Kevin G. Faley and Andrea M. Alonso
*Originally published in the
New York Law Journal
August 27, 2014

Plaintiffs asserting claims for negligent infliction of emotional distress must establish that they were owed a duty by a defendant, that such duty was breached and, because of the breach, they were exposed to an unreasonable risk of bodily injury or death. In New York, the general rule is that bystanders are not owed a duty and cannot assert such a claim; however, New York recognizes an exception to this principle: the "zone of danger" rule. The exception is premised on the concept that the defendant breached a duty owed to the plaintiff.

Where a defendant's [negligent conduct creates] an unreasonable risk of bodily harm to a plaintiff and such conduct is a substantial factor in bringing about injuries to the plaintiff in consequence of shock or fright resulting from his or her contemporaneous observation of serious physical injury or death inflicted by the defendant's conduct on a member of the plaintiff's immediate family in his or her presence, the plaintiff may recover damages for such injuries.1

Although the rule is commonly associated with automobile accidents, claims have been sustained in cases involving house fires, assaults and elevator accidents. These non-auto claims are the subject of this article.

Recognition of the Rule

The zone of danger rule was first recognized by the New York Court of Appeals in Bovsun v. Sanperi.2 In that case, the plaintiff was inspecting the rear of his family's vehicle when another vehicle crashed into the car, pinning him between the two vehicles and causing serious injuries. The court ruled that plaintiff's wife and daughter, who were in the vehicle at the time, were within the zone of danger, even though they did not actually see the collision, as they were "subjected to an unreasonable risk of bodily injury" by defendant's negligent conduct, were instantly aware of the impact, feared for their immediate family member's safety and immediately observed his serious injuries.

In Wallace v. Parks Corp.,3 a fire erupted in plaintiff's home, trapping plaintiff until she escaped through cellar stairs. The Fourth Department found that plaintiff's husband and two sons were able to recover for negligent infliction of emotional distress because they were in the zone of danger as they were exposed to the fire and attempted to rescue their wife/mother. The court acknowledged that individuals who attempt to rescue a "loved one" from an unreasonable risk of bodily harm are within the zone of danger.4 For this reason, the court denied recovery to plaintiff's daughter who ran out of the house when the fire began and was never in the zone of danger.

In Hackert v. First Alert,5 a fire ignited in the middle of the night at plaintiff's home, causing the death of plaintiff's sister and father. Although the plaintiff did not witness the injuries to his family members, he became instantly aware of their injuries when he heard his sister and father cry out "Oh, my God. Oh, my God" and "Fire, fire, help!," respectively, as he simultaneously discovered that he could not leave his room due to the intense heat and smoke. Plaintiff was in the zone of danger because he was "threatened by the same fire which [ultimately] killed his father and sister."6 Because plaintiff was instantaneously aware of his family members' injuries while in the zone of danger, the Northern District of New York denied defendants' motion for summary judgment as to plaintiff's claims for emotional distress.

In DiMarco v. Supermarkets Gen. Corp.,7 the Second Department reinstated the plaintiff's zone of danger cause of action in a case involving an assault on plaintiff's father. The court reasoned that although the plaintiff, who was a minor, was not physically injured by the assault upon his father, his attempt to stop the assault and his "contemporaneous observation of [his father's] serious physical injury" caused by defendant's conduct placed plaintiff within the zone of danger.8 The Supreme Court, Albany County, allowed a plaintiff to amend her complaint to include a claim based on the zone of danger rule when she witnessed her daughter get her finger caught in the comb plate of an escalator, which caused her daughter serious injury. The court in Collesides v. Westinghouse explained that the zone of danger rule "does not require physical contact in addition to emotional or psychological injury" and the mother's "haunting experience in witnessing her daughter's horror and her attempt to assist her" were enough to sustain a claim under the zone of danger rule.9

In Valdez v. City of New York,10 the Supreme Court, Bronx County, upheld a verdict that awarded damages for negligent infliction of emotional distress to the plaintiffs, who were children, based on witnessing their mother's shooting. The court found that the children were within the zone of danger as they were near their mother when she was shot, close enough that they could have been struck by the bullets. Ultimately, the decision was reversed because plaintiff did not establish that a special relationship existed between her and the defendant police department and thus no duty was owed to her. Normally a municipality is not liable for injuries sustained from its failure to provide police protection. However, there may be liability where the police formed a special relationship with the plaintiffs. A special relationship can be formed when police assume a duty to act. The Court of Appeals left open the issue of whether the infant plaintiffs were in the zone of danger, had a special relationship been established.11

Outside the Zone

If the elements of the rule are not established, the courts will dismiss the zone of danger claim. Claims based on the rule are often denied because plaintiff's location at the time of the accident did not place plaintiff at risk of physical harm.

In Diaz v. Little Remedies,12 plaintiff's 2-year-old son sustained chemical burns after plaintiff treated him with a laxative. That treatment resulted in the suspicion that plaintiff had scalded her son. Plaintiff was arrested on child abuse charges. The Fourth Department acknowledged that plaintiff was arguably in the zone of danger because she was exposed to defendant's product when she applied the laxative to her son; however, the emotional distress that she suffered was related to her arrest, not to witnessing the physical harm to her son.

The Supreme Court, Richmond County, in Li v. Super 8 Worldwide,13 dismissed plaintiffs' zone of danger causes of action, even though plaintiffs witnessed their immediate family member drown in a pool. Plaintiffs' complaint did "not state how the plaintiffs' physical safety was 'endangered,' or what, if anything, caused them to fear for their own physical safety."14 Thus, plaintiffs were not in the zone of danger and their claims for emotional distress were dismissed. The mere witnessing of the death or serious injury to an immediate family member is insufficient without being close enough to the accident to experience a sense of endangerment.

 In Colombini v. Westchester County Health Care,15 the Supreme Court, Westchester County, dismissed a father's claim for negligent infliction of emotional distress based on witnessing his son's death. Plaintiff's son was undergoing an MRI when he was killed by a metal oxygen tank that was drawn to the machine's magnet. The court dismissed the claim in part because the plaintiff did not allege that defendants owed a duty to him and also because there was no proof that plaintiff feared for his own safety or that he "suffered any genuine and serious mental distress stemming from his fear of injury to himself."16

The Second Department in Marcial v. Maldonado17 held that a mother of a child bitten by a dog could not recover damages for emotional distress because there was no evidence presented that the mother was within the zone of danger at the time the child was bitten. The Fourth Department in McDonald v. Jarrabet18 dismissed a mother's cause of action based on the zone of danger rule because she did not witness the sexual abuse of her daughter by defendant. In O'Sullivan v. Duane Reade,19 plaintiff cut himself while shaving and "freaked out" when he realized he was using a used or defective razor, at which point his wife ran to him to see what had happened. The Supreme Court, New York County, dismissed the wife's negligent infliction of emotional distress claim because she did not witness her husband cut himself.

In Gonzalez v. New York City Housing Authority,20 plaintiff's daughter died when she was trying to exit an elevator that had stopped between floors. While the elevator was stopped, the doors opened enough for passengers to get out. However, when plaintiff's daughter attempted to exit, the elevator began moving. Before plaintiff, who had been in the rear portion of the elevator, could reach her daughter, another woman held plaintiff back and covered her eyes and then the plaintiff fainted. Plaintiff did not become aware of her daughter's death until she regained consciousness.

The First Department held that plaintiff was not within the zone of danger because the zone of danger "clearly consisted of the area from the elevator doors to the wall outside the elevator," and plaintiff was in the back of the elevator.21 Plaintiff herself was neither in physical danger at the time of the accident, nor did she witness the tragic event. The Northern District of New York, in Mortise v. United States,22 dismissed a wife's cause of action for negligent infliction of emotional distress for witnessing her husband unknowingly become a "target" of a National Guard war game exercise. Plaintiffs were recreationally riding ATVs when the husband accidentally triggered a trip flare, a part of the exercise, and was immediately surrounded by armed men who pointed their weapons at him, told him he was a prisoner and fired blanks. The court denied recovery to the wife because her own physical safety was never threatened and her husband was not physically injured.

And finally, in Fernandez v. Abalene Oil,23 the Second Department denied plaintiff's cause of action under Labor Law §240(1). Plaintiff claimed that he sustained emotional damages as a result of witnessing his brother fall from a cellular tower to his death, while plaintiff at the same time was avoiding being struck by dislodged steel step bolts. It appeared that the elements of the zone of danger rule were satisfied, but the court held that to apply the zone of danger rule to a Labor Law §240(1) cause of action "'would, in effect, extend the owner's nondelegable duty to a person who was not injured by the particular hazard the statute was designed to guard against.'"24

The statute was specifically designed to protect workers who might be hurt by unsafe conditions and not the immediate family members who suffer emotional damages as a result of the conditions. The court explained that plaintiff's "psychological injuries...were not a direct consequence of a failure to provide adequate protection to him against a risk arising from a physically significant elevation differential."25

Conclusion

What appears to be simply a concept of "zone of danger" is actually more complicated upon review. To successfully make a claim for negligent infliction of emotional distress based on the zone of danger rule, a plaintiff must prove:

· Defendant's negligent conduct created an unreasonable risk of bodily harm to the plaintiff;

· Plaintiff observed, contemporaneously with the accident, an immediate family member suffer serious physical injury or death as a result of the defendant's conduct; and

· Plaintiff suffered an injury "in consequence of shock or fright" as a direct result of witnessing the accident.

Despite the rule's limitations, attorneys should be aware that claims based on the zone of danger rule can be asserted in a variety of cases, not just those involving automobiles.

Endnotes:

  1. Bovsun v. Sanperi, 61 N.Y.2d 219, 223-24, 461 N.E.2d 843 (1984). Emotional injury includes shock or fright, even if such shock or fright "is not due to any fear for [plaintiff's] own safety but to fear for the safety of [a] spouse or child." Hass v. Manhattan & Bronx Surface Transit Operating Auth., 204 A.D.2d 208, 208-09, 612 N.Y.S.2d 134 (1st Dept. 1994). Immediate family members include one's mother, father, spouse, son, daughter, brother, or sister. See, e.g., Trombetta v. Conkling, 82 N.Y.2d 549, 626 N.E.2d 653 (1993) (holding that an aunt is not an immediate family member). The zone of danger rule does not apply where there is a close bond or relationship, such as a friendship, between the plaintiff and the victim. See Casale v. Unipunch, 177 A.D.2d 1029, 578 N.Y.S.2d 46 (4th Dept. 1991).
  2. Bovsun, supra; see also Kugel v. Mid-Westchester Indus. Park, 64 N.Y.2d 883, 476 N.E.2d 1004 (1984).
  3. 212 A.D.2d 132, 629 N.Y.S.2d 570 (4th Dept. 1995).
  4. 4.Id. at 142.
  5. 2005 U.S. Dist. Lexis 46141 (N.D.N.Y. 2005), aff'd, 271 Fed. Appx. 31 (2d Cir. 2008).
  6. 6.Id. at ·30.
  7. 137 A.d.2d 651, 524 N.Y.S.2d 743 (2d Dept. 1988).
  8. 8.Id. at 651.
  9. 125 Misc.2d 413, 414-15, 479 N.Y.S.2d 475 (Sup. Ct. Albany Cnty, Special Term, 1984).
  10. 21 Misc.3d 1107(A), 873 N.Y.S.2d 238 (N.Y. Sup. Bronx Cnty 2008), rev'd, 74 A.d.3d 76, 901 N.Y.S.2d 166 (1st Dept. 2010), aff'd, 18 N.Y.3d 69, 960 N.E.2d 356 (2011).
  11. Valdez v. City of New York, 18 N.Y.3d 69, 960 N.E.2d 356 (2011).
  12. 81 A.D.3d 1419, 918 N.Y.S.2d 281 (4th Dept. 2011).
  13. 2012 WL 6065828 (N.Y. Sup. Richmond Cnty 2012).
  15. 24 Misc.3d 1222(A), 899 N.Y.S.2d 58 (Sup. Ct. Westchester Cnty 2009).
  16. 16.Id. at 15.
  17. 288 A.D.2d 357, 733 N.Y.S.2d 461 (2d Dept. 2001).
  18. 188 A.D.2d 1045, 591 N.Y.S.2d 676 (4th Dept. 1992).
  19. 27 Misc.3d 1215(A), 910 N.Y.S.2d 763 (Sup. Ct. New York Cnty 2010).
  20. 181 A.D.2d 440, 580 N.Y.S.2d 760 (1st Dept. 1992).
  21. 21.Id. at 440.
  22. 910 F.Supp. 74 (N.D.N.Y. 1995), aff'd, 102 F.3d 693 (2d Cir. 1996).
  23. 91 A.D.3d 906, 938 N.Y.S.2d 119 (2d Dept. 2012).
  24. 24.Id. (citing Del Vecchio v. State, 246 A.D.2d 498, 500, 667 N.Y.S.2d 401 (2d Dept. 1998)).
  25. See id. at 909.