Tobin v. Grossman

• Citation: 30 A.D.2d 229,291 N.Y.S.2d 227
• Parties: Philomena TOBIN, as Mother and Natural Guardian of Gregory Tobin, an Infant, et al., Respondents, v. Stuart GROSSMAN, Appellant.
• Decision Date: 28 June 1968
• Court: New York Supreme Court Appellate Division

Page 227

291 N.Y.S.2d 227

30 A.D.2d 229

Philomena TOBIN, as Mother and Natural Guardian of Gregory Tobin, an Infant, et al., Respondents, v. Stuart GROSSMAN, Appellant.

Supreme Court, Appellate Division, Third Department.

June 28, 1968.

Donohue, Bohl, Clayton & Komar, Albany (Myron Komar, Albany, of counsel), for defendant-appellant.

Sanford Rosenblum, Albany (Eugene R. Spada, Albany, of counsel), for plaintiffs-respondents.

Before GIBSON, P.J., and HERLIHY, REYNOLDS and GABRIELLI, JJ.

AULISI, Justice.

Appeal is taken from an order of the Supreme Court at Special Term, entered December 4, 1967 in Albany County which denied a motion to dismiss the third cause of action in plaintiffs' complaint, and from an order denying reargument of such motion. It is alleged that on September 18, 1966, the infant plaintiff sustained personal injuries by reason of defendant's negligent operation of his automobile. The first cause of action for personal injuries to the infant plaintiff and the second, a derivative action asserted by the mother, are not involved in this appeal. The third cause of action in the complaint alleges that 'at the time and place of said accident wherein her said infant son was struck down, the plaintiff, Philomena Tobin, was present near the said public sidewalk and in close proximity to where her infant child was then walking; that it was under such circumstances that the defendant, Stuart Grossman, did then and there, in full view and presence of the plaintiff, strike and injure her infant child.' The complaint, so far as pertinent here, further alleges that as a result of the accident occurring in the presence of the plaintiff, she has become physically and mentally ill; that defendant should have anticipated or reasonably foreseen that as a consequence of his negligent conduct, 'any close relative present in the immediate vicinity, including the child's mother, was likely to sustain shock induced by fear of imminent danger and injury to her child.' The third cause of action seeks to recover damages for these alleged injuries suffered by the mother.

The defendant moved to dismiss the third cause of action on the ground it failed to state a cause of action (CPLR 3211, subd. (a), par. 7) and Special Term denied the motion. Thereafter, at an examination before trial, the mother indicated that she had not actually seen her son struck by the automobile, but was actually inside a house when she heard the brakes and only then went outside to see her son lying on the lawn. On the basis of this testimony, defendant applied for reargument on his original motion. This application was denied (see Grossman v. State of New York, 25 Misc.2d 47, 48, 207 N.Y.S.2d 292, 293). For purposes of this appeal, we do not rely on the evidence adduced at the examination before trial, and we adhere to the rule that the allegations of the complaint must be accepted as true (see Kober v. Kober, 16 N.Y.2d 191, 193, 264 N.Y.S.2d 364, 365, 211 N.E.2d 817, 818).

The main issue then is whether or not a mother may recover damages for emotional and physical injuries resulting from shock caused by fear for her infant child who is negligently struck by the automobile of defendant in her presence. There appears to be no recent New York appellate authority on the present question. Three courts of original jurisdiction have denied the cause of action (Napolitano v. Town of Chili, 47 Misc.2d 920, 263 N.Y.S.2d 367 (dictum); Lahann v. Cravotta, Sup., 228 N.Y.S.2d 371; Berg v. Baum, Sup., 224 N.Y.S.2d 974) and two have sustained it (Bond v. Smith, 52 Misc.2d 186, 274 N.Y.S.2d 534; Haight v. McEwen, 43 Misc.2d 582, 251 N.Y.S.2d 839). (See, also, Lula v. Sivaco Wire & Nail Co., D.C., 265 F.Supp. 222.)

In allowing the cause of action to stand, the Special Term relied on Battalla v. State of New York, 10 N.Y.2d 237, 219 N.Y.S.2d 34, 176 N.E.2d 729 which overruled Mitchell v. Rochester Ry. Co., 151 N.Y. 107, 45 N.E. 354, 34 L.R.A. 781 and held that a plaintiff may recover for injuries, physical or mental, incurred by fright negligently induced In Battalla v. State of New York (supra), the infant plaintiff was placed in a chair lift by an employee of the State who failed to secure and properly lock the belt intended to protect...