New York Court of Appeals Update (February 2021) #2

This was originally published on the SGR Blog.

Was Grandparent Member of  Grandchild’s Immediate Family?

Answer Dispositive of Bystander “Zone of Danger” Claim

The question presented: may a grandparent, who was in close proximity to her grandchild at the time of the death-producing accident, pursue a claim for bystander recovery under a “zone of danger” theory?

The “zone of danger” rule to “allow[s] one who is . . . threatened with bodily harm in consequence of the defendant’s negligence to recover for emotional distress” flowing only from the “viewing [of] the death or serious physical injury of a member of [that person’s] immediate family”. Unsettled were “the outer limits” of the phrase “immediate family”. The Court of Appeals was not asked to fix permanent boundaries of the “immediate family.” Instead, the Court was simply to determine whether a grandchild may come within the limits of her grandparent’s “immediate family,” as that phrase is used in zone of danger jurisprudence.

The Court concluded that the grandchild came within those limits. Consistent with the historically circumspect approach expanding liability for emotional damages within the zone of danger jurisprudence, the increasing legal recognition of the special status of grandparents, shifting societal norms, and common sense lead to the conclusion that, in this case, a grandchild was “immediate family” for the purpose of applying the zone of danger rule.

On May 17, 2015, Susan Frierson and her two-year-old granddaughter, Greta Devere Greene, were in front of a building when they were suddenly struck by debris that fell from the façade. Emergency measures taken to save Greta’s life failed, and she died the next day.

Susan and Greta’s mother, Stacy Greene, subsequently commenced an action seeking damages for injuries sustained in that accident. The complaint was quickly superseded by an amended pleading in which they alleged, among other things, that Esplanade Venture Partnership owned the building and that the remaining defendants were negligent with respect to the inspection of the facade of that structure. The amended complaint also alleged that the facade was in a dangerous condition and that, as a result, a piece of the facade broke, fell, struck Greta, and caused her to die.

Based on those allegations, the complaint asserted two causes of action: the first sounding in negligence and the second in wrongful death. Nowhere in that amended pleading, however, did the complaint assert a cause of action for negligent infliction of emotional distress on behalf of Susan under the “zone of danger” doctrine.

A motion was made to cure that deficiency by amending the amended complaint. And that application was at the core of the appeal. That motion sought permission to “assert an additional cause of action on behalf of Susan under the ‘zone of danger’ doctrine.” That cause of action was claimed to be appropriate in view of the “unique and special” nature of “the relationship between a grandparent and a grandchild.”

To the extent the grandparent-grandchild relationship between Susan and Greta was not alone enough to bring Greta into Susan’s “immediate family,” it was alleged that the nature of the relationship, in this case, warranted that classification. Susan participated in Greta’s birthing process, helped to care for Greta during the first few weeks of Greta’s life, and subsequently developed a “powerful” “emotional bond” with Greta. By the time Greta was one year old, Greta had begun to have overnight visits with Susan. It was during one of those visits that Susan was struck by debris that fell from the building, and Greta was struck and killed.

The motion to amend the amended complaint was granted. Relying on the Court of Appeal’s recognition in an earlier case that New York’s “specific recognition of the custody rights of grandparents with respect to their grandchildren,” and the progression of the zone of danger jurisprudence in other jurisdictions, the Supreme Court concluded that Susan “should be considered an ‘immediate family member’ and afforded a right to recover for her emotional injuries caused by this tragic accident”.

A divided Appellate Division reversed and denied the branch of the motion, which was for leave to amend the amended complaint to add a cause of action sounding in negligent infliction of emotional distress. The majority ruled that leave to amend should have been denied—based upon the proposition that only spouses and their children are immediate family members.

The dissenters at the Appellate Division would have affirmed Supreme Court’s order- noting that the” ‘living nature’” of the common law sometimes requires a” ‘respon[se] to the surging reality of changed conditions’ “. And maintained that the law should recognize that Greta was part of Susan’s “immediate family” for the purpose of permitting a zone of danger claim. 

The dissenters also rejected what they characterized as the majority’s “use of consanguinity as a crude proxy for emotional harm” given the likelihood that “arbitrary and unjust results that will inevitably follow when, for instance, a child is denied recovery because [the child] does not live within a traditional family structure”. The dissenters continued that “line drawing is often an inevitable element of the common-law process, but [it] . . . does not justify . . . clinging to a [boundary] that,” as sketched by the Appellate Division, excludes Greta from the class of persons constituting Susan’s immediate family. 

An appeal to the Court of Appeals followed.

The Court presented an extensive historical review (from 1896 to the near present) of the development of bystander zone of danger law. In 1969, the Court considered the issue of whether a cause of action for negligent infliction of emotional distress might lie in favor of a bystander who did not suffer physical injury and who was owed no “direct duty”. At that time, the Court declined to recognize a cause of action for harm sustained by a “third person” parent as a result of injuries negligently inflicted directly upon her child when the parent was not in the zone of danger. Observing that for the law to “limit the legal consequences of wrongs to a controllable degree…[t]he risk of indirect harm from the loss or injury of loved ones is pervasive and inevitably realized at one time or another”.

Fifteen years later, the Court revisited the question and the policy consideration and recognized a cause of action for bystander liability—so that a plaintiff negligently “expose[d] . . . to an unreasonable risk of bodily injury or death . . . may recover . . . damages for injuries suffered in consequence of the observation of the serious injury or death of a member of his or her immediate family—assuming, of course, that it is established that the defendant’s conduct was a substantial factor in bringing about such injury or death”. And observed that “courts ha[d] been reluctant to recognize any [such] liability for . . . mental distress which may result from the observation of a third person’s peril or harm”. However, by then, the “zone-of-danger rule, which” rendered compensable emotional harm caused by the negligent infliction of injuries upon another person in certain cases, had “become the majority rule in this country”.

Consequently, The Court of Appeals incorporated the zone of danger rule into New York jurisprudence: That rule allows one who is threatened with bodily harm in consequence of the defendant’s negligence to recover for emotional distress flowing only from the viewing of the death or serious physical injury of a member of his or her immediate family.

While the decision in 1984 recognized a zone of danger rule with an objectively defined class of bystanders as “immediate family,” the Court did not list or enumerate “immediate family members.” In fact, consistent with the caution with which the issue was historically approached. The Court expressly declined to define the “outer limits” with respect to “the immediate family” element of the zone of danger rule. Inasmuch as all of the plaintiffs in the 1984 case were married or related in the first degree of consanguinity to the injured or deceased person, left for another case was the decision as to “where lie the outer limits of ‘the immediate family’ “.

The Court of Appeals then examined other developments in the law relevant to the zone of danger analysis. For example, the Court previously concluded that an unmarried, same-sex partner could adopt the partner’s biological child. Same-sex marriage was codified in 2011. More recently, the Court acknowledged that the definition of a parent—which previously excluded a partner without a biological or adoptive relation to the subject child—had “become unworkable when applied to increasingly varied familial relationships”. That analysis emphasized the point that roles and perspectives change and that what once was accepted as a basic social premise had to be carefully examined in a way that reflected the current realities.

Even more critical in the context of this case was the legislative recognition of the changing nature of society’s understanding of family and the special relationship between grandparents and grandchildren. In the 1960s, the legislature established a vehicle for grandparents to obtain visitation rights with minor grandchildren. Although the law originally addressed only grandparent visitation, the statute was amended “to provide guidance regarding the ability of grandparents to obtain standing in custody proceedings involving their grandchildren”. The law now provides “that grandparents may demonstrate standing to seek custody based on extraordinary circumstances where the child has lived with the grandparents for a prolonged period of time, even if the child had contact with, and spent time with, a parent while the child lived with the grandparents”. 

The legislature acknowledged that “grandparents play a special role in the lives of their grandchildren and are increasingly functioning as caregivers in their grandchildren[‘s] lives. In recognition of this critical role that many grandparents play in the lives of their grandchildren, the legislature finds it necessary to provide guidance regarding the ability of grandparents to obtain standing in custody proceedings involving their grandchildren”.

Thus, the Court of Appeals recognized the “special status” of grandparents and that the unique path embodied in the child custody law to establish extraordinary circumstances was enacted “in recognition of the important role of grandparents and the increasing number of grandparents raising their grandchildren”. As the Court recognized in other contexts, concepts of the creation and composition of family units have evolved beyond traditional legal notions of blood relation or consanguinity. What once was accepted as a basic social premise must be carefully examined in a way that reflects the realities of both the changing legal landscape and people’s lives.

That is where the evolution of New York law with respect to bystander claims and the shifting understanding of varied familial relationships intersected. The case presented the question of whether Susan, as the grandmother of Greta, could assert a viable cause of action for negligent infliction of emotional distress under the “zone of danger” theory based upon the emotional harm stemming from witnessing at close proximity the incident in which Greta was killed. There was no dispute that Susan was within the zone of danger at the time of that incident. The question was whether she could assert a cause of action for negligent infliction of emotional distress because Greta was part of Susan’s “immediate family”.

The Court of Appeals had not yet established an outer boundary for “the immediate family” element of the zone of danger rule. Here, the Court simply concluded that a grandchild was within our understanding of what was meant by “immediate family.” That is, given the recognition by the Court and the legislature that the relationship of grandparent and grandchild enjoyed a “special status” among familiar relationships, the inclusion of grandparents in the common-law term “immediate family” under those circumstances was more than warranted.

This case called upon the Court of Appeals to blend prudence with recognition of reshaped societal norms and everyday common sense. The Court simply clarified that a discrete, limited class of persons– that enjoyed a special status under modern New York family law– came within the narrow avenue to bystander recovery. The Court concluded that a grandchild was the “immediate family” of a grandparent for the purpose of applying the zone of danger rule.

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