ALBANY, N.Y. (Legal Newsline) - New York’s highest court has expanded the definition of “immediate family” to include grandparents in so-called bystander recovery lawsuits, broadening the number of people who can sue for compensation over witnessing the injury or death of a relative even though they suffered no physical injury themselves.
The New York Court of Appeals, in Greene v. Esplanade Venture Partnership, decided that Susan Frierson can sue the owner of a building for emotional harm she suffered after watching her two-year-old granddaughter get killed by a falling piece of masonry.
Frierson herself wasn’t physically injured in the May 2015 accident, but she sought to add a claim of bystander recovery to a lawsuit filed by the little girl’s mother. A trial court allowed Frierson to amend the lawsuit, but the intermediate Appellate Division reversed, citing New York precedent limiting such lawsuits to “immediate family,” defined as spouses and their children.
Frierson appealed to the state’s high court, which reversed again, citing changed patterns of childrearing and family relations. The Feb. 18 decision drew a concurrence from Judge Jenny Rivera, who would have gone much further to include any person with whom the plaintiff shared a close emotional bond. Judge Michael Garcia, in a separate concurrence, agreed with the decision but expressed concern about a policy of allowing uninjured plaintiffs to sue.
Frierson argued she should be considered immediate family of her granddaughter Greta because she “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.’”
In light of “our increasing legal recognition of the special status of grandparents, shifting societal norms, and common sense, we conclude that plaintiff's grandchild is `immediate family’ for the purpose of applying the zone of danger rule,” Judge Eugene Fahey's majority opinion says.
The decision pushes New York closer to states that allow a broad array of relatives and loved ones to recover damages for watching someone else getting injured or killed. Lawyers routinely add such claims in accident lawsuits, seeking insurance payouts for uninjured occupants in automobiles where a relative or loved one was hurt. In New York, as in many states, bystander recovery is still limited to plaintiffs who were in the “zone of danger” of the accident, meaning they faced some risk of being injured themselves.
Bystander lawsuits were barred in the 19th century in New York because the plaintiffs suffered no physical injury. As one court put it, such suits “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.”
By the 1960s, judges were more hospitable to the idea. In a 1961 decision involving a child who was terrified, but uninjured, after being placed in a ski lift without being properly secured, the New York Court of Appeals concluded that fear of physical injury was an allowable claim.
In 1968, California expanded the principle further by allowing complete bystanders to sue for the emotional injury of watching someone else suffer, in a case involving a woman who watched her child get hit by a car. New York resisted the trend for a while, but in Bovson v. Sanperi, a 1984 decision, the state’s high court allowed a mother and daughter to sue after another vehicle rear-ended the car they were sitting in on the side of the road, crushing the woman’s husband.
Neither plaintiff actually saw their husband and father being injured but they felt the impact and were in the “zone of danger,” the high court ruled, so they could sue.
The definition of “immediate family” remained tightly defined, however. In another New York decision, the niece of a woman killed in her presence wasn’t allowed to bring a bystander suit. Dissenting judges at the time said the “living nature” of the common law required a response to changing conditions, and it would be unfair to use “consanguinity as a crude proxy for emotional harm.”
In this latest decision, the high court said it still wasn’t drawing any bright lines around the definition of immediate family.
“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’ and conclude that a grandchild is the `immediate family’ of a grandparent for the purpose of applying the zone of danger rule,” the court ruled.
Judge Rivera criticized the decision for not going far enough. She dismissed concerns about speculative or fraudulent claims as “merely `a kind of dollars-and-cents argument’ that neglects the dual purposes of tort law, which is to make wrongfully injured parties whole and provide a sufficient economic disincentive for injurious negligent conduct.”
She said New York should allow bystander suits by anyone who shares a “personal and loving bond” with the accident victim, regardless of where they were when the incident occurred. And she said anyone should be able to sue over witnessing another person getting hurt or killed, if they were also in the zone of danger.
Judge Garcia went the other way, saying he there were sound policy reasons for limiting the scope of bystander liability. But since the decision only narrowly expanded the definition of immediate family, he said, “I see no value in dissenting.”