Topor v. State

• Decision Date: 19 December 1997
• Docket Number: No. 89970,89970
• Citation: 176 Misc.2d 177,671 N.Y.S.2d 584
• Parties: , 1998 N.Y. Slip Op. 98,185 Ellen TOPOR et al., Claimants, v. STATE of New York, Defendant.
• Court: New York Court of Claims

Page 584

671 N.Y.S.2d 584

176 Misc.2d 177, 1998 N.Y. Slip Op. 98,185

Ellen TOPOR et al., Claimants, v. STATE of New York, Defendant.

Claim No. 89970.

Court of Claims of New York.

Dec. 19, 1997.

Kenny & Kenny, Syracuse (Robert P. Cahalan, of counsel), for claimants.

Dennis C. Vacco, Attorney General (Michael Cogswell, Syracuse, of counsel), for defendant.

FRANCIS T. COLLINS, Judge.

This is a claim to recover for emotional distress and derivative loss allegedly resulting from a "peeping tom" incident that occurred on June 29, 1994 in a shower facility at the Wellesley Island State Park located in Jefferson County, New York. Wellesley Island State Park is a camping facility owned and operated by the defendant.

Ellen Topor had been camping at the State Park for three days prior to the incident with her husband, brother and her brother's girlfriend. Between 8:00 and 9:00 p.m. on the evening of June 29, 1994, Mrs. Topor went to the women's bathroom to take a shower. The shower facility is a 24' by 24' building divided by a pipe chase into separate shower rooms for men and women. Within the pipe chase are pipes and other physical equipment relating to the sinks, toilets and showers. The pipe chase is also used for the storage of cleaning supplies and is accessed by two self-locking doors, one providing entry from the female area and the other from the male area. Park employees were the only persons possessing keys to the pipe chase doors.

Mrs. Topor entered a shower stall, disrobed and noticed that some tiles were missing around the faucet control. As she showered, she happened to look down and saw that the "holes were all lit up". She bent over and looked through one of the holes and saw an eyeball peering through the hole. Distraught, she dressed, returned to the campsite and told her husband someone had been watching her in the shower. The incident was reported and investigated by park employees and park police.

The investigation disclosed three holes in the common wall of the pipe chase and female shower area. The holes resulted from the replacement of shower controls earlier in the year. The park manager was aware of the holes, which should have been repaired, but were not. A person within the pipe chase looking through the peepholes had a clear view of a person taking a shower in the stall used by Mrs. Topor. The doors to the pipe chase were locked when the police officer investigating the incident arrived shortly after the Topors' report. The only park employee on duty that evening with a key to the pipe chase was the supervisor of the night cleaning crew. The night cleaning crew cleaned the women's shower stalls on a daily basis, including the wall with the missing tiles and peepholes.

Mrs. Topor suffered symptoms of depression, anxiety, nightmares, concerns for her personal safety and sexual dysfunction following the incident, which symptoms continued in some degree to the time of trial. Commencing on July 12, 1994, Mrs. Topor received counseling through the Child and Family Services of Syracuse in the person of Randi N. Borroff, a certified social worker. Ms. Borroff gave a diagnosis of adjustment disorder with mixed emotional features. Mrs. Topor also related preexisting marital problems. The counseling sessions ended when Ms. Borroff left her employment with Child and Family Services of Syracuse.

On cross-examination Ms. Borroff conceded that she was not an expert qualified to give an opinion regarding the issue of causation and had no interest in what caused the problems of the people she counseled, as her main focus was resolution. She could not give a definitive opinion as to whether Mrs. Topor's problems arose from the incident at Wellesley Island State Park or the couple's prior marital problems.

At the close of the claimant's case defense counsel made a motion to dismiss upon the ground that as Mrs. Topor was in no fear of physical harm she cannot recover for her emotional distress. At the close of the evidence a second dismissal motion was made upon the ground that there was insufficient proof of a causal relationship between the incident and the injuries. Those motions will now be addressed.

The law has long been settled that a claimant can recover for emotional trauma even in the absence of a physical injury (Battalla v. State of New York, 10 N.Y.2d 237, 219 N.Y.S.2d 34, 176 N.E.2d 729; Scannapieco v. New York City Transit Auth., 200 A.D.2d 410, 412, 606 N.Y.S.2d 614). Contrary to the position taken by defense counsel, there is no requirement that a claimant seeking such recovery must be in physical fear of his or her own safety. That point is made clear by a review of pertinent Court of Appeals rulings. In the case of Martinez v. Long Island Jewish Hillside Medical Center, 70 N.Y.2d 697, 518 N.Y.S.2d 955, 512 N.E.2d 538, an abortion was performed on the plaintiff based on the erroneous advice of her physician that the baby would be born with a congenital birth defect. The plaintiff sued for emotional harm and the Court of Appeals held that "where there is a breach of a duty owed by defendant to plaintiff, the breach of that duty resulting directly in emotional harm is actionable" (supra, at 699, 518 N.Y.S.2d 955, 512 N.E.2d 538). In the case of Johnson v. State of New York, 37 N.Y.2d 378, 379-380, 372 N.Y.S.2d 638, 334 N.E.2d 590, the Court of Appeals permitted the daughter of a hospital patient to recover for "emotional harm sustained by her as a result of negligent misinformation given by the hospital that her mother had died." In neither of the foregoing cases was the plaintiff in fear of her own physical safety. Defense counsel is confusing claimants' theory of recovery with the "zone of danger" rule which applies when a plaintiff seeks to recover as a result of witnessing the physical injury or death of another. In that situation, the plaintiff must be within the zone of risk of bodily harm in order to recover (see, Bovsun v. Sanperi, 61 N.Y.2d 219, 473 N.Y.S.2d 357, 461 N.E.2d 843). Here, Mrs. Topor need not have been in fear of her own physical safety in order to recover. Her subsequent symptoms of nightmares, strong and continuing concerns regarding her privacy and security and inability to engage in normal sexual relations with her husband were not unexpected or aberrational results of the shock and fright suffered by the claimant upon seeing an eye peering through a peephole while she showered in a public shower facility. The dismissal motion made at the close of the claimants' case is...