Metropolitan News-Enterprise


Friday, January 11, 2013


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Court Says No Recovery for Woman Who Saw Brother Die




A woman who watched her brother die while they were scuba diving cannot recover emotional distress damages from the maker of the equipment whose malfunction allegedly caused his death, the Court of Appeal for this district ruled yesterday.

Because Barbara Fortman believed her brother was having a heart attack, and did not sense that he was actually being deprived of oxygen due to an object stuck in his second stage regulator, she does not meet the stringent standard for bystander recovery under California law, Justice Richard Aldrich wrote for Div. Three.

Fortman and her brother Robert Myers—a database administrator at Kirkland & Ellis in Chicago—were diving off Catalina when she realized during ascent that he was not moving and was unresponsive. She later testified that she did not believe he was breathing at the time, but was not certain.

Pronounced Dead

After she got him to the surface, he was taken to the USC Hyperbaric Dive Chamber at Two Harbors on Catalina Island, where he was pronounced dead. Fortman admitted that she believed he suffered a heart attack until she was told, months later, of the results of the Sheriff’s Department investigation into his death.

Myers’ death was determined to have been caused by a cylindrical object, known as a “flow restriction insert,” that was found in a location that investigators said “would appear to restrict normal airflow.” The insert came from the hose in the dry suit that Myers was wearing, which was manufactured by Forvaltningsbolaget Insulan AB, a Swedish company doing business as SI Tech.

The ensuing lawsuit was brought on behalf of Fortman and Myers’ heirs. It included Fortman’s claim 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.” 

Thing v. La Chusa

The company argued in its motion for summary judgment that under Thing v. La Chusa (1989) 48 Cal.3d 644, Fortman could not recover emotional distress damages as a bystander because she could not establish that she was “present at the scene of the injury-producing event at the time it occur[red]  and [was] then aware that it [was] causing injury to the victim.”

The plaintiff argued that she could recover because she met the other prongs of Thing—she was a close relative of the victim and suffered emotional distress beyond that which a disinterested observer would be expected to experience—and because she witnessed the events leading to her brother’s death, even though she did not know at the time it was the defendant’s faulty products that were causing his demise.

Los Angeles Superior Court Judge Roy L. Paul sided with the defense and granted summary judgment rejecting Fortman’s claim, and the Court of Appeal said he was correct.

Aldrich explained that recovery under Thing often involved automobile collisions, and reasoned that Fortman’s case is more like the medical malpractice cases in which the courts have held the plaintiffs could not recover because they didn’t see and perceive that malpractice was being committed.

He cited Golstein v. Superior Court (1990) 223 Cal.App.3d 1415, in which the plaintiffs watched as their son underwent radiation therapy, but did not learn until later that he had been fatally overexposed to radiation.

Contemporaneous Perception

Strict application of the contemporaneous perception requirement, Aldrich said, is mandated by Thing. This does not, he said, mean that bystander liability will never apply in products liability cases.

Aldrich explained:

“A plaintiff would satisfy the…requirement if he or she were present at a backyard barbecue and observed the defendant’s propane tank connected to the barbecue explode and injure a close relative, or if the plaintiff observes a ladder collapse and injure a close relative.  Such accidents would not be beyond the plaintiff’s contemporaneous, understanding awareness of the event (i.e., product failure) inflicting harm to the victim.  The plaintiff need not know the cause of the propane tank explosion or why the ladder collapsed….But the plaintiff must have a contemporaneous awareness of the causal connection between the defendant’s product as causing harm and the resulting injury to the close relative.”

Attorneys on appeal were Roland Wrinkle and Lars Christian of Grassini & Wrinkle for the plaintiff and Steven M. McGuire of Lesser & Associates for the defendant.

The case is Fortman v. Förvaltningsbolaget Insulan AB, B237818.


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