To: Associate

From: Stuart Teicher

Statement of Facts:

Andrew Calkins was vacationing in San Bernardino, California during Memorial Day

weekend with his six-year-old daughter Cathleen. Andrew and Cathleen went to the stock show,

where mutton busting was a very popular event there. The workers place a child onto a sheep and

open the chute, where the sheep charges out. The children have to stay on board for a certain

amount of time, in this case, four seconds. Cathleen participated in the event but once she got on

the sheep, it ran behind the set, threw her off, and trampled her. Her foot remained attached to

the stirrup and was dragged on the ground as the sheep ran around. The sheep kept stepping on

Cathleen’s arms and torso, who was still behind the playhouse until security and the EMS found

her. Andrew was seated in the audience section when it happened and ran towards his daughter

who yelled “Help! Daddy!”. Cathleen Calkins was taken to the hospital where she remains in

intensive care. She sustained a twisted arm, a fractured forearm, severe head trauma, spinal cord

injuries, and contusions to the head and torso. Mr. Calkins was treated for shock from witnessing

his daughter’s injury at the show. Now, Mr. Calkins wants to sue the San Bernardino Stock

Show, Inc. for negligent infliction of emotional distress.

Questions(s) Presented:

1. Was Andrew Calkins present on the scene at the time of the accident?

2. Will Andrew Calkins be able to prove that he was sensorially aware of his daughter being

injured based on the screams of his daughter and the crowd?

his daughter?

Short Answer:

1. No. Andrew Calkins was not present on the scene at the time of when the accident

occurred.

2. No. Andrew Calkins heard the screams of his daughter, but he could not have known that

she was the one being injured as anything could have been happening behind the set.

3. No. Andrew Calkins could not have known the sheep was injuring his daughter as he

could not see anything happening behind the set.

Discussion:

To sue the San Bernardino Stock Show successfully for negligent infliction of emotional

distress under the State, the State must prove that Caulkins was “present at the scene of the

wrongdoing, providing an event at the time it occurs, and was then aware that it was causing

damage to the victim”. Caulkin’s does not fit the requirements to sue for negligent infliction of

emotional distress, therefore his case will not be viable to hold up in court. Mr. Calkins was not

present at the scene of the accident, at the time it occurred, and was not aware of what was

causing injury to his daughter.

To sue the San Bernardino Stock Show successfully for negligent infliction of emotional

distress under the State, the State must prove that Caulkins fit the second prong from the case,

Thing v. La Chusa, 48 Cal.App.3d 644 (1989), which states that the plaintiff has to be “present at

the scene at the time the injury occurs and is then aware of the injury being caused to the victim”.

Caulkin’s does not fit the requirements to sue for negligent infliction of emotional distress,

therefore his case will not be viable to hold up in court.

involved a similar claim of negligent infliction of emotional distress. In this case, the parents and

brothers of Meghan K. Fife wanted to seek recovery for negligent infliction of emotional distress

resulting from a car crash near their home involving their daughter, except they did not witness

the accident itself. Meghan sustained injuries when the vehicle she was a passenger in collided

with another car. Fife v. Astenius, 232 Cal.App.3d 1090 (1991). At the time of the accident,

Meghan’s parents and brothers were inside the house and only became aware of an accident

occurring through the sounds of the crash and the visual of debris flying above the wall. Fife v.

Astenius, 232 Cal.App.3d 1090 (1991). Once the family heard the crash, the father and brothers

ran outside and found Meghan injured in the truck while the mother remained in the house until

she was informed that Meghan had been hurt. The plaintiffs failed to prove that they were on the

scene when the accident occurred. Fife v. Astenius, 232 Cal.App.3d 1090 (1991).

Building on the insights from Fife v. Astenius, where the claim for negligent infliction of

emotional distress hinged on the absence of being present at time of the incident, it is worth

noting how the case of Wilks v. Hom introduces another requirement to sue for NEID. In Wilks

v. Hom, Kimberly Ann Wilks sought damages for emotional distress resulting from the tragic

loss of her daughter caused by an explosion and fire, which raised questions about the mother’s

sensory awareness of the injuries in a timely manner. Arthur Ayres, Wilks boyfriend, hooked up

their current propane system to a propane stove and then left the house to run an errand. Wilks v.

Hom, 2 Cal.App.4th 1264 (1992). During his absence, Wilks and her daughter, Janelle, were in

the living room, while her other two daughters, Jessica and Virginia, were in their bedrooms.

When Kimberley finished vacuuming the living room, she told Virginia to pull the plug in her

room. Once Virginia pulled the plug out, Kimberly remembered the distinct sound of Jessica
screaming “plug the cord back in” followed by the sudden eruption of a flash emanating from

Virginia’s room. Wilks v. Hom, 2 Cal.App.4th 1264 (1992). The explosion propelled Kimberly

and Janelle out of the house. Kimberly went around the side of the house, broke down Jessica’s

door and got her out. Then she went to Virginia’s room and got her out, but unfortunately, she

succumbed to her injuries hours later. The judgment in this case depended on the determination

of whether Kimberly Wilks was sensorially aware that the explosion was causing the injuries to

her daughter even though she did not see it happen. Wilks v. Hom, 2 Cal.App.4th 1264 (1992).

The final case we will be looking at is Bird v. Saenz, which provides significant context

that highlights the importance of causation in claims of negligent infliction of emotional distress.

In Bird v. Saenz, the plaintiffs, Nita Bird’s daughters, pursued legal action based on allegations

of wrongful death and negligent infliction of emotional distress stemming from alleged medical

malpractice by healthcare professionals. Nita Bird received a diagnosis of ovarian cancer and

subsequently underwent a medical procedure to have a Port-A-Cath surgically implanted in her

body, intended to facilitate her chemotherapy treatment. Bird v. Saenz, 28 Cal.4th 910 (2002).

One of the plaintiffs, Janice Bird, recounted waiting in the hospital’s waiting room for an

extended period, during which time a physician informed her of complications encountered

while inserting the catheter. Subsequently, Janice witnessed her mother being urgently

transported down a hospital corridor to the critical care unit, describing the harrowing scene of

her mother’s condition. Bird v. Saenz, 28 Cal.4th 910 (2002). Janice further recalled the

physician’s explanation that an artery or vein may have been inadvertently injured during the

medical procedure, causing blood to accumulate in Nita Bird’s chest, requiring immediate

intervention to drain the excess blood. Bird v. Saenz, 28 Cal.4th 910 (2002). The emergency

procedure successfully halted the internal bleeding, and Nita Bird was ultimately discharged
from the hospital after a month of care. The central contention in this case hinged on the

plaintiffs’ awareness, or lack thereof, at the time of the alleged medical errors and subsequent

injury to their mother. The court’s decision depended on whether the plaintiffs witnessed the

cause of their mother's distress by the doctors.

Andrew Calkins cannot prove that he was present on the scene at the time when the

injury occurred. Calkins was seated in the audience when his daughter was thrown off the sheep.

According to an eyewitness, Sharon Wright, she saw the sheep run behind the set and emerge

from it without the child on. She then stated that she saw Andrew Calkins run towards the

playhouse, claiming he heard his daughter yelling “Help! Daddy!”. With her statement, you

cannot prove that Calkins was at the scene of the crime, as his daughter was behind the set while

he was in the audience when it happened. To sue for negligent infliction of emotional distress, he

needs to be able to prove that he was on the scene at the time of the accident, which he cannot

do. This case relates to Fife v. Astenius, 232 Cal.App.3d 1090 (1991), as the parents and brother

of Meghan Fife could not sue for negligent infliction of emotional distress as they failed to prove

that they were on the scene at the time the accident occurred. They were inside the house when

they became aware something had happened due to the sound of the crash and the debris flying

off the wall, but they were not present at the scene during that time. Similarly, Andrew Calkins

cannot prove he was present at the scene of the crime because he was in the audience while his

daughter was behind the set. He was only aware of something happening due to the gasps from

the audience and the screams from his daughter. Therefore, Calkins does not meet the

requirement of being present on the scene at the time of the accident.

Andrew Calkins cannot prove that he was sensorially aware of his daughter being injured

at the time of the accident. An eyewitness, Sharon Wright, claimed that a male audience
member, Andrew Calkins, broke away from the crowd due to hearing the screams from his

daughter. He did hear his daughter yelling “Help! Daddy!”, but he cannot prove that he was

aware that she was the one being injured as she could have been yelling for different reasons. To

sue for negligent infliction of emotional distress, he needs to be able to prove that he was

sensorially aware that his daughter was being injured at the time of the accident, which he cannot

do. This case relates to Wilks v. Hom, 2 Cal.App.4th 1264 (1992), as Kimberly Wilks

successfully sued for negligent infliction of emotional distress as she heard the screams of her

daughters after asking them to pull the plug right before the explosion took place. She was

sensorially aware of her daughter's being injured as she heard Jessica yell at Virginia to put the

plug back in before she saw a bright flash come from the room. She was present at the scene of

the crime and was also contemporaneously aware that her daughters were being injured through

their screams as well as the visual of the explosion. Andrew Calkins cannot prove that he was

sensorially aware of his daughter being injured because he did not see it and cannot prove that

his daughter screamed because she was being injured. He was aware of her injuries once he saw

her lying on the ground. Therefore, Calkins does not meet the requirement of being sensorially

aware of his daughter being injured at the time of the accident.

Andrew Calkins cannot prove that he knew the sheep caused his daughter’s injuries. The

eyewitness, Sharon Wright, stated that the audience saw the sheep charge out of the chute and

then run behind the playhouse before emerging from the other side without the child. Once

again, Andrew Calkins was seated in the audience at the time the accident occurred. He heard his

daughter yell for help but he could not have known that she was the one who was injured. Once

he found his daughter lying on the ground with a twisted torso and a broken arm, he could not

prove that he saw what caused her the injuries. Another eyewitness, Jennifer Ganda, stated that
she saw the child being thrown off and then continued to be trampled on by the sheep. Though

the cause of her injury was the sheep, Andrew Calkins cannot prove that he physically saw the

sheep causing his daughter her injuries. This case relates to Bird v. Saenz, 28 Cal.4th 910 (2002),

as the daughters of Nita Bird, could not prove malpractice by the medical staff as they did not

see their mother physically being injured by them. Any information the daughters knew of was

given by the doctor. The doctor told Janice Bird that an artery might have been nicked and Janice

saw her mother positioned upside down when she was rushed down the corridor, but she had not

physically seen any damage being done to her mother. Similarly to that, Andrew Calkins cannot

prove that he was aware of the sheep causing injury to his daughter because he did not see it

happen. He was only aware of it due to an eyewitness who saw it all, but he cannot prove that he

saw it and was aware of the sheep injuring his daughter. I believe that he went into shock after

seeing his daughter lying on the ground after sustaining many major injuries but not because he

saw it all happen. Therefore, Calkins does not meet the requirement of being aware of what

caused his daughter’s accident and the injuries which resulted from it.

Conclusion:

Based on the analysis above, I recommend that the firm does not take this case. To sue

for negligent infliction of emotional distress, the plaintiff needs to be present on scene at the time

of the accident and then aware of the injury being caused to the victim. Andrew Calkins does not

have substantial proof that he was present at the scene of the accident, nor was sensorially aware

of his daughter being injured, and did not see the sheep causing the injuries to his daughter. Even

if we argue one or two points out of the three, he will still not be able to win as he needs to meet

all three of the conditions. Therefore, I do not think this case is viable enough to hold up in court.
Sources:

Thing v. La Chusa, 48 Cal.App.3d 644 (1989)

Bird v. Saenz, 28 Cal. 4th 910 (2002).

Fife v. Astenius, 232 Cal. App. 3d 1090 (1991).

Wilks v. Hom, 2 Cal. App. 4th 1264 (1992)