To: Megan Hutchinson

From: First Year Law Clerk, Section 5, Exam # 121

Re: West Coast Flyers, Inc. Negligent Infliction of Emotional Distress

Date: October 18, 2015

Memorandum

I. Introduction

Our client West Coast Flyers, Inc. (“West”), is being sued by Uma Linton for negligent

infliction of emotional distress. Although Linton is pursuing additional causes of action, this

memo will only address the first and second elements of Linton’s negligent infliction of

emotional distress cause of action. Linton’s mother was killed in a roller coaster crash. Linton

claims that she knew her mother was on the ride at the time of the crash and heard the crash

occur. Linton will likely prevail for her cause of action for the reasons discussed below.

II. Question Presented

Can Linton recover for negligent infliction of emotional distress when she was at the scene of

the roller coaster accident, did not see her mother get on the ride but heard the crash and ran to

see her mother’s body at the scene of the accident?

III. Brief Answer

Linton can probably prevail in her suit against our client. In order to recover for negligent

infliction of emotional distress, one must be closely related to the injury victim, be present at the

scene of the injury producing, event and be contemporaneously aware that the injury is occurring

to the victim.

A court would likely rule that Linton perceived the injury occurring to her mother because

she heard the explosion and her mother texted her that she was about to go on the ride.

IV. Statement of Facts

Uma Linton lived with her mother Nela Holmes prior to the accident. Linton is a

professor of aerodynamics in the physics department at U.C. San Diego. Linton studied

rollercoasters in her post doctoral work on the Rock ‘N’ Roller roller coaster, a roller coaster that

has the same design as the High Roller roller coaster. Linton and Holmes frequented amusement

parks about sixteen hundred times together. Linton and Holmes had ridden the High Roller

several times before the accident. On August 5, 2015, Holmes was killed in a roller coaster crash

on the High Roller roller coaster at Grand Adventures Amusement Park. At the time of the crash

Linton was standing in the concession stand area watching the ride, which was about one

hundred yards from the loading and exit area of the ride. Holmes’ friend, Mei Zheng was waiting

at the exit area for Holmes.

While standing in the concession area, Linton did not see her mother board the ride.

When the High Roller started its ride, Linton stated that the ride stopped suddenly and sped off

while making a strange noise and smelled of burning grease. Linton turned to view the roller

coaster and saw its front wheels pointing at her. A man screamed next to Linton and they both

ducked due to the sound the roller coaster was making. Linton then heard a loud bang and ran

towards the exit ramp asking Mei if she had seen her mother. After realizing her mother was not

in the exit ramp area, she ran towards the scene of the crash jumping over fences and wading

through a small pond. She arrived at her mother’s dead body approximately seven minutes after

the crash occurred.

V. Discussion

Linton can probably recover damages for emotional distress based on the following analysis.

Generally, in absence of physical injury to plaintiff, damages for emotional distress should be

recoverable when plaintiff is closely related to the victim, is present at the scene of the injury and

is contemporaneously aware that the injury is occurring. Thing v. La Chusa, 48 Cal.3d 644, 771

(1989).

A. Relation to the injury victim.

Linton satisfies the first element requirement in a claim for negligent infliction of emotional

distress because she is the daughter of the injury victim. In order to establish a cause of action for

negligent infliction of emotional distress, the person seeking damages must be closely related to

the victim. Id. At 646.

B. Present at the scene of the injury producing event and contemporaneously perceive that

the event was causing injury to the victim.

Linton can probably recover for damages because she was present at the scene of the roller

coaster crash and was aware that her mother was on the ride that caused her death. In order to

recover damages for negligent infliction of emotional distress, a person must be at the scene of

the injury producing accident and perceive that the event was causing injury to the victim. Id.

In Thing, a minor was injured when hit by an automobile being operated by defendant.

The victims mother, Maria Thing was near the accident but did not hear or see the accident. Id at

646. Thing only become aware that her son was injured when told by her daughter. Id. Thing

then rushed to the scene of the accident and saw her unconscious son believing he was dead.

Thing sued defendant for emotional distress. The issue in Thing, was whether a mother who did

not see the injury producing event that harmed her child could recover damages for emotional

distress when she arrived on the scene after the accident had taken place after hearing about it

from her daughter. Id.

The court reasoned because Thing was not present at the scene of the accident, but later

heard about the event from her daughter, she was not contemporaneously observing the injury

producing event and was not aware that the event was injuring her son. Id. at 668.

The court held that Thing could not recover damages for emotional distress by learning of

the accident and later observing its consequences. Id. at 669.

In Krouse v. Graham, plaintiff Benjamin Krouse was in his parked car outside of his

house while his wife was removing groceries from the car. Krouse v. Graham, 19 Cal.3d 59

(1977). Defendants car crashed into plaintiff’s vehicle injuring him and killing his wife. Id. at 65.

Plaintiff saw defendant’s car approaching from behind but did not see defendant’s car hit his

wife. Id. Plaintiff knew that his wife was in the path of defendants approaching vehicle. Id.

The court reasoned that although plaintiff did not see his wife being killed, he perceived

the incident that she was struck because he knew of her position immediately before the impact,

saw defendant’s vehicle approach her in her path, and realized she must have been struck by

defendant’s vehicle. Id. at 76.

The court held however that jury had been given improper instruction because there was

a question of whether plaintiff’s injury was caused by the witnessing of his wife’s death, his

feelings of anger or his feelings of sorrow over the loss of his wife. Id. at 78.

In Fife v. Astenius, the victim was injured when the truck she was in crashed into another

car. Fife v. Astenius, 232 Cal.App.3d 1090 (1991). The victim’s parents and brothers were in

their house at the time of the accident, heard the crash and saw debris fly in the air. Id. at 1092.

The victims father and brothers immediately went outside to the scene of the accident and found

the victim inside the truck. Id. The parents brought suit for negligent infliction of emotional

distress alleging that because they heard the collision, they were present at the scene of the crash.

Id.

The court reasoned that although visual perception of an accident is not required to

recover for emotional distress, recovery is prevented when a plaintiff perceives an accident but is

not aware of an injury to a relative until after the event occurred. Id. at 1093.

The court held that plaintiffs could not recover damages because they did not know the

victim was in the accident when they heard the collision. Id.

In Wilks, plaintiff Kimberly Wilks and her three daughters were involved in an explosion

in which on of the daughters was killed. Wilks v. Hom, 2 Cal.App.4th 1264 (1992). Plaintiff’s

boyfriend hooked up the house’s propane system to a propane stove. Id. at 1267. Plaintiff’s

daughter Janelle was in the living room with Wilks where Wilks was using the vacuum cleaner.

Id. Wilks’ other two daughters, Virginia and Jessica were in their bedrooms and Wilks called to

Virginia to unplug the vacuum cleaner that was plugged in Virginia’s room. Id. After Virginia

pulled the plug, an immediate explosion occurred blowing Wilks and Janelle out of the house. Id.

Wilks returned to the house and pulled Jessica out of her room who was severely burned and

then brought Virginia out of her room. Virginia died of her injuries. Id.

The court reasoned that although Wilks did not witness Virginia’s death, she experienced

the force of the explosion and knew the explosion came from Virginia’s room. Id. at 1271. Wilks

had to have known that her daughters were experiencing injury from the blast and

contemporaneously perceived the injury producing event. Id. The court affirmed the lower courts

decision in favor of plaintiffs. Id.

Distinguishing from Thing, where a mother did not see or hear her child in an accident,

Linton heard the roller coaster crash and saw the wheels come off the tracks. Linton would argue

that she perceived the event because she knows too much about roller coasters to think that her

mother would have survived the crash. Linton would argue that because her mother had texted

her that they were about to get on, she knew her mother was on the ride when it crashed.

We would argue that although Linton perceived the crash, she was not aware that her

mother was on the roller coaster because she did not see her. Our client would rely on the

precedent set in Thing, where a mother could not recover for damages for emotional distress

after only hearing about the event from her daughter. Our client would argue that Linton only

learned about her mother’s death after running to the exit ramp after the crash occurred and

asking Mei if she saw her mother. She only perceived the injury after she went to the scene of the

accident, seven minutes after the crash happened.

Similar to Krouse, where plaintiff husband did not see his wife getting killed, in our case

Linton did not actually see her mother crash. Linton would argue that our case is similar to

Krouse, where the court reasoned that plaintiff knew of his wife’s immediate position, she knew

of her mother’s immediate position. Linton would argue that she realized her mother was injured

in the crash because her mother had not texted her that she was not going on the ride and that she

though she saw her mothers green sun hat while watching the ride in progress.

We would distinguish from Krouse, because in Krouse, the plaintiff was closer to his

wife in distance and was involved in the crash, not a hundred feet away from the accident.

Although Linton heard the crash, she was not aware that her mother’s exact location, noted by

the fact that she ran to the exit ramp first in hope of finding her mother.

Similar to Fife, where plaintiffs heard a crash but did not see the accident involving a

family member, Linton heard the roller coaster making strange noises and then a loud bang as

the roller coaster crashed. Linton would distinguish from Fife, where the court held that

plaintiffs could not recover because they did not know the victim was in the accident.

Linton would argue that she knew her mother was on the rollercoaster even though she

did not see the actual crash. Linton stated that she knows too much about roller coasters and that

her mother would not have gotten off of the ride unless she had to.

Our client would compare our case to Fife, and state that because Linton did not see her

mother get on the ride, she was not aware that the crash injured her mother until she got to the

scene and saw her mother crushed under the cars.

Distinguishing from Wilks, where plaintiff experienced the explosion, Linton was not on

the roller coaster and was not involved in the accident. Linton would argue that our case is

similar to Wilks by stating that she knew her mother was involved in the crash because she

perceived her to be on the ride. Linton would compare our case to Wilks because in Wilks,

plaintiff did not actually see her daughter’s injury as Linton did not see her mother crash.

Our client would argue that because Linton was not on the rollercoaster ride and did not

experience the crash as Wilks experienced the explosion, she did not know that her mother was

injured in the crash.

VI. Conclusion

A court would likely find in favor for Linton. Linton was present at the scene of the crash,

and experienced the event by hearing the loud boom that occurred one hundred feet away from

her. Linton knew her mother well enough and would have seen her if she had not got on the ride.

Linton also observed what she thought was her mother’s green sun hat while the ride in progress.

Given the possibility that the first two requirements for negligent infliction of emotional distress

are met, a court would probably rule in favor of Linton.