Fusco v. General Motors Corp.

• Decision Date: 13 December 1984
• Citation: 126 Misc.2d 998,485 N.Y.S.2d 431
• Parties: Anthony FUSCO and Joan Fusco, Plaintiffs, v. GENERAL MOTORS CORPORATION and Van Brunt Motors, Inc., Defendants.
• Court: New York County Court

Page 431

485 N.Y.S.2d 431

126 Misc.2d 998

Anthony FUSCO and Joan Fusco, Plaintiffs, v. GENERAL MOTORS CORPORATION and Van Brunt Motors, Inc., Defendants.

Westchester County Court.

Dec. 13, 1984.

Scapolito & O'Brien, Mount Vernon, for defendant Van Brunt Motors, inc.

Herbert J. Bliss, Hawthorne, for plaintiffs.

Simpson, Thacher & Bartlett, New York City, for defendant General Motors.

DECISION AND ORDER

KENNETH H. LANGE, Justice.

This action to recover damages for emotional and economic harm allegedly occasioned as the result of the malfunction of a General Motors automobile, presents two significant questions. First, can the plaintiff state a cause of action for emotional injuries in the absence of any physical symptoms? Second, is the exclusion of consequential damages from the General Motors limited warranty (and specifically the cost of renting a replacement vehicle), unconscionable and therefore unenforceable? These issues have been raised by means of a motion by defendant Van Brunt Motors for summary judgment and a cross motion for the same relief by defendant General Motors.

The facts of the matter, insofar as they are relevant to this determination, are alleged by plaintiffs as follows: On October 28, 1978, the plaintiffs were riding in a 1978 Cadillac automobile, when it apparently malfunctioned, was thrown out of control, and came to a sudden stop at the side of the road. The automobile had been purchased the previous year by a partnership of which plaintiff Anthony Fusco is a principal, and was still under warranty. As a result of the incident, the plaintiffs claim to have suffered "great mental anguish, mental suffering and nervous upsets". They did not sustain any physical injury, however, and have not identified any physical symptoms resulting from the emotional harm.

The plaintiffs further allege that shortly after the incident they delivered the vehicle to defendant Van Brunt Motors for the necessary warranty repairs, but that no repairs were made for a period of seven months. They then removed the automobile from defendant Van Brunt and had it repaired elsewhere. In the third cause of action, plaintiff Anthony Fusco seeks to recover the cost of the repair, the cost of repairing damage to the automobile which occurred while it was in Van Brunt's possession, and the cost of renting a car for the entire period he was without the vehicle. These damages allegedly amount to more than $5,600.00. The General Motors limited warranty expressly precludes recovery of the cost of a rental vehicle as consequential damages.

The moving papers have raised additional questions concerning plaintiffs' responsibility for the damages incurred and for alleged failure to mitigate their damages. These are issues of fact, however, and cannot be resolved at this stage of the proceedings. The only issues properly before this court are the two questions of law presented: the sufficiency of the claim for emotional damages, and the validity of the warranty limitation as a defense.

I

The question of recovery for emotional disturbance has long troubled the courts of this State. The interplay between the difficulty of proof in such circumstances and public policy considerations militating against the imposition of liability has given rise to serious and prolonged debate over the propriety of such relief. The last three decades, however, have witnessed a revolution in this field. It was not until 1961, for instance, that the rule of Mitchell v. Rochester Ry. Co., 151 N.Y. 107, 45 N.E. 354, prohibiting recovery for injuries resulting from fright negligently incurred, was abrogated, by a divided Court of Appeals (see Battalla v. State of New York, 10 N.Y.2d 237, 219 N.Y.S.2d 34, 176 N.E.2d 729). Other decisions in this area resulted in justice in particular cases but lacked conceptual consistency.

Recently, however, in Kennedy v. McKesson Co., 58 N.Y.2d 500, 462 N.Y.S.2d 421, 448 N.E.2d 1332, the Court of Appeals distilled from these decisions three distinct lines of cases. The first line deals with the situation where the defendant owes a duty of care directly to the plaintiff. It recognizes that a "breach of that duty resulting directly in emotional harm is compensable even though no physical injury occurred" (58 N.Y.2d at 504, 462 N.Y.S.2d 421, 448 N.E.2d 1332). The second group of cases concerns the situation where the plaintiff is emotionally harmed as a result of witnessing injury to a third person, to whom the defendant owed a duty of care. It was in this context that the "zone of danger" rule was developed. The third line involves "the violation of a duty to plaintiff which results in physical injury to a third person but only financial or emotional harm or both to the plaintiff" (58 N.Y.2d at 505, 462 N.Y.S.2d 421, 448 N.E.2d 1332). The general rule to be derived from these cases is that:

is no duty to protect from emotional injury a bystander to whom there is otherwise owed no duty, and, even as to a participant to whom a duty is owed, such injury is compensable only when a direct, rather than a consequential, result of the breach.

(58 N.Y.2d at 506, 462 N.Y.S.2d 421, 448 N.E.2d 1332).

The majority of the strongly disputed cases arise under the second and third lines, with the courts dividing over the existence or extent of the duty owed to the plaintiff. In Johnson v. Jamaica Hospital, 95 A.D.2d 598, 467 N.Y.S.2d 634, rev'd 62 N.Y.2d 523, 478 N.Y.S.2d 838, 467 N.E.2d 502, for instance, the Appellate Division, Second Department held that the plaintiffs could recover for emotional harm incurred when their infant daughter, left for treatment in the hospital's nursery, was kidnapped. The Court reasoned that in negligently protecting the infant, the defendant had breached its duty to the plaintiff-parents to care for her in loco parentis, as it were. Justice Bracken, in dissent, argued that no such direct duty exists, and that in the absence of such a direct duty no action for emotional damage could be maintained (95 A.D.2d at 603-609, 467 N.Y.S.2d 634). The Court of Appeals agreed with Justice Bracken and reversed, reasoning essentially along the same lines. A similar dispute in Kennedy v. McKesson Co., supra, 58 N.Y.2d 500, 462 N.Y.S.2d 421, 448 N.E.2d 1332, prompted Judge Jasen to argue, in dissent, that there really are, or at least should be, only two lines of cases, distinguished by the existence, or non-existence, of a duty owed directly to the plaintiff (58 N.Y.2d 509, 462 N.Y.S.2d 421, 448 N.E.2d 1332).

In the case at bar, however, there is so dispute that the defendants owed a duty of care directly to the plaintiffs to refrain from negligence in the construction of the vehicle in question (with respect to defendant General Motors Corporation) and to refrain from selling a negligently constructed vehicle, (with respect to defendant Van Brunt Motors, Inc.). Furthermore, both defendants undertook a duty pursuant to their warranties, express in the case of General Motors, and implied in the case of Van Brunt Motors (see UCC § 2-314). This case, therefore, fits squarely within the first line of decisions.

Even though duty is clear, liability is not automatic in the case of a claim for emotional harm. A review of the cases in this area reveals that the courts have imposed what is essentially a high threshold standard for the sufficiency of such claims.

The progenitor of the first line of emotional harm decisions is Ferrara v. Galluchio, 5 N.Y.2d 16, 176 N.Y.S.2d 996, 152 N.E.2d 249. In Ferrara, the plaintiff was awarded $15,000 in damages for mental anguish ("cancerophobia") incurred as a result of a statement by a dermatologist treating her for radiation burns that such burns might lead to cancer. The radiation burns were caused by the negligence of the defendants, other physicians who specialized in x-ray therapy. The Court recognized that freedom from mental disturbance is a protected interest in this State. In confronting the problems of "vexatious suits and fictitious claims", the principal objection to such relief, the Court adopted the reasoning of Dean Prosser that these problems were not insuperable and should not preclude the assertion of such a cause of action, at least where there is "some guarantee of genuineness in the circumstances of the case." (5 N.Y.2d at 21, 176 N.Y.S.2d 996, 152 N.E.2d 249). The Court, therefore, affirmed the award, finding that it was "entirely plausible" under the circumstances that plaintiff would have suffered emotional harm (5 N.Y.2d at 22, 176 N.Y.S.2d 996, 152 N.E.2d 249).

The Court reached the same result, in a slightly different context, in Battalla v. State of New York, supra, 10 N.Y.2d 237, 219 N.Y.S.2d 34, 176 N.E.2d 729. It was in Battalla that the Court overruled Mitchell v. Rochester Ry. Co., supra, 151 N.Y. 107, 45 N.E. 354, and specifically permitted recovery for negligently induced emotional harm without "impact". Distinguishing between the sufficiency of the cause of action itself and the difficulty a plaintiff faces in proving it, the Court held that "(a)lthough fraud, extra litigation and a measure of...