege sufficient facts to state a cause of action under the “direct victim” variant of a claim for negligent infliction of emotional distress (NIED), as he has shown no violation of a duty owed directly to him. I respectfully dissent, however, from the portion of the opinion that also concludes he has failed to allege a cause of action for NIED under a theory of bystander liability.

The issue is whether a son-in-law can state a cause of action for NIED for witnessing the alleged negligent treatment of his mother-in-law at respondent’s nursing facility. Unquestionably, this issue of first impression is controlled by our Supreme Court’s majority opinion in Thing v. La Chusa (1989) 48 Cal.3d 644 [ 257 Cal.Rptr. 865 , 771 P.2d 814 ] (Thing), in which the court revisited its landmark decision in Dillon v. Legg (1968) 68 Cal.2d 728 [ 69 Cal.Rptr. 72 , 441 P.2d 912 , 29 A.L.R.3d 1316 ] concerning bystander recovery for damages for emotional distress. In that case, the high court departed from a long-standing foreseeability analysis, and in its place, adopted a more procrustean “bright-line”…

Ken Moon (Ken) challenges the lower court's determination that he does not have a claim for the negligent infliction of emotional distress (NIED) after he observed Guardian Postacute Services, Inc. (Guardian) abuse his elderly mother-in-law. We agree with the lower court that he is not "closely related" ( Dillon v. Legg (1968) 68 Cal.2d 728, 741 , 69 Cal.Rptr. 72 , 441 P.2d 912 ( Dillon ); Thing v. La Chusa (1989) 48 Cal.3d 644, 655 , 257 Cal.Rptr. 865 , 771 P.2d 814 ( Thing )) and, therefore, cannot recover under a bystander claim. In addition, we conclude that he cannot, as a matter of law, allege a claim for NIED under the theory that he was a direct victim.

Ken married his wife, Eileen Moon (Eileen), in October 1969. [1] Eileen is the daughter of Frances McMahon (McMahon); McMahon was born on March 28, 1911. Since the date of the Moons' marriage, McMahon spent at least one month per year with the Moons in their home in Walnut Creek. Since 1979, McMahon had her own bedroom in the home. Between 1992 and 1993, she lived with the Moons for approximately four to five months.

On January 7, 1999, Guardian, a skilled nursing facility in Walnut Creek, admitted McMahon…