IN RE AIR CRASH DISASTER AT COVE NECK LONG ISLAND, NY

• Decision Date: 28 March 1995
• Docket Number: No. 90 CV 2354 (TCP).,90 CV 2354 (TCP).
• Citation: 885 F. Supp. 434
• Parties: In re AIR CRASH DISASTER AT COVE NECK, LONG ISLAND, NEW YORK ON JANUARY 25, 1990. Samuel TISSENBAUM and Nettie Tissenbaum, Plaintiffs, v. AEROVIAS NACIONALES DE COLOMBIA, S.A., doing business as Avianca Airlines, Defendant.
• Court: U.S. District Court — Eastern District of New York

885 F. Supp. 434

In re AIR CRASH DISASTER AT COVE NECK, LONG ISLAND, NEW YORK ON JANUARY 25, 1990 Samuel TISSENBAUM and Nettie Tissenbaum, Plaintiffs, v. AEROVIAS NACIONALES DE COLOMBIA, S.A., doing business as Avianca Airlines, Defendant.

No. 90 CV 2354 (TCP).

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

March 28, 1995.

COPYRIGHT MATERIAL OMITTED

Marc S. Moller and Blanca Rodriguez, Kreindler & Kreindler, New York City, for plaintiffs Tissenbaum.

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

MEMORANDUM and ORDER

PLATT, Chief Judge.

Plaintiffs seek to recover from Aerovias Nacionales De Columbia ("AVIANCA") for the negligent infliction of emotional distress allegedly caused when AVIANCA Flight 052 crashed into the plaintiffs' property and for the property damage sustained by the crash. Defendant moves for summary judgment pursuant to Fed.R.Civ.P. 56 on the grounds that New York law does not allow recovery for purely emotional distress injuries, negligently inflicted, under the facts set forth in this case and that plaintiffs have already recovered for the property damage from Aetna Casualty and Surety Company ("Aetna"), their home insurer.

This Court partially grants defendant's motion for summary judgment. Summary judgment is granted in favor of the defendants on the emotional injury issue as plaintiffs failed to provide evidence that the defendant owed them a direct duty of care, that the defendant breached that duty, and that the breach was the cause of their injuries. Additionally, plaintiffs' alternative tortious theory of intentional trespass does not preserve their personal injury claims. This Court denies summary judgment on the issue of the property damage claims to the extent plaintiffs seek to recover for uninsured losses.

BACKGROUND:

I. FACTS:

On January 25, 1990, Avianca Airlines Flight 052, a Boeing 707 aircraft, crashed in the Village of Cove Neck, Nassau County, New York, killing sixty five passengers and eight crew members, and injuring eighty four passengers and one crew member. As the plane crashed into a residential neighborhood, injuries were sustained by non-passengers who were on the ground at the time of the accident.

Samuel and Nettie Tissenbaum, husband and wife,¹ were in their home located at 16 Tennis Court Road, Cove Neck, New York, at about 9:25 pm on January 25, 1990, when Avianca Flight 052 crashed into their backyard. At the time of the crash, Nettie Tissenbaum, who was seventy one years old, was in the shower and Samuel Tissenbaum, who was seventy six years old, was watching TV in a nearby room. At the moment of impact, Mrs. Tissenbaum heard what she thought was a "tremendous clap of thunder," felt the house shake and realized the power was out. See Deposition of Nettie Tissenbaum, August 21, 1991 at 13, Exhibit F to Holland Affidavit (hereinafter N.T. dep.). Mr. Tissenbaum thought an earthquake had occurred. See Deposition of Samuel Tissenbaum, August 21, 1991 at 94, 97, Exhibit F to Holland Affidavit (hereinafter S.T. dep.).

Upon hearing the loud noise, Nettie Tissenbaum ran out of the shower and into the room where her husband was. N.T. dep. at 14-16. Plaintiffs procured flashlights and went downstairs to see what had caused the loud noise and power outage. As they walked down the stairs, plaintiffs began to hear "weird" noises, "like animals caught in a trap," coming from the back of the house. S.T. dep., p. 94; N.T. dep. p. 17. When they arrived downstairs, Mr. Tissenbaum shone the flashlight through the glassdoors leading to their deck and plaintiffs were shocked to see that a plane had crashed into the deck and backyard. N.T. dep. at 19; S.T. dep. at 95.

Upon realizing the tragic situation, plaintiffs went back inside to call for emergency help but the phone was dead. Mr. Tissenbaum ran to his car to drive to the nearby police station when a neighbor told him help was on the way. S.T. dep. at 95.

When the firefighters first arrived they sprayed the deck with a chemical foam to protect it from any possible fire damage if there were a post-crash explosion. N.T. dep. at 23, 26. After securing the house against possible fire damage, rescue workers were in and out of the Tissenbaum household all night asking for water, using the bathrooms, and borrowing their linens and tools. N.T. dep. at 24-26; S.T. dep. at 103-104. The Tissenbaum garage became in effect "command central." Curious observers also entered the Tissenbaum property all through the night. S.T. dep. at 101.

The evacuation of the passengers finally ended at about 6:00 a.m. The dead bodies were placed on the Tissenbaums' driveway and in their garage. N.T. dep. at 29; S.T. dep. at 102. For days plaintiffs had no electricity, telephone service or running water, N.T. dep. at 29, and they could not leave their home as rescue vehicles blocked their passage. S.T. dep. at 103. For weeks the wreckage of the plane and heavy equipment remained on their property. N.T. dep. at 32-33.

II. CLAIMS:

A. Claims for Personal Injury

Plaintiffs contend that from the moment they heard the loud noise and throughout the ordeal that followed they were in great fear for their safety. Mrs. Tissenbaum claims she still suffers from great anxiety, fearfulness, phobias, premonitions of disaster, disorientation and depression, N.T. dep. at 31-32, and that her pre-existing diabetes condition was exacerbated by the accident so that it is difficult to stabilize her blood sugar levels and weight.² N.T. dep. at 80, 86-87. Allegedly, the crash caused Mr. Tissenbaum to suffer from anxiety, depression, insomnia and increased angina pains affecting his ability to perform routine tasks.³ S.T. dep. at 126-27. Neither plaintiff suffered any direct physical injuries from the plane crash.

Plaintiffs sought psychiatric treatment from Carl Saviano, M.D. to help them cope with the emotional stress caused by the accident. According to Dr. Saviano, Mr. and Mrs. Tissenbaum suffered from post-traumatic stress disorder resulting from the Avianca plane crash from the date of the accident through and beyond February, 1991, the date they ended their psychiatric treatment. See Affidavit of Carl Saviano, August 2, 1994, Exhibit 10 to B. Rodriguez affidavit.

In light of the stress and emotional harm plaintiffs suffered as a result of this plane crash, plaintiffs seek personal injury damages on the theories that defendant committed negligent infliction of emotional distress, and intentional trespass.

B. Property Damage Claim

The Tissenbaums submitted a claim for property damage to Aetna, their homeowner's insurer, and received $58,037.00 for the insured property damage they sustained. Plaintiffs claim that their insurance did not adequately compensate them as they sustained $152,926.00 in actual property damages. Additionally, the submitted claim did not include recovery for uninsured losses of interference with use of and enjoyment of their property.

At the time of the insurance settlement, the plaintiffs signed a subrogation statement in favor of Aetna but not a release. Aetna settled its subrogation claim with Avianca for $40,000 and released Avianca expressly for the subrogation claim only, but not for any claims made by plaintiffs for personal injury or uninsured losses resulting from the Avianca crash.

At the time of the accident, plaintiffs' home was for sale and they were receiving offers for approximately $700,000. In late 1989, after the crash, they sold the house in an "as is" condition for $575,000.

DISCUSSION

I. Summary Judgment Standard:

A motion for summary judgment may be granted if the pleadings, admissions and affidavits read together "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Summary judgment is to be entered against a party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The court considers the evidence before it in the light most favorable to the non moving party.

II. Negligent Infliction of Emotional Distress:

A. Legal Standard

The New York State Court of Appeals⁴ has permitted plaintiffs to recover in cases of purely emotional injury in extremely limited circumstances Lancellotti v. Howard, 155 A.D.2d 588, 547 N.Y.S.2d 654, 655 (2d Dep't.1989) in which (1) a "bystander" who was in the "zone of danger" suffers emotional trauma as a result of their observations or (2) the defendant breaches a direct duty to plaintiff which results in emotional injury to the plaintiff. New York State is reluctant to extend the boundaries of the narrowly drawn rules for recovery of negligent infliction of emotional distress. See Bravman v. Baxter Healthcare Corp., 794 F.Supp. 96, 100 (S.D.N.Y.1992), aff'd in part, rev'd in part on other grounds, remanded, 984 F.2d 71 (2nd Cir.1993), remanded, 842 F.Supp. 747 (S.D.N.Y.1994).

B. Bystander Rule

According to New York common law, damages for purely emotional injury are recoverable when the plaintiff is threatened with bodily harm as a result of defendant's negligence and the plaintiff suffers emotional injury "from viewing the death or serious physical injury of a member of his or her immediate family." Bovsun v. Sanperi, 61 N.Y.2d 219, 473 N.Y.S.2d 357, 361, 461 N.E.2d 843, 847 (N.Y.1984). Plaintiffs concede they cannot recover pursuant to the bystander rule as no member of their immediate family was injured in the accident.

C. Direct Duty Cases

New York State recognizes claims for negligent infliction of emotional distress in instances in which the plaintiff's emotional injury results from "a breach of duty which `unreasonably (endangers) the plaintiff's physical safety.'" Wilson v. Consolidated Rail Corp., 810 F.Supp. 411, 416 (N.D.N.Y. 1993) (quoting Green v. Leibowitz, 118 A.D.2d 756...