California Supreme Court Agrees to Revisit Who May Sue for Witnessing an Injury

On March 11, 2026, the California Supreme Court granted review in Sanchez v. Rojas, S294671, and agreed to decide whether to overrule or limit Elden v. Sheldon (1988) 46 Cal.3d 267. At issue is whether a plaintiff who is neither married to nor otherwise closely related to an injury victim may recover for negligent infliction of emotional distress, or for loss of consortium, after witnessing the injury. The Second Appellate District, Division 2, had affirmed the judgment in an unpublished opinion, B338298, so there is no citable appellate reasoning for either side to build on.

The Rule Today

Bystander recovery is governed by Thing v. La Chusa (1989) 48 Cal.3d 644, 667-668, which allows damages for emotional distress caused by observing an injury only if the plaintiff is closely related to the victim, is present at the scene when the injury-producing event occurs and is then aware it is causing injury, and suffers distress beyond what a disinterested witness would feel. Elden reached the first of those elements months before Thing was decided, holding that "an unmarried cohabitant may not recover damages for emotional distress based on such injury." (46 Cal.3d at p. 273.) The court also declined to extend loss of consortium beyond marriage, disapproving Butcher v. Superior Court (1983) 139 Cal.App.3d 58. (46 Cal.3d at p. 279.)

Why Elden Came Out That Way

Justice Mosk gave three reasons. The state has a strong interest in the marriage relationship, and that interest is inhibited to the extent unmarried cohabitants are granted the same rights as spouses. Testing whether a given relationship is the equivalent of a marriage, by reference to its duration, the parties’ economic cooperation, and the exclusivity of their sexual relationship, would require “a massive intrusion into the private life of the partners” and still would not yield “a sufficiently definite and predictable test.” And the number of persons to whom a negligent defendant owes a duty of care has to be limited somewhere. (46 Cal.3d at pp. 274-276.)

The first of those rationales is the exposed one. California’s legal treatment of unmarried couples has changed a great deal since 1988. The second and third are harder targets, because both are about administrability rather than the status of marriage, and both reflect the same concern that lead the court to fix firm elements in Thing the following year.

What It Means for the Defense

A cohabitant claim is almost entirely noneconomic, which makes it difficult to value and easy to inflate. Any serious injury case can carry one. Premises, product, and vehicle matters are all affected, and so is any case in which two people were together when one of them was hurt.

Three things follow while the case is pending. First, plaintiffs can be expected to plead cohabitant emotional distress and consortium counts in order to preserve the issue, and demurrers and motions to strike will be where that gets sorted out. Trial courts remain bound by Elden in the meantime. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456.) Second, if the court limits Elden rather than discards it, whatever replaces the bright line will turn on relationship facts, so cohabitation dates, shared finances, and household composition are worth developing early. Third, cases that will not resolve for another year should be reserved with the contingency in mind.

The court did not limit the issues when it granted review, which leaves it room to do more than trim the holding. A decision is unlikely before 2027.