As we explained in our case summary, the question in this case is whether a grandparent who witnesses the death or serious physical injury of her grandchild can recover for negligent infliction of emotional distress. The Court (Fahey, J.) held that grandparents who are within the “zone of danger” when their grandchild is injured can recover for negligent infliction of emotional distress. Judges Rivera, Wilson, and Garcia concurred in the result but on different rationales.
The majority traced the history of emotional-distress claims under New York law. Until the twentieth century, the majority explained, plaintiffs could not sue for emotional injuries. That rule changed in 1961, when the Court recognized a claim for negligent infliction of emotional distress based on the trauma from nearly being physically harmed. The Court further expanded recovery for emotional-distress claims in 1984. That year, the Court in Bovsun v. Sanper allowed plaintiffs who are within the “zone of danger” during a tortious incident to sue for distress from witnessing the serious physical injury or death of an “immediate family member.” Bovsun did not define “immediate family member.” It instead held that the plaintiffs there—spouses or first-degree blood relatives to the injured parties—qualified as immediate family members, but acknowledged that the term “immediate family” might sweep broader.
After canvassing this history, the majority concluded that grandparents should qualify as immediate family under Bovsun. In reaching that conclusion, the majority explained that the conception of the “traditional family” had evolved, with “increasing number of grandparents raising their grandchildren.” Indeed, the majority observed, New York law has recognized that grandparents and grandchildren enjoy a “special relationship.” The majority pointed to statutes allowing grandparents to gain visitation rights and to obtain standing in custody proceedings. Grandparents, the majority reasoned, thus enjoy “special status” under the law—one that entitles them to sue for emotional distress if, while within the zone of danger, they witness their grandchild being killed or seriously injured. This holding, the Court explained, accords with its prior decision in Trombetta v. Conkling, which barred a niece from recovering for her aunt’s death but, according to the majority, did not “define the boundaries of the immediate family.”
Judge Rivera, joined by Judge Wilson, concurred in the result. Judge Rivera would have used this case to reform bystander recovery. First, she would have allowed anyone within the zone of danger to recover for emotional distress from witnessing another person die or be seriously injured. According to Judge Rivera, people within the zone of danger “suffer a particular serious emotional trauma if they survive but observe another’s severe or fatal injuries”—regardless of their relationship with the injured person. Second, Judge Rivera would have dispensed with Bovsun’s“immediate family” requirement and would have allowed any person to “recover for the emotional distress caused by perceiving the serious injury or death of any person with whom they shared a strong personal and loving bond.” Third, for those people who witness the death of a loved one, Judge Rivera would not require that they be in the zone of danger. These reforms, Judge Rivera explained, would bring New York in line with other States and with the approach urged by the Third Restatement of Torts.
Judge Garcia also concurred in the result. He wrote separately to explain that he was not persuaded that by the majority’s claim that its holding accords with Trombetta. He seized on Trombetta’s statement that bystander recovery should be “confine[d] . . . to the immediate family as surveyed in Bovsun.” Because “the immediate family surveyed in Bovsun” did not include grandparents, Judge Garcia explained, the majority had partially overruled Trombetta. Although Judge Garcia concurred in the result, he “question[ed] the wisdom” of the majority’s holding, which in his view, “would eventually give way to far-reaching liability affecting the public generally.” Still, he saw “no value in dissenting,” given that six judges supported extending bystander recovery to grandparents.