Understanding New York’s “Zone of Danger” Rule in Non-Automobile Situations

By Kevin G. Faley and Andrea M. Alonso

August 11, 2021

INTRODUCTION

In New York, the mechanism for a bystander-plaintiff to recover damages for emotional distress is the “zone of danger” rule. To recover under a “zone of danger” theory, a plaintiff must show: (1) the defendant’s conduct threatened the plaintiff with an unreasonable risk of bodily injury or death; (2) the plaintiff suffered an emotional injury from viewing or contemporaneously observing the serious injury or death of a third-party victim resulting from defendant’s conduct; and (3) the plaintiff and third-party victim are immediate family members. While the “zone of danger” rule is often associated with automobile accidents, this article analyzes how the rule is applied in non-automobile situations. 

INSTITUTING THE MODERN RULE

The “zone of danger” rule was initially introduced by the New York Court of Appeals in Bovsun v. Sanperi, 461 N.E.2d 843, 847-48 (N.Y. 1984). While stopped on the side of the road, the Bovsun’s vehicle was struck by the defendant’s car, pinning Mr. Bovsun between the two vehicles. Ms. Bovsun and their daughter were inside the car at the time of the incident. The Court determined the mother and daughter sufficiently established a claim for emotional distress finding that, as a result of the defendant’s negligence, they were at risk of serious physical harm; the victim was a member of their immediate family; and they were instantaneously aware of the victim’s injuries.

REQUIREMENT ONE: PLAINTIFF WAS THREATENED WITH SERIOUS BODILY INJURY OR DEATH

The “zone of danger” test “is premised on the traditional negligence concept that by unreasonably endangering the plaintiff's physical safety the defendant has breached a duty owed to him or her.” Bovsun, 461 N.E.2d at 847. The test does not create a new duty, rather it broadens an existing duty to avoid inflicting bodily harm to others. For example, in Hackert v. First Alert, Inc., 2005 U.S. Dist. LEXIS 46141 (N.D.N.Y. 2005), aff’d, 271 Fed. Appx. 31 (2d Cir. 2008), a mother and son claimed emotional distress against the manufacturer of their home’s smoke detectors after a fire killed the family’s father and daughter. The court denied defendant’s motion for summary judgment reasoning that “a jury may find that [the plaintiff] was in the zone of danger when the injury to his family members occurred” since he “was threatened by the same fire that killed his father and sister.” Id. at *30.  

Further, a plaintiff who voluntarily places himself or herself in a threatened position, such as to rescue a family member from harm, will not be precluded from utilizing the “zone of danger” rule. In Wallace v. Parks Corp., 629 N.Y.S.2d 570 (4th Dep’t 1995), a fire engulfed plaintiff’s home due to defendants’ faulty products. Three of the plaintiffs could have escaped the burning house but chose to remain and rescue a trapped family member. The court stated, “A plaintiff may be placed in the ‘zone of danger’ when he or she attempts to rescue a loved one.” Id. at 577; see DiMarco v. Supermarkets Gen. Corp., 524 N.Y.S.2d 743 (2d Dep’t 1988) (finding plaintiff was within the “zone of danger” after attempting to stop an assault on the plaintiff’s father). 

On the other hand, a claim will fail if the defendant’s conduct does not unreasonably threaten the plaintiff with physical injury or death. See Shepherd v. Whitestar Dev. Corp., 977 N.Y.S.2d 844 (4th Dep’t 2014) (granting motion to dismiss negligent infliction of emotional distress claim as plaintiff failed to allege her physical safety was unreasonably endangered when her brother was crushed by a garbage compactor); Parker v. Jones, 2020 N.Y. Misc. LEXIS 10740 (Sup. Ct. Warren Cnty. 2020) (finding plaintiff mother could not recover for emotional distress against defendant father who killed their infant son as she was neither in the “zone of danger” nor witnessed the attack); Li v. Super 8 Worldwide, 2012 N.Y. Misc. LEXIS 5379 (Sup. Ct. Richmond Cnty. 2012) (watching family member drown in pool was insufficient to show plaintiff faced any threat of physical harm).

REQUIREMENT TWO: PLAINTIFF OBSERVED THE DEATH OR SERIOUS INJURY OF THIRD-PARTY VICTIM

The plaintiff’s emotional injury must stem from viewing or contemporaneously observing the serious injury or death of a third-party victim as a result of defendant’s conduct. See Bovsun, 461 N.E.2d at 850; Hackert, 2005 U.S. Dist. LEXIS 46141 (hearing desperate cries for help from family members in burning home was sufficient to satisfy “observation” requirement). 

Conversely, mere awareness of events directly before or after the incident alone will not suffice. For example, in Coleson v. City of New York, 24 N.E.3d 1074 (N.Y. 2014), a child hid in a closet while his mother was stabbed by her abusive husband. Though the child did not witness the attack itself, he saw the husband approach with a knife, heard screams for help, and saw his mother after the stabbing in a pool of blood. The Court of Appeals determined “the child was not in the zone of danger because he was in a broom closet while his mother was stabbed, and thus neither saw the incident nor was immediately aware of the incident at the time it occurred.” Id. at 1079; see Diaz v. Little Remedies Inc., 918 N.Y.S.2d 281 (4th Dep’t 2011) (affirming motion to dismiss for defendant as, among other reasons, plaintiff’s emotional injuries did not directly result from observing family member’s serious injury); O'Sullivan v. Duane Reade, Inc., 910 N.Y.S.2d 763 (Sup. Ct. N.Y. Cnty. 2010) (granting motion to dismiss for defendant since plaintiff did not observe the victim’s injuries until after the incident occurred). 

REQUIREMENT THREE: PLAINTIFF AND VICTIM ARE IMMEDIATE FAMILY MEMBERS

The “zone of danger” requires an immediate family relationship between the plaintiff and third-party victim. New York interprets the term “family” quite narrowly and has yet to expand the definition to individuals outside the family unit. See, e.g., Matter of Kmiotek v. Sachem Cent. Sch. Dist., 111 N.Y.S.3d 322 (2d Dep’t 2019) (dismissing negligent infliction of emotional distress claim brought by three high school football players against their school district after witnessing a teammate incur fatal injuries while participating in weight training exercises since plaintiffs and decedent were not immediate family).  

Further, New York does not recognize all close-knit familial relationships under the “immediate family” requirement. Compare Trombetta v. Conkling, 82 N.Y.2d 549 (1993) (refusing to extend “immediate family” requirement to an aunt-niece relationship despite the aunt raising and caring for the niece), with Greene v. Esplanade Venture P’ship, 36 N.Y.3d 513 (2021) (expanding the definition of “immediate family” to include grandmothers because of “increasing legal recognition of the special status of grandparents, shifting societal norms, and common sense”). 

Although analyzing the relationship between the plaintiff and third-party victim is useful in determining the genuineness of the plaintiff’s claim, New York’s rule is highly constrictive. Many states take a more inclusive approach to the requirement. For instance, New Jersey requires “a marital or intimate, familial relationship between plaintiff and the injured person,” Texas and California ask that the plaintiff and victim be “closely related,” and Indiana demands the relationship be “analogous to a spouse, parent, child, grandparent, grandchild, or sibling.” Id. at 536 (Rivera, J., concurring) (citations omitted). While still other jurisdiction do not require any particular degree of consanguinity or marriage. See Graves v. Estabrook, 818 A.2d 1255 (N.H. 2003) (refusing to adopt a “bright line rule” that uses relationship labels to deny recovery for emotional distress); Leong v. Takasaki, 520 P.2d 758, 766 (Haw. 1974) (“Neither should the absence of a blood relationship between victim and plaintiff-witness foreclose recovery.”); Lourcey v. Est. of Scarlett, 2003 Tenn. App. Lexis 477, at *11 (Tenn. Ct. App. 2003) (“[A] plaintiff need only prove proximity and awareness of the injury-producing event and the seriousness of the third party's injury to have a cause of action.”). But even in jurisdictions that use more flexible standards, the vast majority of courts have denied recovery when the third-party victim is merely an acquaintance or stranger. 

New York has proved hesitant to add new classes of persons to its “immediate family” definition. Nevertheless, the Court of Appeals in Greene refused to rule out which family relationships it will or will not acknowledge in the future. The Greene decision, while narrow, may be indicative of a future trend towards loosening the family member relationship requirement. 

ALTERNATE APPROACH TO THE “ZONE OF DANGER” RULE 

In most cases, the “zone of danger” test is premised on the negligence concept that the defendant owes a basic duty to avoid harming others and then breaches this duty by threatening the plaintiff’s physical safety. However, some defendants, such as municipalities and police officers, do not owe a duty to the general public absent a special relationship. Therefore, to bring a “zone of danger” claim against a municipality for failing to provide services, the plaintiff must show the defendant assumed a duty to act by creating a special relationship.  

Under such circumstances, the “zone of danger” requirements differ slightly and could be described as follows: (1) defendant undertook a duty to act by creating a special relationship with the plaintiff; (2) plaintiff’s physical safety was threatened because the defendant failed to act or acted negligently; (3) the plaintiff suffered an emotional injury from viewing or contemporaneously observing the serious injury or death of a third-party victim as a result of the defendant’s conduct; and (4) the plaintiff and third-party victim were immediate family members. However, this method is difficult to prove and rarely implemented. See Valdez v. City of New York, 873 N.Y.S.2d 238 (Sup. Ct. Bronx Cnty. 2008), rev’d, 901 N.Y.S.2d 166 (1st Dep’t 2010), aff’d 960 N.E.2d 356 (N.Y. 2011); Coleson, 24 N.E.3d 1074.
CONCLUSION

New York’s “zone of danger” rule is narrowly applied, highly fact-specific, and implemented in a variety of situations other than automobile accidents. To be within the “zone of danger,” a plaintiff must show that the defendant unreasonably threatened him or her with serious bodily injury or death and, as a result of defendant’s conduct, the plaintiff suffered an emotional injury from viewing or contemporaneously observing the serious injury or death of an immediate family member. 

Kevin G. Faley and Andrea M. Alonso are partners in the firm of Morris Duffy Alonso & Faley.  Christopher Misa, a paralegal, assisted in the preparation of this article.

Reprinted with permission from the August 11, 2021 edition of the New York Law Journal © 2021 ALM Media Properties, LLC. All rights reserved.  Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 – reprints@alm.com.