Bovsun v. Sanperi

Citation461 N.E.2d 843,61 N.Y.2d 219,473 N.Y.S.2d 357
Decision Date23 February 1984
Docket NumberMID-WESTCHESTER
Parties, 461 N.E.2d 843 Jack E. BOVSUN et al., Appellants, v. Gary T. SANPERI et al., Respondents. Lawrence E. KUGEL, Individually and as Administrator of the Estate of Stephanie Kugel, an Infant, Deceased, et al., Appellants, v.INDUSTRIAL PARK, INC., et al., Respondents.
CourtNew York Court of Appeals

Page 357

473 N.Y.S.2d 357
61 N.Y.2d 219, 461 N.E.2d 843
Jack E. BOVSUN et al., Appellants,
v.
Gary T. SANPERI et al., Respondents.
Lawrence E. KUGEL, Individually and as Administrator of the
Estate of Stephanie Kugel, an Infant, Deceased, et
al., Appellants,
v.
MID-WESTCHESTER INDUSTRIAL PARK, INC., et al., Respondents.
Court of Appeals of New York.
Feb. 23, 1984.

[61 N.Y.2d 220]

Page 358

[461 N.E.2d 844] Edgar T. Schleider, New York City, for appellants in the first above-entitled action.

[61 N.Y.2d 221] Michael Wolpinsky and Bernard Pizzitola, Lake Ronkonkoma, for respondents in the first above-entitled action.

Donald H. Zuckerman, New York City, for appellants in the second above-entitled action.

[61 N.Y.2d 222] Lawrence T. D'Aloise, Jr., White Plains, for Mid-Westchester Industrial Park, Inc., respondent in the second above-entitled action.

Emanuel Thebner, White Plains, for Barbara B. Rooney, respondent in the second above-entitled action.

[61 N.Y.2d 223] R. Christopher Owen, Albany, for Lawrence E. Kugel, as respondent on the counterclaim in the second above-entitled action.

OPINION OF THE COURT

JONES, Judge.

Where a defendant's conduct is negligent as creating an unreasonable risk of bodily harm to a plaintiff and such conduct is a substantial factor in bringing about injuries to the plaintiff in consequence of shock or fright resulting [61 N.Y.2d 224] from his or her contemporaneous observation of serious physical injury or death inflicted by the defendant's conduct on a member of the plaintiff's immediate family in his or her presence, the plaintiff may recover damages for such injuries.

These two appeals pose the same question of law--whether in addition to or apart from other damages to which a plaintiff may be entitled in consequence of the negligence of the defendant, he may recover for emotional distress occasioned by his witnessing injury or death caused by the defendant's conduct to a member of the plaintiff's immediate family. The courts below have answered this question in the negative. We now reverse in each case.

Bovsun v. Sanperi

In Bovsun, a father, mother and daughter commenced an action for personal injuries sustained by them in a two-car collision. The father, who had been driving the station wagon in which his wife and daughter were passengers, settled before trial. The mother and daughter are now appellant plaintiffs before us.

On May 24, 1975, due to mechanical difficulties the station wagon in which the members of the Bovsun family were riding had stopped at the side of the Southern State Parkway in Nassau County. Jack Bovsun, father and driver, alighted from the vehicle, went around to the rear, and leaned inside the open tailgate window. Selma Bovsun, his wife, remained seated in the front passenger seat, and Mara Beth Bovsun, their daughter, was in the rear seat. At this point the Bovsun station wagon was struck in the rear by an automobile owned by defendant Rosario Sanperi and driven by defendant Gary T. Sanperi. Jack Bovsun was seriously injured when he was pinned between the two vehicles. The mother and daughter were thrown about the station wagon by the force of the impact but suffered less serious physical injuries than Jack Bovsun. Although neither mother nor daughter actually saw the Sanperi car strike their station wagon (they were facing forward or to the side), both were instantly aware of the impact and the fact that Jack Bovsun must have been [61 N.Y.2d 225] injured and each thereafter immediately observed their seriously injured husband and father. 1

Page 359

[461 N.E.2d 845] At the start of the trial as jurors were being selected, defendants' attorney objected to any reference being made to emotional distress plaintiffs might have suffered as a result of observing Jack Bovsun's injuries. After hearing arguments from counsel and with an awareness of the significant factual elements of plaintiffs' case, the trial court ruled that the proof would be limited to plaintiffs' own direct physical injuries and that no mention could be made during the voir dire of any injuries attributable to emotional distress. To expedite appellate review, defendants' motion to preclude plaintiffs from examining the prospective jurors as to plaintiffs' emotional distress was deemed a motion to dismiss plaintiffs' claims for damages with respect thereto, and that relief was granted.

On plaintiffs' appeal, the Appellate Division affirmed, citing Kugel v. Mid-Westchester Ind. Park, 90 A.D.2d 496, 454 N.Y.S.2d 750. Thereafter, the Appellate Division granted plaintiffs leave to appeal to our court.

Kugel v. Westchester Industrial Park, Inc.

In Kugel, plaintiffs, a father and mother, were riding with their two infant daughters in the family car along a roadway in the Mid-Westchester Mall in Cortlandt, New York, on June 3, 1978. As alleged in their verified complaint and bill of particulars, plaintiff Lawrence Kugel was driving the vehicle, his wife, plaintiff Lydia Kugel, was in the front passenger seat with their one-year-old daughter Stephanie in her lap, and their other daughter Karen, four years old, was also seated in the car. The Kugel car was struck by an automobile owned by defendant Barbara B. Rooney and driven by defendant Thomas Rooney, allegedly [61 N.Y.2d 226] in a reckless manner and at an excessive speed. Lydia Kugel suffered a fractured clavicle in the collision, Lawrence sustained a broken finger, and Karen suffered abdominal injuries. Stephanie Kugel died a few hours after the accident as a result of her various, severe injuries, alleged in the complaint to have been observed by plaintiffs. 2

Plaintiffs served a summons and complaint to commence this action, seeking, inter alia, in their fourth cause of action damages for "the immediate severe emotional trauma of seeing Stephanie Kugel suffer extreme physical injury within their close proximity." By notice of motion, defendant Mid-Westchester Industrial Park, Inc., which owns and operates the Mid-Westchester Mall, moved for partial summary judgment dismissing the fourth cause of action (along with the fifth and sixth causes of action), contending that it did not allege a legally cognizable claim. Defendants Thomas and Barbara Rooney thereafter also moved for summary judgment dismissing those causes of action. Special Term granted the motions and dismissed the causes of action, ruling that New York does not permit a cause of action to be maintained for the emotional distress suffered by the parents of an infant child who is killed in an accident.

Plaintiffs appealed the Special Term order to the Appellate Division. While that appeal was pending, plaintiffs settled or discontinued all causes of action other than those for emotional trauma attributable to the injury and death of their daughter Stephanie, which were expressly reserved. 3 The Appellate Division, 94 A.D.2d 711, 462 N.E.2d 611, thereafter affirmed, holding that Special Term had correctly concluded that there is no cause of action in New York for emotional trauma suffered by the

Page 360

[461 N.E.2d 846] parents of a child injured or killed as the result of negligence. According to the court, plaintiffs' direct involvement in the accident is only relevant insofar [61 N.Y.2d 227] as it creates a cause of action on their own behalf for injuries directly inflicted on them. The court reasoned that the inability to circumscribe liability in a reasonable fashion and the possibility of unlimited liability would require dismissal of plaintiffs' emotional distress claims regardless of whether plaintiffs were directly involved in the accident. The Appellate Division thereafter granted plaintiffs' motion for leave to appeal to our court.

Analysis of Legal Issues

Traditionally, courts have been reluctant to recognize any liability for the mental distress which may result from the observation of a third person's peril or harm. The law in California relating to bystander recovery was greatly altered, however, by that State's Supreme Court ruling in Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 that damages may be recovered for the emotional trauma caused when a plaintiff witnesses the injury or death of a close relative even though the plaintiff is not himself within the zone of danger of physical injury, provided that the emotional injury is reasonably foreseeable. 4 Soon after the Dillon decision, our court in Tobin v. Grossman, 24 N.Y.2d 609, 301 N.Y.S.2d 554, 249 N.E.2d 419 rejected this foreseeability approach to bystander recovery. In Tobin, a mother, who had been in no danger of bodily harm herself, sought damages for the mental distress that she suffered in viewing the serious injuries sustained by her child when the child was struck by an automobile. We recognized in that case that foreseeability is not the sole test of whether a legally cognizable duty is owed. In reliance on rationale grounded in public policy--that liability to the foreseeable bystander could not be limited in any rational way and could lead to unlimited liability for negligent conduct--we declined to recognize a cause of action for the emotional distress suffered by the foreseeable[61 N.Y.2d 228] observer of an accident. 5 In so doing, in

Page 361

[461 N.E.2d 847] obiter dictum we questioned the zone-of-danger analysis.

In disposing of the appeal in Tobin we were not, however, required to confront the precise issue presented to us for the first time in the two appeals now before us inasmuch as the plaintiff in Tobin had not been within the zone of danger of bodily harm. We there phrased the legal question posed as "whether the concept of duty in tort should be extended to third persons, who do not sustain any physical impact in the accident or fear for their own safety" (24 N.Y.2d, p. 613, 301 N.Y.S.2d 554, 249 N.E.2d 419). We did note that the approach of permitting recovery "for the inseparable consequences of fear for" a relative's safety, as well as one's own...

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