Fortman

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, which prevented him from getting enough air to breathe while underwater.

In Thing v. La Chusa (1989) 48 Cal.3d 644 [ 257 Cal.Rptr. 865 , 771 P.2d 814 ] (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…