In Greene v. Esplanade Ventures Partnership, 2021 N.Y. LEXIS 104, the New York State Court of Appeals considered whether plaintiff-grandparent Susan Frierson, who was in close proximity to her two-year old granddaughter when she was tragically struck and killed by falling debris from the a building with an allegedly defective facade, could pursue a claim for bystander recovery under a “zone of danger” theory. The traditional rule in New York has been that only a member of the immediate family could seek recovery for emotional distress as a result of viewing the death or serious physical injury under those circumstances. However, in Greene, the court overturned long-standing precedent and held that a grandparent with a powerful emotional bond with a grandchild should be considered “immediate family” for purposes of applying the zone of danger rule.
In explaining its rationale, the court conducted a thoughtful review of the evolution of the zone of danger rule over the past 125 years. The first major case to address whether New York courts should permit recovery for emotional distress damages was Mitchell v. Rochester Ry. Co., 151 NY 107 (1896). In MItchell, the plaintiff was rendered unconscious and suffered a miscarriage during a “near miss” with the defendant’s horse car. Even assuming that the defendant was negligent, the court was unwilling to permit the case to proceed because there had been “no immediate personal injury.” The court expressed the fear that to hold otherwise would be “contrary to public policy because that type of injury could be feigned without detection and it would result in a flood of litigation where damages must rest on speculation.”
Mitchell and its progeny have long since been overturned. in Battalla v. State of New York, 10 NY2d 237, 240 (1961), the court weighed, on the one hand, the possibility that “fraud, extra litigation and a measure of speculation” might result from softening the rule, against the “folly of denying a ‘logical legal right and remedy in all cases because in some a fictitious injury may be urged as a real one'”. Thus, in Battalia, the court permitted a plaintiff to state a claim that he or she was negligently caused to suffer severe emotional distress as a result of being subjected to fear of physical injury as a result of tortious conduct. However, the fear of opening a floodgate of fraudulent claims expressed in Mitchell continued to live on in zone of danger cases where it was believed necessary to restrict the right to assert a claim for emotional distress to immediate family members rather than to grandparents or aunts and uncles, let alone close friends.
The Greene Court justified its reconsideration of the law due to the need to recognize the “living nature” of the common law, which sometimes requires a “response to the surging reality of changed conditions.” “It is here that the evolution of New York law with respect to bystander claims and the shifting understanding of varied familial relationships intersect,” the court held. Or, as Judge Eugene Fahey recognized during oral argument, “My experience with family in my lifetime is that it’s changed a great deal. When I was young, it was June Cleaver. Now its ‘Modern Family‘.
The implicit dicta of Greene–that times change and that traditional norms of what might be considered a family have changed as well–may have ramifications in New York trial courts well into the future. It may not be long before counsel for a close BFF of a severely injured person within the zone of danger may seek to further expand the ranks of those who may bring suit to recover for emotional distress damages as a result of witnessing another person’s accident. Future claimants would do well to argue that the trial court should permit the jury to determine if the plaintiff’s relationship with the injured party supports the assertion of the claim. Barring that drastic step, future claimants might request that the judge perform a Greene hearing (a term that I just made up) to make a determination, as a matter of law, whether the case has the bona fides to proceed.
Beyond zone of danger jurisprudence is the broader issue of when generally the courts should permit claims for emotional distress to proceed. For example, increasingly, schools and universities are providing students “trigger” warnings before certain books are read for homework or discussed in class. Would the failure to provide an appropriate trigger warning give rise to an emotional distress failure to warn claim? Some educators may be inclined to caution their students beforehand that To Kill a Mockingbird, their assigned text, deals with potentially disturbing themes like child abuse and sexual assault. If a student was not provided that warning and asserted a claim for emotional distress as a result of frank classroom discussion, would such a tort claim be actionable? It is doubtful that any New York court would permit such a claim to proceed, without more, but it remains for some enterprising plaintiff lawyer to argue that such a claim should survive a motion to dismiss.
Whether in the context of a grandmother watching her beloved granddaughter being crushing by falling debris or the failure to provide trigger warnings to high school students, dealing with claims for negligent infliction of emotional distress will likely remain difficult to address in the New York trial courts, particularly if trial judges are to respond “to the surging reality of changed conditions” in weighing precedent.