Hassanein v. Avianca Airlines

• Decision Date: 10 January 1995
• Docket Number: No. 90-CV-2069 (TCP).,90-CV-2069 (TCP).
• Citation: 872 F. Supp. 1183
• Parties: Adrienne King HASSANEIN and Richard C. Hassanein, Plaintiffs, v. AVIANCA AIRLINES, Defendant.
• Court: U.S. District Court — Eastern District of New York

872 F. Supp. 1183

Adrienne King HASSANEIN and Richard C. Hassanein, Plaintiffs, v. AVIANCA AIRLINES, Defendant.

No. 90-CV-2069 (TCP).

United States District Court, E.D. New York.

January 10, 1995.

COPYRIGHT MATERIAL OMITTED

E. Kevin Agoglia, Agoglia, Fassberg, Magee & Crowe, P.C., Mineola, NY, for plaintiffs Adrienne King Hassanein and Richard C. Hassanein.

Michael J. Holland, Condon & Forsyth, New York City, for defendant Avianca Airlines.

MEMORANDUM AND ORDER

PLATT, Chief Judge.

Plaintiffs Adrienne King Hassanein and Richard C. Hassanein ("the Hassaneins") bring this personal injury cause of action against Aerovias Nacionales De Colombia, S.A. ("Avianca"). Mrs. Hassanein claims she is entitled to recover damages from the defendant as a result of suffering severe emotional distress from her exposure to the rescue scene of the Avianca airplane crash in Cove Neck, New York. In addition, she seeks damages for personal injuries and related emotional distress resulting from a fall in her home. Mr. Hassanein asserts a claim of loss of services of his wife incident to her injuries. Lastly, the Hassaneins seek compensation for property damage to their home.

Avianca now moves for an Order of this Court granting summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Defendants assert that plaintiffs' personal claims are not compensable under New York law. With respect to the property damage claim, Avianca argues that plaintiffs have been compensated fully under their insurance policy. Plaintiffs oppose this motion arguing that they have alleged material facts sufficient to survive summary judgment. Plaintiffs assert that defendant's negligence was the proximate cause of her physical and emotional injuries and that defendant owed her a duty of care under the doctrine of "danger invites rescue."

For the reasons stated herein, defendant's motion for summary judgment is granted in part and denied in part.

BACKGROUND

On January 25, 1990, Avianca Flight 052 crashed in the vicinity of Cove Neck, New York. The Hassaneins were neither passengers nor related to any passengers on flight 052. At the time of the crash, Mrs. Hassanein ("plaintiff") was watching television in her home that was located about 50 to 100 yards from the crash site. Mr. Hassanein was in New York City and only learned of the disaster after receiving a telephone call from his wife. Following the telephone call, he drove to the accident site where he met her.

Upon hearing an explosion, feeling a vibration, and observing a glow, Mrs. Hassanein immediately phoned the police and then her husband. Plaintiff claims that she then left her home and went to the scene of the crash after hearing screams and the sounds of babies crying. On the way to the accident site she found herself standing in calf-deep pools of fuel. She claims she was frozen by the fear of another explosion until she was assisted out of the fuel by a passing fire fighter onto what appeared to be a part of the cockpit of the plane.

Despite witnessing the carnage at the site, plaintiff maintains that she continued actively to assist the rescuers. She was never physically harmed while there, and she remained at the scene until her husband arrived at 11 p.m. The Hassaneins allowed the police to use their home as an emergency center throughout the night and into the next morning.

Plaintiff alleges that she sustained severe psychological injuries from her participation in the rescue attempts. Specifically, she attributes these problems to witnessing the human tragedy and suffering at the crash site and her own fear associated with her rescue attempt. She does not allege that any physical injuries occurred at that time.

On the other hand, plaintiff claims that she permanently injured her knee in her home three months later as a result of damage to the home from the impact of the crash. Plaintiffs allege in the complaint that "due to the extensive damage done to the premises and property of the plaintiffs, this plaintiff was caused to sustain serious and permanent physical injuries when she was precipitated down an inside stairway." Thus, plaintiffs attempt to link Mrs. Hassanein's alleged physical injury to the impact of the crash. According to the Hassaneins, these injuries have cost them exorbitant hospital fees and caused psychological suffering to Mrs. Hassanein.

Mr. Hassanein's claims are derivative in that they stem from the alleged loss of services of his wife. He asserts that his own income has been affected by her physical injuries because she is no longer able to assist him with his business. He also claims that his relationship with his wife has been impaired as a result of her emotional and physical injuries.

Lastly, plaintiffs seek to recover for structural damage to their home. Plaintiffs settled with their insurer, the Vigilant Insurance Company, and received $326,546.33 in full settlement of their property damage claims arising out of the Avianca crash. In a separate action, Vigilant has settled for this amount with Avianca. It is not clear from the papers whether any portion of the releases therein involved any and all claims for personal injury.

DISCUSSION

I. Summary Judgment Standard.

Summary judgment challenges the legal sufficiency of the claim or defense to which it is addressed. 10a CHARLES A. WRIGHT, ARTHUR R. MILLER & MARY K. KANE, FEDERAL PRACTICE AND PROCEDURE § 2725 (1983). A court will grant a motion for summary judgment if the pleadings, affidavits, and admissions show that there is no genuine issue of material fact such that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The movant bears the initial burden of demonstrating that the facts adduced fail to establish the existence of an essential element to that party's case. Celotex v. Catrett, Administratrix of the Estate of Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). If the movant successfully carries this burden, the burden shifts to the nonmoving party to establish that a "rational trier of fact could find for the non-moving party or that there is a genuine issue for trial." Historic Preservation Guild of Bay View v. Burnley, 896 F.2d 985, 993 (6th Cir.1989) (quoting Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). See also, Bryant v. Maffucci, 923 F.2d 979, 983 (2d Cir.1991). The court, in considering the evidence, must and does resolve all ambiguities and draw all reasonable inferences in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 153-161, 90 S.Ct. 1598, 1606-10, 26 L.Ed.2d 142 (1970).

II. Negligent Infliction of Emotional Distress.

Mrs. Hassanein seeks to recover for negligent infliction of emotional distress and the costs of related medical care. She claims she was traumatized by witnessing the human suffering and devastation that ensued from the crash. It is axiomatic that to establish liability in a negligence case, a plaintiff must establish the following: (1) duty, (2) breach of duty, (3) the alleged breach of duty proximately caused injury, and (4) damages resulted. RESTATEMENT (SECOND) OF TORTS § 433 Cmt. c (1977). Perrin v. Hilton International, Inc., 797 F.Supp. 296, 299 (S.D.N.Y.1992) (denying claims for negligent infliction of emotional distress and loss of consortium). For the reasons stated below, this Court finds that Mrs. Hassanein may not sustain a claim for negligent infliction of emotional distress, nor may her husband assert derivative claims based on her claim.

New York law compensates those who suffer from negligent infliction of emotional distress in two circumstances: (1) if plaintiff was within the zone of danger at the time she witnessed injury to a family member; or (2) if the negligent defendant owes plaintiff a direct duty of care and plaintiff sustains emotional injury as a result of breach of that duty. Kennedy v. McKesson Co., 58 N.Y.2d 500, 504, 448 N.E.2d 1332, 1334, 462 N.Y.S.2d 421, 423 (1983) (denying recovery to dentist who alleged negligent infliction of emotional distress as a result of his mistakenly administering toxic gases to patient); see also, Battalla v. State of New York, 10 N.Y.2d 237, 176 N.E.2d 729, 219 N.Y.S.2d 34 (1961) (overruling Mitchell v. Rochester Ry. Co., 151 N.Y. 107, 45 N.E. 354 (1896) which had precluded recovery where there was no physical impact); Casale v. Unipunch, Inc., 177 A.D.2d 1029, 1029, 578 N.Y.S.2d 46, 47 (4th Dep't 1991). Plaintiff concedes that she was not in the "zone of danger" under applicable New York law. See, Bovsun v. Sanperi, 61 N.Y.2d 219, 227, 461 N.E.2d 843, 473 N.Y.S.2d 357 (1984) (limiting recovery to family members). Thus, this Order shall only address the issue of whether plaintiff has alleged sufficient facts to show that defendant may have breached a special duty of care towards her.

Plaintiff maintains that defendant owed her a special duty of care under the "danger invites rescue" doctrine. Under this doctrine, the negligent party is liable not only to the person imperiled as a result of the negligence, but also to the person who attempts a rescue. Wagner v. International Ry. Co., 232 N.Y. 176, 180, 133 N.E. 437, 437-38 (1921) (allowing recovery for claimant who was injured while attempting to rescue his cousin who had been thrown from a moving train); Guarino v. Mine Safety Appliances Co., 31 A.D.2d 255, 260, 297 N.Y.S.2d 639, 644 (2d Dep't), aff'd, 25 N.Y.2d 460, 255 N.E.2d 173, 306 N.Y.S.2d 942 (1969) (determining that a wrongdoer is charged with responsibility to foresee the coming of a rescuer); Ha-Sidi by Ha-Sidi v. South Country Cent. School Dist., 148 A.D.2d 580, 582, 539 N.Y.S.2d 47, 48 (2d Dep't 1989) (doctrine creates duty of care towards potential rescuer when the actor places another person in a position of imminent peril which invites another person to come to his aid); Trott v. Dean...