Trombetta v. Conkling

• Citation: 82 N.Y.2d 549,626 N.E.2d 653,605 N.Y.S.2d 678
• Parties: , 626 N.E.2d 653 Darlene TROMBETTA, Appellant, v. Fred J. CONKLING et al., Respondents.
• Decision Date: 20 December 1993
• Court: New York Court of Appeals

Page 678

605 N.Y.S.2d 678

82 N.Y.2d 549, 626 N.E.2d 653

Darlene TROMBETTA, Appellant, v. Fred J. CONKLING et al., Respondents.

Court of Appeals of New York.

Dec. 20, 1993.

[82 N.Y.2d 550] Anthony A. Murad, and Louis T. Brindisi, Utica, for appellant.

Petrone & Petrone, P.C., (James P. Godemann of counsel), Utica, for respondents.

OPINION OF THE COURT

BELLACOSA, Justice.

Plaintiff-appellant's case poses a significant tort duty question for this Court. We must now decide whether plaintiff, the niece of a woman who was killed in an accident in plaintiff's presence and with whom plaintiff shared a long and strong emotional bond, may qualify to bring suit as a bystander for the negligent infliction of emotional injuries under the Bovsun v. Sanperi, 61 N.Y.2d 219, 473 N.Y.S.2d 357, 461 N.E.2d 843 "zone of danger" rule. If we were to conclude, as Supreme Court did, that plaintiff can be deemed a member of the victim's "immediate family", her cause of action lies. We agree with the Appellate Division's reversal of Supreme Court and the dismissal of the complaint and, accordingly, we affirm the Appellate Division order.

I.

On November 10, 1989, plaintiff Darlene Trombetta and her aunt, Phyllis Fisher, were crossing Wurz Avenue in Utica, New York. Plaintiff noticed a tractor-trailer bearing down on them. Realizing that the truck was not going to stop, plaintiff grabbed her aunt's hand in an attempt to pull her out of the truck's path. The effort failed. Plaintiff, who was not physically touched or injured, watched as the wheels of the truck ran over her aunt, killing her instantly.

Plaintiff commenced this action against defendants Fred J. Conkling and Universal Waste, Inc., the driver and the owner of the vehicle, respectively, asserting only a claim for negligent infliction of emotional distress. At an examination before trial, plaintiff testified that she and her aunt shared a close relationship. Allegedly, plaintiff's mother had died when plaintiff was 11, and her aunt became the maternal figure in her life. They always lived close by and enjoyed many activities together on a daily basis. At the time of the accident, plaintiff was 37 and her aunt was 59.

After discovery, defendants moved to dismiss the complaint and for summary judgment. Noting that Bovsun v. Sanperi explicitly left open the issue of "where lie the outer limits of 'the immediate family' " (61 N.Y.2d 219, 233, n. 13, 473 N.Y.S.2d 357, 461 N.E.2d 843, supra ), Supreme Court denied defendants' motion and held that the intimate familial relationship in this case was sufficient to state a cause of action (154 Misc.2d 844, 586 N.Y.S.2d 461).

The Appellate Division reversed and dismissed the complaint, confining the class of potential plaintiffs who may assert a claim of negligent infliction of emotional distress to the "immediate family" (187 A.D.2d 213, 593 N.Y.S.2d 670). The Court declined to impose liability on defendants upon a showing that a "strong bond" existed between plaintiff and the deceased, citing the "difficult proof problems and the danger of fictitious claims" (id., at 215, 593 N.Y.S.2d 670). This Court granted plaintiff leave to appeal (81 N.Y.2d 711, 600 N.Y.S.2d 442, 616 N.E.2d 1104). Because we share the Appellate Division's concerns, we now affirm and answer explicitly the question the Court left open in Bovsun. Recovery of damages by bystanders for the negligent infliction of emotional distress should be limited only to the immediate family ( Bovsun v. Sanperi, 61 N.Y.2d 219, 233, n 13, 473 N.Y.S.2d 357, 461 N.E.2d 843, supra ).

II.

Historically, New York hesitated for a long time before recognizing a very circumscribed right of recovery for bystanders based on the negligent infliction of emotional distress. In Tobin v. Grossman, 24 N.Y.2d 609, 301 N.Y.S.2d 554, 249 N.E.2d 419, a mother sought recovery for emotional trauma caused by her witnessing from afar an automobile negligently operated by the defendant striking her two-year-old child. We determined that the mother did not state a cause of action and refused to adopt the California "foreseeability" standard in this area (see, Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912). The Court stated that, absent the establishment of arbitrary distinctions, there was no "reasonable circumscription, within tolerable limits required by public policy, of [such] a rule creating liability" (id., at 617, 301 N.Y.S.2d 554, 249 N.E.2d 419; see also, Lafferty v. Manhasset Med. Ctr. Hosp., 54 N.Y.2d 277, 445 N.Y.S.2d 111, 429 N.E.2d 789). Thereafter, we also denied entitlement to recovery for emotional damages when a defendant's negligent act simultaneously breached a duty owed to the plaintiff bystander (see, Vaccaro v. Squibb Corp., 52 N.Y.2d 809, 436 N.Y.S.2d 871, 418 N.E.2d 386; Howard v. Lecher, 42 N.Y.2d 109, 397 N.Y.S.2d 363, 366 N.E.2d 64), although the plaintiff could recover pecuniary losses resulting from the defendant's conduct (see, Kennedy v. McKesson Co., 58 N.Y.2d 500, 462 N.Y.S.2d 421, 448 N.E.2d 1332; Becker v. Schwartz, 46 N.Y.2d 401, 413 N.Y.S.2d 895, 386 N.E.2d 807).

In Bovsun v. Sanperi (61 N.Y.2d 219, 473 N.Y.S.2d 357, 461 N.E.2d 843, supra ), our closely divided Court opened a narrow avenue to bystander recovery, adopting a "zone of danger" theory. Bovsun marked a significant deviation from the long-standing absolute bar on bystander claims. We reasoned that because the defendant had breached a duty owed to the plaintiff by exposing the plaintiff to an unreasonable and negligent risk of bodily injury or death, a plaintiff should be able to recover all damages sustained as a result of a defendant's breach, including mental and physical injuries resulting from witnessing death or serious bodily injury to a member of the immediate family (id., at 229-231, 473 N.Y.S.2d 357, 461 N.E.2d 843). Under the fact pattern and ratio decidendi of that case, only the immediate family members of the victims were entitled to claim damages for emotional trauma. The Court saw no necessity to define the boundaries of "the immediate family", expressing its forbearance in a footnote (id., at 233, n 13, 473 N.Y.S.2d 357, 461 N.E.2d 843).

Supreme Court in this case inferred from the forbearance that since this Court had not confined the immediate family definition, the nisi prius court was not foreclosed from extending the zone of danger rule to aunts, uncles and other persons sharing a strong emotional bond with the victim--"immediate family" members. We agree with the Appellate Division that Supreme Court's step beyond the footnote concerning the breadth of the rule is not warranted. Although plaintiff suffered a personal tragic loss, that cannot justify the significant extension of defendants' obligation to be answerable in damages for her emotional trauma. On firm public policy grounds, we are persuaded that we should not expand the cause of action for emotional injuries to all bystanders who may be able to demonstrate a blood relationship coupled...