Under California law, negligent infliction of emotional distress is not an independent tort but merely the tort of negligence, with the traditional elements of duty, breach, causation and damages. See Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072.) A cause of action for negligent infliction of emotional distress lies only where plaintiff suffers serious emotional distress “as a result of a breach of duty owed the plaintiff that is assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of a relationship between the two.” Id. at p. 1073.) That relationship must be a preexisting, consensual relationship giving rise to a legally protectable interest in being free from emotional distress caused by another’s negligent conduct. See Bro v. Glaser (1994) 22 Cal.App.4th 1398, 1441.) Furthermore, California law recognizes two theories of recover for negligent infliction of emotional distress, the “bystander” theory and the “direct victim” theory. See Burgess supra 2 Cal. 4th at 1071.
To establish a bystander claim, the plaintiff must be (1) closely related to the injury victim; (2) 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. See Thing v. La Chusa (1989), 48 Cal.3d 644, 647.
Under the “direct victim” theory of recovery, Plaintiff must allege that Defendant Kejejian, owed him a duty, breached said duty and the breach of duty by Defendant Kejejian legally caused Plaintiff’s damages. See Ess v. Eskaton Properties, Inc. (2002) 97 Cal. App. 4th 120, 126. Moreover, California law is well settled in that there is no duty to avoid negligenty causing emotional distress to another. See Potter v. Firestone Tire & Rubber Co., (1993) 6 Cal. 4th 965, 984. Therefore, as a matter of law, “unless the defendant has assumed a duty to plaintiff in which the emotional condition of the plaintiff is an object, recovery is available only if the emotional distress arises out of the defendant’s breach of some other legal duty and the emotional distress is proximately caused by that breach of duty.” Id. at 985.
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