In California, family members who witness their loved ones’ serious injuries may file claims against the responsible parties for negligent infliction of emotional distress. In the past, the California Supreme Court has held that people must be present at the time of the incidents and witness them before they will have valid claims of negligent infliction of emotional distress. However, technology has advanced since the California Supreme Court established its bright-line rule for NIED cases. Today, family members might observe their loved ones’ injury incidents by video on their smartphones or other mobile devices. In Ko v. Maxim Healthcare Services, Inc., Cal. Ct. App. Case No. B293672, the appeals court considered whether virtual presence at the time of an incident was enough to satisfy the California Supreme Court’s physical presence requirement.[1]

Factual and procedural background

Dyana and Christopher Ko were the parents of three children. Their youngest child, Landon, was born with Rubinstein-Taybi Syndrome, a rare genetic disorder. The Kos both worked outside of the home and contracted with Maxim Healthcare Services to provide an in-home health care aide to care for Landon when they were at work or elsewhere. One of the in-home workers who was sent by Maxim to work in the Kos’ home with Landon was named Thelma Manalastas. After Manalastas had provided care for Landon for a year, the Kos went with their older two children to a basketball tournament on April 22, 2017.