In a recent decision in the matter of Greene v. Esplanade Venture Partnership, 2021 NY Slip Op. 01092 (Feb. 18, 2021), New York’s Court of Appeals narrowly expanded the category of persons entitled to recovery for witnessing the injury of another while within the “zone of danger.”
The lawsuit arose from tragic circumstances, in which Susan Frierson lived every grandparent’s worst nightmare – witnessing the death of her two-year-old granddaughter. On May 17, 2015, the two were in front of a building when they suddenly felt debris falling from overhead. While Susan escaped largely unscathed, the same could not be said for her granddaughter. After being struck by a piece of the building’s façade, two-year-old Greta passed away.
In their initial pleadings, Plaintiffs alleged negligence and wrongful death. In an amended pleading, Plaintiffs attempted to add a claim for negligent infliction of emotional distress on Susan’s behalf under the ‘zone of danger’ doctrine. Defendants opposed the amendment. In denying the motion for leave to amend the complaint, The Appellate Division’s Second Department relied on Bovsun v. Sanperi, 61 N.Y.2d 219 (1984), wherein recovery for a similar action was limited to “immediate family.”
Subsequent cases reinforced the precedent in Bovsun. Specifically, the Trombetta case prohibited recovery by an aunt who witnessed the death her niece as she was run over by a truck while crossing the street. SeeTrombetta v. Conklin, 82 N.Y.2d 549 (1993). Despite raising the child for her entire life, the court found that the aunt was not “immediate family” and therefore prohibited recovery for negligent infliction of emotional distress.
Writing for the majority in Greene, Justice Fahey found that grandparents qualify as “immediate family” and are therefore able to recover damages for negligent infliction of emotional distress under a ‘zone of danger’ theory.
The Court emphasized the narrow nature of their ruling by comparing California’s Supreme Court Decision that allowed Plaintiffs who witness “the injury or death of a close relative” even where the Plaintiff is not within the zone of danger for physical injury, to recover damages for negligent infliction of emotional distress. SeeBovsun, 61 NY2d at 227 [Dillon]).
The Court’s narrow expansion of what constitutes “immediate family” was guided by evolving social conditions. Specifically, the Court cited the gradual evolution of how society views the nuclear family and its members. Specifically, the Court cited its decision in Matter of Jacob, 86 NY2d 651 (1995), where it granted adoption rights to a same-sex couple. The Court seemingly recognized that ‘family’ can mean many different things to different people.
This decision also reflected the “special status” of grandparents and the important role they play in an increasing number of households, including those where grandparents are tasked with raising their grandchildren by themselves. The Court cited the 1960s Domestic Relations Law, allowing grandparents visitation rights with minor children. See Domestic Relations Law §72; L. 1966 ch. 631 §1.
Justice Rivera, concurring with the majority, did not believe the Court went far enough. Justice Rivera advocated for the abolition of the “immediate family” requirement altogether, arguing that families are “formed not solely by matrimony and blood but also with bonds of friendship and love.” Justice Rivera’s concurrence, while in step with the majority, is notably more liberal in its conclusions. Rivera argued that New York’s “immediate family” requirement places New York out of vogue with numerous other states in the country who allow bystander recovery for non-immediate family: Indiana, Iowa, Maine, Nevada, New Hampshire, New Jersey and Oregon. Several states, including Alaska, Nebraska, Ohio, Pennsylvania and Washington do not require a familial relationship at all, and instead hinge recovery on whether it was reasonably foreseeable that the plaintiff would suffer harm.
In the majority’s decision, the Court cited (1) precedent, (2) reshaped societal norms, and (3) everyday common sense, as the factors impacting their decision, and stressed the limited nature of their decree, clarifying “that a discrete, limited class of persons that enjoys a special status under modern New York family law comes within the ‘narrow avenue to bystander recovery (citing Trombetta, 82 NY2d at 552).’”
The Court declined to expand its ruling to allow claims by family members other than grandparents, such as aunts, uncles, godparents, and the like. However, Justice Rivera’s concurrence highlights the potential future expansion of this “discrete, limited class of persons” who may recover damages for negligent infliction of emotional distress.
For more information on this topic, please contact Evan Naylor in the firm’s Syracuse, New York office.