Ko v. Maxim Healthcare Services, Inc.Annotate this Case
Plaintiffs filed suit against Maxim and Defendant Manalastas, alleging claims for negligence and negligent infliction of emotional distress (NIED) claiming that Manalastas, a vocational nurse employed by Maxim who worked as an in-home caregiver for plaintiffs' disabled son Landon, abused Landon while plaintiffs were out of the house.
The Court of Appeal reversed the trial court's judgment of dismissal, holding that plaintiffs' "virtual presence" during Landon's abuse, through real time livestream video on a smartphone from a "nanny cam," satisfies the requirement in Thing v. La Chusa (1989) 48 Cal.3d 644, 668, of contemporaneous presence. The court explained that, 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. Furthermore, 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. The court remanded for further proceedings.