Bond v. Smith

• Decision Date: 07 November 1966
• Citation: 274 N.Y.S.2d 534,52 Misc.2d 186
• Parties: Sharon BOND, an Infant, by Warren S. Bond, her general guardian, and Warren S. Bond, Individually, Plaintiffs, v. George M. SMITH and Marjorie Smith, Defendants.
• Court: New York Supreme Court

Page 534

274 N.Y.S.2d 534

52 Misc.2d 186

Sharon BOND, an Infant, by Warren S. Bond, her general guardian, and Warren S. Bond, Individually, Plaintiffs, v. George M. SMITH and Marjorie Smith, Defendants.

Supreme Court, Erie County.

Nov. 7, 1966.

Emanuel Boasberg, Buffalo (Alan H. Levine, New York City, of counsel), for plaintiffs.

Pottle, O'Shea, Adamson & Reynolds, Buffalo (Philip J. O'Shea, Buffalo, of counsel), for defendant George M. Smith.

MEMORANDUM

HAROLD P. KELLY, Justice.

The defendants move to strike from the complaint allegations in the first sentence of paragraph numbered 'SEVENTEENTH' upon the grounds that these allegations are scandalous, prejudicial and unnecessarily inserted in the complaint. The pertinent part of the paragraph in question is as follows:

'That as a result of the actions hereinbefore described, the infant plaintiff's husband sustained terrible injuries which subsequently resulted in his death, and which included a leg torn from his body and the spilling of brain tissue on the road before the infant plaintiff's eyes.'

The plaintiffs' causes of action arose from an accident on April 10, 1966 when the plaintiff, Sharon Bond, and her husband were walking on a shoulder of a road in the Town of Concord. It is alleged that the defendant, George M. Smith, operated his automobile in such a manner that it crossed the center line of the highway and struck the plaintiff Sharon Bond's husband with great violence resulting in his death and that his body was thrown so that it struck the plaintiff, Sharon Bond, causing injuries to her as alleged in the complaint.

The defendants in addition to their objection to the particular words used in the first sentence of paragraph 'SEVENTEENTH' of the complaint also assert that the plaintiff, Sharon Bond, should not be permitted to seek damages for fright, mental and emotional shock, and injury to her nervous system caused by the fact of her witnessing the injuries to and the death of her husband. The defendants do not object to her seeking damages for the same injuries if she sustained the same as a result of her being struck down in the same accident.

This motion brings into review the various decisions that have been rendered in relation to recovery for mental or emotional distress without direct physical injury. The Court of Appeals in Battalla v. State, 10 N.Y.2d 237, 219 N.Y.S.2d 34, 176 N.E.2d 729, held that a recovery could be had for mental or emotional distress, without any contemporaneous physical contact or direct physical injury, overruling Mitchell v. Rochester Ry. Co., 151 N.Y. 107, 45 N.E. 354, 34 L.R.A. 781, and that the genuineness of the mental distress is to be decided after a trial and not upon a motion addressed to the pleadings.

After the Battalla case various decisions limited the broad language of this decision and are commonly referred to as the 'bystander cases'. The leading case denying recovery to so-called bystanders was the Kalina v. General Hospital of City of Syracuse, 31 Misc.2d 18, 220 N.Y.S.2d 733 aff'd 18 A.D.2d 757, 235 N.Y.S.2d 808 and aff'd without opinion 13 N.Y.2d 1023, 245 N.Y.S.2d 599, 195 N.E.2d 309. In the Kalina case the parents of a son sued for damages for mental pain and suffering sustained as a result of an assault and battery upon their son. The reason for the holding in the Kalina case is found in the following quotations:

'Both of the pleadings are insufficient because the plaintiffs as individuals, apart from their status as representatives of their son, do not have a legally protected interest...