The question in this case is whether the tort cause of action for witnessing the death of a member of your “immediate family” is available for a grandmother who witnesses the death of her grandchild.
In this tragic case, a grandmother and her granddaughter were sitting on a bench outside a building on the Upper West Side when debris from the building’s façade fell and hit them, killing the granddaughter and injuring the grandmother. The mother and grandmother sued the building owner for personal injuries, and sought to amend their complaint to add a claim by the grandmother for negligent infliction of emotional distress. Defendant opposed the motion, citing Bovsun v. Sanperi, 61 N.Y.2d 219 (1984), where the Court of Appeals held that such a cause of action is available for a plaintiff who witnesses the injury or death of “a member of the plaintiff’s immediate family.” Defendant claimed that because the grandmother was not a member of the grandchild’s “immediate family,” she could not maintain a claim for negligent infliction of emotional distress under Bovsun and should not be granted leave to amend to add such a claim.
Supreme Court disagreed, concluding that there was an unresolved question for the factfinder about whether the grandmother was a member of the granddaughter’s immediate family. A divided panel of the Second Department reversed. The majority held that Bovsun and its progeny limited the cause of action to members of the decedent’s immediately family, and that grandparents were not immediate family for that purpose. Two judges dissented. They thought that making a claim available only to members of the immediate family was arbitrary, and would have applied “a more pragmatic standard that inquires into the functional nature of the bystander’s relationship with the injured third party.”
The Second Department granted plaintiffs leave to appeal.
Return to the case page for Greene v. Esplanade Venture Partnership.