Metropolitan News-Enterprise


Thursday, December 24, 2020


Page 1


Court of Appeal:

‘Virtual Presence’ Suffices for Emotional Distress Action

Reinstatement Ordered of Suit by Parents Who Viewed, Via Livestream, Vocational Nurse Physically Abusing Their Special-Needs Two-Year-Old Son; Opinion Says Requirement of Being On-the-Scene Is Met


By a MetNews Staff Writer


The requirement laid down by the California Supreme Court that a person suing for emotional distress based on a physical injury to another must have been present when the injury was inflicted is satisfied where the plaintiff is “virtually present,” viewing the event live, via remote technology, the Court of Appeal for this district held yesterday.

Justice Gail Ruderman Feuer wrote the opinion for Div. Seven which reverses a judgment of dismissal by Los Angeles Superior Court Judge Robert B. Broadbelt III. At a hearing at which he sustained, without leave to amend, demurrers to a complaint filed by Dyana and Christopher Ko, Broadbelt expressed sympathy for the plaintiffs—who had watched, via a livestream of video and audio on Dyana Ko’s smartphone, the physical abuse of their two-year-old disabled son by a vocational nurse—but said he was bound by precedent.

The event was captured on April 22, 2017 by a “nanny cam” at their home. Moments were viewed by the Kos while they were at a basketball game with their two older sons; they telephoned 911 and rushed home; police, after viewing the videotape, arrested the licensed vocational nurse, Thelma Manalastas.

Redondo Beach Deputy City Attorney Melanie Chavira said at the arraignment of Manalastas on misdemeanor charges:

“The child in this case is two years old, has some severe health issues that requires 24-7 care there’s a 54 minute video in which the defendant is observed hitting and slapping the child 22 times—she’s observed pinching the child 16 times, she’s observed kicking the child one time, she’s observed hitting the victim with a rolled up magazine two times and forcibly dropping the child into its bouncy seat three times.”

Supreme Court Opinion

Broadbelt disallowed the action in light of the California Supreme Court’s 1989 decision in Thing v. La Chusa. There, Justice David Eagleson (now deceased) wrote:

“In the absence of physical injury or impact to the plaintiff himself, damages for emotional distress should be recoverable only if the plaintiff: (1) is closely related to the injury victim, (2) is 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 and, (3) as a result suffers emotional distress beyond that which would be anticipated in a disinterested witness.”

Broadbelt said that cases upholding judgments for negligent infliction of emotional distress (“NIED”) “have only involved plaintiffs with some physical proximity to the injury-producing event at the time it occurred,” remarking:

“[I]t is not this court’s role to change, but instead to follow, existing law as stated by the California Supreme Court and the Court of Appeal.”

Yesterday’s opinion provided the authority for the Kos to proceed with their action against Manalastas and the agency that supplied her services, Maxim Healthcare Services, Inc.

Feuer’s Opinion

Feuer wrote:

“On appeal the Kos contend their virtual presence during Landon’s abuse through a real-time audiovisual connection satisfies the requirement in Thing of contemporaneous presence. We agree. In the three decades since the Supreme Court decided Thing, technology for virtual presence has developed dramatically, such that it is now common for families to experience events as they unfold through the livestreaming of video and audio. Recognition of an NIED claim where a person uses modern technology to contemporaneously perceive an event causing injury to a close family member is consistent with the Supreme Court’s requirements for NIED liability and the court’s desire to establish a bright-line test for bystander recovery.”

She went on to say:

“Our interpretation of the second requirement in Thing to include virtual presence where there is a contemporaneous perception of the injury-producing event is consistent with allowing recovery for the parents here who observed the abuse of their child as it happened through a livestream feed from their nanny cam but denying recovery if the parents had walked into their home moments after the abuse and observed their injured son. As discussed, the Thing court emphasized that in most cases ‘[t]he impact of personally observing the injury-producing event...distinguishes the plaintiffs resultant emotional distress from the emotion felt when one learns of the injury or death of a loved one from another, or observes pain and suffering but not the traumatic cause of the injury.’ ”

The case is Ko v. Maxim Healthcare Services, 2020 S.O.S. 6136.

Attorneys on appeal were Gene H. Shioda, Steven P. Chang, and Heidi M. Cheng of the Law Offices of Steven P. Chang in the City of Industry, for the Kos; Jeffrey A. Miller, Wendy S. Dowse, Matthew S. Pascale, and Vijay J. Patèl Lewis Brisbois Bisgaard & Smith, for Maxim Healthcare Services, Inc.; and Sean D. Cowdrey and Darryl C. Hottinger of the Oxnard firm of Beach Cowdrey Jenkins for Manalastas.

Shioda said yesterday the decision is “very significant.” He remarked:

“It shows that the courts are well in tune with technology and adapting technology to the law.”

The child, Landon Ko, died on April 24, 2018. Manalastas was convicted pursuant to a negotiated plea.


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