Dissent in Thing v. La Chusa
48 Cal. 3d 644, 771 P.2d 814 (1989) (1989) · Supreme Court of California
Thing v. La Chusa refined and limited the Dillon v. Legg bystander emotional distress test by converting the flexible Dillon factors into strict requirements. The court imposed bright-line rules requiring that the plaintiff be present at the scene, contemporaneously perceive the accident, and be closely related to the victim. This decision brought greater predictability to bystander emotional distress claims but at the cost of excluding some sympathetic plaintiffs.
What was the dissent in Thing v. La Chusa?
Justice Broussard dissented, arguing that the majority's strict rules were arbitrary and that a mother who arrives at the scene moments after the accident and sees her injured child suffers the same type of emotional distress as one who witnesses the accident itself. He argued that the flexible Dillon approach better served the interests of justice.
Case Overview
Facts
Maria Thing's son was struck by an automobile driven by the defendant. Thing was not present at the scene of the accident and did not see it happen. She was told about the accident by her daughter and rushed to the scene, where she found her son lying injured in the road. She suffered severe emotional distress as a result of seeing her injured child.
Majority Holding
The court held that a plaintiff may recover for negligent infliction of emotional distress as a bystander only if the plaintiff satisfies three strict requirements: (1) the plaintiff is closely related to the injury victim, (2) the plaintiff 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) the plaintiff suffers serious emotional distress as a result of contemporaneously perceiving the event. Because Thing did not witness the accident, she could not recover.
Majority Reasoning
The court acknowledged that the Dillon approach had proven unworkable because the flexible factors provided insufficient guidance, leading to inconsistent results and expanded litigation. The court decided that clear, predictable rules were necessary to define the boundaries of bystander recovery. While acknowledging that the strict requirements would exclude some deserving plaintiffs, the court concluded that the benefits of certainty and predictability outweighed the costs of occasional injustice. The court specifically rejected the argument that arriving at the scene shortly after the accident and seeing the injured victim should be sufficient.
The Dissenting Opinion
Justice Broussard dissented, arguing that the majority's strict rules were arbitrary and that a mother who arrives at the scene moments after the accident and sees her injured child suffers the same type of emotional distress as one who witnesses the accident itself. He argued that the flexible Dillon approach better served the interests of justice.
Key Quotes
“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.”
“We conclude that the societal benefits of certainty in the law, as well as traditional concepts of tort law, dictate limitation of bystander recovery of damages for emotional distress.”
Impact and Legacy
Thing v. La Chusa became the dominant approach to bystander emotional distress claims in California and influenced courts in other jurisdictions. The strict requirements brought predictability and reduced litigation but were criticized for producing harsh results in sympathetic cases. The case illustrates the ongoing tension in tort law between flexible, fact-specific standards and bright-line rules. Many jurisdictions have adopted some version of the Thing requirements, though the exact boundaries continue to be debated.
Exam Relevance
Thing is tested alongside Dillon to analyze bystander emotional distress claims. Students are frequently presented with fact patterns involving plaintiffs who satisfy some but not all of the Thing requirements, requiring them to apply the strict test and argue whether the plaintiff can recover. The case also tests the policy debate between rules and standards.
Study Tips
- Memorize the three strict requirements: close relationship, presence at the scene during the event, and contemporaneous perception.
- Understand how Thing differs from Dillon — flexible factors became strict requirements.
- Be prepared to apply the requirements to borderline facts (e.g., plaintiff hears but does not see the accident, or arrives moments later).
- Consider the policy arguments for strict rules (predictability, limiting liability) versus flexible standards (justice in individual cases).
Read the Full Case Analysis
View the complete brief for Thing v. La Chusa including full reasoning, doctrine, and study resources.
More Torts Dissents
Palsgraf v. Long Island Railroad Co.
248 N.Y. 339, 162 N.E. 99 (1928) (1928)
Judge Andrews wrote a vigorous dissent arguing that negligence is not relative to the individual but rather is a matter of whether the defendant's conduct was unreasonable. He advocated a broader proximate cause analysis, arguing that everyone owes a duty of care to the world at large and that liability should extend to all injuries that are the proximate result of negligent conduct, not just those to foreseeable plaintiffs.
Sindell v. Abbott Laboratories
26 Cal. 3d 588, 607 P.2d 924 (1980) (1980)
Justice Richardson dissented, arguing that the majority abandoned the fundamental tort requirement of causation. He contended that market share liability imposes liability on defendants who may not have caused the plaintiff's injury and that the judicial branch should not create such radical new theories of liability. He argued this was properly a matter for legislative action.
Tarasoff v. Regents of the University of California
17 Cal. 3d 425, 551 P.2d 334 (1976) (1976)
Justice Clark dissented, arguing that the duty to warn would undermine the therapeutic relationship, deter patients from seeking treatment, and discourage therapists from treating potentially dangerous patients. He contended that the duty was unworkable because therapists cannot reliably predict violent behavior and that the majority's ruling would ultimately cause more harm than it prevented.
BMW of North America, Inc. v. Gore
517 U.S. 559 (1996) (1996)
Justice Scalia, joined by Justice Thomas, dissented, arguing that the Due Process Clause does not provide a substantive right to a particular standard of punitive damages and that the three-guidepost test was unworkable and lacked foundation in the Constitution's text or history. Justice Ginsburg also dissented, arguing that the Court should defer to state procedures for controlling excessive verdicts.
Katko v. Briney
183 N.W.2d 657 (Iowa 1971) (1971)
Justice Larson dissented, arguing that the majority's rule allowed trespassers and thieves to sue property owners who attempted to protect their property. He contended that property owners should have broader rights to defend their homes and possessions, particularly when they have been repeatedly victimized by break-ins.
Vincent v. Lake Erie Transportation Co.
109 Minn. 456, 124 N.W. 221 (1910) (1910)
Justice Lewis dissented, arguing that the damage was caused by the storm, not by the defendant's conduct, and that the defendant should not be liable for an act of God. He contended that the defendant had no realistic alternative and should not be penalized for acting reasonably in an emergency.