Greene v. Esplanade Venture P'ship

• Decision Date: 18 February 2021
• Docket Number: No. 6,6
• Citation: Greene v. Esplanade Venture P'ship, 36 N.Y.3d 513, 168 N.E.3d 827, 144 N.Y.S.3d 654 (N.Y. 2021)
• Parties: Stacy GREENE, as Administratrix of the Estate of Greta Devere Greene, Deceased, et al., Appellants, v. ESPLANADE VENTURE PARTNERSHIP, et al., Respondents, et al., Defendant.
• Court: New York Court of Appeals Court of Appeals

36 N.Y.3d 513

168 N.E.3d 827

144 N.Y.S.3d 654

Stacy GREENE, as Administratrix of the Estate of Greta Devere Greene, Deceased, et al., Appellants,

v.ESPLANADE VENTURE PARTNERSHIP, et al., Respondents, et al., Defendant.

No. 6

Court of Appeals of New York.

February 18, 2021

Gair Gair Conason Rubinowitz Bloom Hershenhorn Steigman & Mackuaf, New York City (Ben B. Rubinowitz and Richard M. Steigman of counsel), for appellants.

Shaub Ahmuty Citrin & Spratt, LLP, New York City (Jonathan P. Shaub, Timothy R. Capowski, Christopher Simone, Jennifer A. Graw and Sarah M. Ziolkowski of counsel), for Esplanade Venture Partnership, respondent.

Mauro Lilling Naparty LLP, Woodbury (Katherine Herr Solomon and Caryn L. Lilling of counsel), and Goldstein Law, P.C., for Blue Prints Engineering, P.C. and another, respondents.

Teresa A. Klaum, Defense Association of New York, Inc. (Andrew Zajac, Rona L. Platt and Jonathan T. Uejio of counsel), for Defense Association of New York, Inc., amicus curiae.

OPINION OF THE COURT

FAHEY, J.

This case begins with the heart-breaking death of a child. Our responsibility is to determine whether plaintiff-grandparent Susan Frierson, who was in close proximity to the decedent-grandchild at the time of the death-producing accident, may pursue a claim for bystander recovery under a "zone of danger" theory.

We have applied the settled "zone of danger" rule to "allow[ ] one who is ... threatened with bodily harm in consequence of the defendant's negligence to recover for emotional distress" flowing only from the "viewing [of] the death or serious physical injury of a member of [that person's] immediate family " ( Bovsun v. Sanperi, 61 N.Y.2d 219, 228, 473 N.Y.S.2d 357, 461 N.E.2d 843 [1984] [emphasis added]). Unsettled at this juncture, however, are "the outer limits" of the phrase "immediate family" ( id. at 233 n. 13, 473 N.Y.S.2d 357, 461 N.E.2d 843 ). Once again, we are not asked to fix permanent boundaries of the "immediate family." Instead, our task simply is to determine whether a grandchild may come within the limits of her grandparent's "immediate family," as that phrase is used in zone of danger jurisprudence.

We conclude that the grandchild comes within those limits. Consistent with our historically circumspect approach expanding liability for emotional damages within our zone of danger jurisprudence, our increasing legal recognition of the special status of grandparents, shifting societal norms, and common sense, we conclude that plaintiff's grandchild is "immediate family" for the purpose of applying the zone of danger rule.

I.

A.

On May 17, 2015, plaintiff Susan Frierson and her two-year-old granddaughter, decedent Greta Devere Greene, were in front of a building when they were suddenly struck by debris that fell from the facade of that edifice. Emergency measures taken to save Greta's life failed, and she died the next day.

Susan and Greta's mother, plaintiff Stacy Greene, subsequently commenced this action seeking damages for injuries sustained in that accident. The complaint was quickly superseded by an amended pleading in which plaintiffs alleged, among other things, that defendant Esplanade Venture Partnership owned the building, and that the remaining defendants were negligent with respect to the inspection of the facade of that structure. The amended complaint also alleged that the facade was in a dangerous condition, and that as a result, a piece of the facade broke, fell, struck Greta, and caused her to die.

Based on those allegations, plaintiffs asserted two causes of action; the first sounding in negligence, and the second in wrongful death. Nowhere in that amended pleading, however, did plaintiffs assert a cause of action for negligent infliction of emotional distress on behalf of Susan under the "zone of danger" doctrine.

B.

Plaintiffs sought to cure that deficiency through a motion for leave to amend the amended complaint, and that application lies at the core of this appeal. In that motion, plaintiffs sought permission to "assert an additional cause of action on behalf of Susan under the ‘zone of danger’ doctrine." That cause of action, plaintiffs contended, was appropriate in view of the "unique and special" nature of "the relationship between a grandparent and a grandchild."

To the extent the grandparent-grandchild relationship between Susan and Greta is not alone enough to bring Greta into Susan's "immediate family," plaintiffs maintained that the nature of the relationship warrants that classification. Susan, plaintiffs alleged, participated in Greta's birthing process, helped to care for Greta during the first few weeks of Greta's life, and subsequently developed a "powerful" "emotional bond" with Greta. By the time Greta was one year old, plaintiffs further alleged, Greta began to have overnight visits with Susan. It was during one of those visits that Susan was struck by debris that fell from the subject building, and Greta was struck and killed.

C.

The motion to amend the amended complaint was granted. Relying on the combination of our reasoning in Bovsun, 61 N.Y.2d at 232, 473 N.Y.S.2d 357, 461 N.E.2d 843, this State's "specific recognition of the custody rights of grandparents with respect to their grandchildren," and the progression of zone of danger jurisprudence in other jurisdictions, Supreme Court concluded that Susan "should be considered an ‘immediate family member’ and afforded a right to recover for her emotional injuries caused by this tragic accident" ( 2017 N.Y. Slip Op. 32335[U], at *4, 2017 WL 5006606 ).

A divided Appellate Division reversed that order insofar as appealed from and denied the "branch of plaintiffs’ motion which was for leave to amend the amended complaint to add a cause of action sounding in negligent infliction of emotional distress" ( 172 A.D.3d 1013, 1014, 101 N.Y.S.3d 99 [2d Dept. 2019]). The majority ruled that leave to amend should have been denied (see id. at 1015, 101 N.Y.S.3d 99 ) based on its interpretation of Bovsun, 61 N.Y.2d 219, 473 N.Y.S.2d 357, 461 N.E.2d 843 and Trombetta, 82 N.Y.2d 549, 605 N.Y.S.2d 678, 626 N.E.2d 653. Bovsun saw us hold "that a plaintiff may recover damages for emotional distress ‘occasioned by [the plaintiff's] witnessing injury or death caused by the defendant's conduct to a member of the plaintiff's immediate family ’ (emphasis added)" ( 172 A.D.3d at 1015, 101 N.Y.S.3d 99, quoting Bovsun, 61 N.Y.2d at 224, 473 N.Y.S.2d 357, 461 N.E.2d 843 ). That case, the Appellate Division believed, thus "stands for the proposition that spouses and their children are immediate family members" ( 172 A.D.3d at 1015, 101 N.Y.S.3d 99, citing Bovsun, 61 N.Y.2d at 233–234, 473 N.Y.S.2d 357, 461 N.E.2d 843 ).

Bovsun was not an exercise in line-drawing. Although it identified certain relationships that come within the class of "immediate family members," Bovsun did not establish exhaustive boundaries with respect to the universe of "immediate family members." For that reason, the Appellate Division analogized this case—involving a grandmother and a granddaughter—to Trombetta, 82 N.Y.2d 549, 605 N.Y.S.2d 678, 626 N.E.2d 653. There, we concluded that the plaintiff-niece of a woman who was killed in the plaintiff's presence and with whom the plaintiff had a significant emotional bond was not entitled to "bring suit as a bystander for the negligent infliction of emotional injuries under the ... ‘zone of danger’ rule" ( id. at 550, 605 N.Y.S.2d 678, 626 N.E.2d 653 ) because the decedent-aunt was not part of the plaintiff-niece's immediate family (see id. at 553, 605 N.Y.S.2d 678, 626 N.E.2d 653 ; see also 172 A.D.3d at 1015–1016, 101 N.Y.S.3d 99, citing Jun Chi Guan v. Tuscan Dairy Farms, 24 A.D.3d 725, 725, 806 N.Y.S.2d 713 [2d Dept. 2005], lv dismissed 7 N.Y.3d 784, 820 N.Y.S.2d 546, 853 N.E.2d 1114 [2006] ).

The dissenters at the Appellate Division would have affirmed Supreme Court's order. Though mindful of "the importance of precedent in our common-law system," the dissenters noted that the " ‘living nature’ " of the common law sometimes requires a " ‘respon[se] to the surging reality of changed conditions’ " ( 172 A.D.3d at 1016, 101 N.Y.S.3d 99, quoting Gallagher v. St. Raymond's R.C. Church, 21 N.Y.2d 554, 558, 289 N.Y.S.2d 401, 236 N.E.2d 632 [1968] ) and maintained that the law should recognize that Greta was part of Susan's "immediate family" for the purpose of permitting a zone of danger claim (see 172 A.D.3d at 1028, 101 N.Y.S.3d 99 ). The dissenters also rejected what they characterized as the majority's "use of consanguinity as a crude proxy for emotional harm" given the likelihood that "arbitrary and unjust results that will inevitably follow when, for instance, a child is denied recovery because [the child] does not live within a traditional family structure" ( id. at 1030, 101 N.Y.S.3d 99 ). "To be sure," the dissenters continued, "line drawing is often an inevitable element of the common-law process, but [it] ... does not justify ... clinging to a [boundary] that," as sketched by the Appellate Division, excludes Greta from the class of persons constituting Susan's immediate family ( id. at 1031, 101 N.Y.S.3d 99 ).

The Appellate Division subsequently granted leave to appeal to this Court and certified for our review the question whether its order was properly made. We now reverse and answer that question in the negative.

II.

The past is always prologue. Our review of the merits begins with the underpinnings of our modern bystander zone of danger law.

A.

In the nineteenth century, Mitchell v. Rochester Ry. Co., 151 N.Y. 107, 45 N.E. 354 (1896) saw us conclude that "no recovery can be had for injuries sustained by fright occasioned by the negligence of another where there is no immediate personal injury" ( id. at 110, 45 N.E. 354 ). That now-outdated rule fittingly arose from antiquated circumstances; there the plaintiff was rendered unconscious and suffered a miscarriage during a "near miss" with the defendant's horse...