In the 2020 session, the New York Legislature considered changes in what has come to be known as the “Grieving Families Act.” This evolving tort law with respect to a bystander's right to recover for emotional damages sustained as a result of witnessing the injuries to another person has a long and interesting history dating back to the mid-1800's.
We begin with Bovsun v. Sanperi, 61 N.Y.2d 219 (1984) which adopted the zone of danger theory to permit recovery by a bystander who was part of the immediate family of the injured party. Bovsun permitted recovery for emotional damages by a mother and daughter sitting in a stopped vehicle when the father was struck by defendant's vehicle. Recovery for emotional damages was permitted because the mother and daughter were deemed the immediate family of the injured person and were in the zone of danger while sitting in the vehicle.
Nine years later in Trombetta v. Conkling, 82 N.Y.2d 549 (1993), the Court of Appeals clarified and limited the right of recovery by a bystander for negligent infliction of emotional distress only to members of the immediate family. In Trombetta, the court held that an aunt who witnessed a young niece struck by a truck was not entitled to recover under the Bovsun even though the niece was raised and resided with her. According to the court, the aunt was not the child's immediate family.
New York's Court of Appeals issued a decision in Greene v. Esplanade Venture Partnership et al., (2021 WL 623832 on February 18, 2021) that impacts and expands tort case law jurisprudence by concluding that a grandparent is the immediate family of a grandchild under the zone of danger doctrine. In Greene, the plaintiff Susan Frierson and her two-year old granddaughter, were struck by debris falling from the façade of an adjacent building. The grandchild was killed. Plaintiffs moved to amend the complaint to add a cause of action for intentional infliction of emotional distress on behalf of the grandparent, Susan, under the zone of danger doctrine. Plaintiffs presented evidence of the close relationship and bonds between the grandparent and child The Supreme Court granted the amendment but, upon the appeal, the Appellate Division reversed and granted leave on certified question. The Court of Appeals reinstating the cause of action on behalf of the grandparent.
The majority in Greene seized upon the case as an opportunity to reexamine New York's scheme redressing wrongful death and the right of a bystander to recover from the wrongdoer. Under the zone of danger rule, a person threatened with bodily harm as a result of the defendant's negligence may recover damages for emotional distress upon viewing the death and serious physical injury of his or her immediate family. See, Greene v. Esplanade Venture Partnership et al., supra at 228, quoting Bovsun. The court deemed the grandparent a member of the “immediate family” was entitled to recovery in this case. It must be emphasized that the claim for emotional distress of the injured party is the grandparent's and not the injured person.
In a concurring opinion, Hon. Jenny Rivera, Associate Judge of the Court of Appeals, advocated a major expansion of the zone of danger rule. She proposed that recovery of emotional damages should include any person with whom the injured party shared a strong, personal and loving bond or if such a person was at risk of immediate and serious physical harm from the conduct of defendant. Stated otherwise, the concurring opinion would eliminate the requirement that the plaintiff be related to the victim and would allow strangers to recover if placed at risk by a violation of a duty. Judge Rivera argued that the Court missed an opportunity to discard this archaic rule and noted that the statutory scheme upon which the foregoing is predicated is contained in Estates, Powers and Trust Law (“EPTL”) sections 5-4.1, 11=3, 3 and 4.1.1, 5-4, 3 and 5-4, 4. The basis for the statutory scheme may be traced back to 1847 (yes, 1847!). Under current law, an award of wrongful death is limited only to economic loss. A notion that is rooted in the 1847 Legislation. According to Judge Rivera, the world has changed significantly since 1847 and the wrongful death jurisprudence should be revisited to consider the changes in the structure of society and the economic realities that have replaced what was once an agrarian society.
So, what are the changes in the New York Legislature proposing for the “Grieving Families Act?” The proponents of the new legislation argue that the bill should consider more than victim's salary, but also the grief or anguish caused by the loss of life and expand categories of those entitled to recover for the loss of a loved one. Most notably the legislation enumerates six categories of damage for which the wrongdoer may be held accountable. The foregoing categories include:
- loss of love;
- loss of society and protections;
- pecuniary injuries such as loss of services;
- loss of support and assistance;
- loss or reduction of inheritance caused by the decedent's death;
- loss of nurture, guidance, counsel, advice, training and education caused by the decedent's death.
The bill also expands the list of persons entitled to recover beyond distributees to include a spouse, domestic partner, surviving close family members, issue, parents, grandparents, stepparents and siblings. The determination of which family members can be deemed close and entitled to recover will be a factual question for the finder of fact based upon the specific circumstances presented. As of this writing, the proposed legislation is in still in committee.
This writer takes no position with respect to the proposed legislation or the statutory and decisional scheme which it purports to correct. However, attorneys and others interested in the above subjects should take heed and follow the course of the legislative proposals and decisional cases as they evolve beyond the current posture. However, it is noted that the complex factual questions contemplated by the “Grieving Families Act” may well be better resolved through alternative dispute resolution (ADR). The hardship that a person endures as a result of the loss of a loved one requires a neutral that is sensitive to the sometime heart wrenching and overwhelming issues that a family is going through. Through ADR, a neutral can resolve an issue through care, respect and compassion. What's more, mediation and arbitration will be more expeditious and less stressful on the parties under what is most likely tragic circumstances.