The ‘Greene’ decision is extraordinary in its narrow application. It results in the addition of grandparents to the “definition of immediate family” who may recover if they are in the zone of danger and witness the unspeakable horror of having a grandchild die before their eyes.

Andrea M. Alonso and Kevin G. Faley, New York Law Journal

February 23, 2021

In a surgically precise decision, the Court of Appeals in Greene expanded the recovery for emotional damages to grandparents who are in the zone of danger and who witnessed the death of a grandchild. On May 17, 2015, Susan Frierson was next to her two-year-old granddaughter when she was struck by debris that fell from the façade of a building. Her granddaughter died the next day. The plaintiff moved for leave to serve an amended complaint to assert a cause of action for negligent infliction of emotional distress on behalf of Susan Frierson under the “zone of danger doctrine.”

The Appellate Division, Second Department denied the motion to amend the complaint to add a cause of action sounding in negligent infliction of emotional distress for the grandmother. The Appellate Court relied on the Court of Appeals case of Bovsun v. Sanperi, 61 N.Y.2d 219 (1984), which limited recovery for negligent infliction of emotional distress to “immediate family” within the zone of danger. As all affected parties in Bovsun were parents and children it was implicit that only these plaintiffs were “immediate family.” A subsequent case, Trombetta v. Conklin, 82 N.Y.2d 549 (1993), denied recovery to the niece of a woman whose aunt was killed by a truck while she held her hand crossing a street. The niece had been raised by that aunt. The Court of Appeals found that the niece was not “immediate family.” By analogy, the Appellate Division in Greene denied the motion to amend, effectively denying recovery to the grandmother witnessing the death of her granddaughter.

In a strong dissent, Justice Miller (Justice Hinds-Radix concurred) moved away from strict constructionism and noted the “living nature” of the common law. They found consanguinity a crude proxy for denying children that live in a non-traditional family structure the status of “immediate family.”

In a 15-page decision, Justice Fahey, writing for the majority in Greene, found that under the court’s ruling in Bovsun (see 61 N.Y.2d 219, 228) “immediate family” can include a grandparent who witnesses the death of a grandchild while in the zone of danger. The court’s decision was based on three elements: (1) a special status of grandparents, (2) shifting societal norms, and (3) common sense.

The foundation of the Court of Appeals’ decision in Greene was based upon the legal recognition of the 1960’s legislation which granted grandparents special status and visitation rights with minor grandchildren. See Domestic Relations Law §72; L 1966 ch. 631 §1. That statute was amended in 2003 and provided grandparents with the ability to obtain custody of their grandchildren. L 2003, ch 657 §1. The court recognized that an increasing number of grandparents raised their grandchildren. Regarding the area of “immediate family and the zone of danger law,” Judge Fahey noted that past courts have been historically precise and have exercised prudence in expanding this area of the law. In a very narrow conclusion, the court simply held “that a grandchild is within our understanding of what is meant by “immediate family.”

Lastly, the court recognized that societal norms have been reshaped and everyday common sense compelled the conclusion: “We simply clarify 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’” (emphasis added). The court’s language is cautious, conservative, and circumscribed.

A concurring opinion by Justice Rivera is 31 pages long, twice the length of the majority opinion. Justice Rivera declared that the court “has missed the moment.” Essentially, Justice Rivera advocates abolishment of the requirement that a plaintiff’s family member must be in the zone of danger to recover for negligent infliction of emotional distress. Additionally, the court should discard the requirement that a bystander within the zone of danger be an “immediate family member.” Lastly, Justice Rivera argues that the court would be justified in rejecting outdated, patriarchal, and parochial definition of families. Families, she writes, “are formed not solely by matrimony and blood but also with bonds of friendship and love.” Justice Rivera argues that the concerns over unduly burdensome liability are overstated and that dollars and cents arguments neglect the purpose of tort law.

Justice Rivera cites states that do not define immediate family by New York’s restrictive rules. Some of them are Indiana, Iowa, Maine, Nevada, New Hampshire, New Jersey, and Oregon. Other states require no level of family relationship but rather base recovery on whether it was reasonably foreseeable that the plaintiff would suffer harm. These include Alaska, Nebraska, Ohio, Pennsylvania, and Washington.

The fact that New York does not have a bystander recovery law “makes us an outlier in the nation.” Justice Rivera advocates for adopting the “bystander” recovery rule as outlined in Dillon v. Legg, 68 Cal. 2d 728 (1968), which would allow recovery for a mother who observed her son being hit by the defendant’s car but was outside the “zone of danger.”

In a common-sense heartfelt argument, Justice Rivera stated that “human beings have strong loving connections to non-relatives and non-spouses at least as meaningful as to those between spouses and family members.” The “immediate family” requirement should be eliminated for persons who suffer distress caused by observing the serious injury or death of another. With respect to family members, Justice Rivera found that the definition of family is long outdated and that “our rule should no longer preclude recovery by persons whose lives are intertwined but choose not to marry because their families would ostracize them for marrying someone of the same gender, or because they are of a different race or ethnicity, or from outside of their religious community, or because they simply choose not to marry. Our rule denying recovery in these situations cannot withstand the logic by which the Court extends bystander recovery today.”

In sum, the concurring opinion dictates that the immediate family requirement should be eliminated for persons who witness the death or serious injury of a person to whom they have a strong relationship. The definition of “immediate family” who can recover outside of the zone of danger should be broadly interpreted and should include any person who has suffered emotional distress caused by perceiving the serious injury of any person with “whom they shared a strong personal and loving relationship.” Justice Rivera then goes on to add that any bystander who witnesses an accident should also be allowed to recover for emotional damages if they were “at risk of immediate and serious physical harm of the defendant’s contact.” In other words, if someone who is not an immediate family member or someone who did not share a strong personal and loving relationship sustains emotional distress by observing an accident and is at risk of immediate harm by the defendant’s conduct, that person can maintain a cause of action.

Justice Garcia concurred with the narrow rule of the majority in overturning Trombetta holding that “a grandchild is the immediate family of the grandparents for purpose of applying the ‘zone of danger rule.’”

Citing Tobin v. Grossman, the majority of the court states that the goal for the law is to “limit legal consequences of wrongs to a controllable degree.” Tobin, 24 N.Y.2d at 619. Justice Rivera counters by stating that we should “reject as a ground for denying a cause of action that there will be a proliferation of claims. It suffices that if a cognizable wrong has been committed there must be a remedy, whatever the burden of the Courts.” Applying the analysis of Justice Rivera, if a car careens down the West Side Highway pedestrian bike path, killing five persons, bystanders would have a valid action for infliction of emotional distress as a result of witnessing the death of a victim personally unknown to them as long as they were at risk for immediate and physical harm. Would such a ruling “limit the legal consequences of wrongs to a controllable degree” or is it a “cognizable wrong for which there must be a remedy”? For now, it is the former.

The Greene decision is extraordinary in its narrow application. It results in the addition of grandparents to the “definition of immediate family” who may recover if they are in the zone of danger and witness the unspeakable horror of having a grandchild die before their eyes.

Andrea M. Alonso and Kevin G. Faley are partners in the firm of Morris Duffy Alonso & Faley.

Reprinted with permission from the February 23, 2021 edition of the New York Law Journal © 2021 ALM Media Properties, LLC. All rights reserved.
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