Di Michele v. Filacchione

• Decision Date: 07 August 1969
• Citation: 60 Misc.2d 619,303 N.Y.S.2d 562
• Parties: Camillo DI MICHELE, Plaintiff, v. Cosmo FILACCHIONE and Ann Filacchione, Defendants.
• Court: New York City Court

Page 562

303 N.Y.S.2d 562

60 Misc.2d 619

Camillo DI MICHELE, Plaintiff, v. Cosmo FILACCHIONE and Ann Filacchione, Defendants.

Civil Court of the City of New York, New York County.

Aug. 7, 1969.

Melvin W. Knyper, New York City, for plaintiff.

Benjamin Purvin, New York City, for defendants.

HILDA G. SCHWARTZ, Judge.

Plaintiff sues, in his first cause of action, for property damages arising out of the death of his horse 'Mortarmain' at Shore Drive and Pelham Drawbridge, Pelham Parkway, Bronx, allegedly caused by the negligence of the defendants in the operation of their vehicle.

As a second cause of action, plaintiff demands damages in the sum of $2500 for fright and impairment of plaintiff's emotional stability arising out of the killing of his horse. Defendants move to dismiss on the ground it does not state facts sufficient to constitute a cause of action.

Plaintiff states that his horse, a 5-year-old, was more than an ordinary saddle horse in the sense that it was ridden by his granchildren was especially affectionate and intelligent, and that a strong emotional attachment existed between the animal and members of his family. He is the owner of a riding school, and the horse was one of a number of saddle horses owned by him. Plaintiff does not claim to have been a witness of the accident.

On this motion, a review of the various court decisions relating to recovery of damages for mental or emotional distress without direct physical injury or impact to claimant is appropriate.

The Court of Appeals, in Battalla v. State of New York, 10 N.Y.2d 237, 219 N.Y.S.2d 34, 176 N.E.2d 729 overruling Mitchell v. Rochester Ry. Co., 151 N.Y. 107, 45 N.E. 354, 34 L.R.A. 781, held that recovery could be had for injuries, physical or mental, incurred by fright negligently induced, even where no impact was involved.

In the Battalla case, the defendant's negligent act resulted in the fright of the infant plaintiff herself and thus did not involve a 'bystander' cause of action. In Tobin v. Grossman, 30 A.D.2d 229, 291 N.Y.S.2d 227 (1968), the Court said at page 231, 291 N.Y.S.2d at page 229: 'Since in Battalla the defendant's negligent act directly resulted in the infant plaintiff's fright, and thus did not involve a bystander's cause of action, that case is not dispositive here. Indeed, in Kalina v. General Hosp. of City of Syracuse, 13 N.Y.2d 1023, 245 N.Y.S.2d 599, 195 N.E.2d 309, an affirmance of a dismissal of a cause of action on the opinion of Special Term, the court at Special Term by way of dictum said that Battalla did not intend to provide a cause of action for interested bystanders ((Kalina v. General Hosp. of City of Syracuse) 31 Misc.2d 18, 20, 220 N.Y.S.2d 733, 734).'

After the Battalla case various decisions limited the broad language of this decision and are commonly referred to as the 'bystander' cases. (Bond v. Smith, 52 Misc.2d 186, 188, 274 N.Y.S.2d 534, 535) In some of the cases involving the right of a plaintiff to recover for emotional distress, the plaintiffs were witnesses of the incident inflicting injuries upon a third person.

In Tobin v. Grossman, supra, it was held by the Appellate Division, Third Department, that a mother could not recover damages for emotional and physical injuries resulting from shock caused by fear for her infant son negligently struck by defendant's automobile, in her presence. The Court said, at pages 231, 232, 291 N.Y.S.2d at pages 229, 230: '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.) * * * We note that in nearly all the jurisdictions where the issue has been considered, recovery has been denied. Most of these cases are collated in the recent California case of Amaya v. Home Ice, Fuel & Supply Co., 59 Cal.2d 295, 29 Cal.Rptr. 33, 379 P.2d 513, where the rule of nonliability was followed. (See also Knaub v. Gotwalt, 422 Pa. 267, 220 A.2d 646; Barber v. Pollock, 104 N.H. 379, 187 A.2d 788; Beaty v. Buckeye Fabric Finishing Co., D.C., 179 F.Supp. 688 (applying Ark.Law); Duet v. Cheramie, 176 So.2d 667 (La.); see generally Ann. 18 A.L.R.2d 220, 230 et seq.) * * *. A line must be drawn somewhere, and under the facts of this case in our judgment this is the most reasonable place to draw it. We, therefore, hold that the third cause of action should be dismissed.'

In the two cases in courts of original jurisdiction which have sustained such cause of action, Bond v. Smith, 52 Misc.2d 186, 274 N.Y.S.2d 534 involved a claim by plaintiff for damages for fright and emotional shock caused by witnessing injuries to and the death of her husband when struck by defendant's automobile. In Haight v. McEwen, 43 Misc.2d 582, 251 N.Y.S.2d 839 a mother who became mentally ill and sustained emotional disturbances as a result of witnessing defendant's car strike her son and cause his instant death was held to have a cause of action. In the Bond case, the court held...