Bovsun v. Sanperi

injured and each thereafter immediately observed their seriously injured husband and father.^[1]

At the start of the trial as jurors were being selected, defendants’ attorney objected to any reference being made to emotional distress plaintiffs might have suffered as a result of observing Jack Bovsun’s injuries. After hearing arguments from counsel and with an awareness of the significant factual elements of plaintiffs’ case, the trial court ruled that the proof would be limited to plaintiffs’ own direct physical injuries and that no mention could be made during the voir dire of any injuries attributable to emotional distress. To expedite appellate review, defendants’ motion to preclude plaintiffs from examining the prospective jurors as to plaintiffs’ emotional distress was deemed a motion to dismiss plaintiffs’ claims for damages with respect thereto, and that relief was granted.

On plaintiffs’ appeal, the Appellate Division affirmed, citing Kugel v Mid-Westchester Ind. Park ( 90 AD2d 496 ). Thereafter, the Appellate Division granted plaintiffs leave to appeal to our court.

Kugel v Westchester Industrial Park, Inc.

In Kugel, plaintiffs, a father and mother, were riding with their two infant daughters in the family car along a roadway in the Mid-Westchester Mall in Cortlandt, New York, on June 3, 1978. As alleged in their verified complaint and bill of particulars, plaintiff Lawrence Kugel was driving the vehicle, his wife, plaintiff Lydia Kugel, was in the front passenger seat with their one-year-old daughter Stephanie in her lap, and their other daughter Karen, four years old, was also seated in the car. The Kugel car was struck by an automobile owned by defendant Barbara B. Rooney and driven by defendant Thomas Rooney, allegedly

in a reckless manner and at an excessive speed. Lydia Kugel suffered a fractured clavicle in the collision, Lawrence sustained a broken finger, and Karen suffered abdominal injuries. Stephanie Kugel died a few hours after the accident as a result of her various, severe injuries, alleged in the complaint to have been observed by plaintiffs.^[2]

Plaintiffs served a summons and complaint to commence this action, seeking, inter alia, in their fourth cause of action damages for “the immediate severe emotional trauma of seeing Stephanie Kugel suffer extreme physical injury within their close proximity.” By notice of motion, defendant Mid-Westchester Industrial Park, Inc., which owns and operates the Mid-Westchester Mall, moved for partial summary judgment dismissing the fourth cause of action (along with the fifth and sixth causes of action), contending that it did not allege a legally cognizable claim. Defendants Thomas and Barbara Rooney thereafter also moved for summary judgment dismissing those causes of action. Special Term granted the motions and dismissed the causes of action, ruling that New York does not permit a cause of action to be maintained for the emotional distress suffered by the parents of an infant child who is killed in an accident.

Plaintiffs appealed the Special Term order to the Appellate Division. While that appeal was pending, plaintiffs settled or discontinued all causes of action other than those for emotional trauma attributable to the injury and death of their daughter Stephanie, which were expressly reserved.^[3] The Appellate Division thereafter affirmed, holding that Special Term had correctly concluded that there is no cause of action in New York for emotional trauma suffered by the parents of a child injured or killed as the result of negligence. According to the court, plaintiffs’ direct involvement in the accident is only relevant insofar

as it creates a cause of action on their own behalf for injuries directly inflicted on them. The court reasoned that the inability to circumscribe liability in a reasonable fashion and the possibility of unlimited liability would require dismissal of plaintiffs’ emotional distress claims regardless of whether plaintiffs were directly involved in the accident. The Appellate Division thereafter granted plaintiffs’ motion for leave to appeal to our court.

Analysis of Legal Issues

Traditionally, courts have been reluctant to recognize any liability for the mental distress which may result from the observation of a third person’s peril or harm. The law in California relating to bystander recovery was greatly altered, however, by that State’s Supreme Court ruling in Dillon v Legg ( 68 Cal 2d 728 ) that damages may be recovered for the emotional trauma caused when a plaintiff witnesses the injury or death of a close relative even though the plaintiff is not himself within the zone of danger of physical injury, provided that the emotional injury is reasonably foreseeable.^[4] Soon after the Dillon decision, our court in Tobin v Grossman ( 24 NY2d 609 ) rejected this foreseeability approach to bystander recovery. In Tobin, a mother, who had been in no danger of bodily harm herself, sought damages for the mental distress that she suffered in viewing the serious injuries sustained by her child when the child was struck by an automobile. We recognized in that case that foreseeability is not the sole test of whether a legally cognizable duty is owed. In reliance on rationale grounded in public policy — that liability to the foreseeable bystander could not be limited in any rational way and could lead to unlimited liability for negligent conduct — we declined to recognize a cause of action for the emotional distress suffered by the foresee

able observer of an accident.^[5] In so doing, in obiter dictum we questioned the zone-of-danger analysis.

In disposing of the appeal in Tobin we were not, however, required to confront the precise issue presented to us for the first time in the two appeals now before us inasmuch as the plaintiff in Tobin had not been within the zone of danger of bodily harm. We there phrased the legal question posed as “whether the concept of duty in tort should be extended to third persons, who do not sustain any physical impact in the accident or fear for their own safety” (24 NY2d, p 613). We did note that the approach of permitting recovery “for the inseparable consequences of fear for” a relative’s safety, as well as one’s own safety, where the plaintiff is in the zone of danger “has been said to be a rather arbitrary limiting rule” (24 NY2d, p 616). We have also elsewhere recognized, however, that arbitrary distinctions are an inevitable result of the drawing of lines which circumscribe legal duties (Kennedy v McKesson Co., 58 NY2d 500 , 507), and that delineation of limits of liability in tort actions is usually determined on the basis of considerations of public policy (De Angelis v Lutheran Med. Center, 58 NY2d 1053 , 1055; Pulka v Edelman, 40 NY2d 781 ; see Prosser, Torts [4th ed], § 3, pp 14-16).

The zone-of-danger rule, which allows one who is himself or herself threatened with bodily harm in consequence of the defendant’s negligence to recover for emotional distress resulting from viewing the death or serious physical injury of a member of his or her immediate family, is said to have

become the majority rule in this country.^[6] It is premised on the traditional negligence concept that by unreasonably endangering the plaintiff’s physical safety the defendant has breached a duty owed to him or her for which he or she should recover all damages sustained including those occasioned by witnessing the suffering of an immediate family member who is also injured by the defendant’s conduct. Recognition of this right to recover for emotional distress attributable to observation of injuries suffered by a member of the immediate family involves a broadening of the duty concept but — unlike the Dillon approach — not the creation of a duty to a plaintiff to whom the defendant is not already recognized as owing a duty to avoid bodily harm. In so doing it permits recovery for an element of damages not heretofore allowed. Use of the zone-of-danger rule thus mitigates the possibility of unlimited recovery, an overriding apprehension expressed in Tobin, by restricting liability in a much narrower fashion than does the Dillon rule. Additionally, the circumstances in which a plaintiff who is within the zone of danger suffers serious emotional distress from observing severe physical injury or death of a member of the immediate family may not be altogether common.^[7]

The zone-of-danger rule has also been adopted in the Restatement of Torts, Second, as it had been at the time of our decision in Tobin. Subdivision (2) of section 436 provides that “If the actor’s conduct is negligent as creating an unreasonable risk of causing bodily harm to another otherwise than by subjecting him to fright, shock, or other similar and immediate emotional disturbance, the fact that such harm results solely from the internal operation

of fright or other emotional disturbance does not protect the actor from liability.” Subdivision (3) of that section further provides that “The rule stated in Subsection (2) applies where the bodily harm to the other results from his shock or fright at harm or peril to a member of his immediate family occurring in his presence.” Thus, section 436 would subject a defendant to liability for a plaintiff’s immediate emotional distress from viewing bodily harm to an immediate family member where the defendant’s negligent conduct also threatens bodily harm to the plaintiff.^[8] The American Law Institute explains that the rationale for “this exception to the general rule that there cannot be recovery for emotional disturbance, or its consequences, arising from the peril of a third person lies in the fact that the defendant, by his negligence, has endangered the plaintiff’s own safety and threatened him with bodily harm so that the defendant is in breach of an original duty to the plaintiff to exercise care for his protection.” (Restatement, Torts 2d, § 436, subd [3], Comment f.)

Inasmuch as the zone-of-danger rule provides a circumscribed alternative to the apparently sweeping liability recognized in Dillon v Legg ( 68 Cal 2d 728 , supra) and does so within the framework of traditional and accepted negligence principles by using an objective test of whether the plaintiff was unreasonably threatened with bodily harm by the conduct of the defendant, we view it as comporting with the requirements set out in Tobin of a “reasonably objective” standard which will “serve the purpose of holding strict rein on liability” (Tobin v Grossman, 24 NY2d 609 , 618, supra)^[9] We therefore hold that where a defendant

negligently exposes a plaintiff to an unreasonable risk of bodily injury or death, the plaintiff may recover, as a proper element of his or her damages, damages for injuries suffered in consequence of the observation of the serious injury or death of a member of his or her immediate family — assuming, of course, that it is established that the defendant’s conduct was a substantial factor bringing about such injury or death.^[10]

In so holding, we reject any suggestion that the zone-of-danger rule is overly susceptible to fraudulent claims or that the emotional injuries claimed here are incapable of acceptable proof. We previously disposed of these arguments in Battalla v State of New York ( 10 NY2d 237 , 240-242): “Although fraud, extra litigation and a measure of speculation are, of course, possibilities, it is no reason for a court to eschew a measure of its jurisdiction. ‘The argument from mere expediency cannot commend itself to a Court of justice, resulting in the denial of a logical legal right and remedy in all cases because in some a fictitious injury may be urged as a real one.’ * * * The only substantial policy argument * * * is that the damages or injuries are somewhat speculative and difficult to prove. However, the question of proof in individual situations should not be the arbitrary basis upon which to bar all actions * * * In the difficult cases, we must look to the quality and genuineness of proof, and rely to an extent on the contemporary sophistication of the medical profession and the ability of the court and jury to weed out the dishonest claims.”

We are not suggesting that any trifling distress would be sufficient to support recovery of damages under the zone-of-danger rule. Rather, the emotional disturbance suffered must be serious and verifiable (see Restatement, Torts 2d, § 436, subd [3], Comment g). Additionally, the compensa

ble emotional distress must be tied, as a matter of proximate causation, to the observation of the serious injury or death of the family member and such injury or death must have been caused by the conduct of the defendant.

The zone-of-danger rule that we adopt here is not inconsistent with the past decisions of our court that have denied recovery for emotional distress attributable to a family member’s death or injury (e.g., Lafferty v Manhasset Med. Center Hosp., 54 NY2d 277 ; Vaccaro v Squibb Corp., 52 NY2d 809 ; Becker v Schwartz, 46 NY2d 401 ; Howard v Lecher, 42 NY2d 109 ). None of those cases involved plaintiffs who had themselves been subjected to a danger of bodily harm, although some of the plaintiffs had been present during, had observed, and even had participated in the negligent conduct. In Becker v Schwartz ( 46 NY2d 401 , supra), in which the plaintiffs were not exposed to bodily harm, it is significant that although no recovery was allowed for emotional distress, the plaintiffs were allowed to seek recovery for pecuniary losses sustained in consequence of the defendant’s breach of due care owed them in that regard. Similarly, in our most recent decision in this area, Kennedy v McKesson Co. ( 58 NY2d 500 , supra), although the plaintiff there was also allowed to seek recovery for his pecuniary losses, recovery of damages for emotional disturbance was denied — he had not been exposed to a risk of bodily harm by the negligence of the defendant. Moreover, in Kennedy the person whose death the plaintiff witnessed was not a member of his immediate family. In none of these cases would the result have been different under the rule that we apply in this case.

We recognize that our decision in these two appeals may be perceived as overruling, or at least as rejecting in a significant respect, the rationale on which our decision in Tobin was predicated, notwithstanding that the precise issue presented in the appeals now before us was not presented in Tobin.^[11] In the factual situation posed in Tobin we would today reach the same conclusion that was reached in that case inasmuch as the plaintiff mother there

was not within the zone of danger and the defendant breached no duty of reasonable care owed to her. We are not today creating a new cause of action which has not heretofore existed under the tort law of New York; rather we are recognizing the right of a plaintiff to whom the defendant has owed but breached a duty of reasonable care (as determined under traditional tort principles) to recover as an element of his or her damages, those damages attributable to emotional distress caused by contemporaneous observation of injury or death of a member of the immediate family caused by the same conduct of the defendant.^[12] There may be an enlargement of the scope of recoverable damages; there is no recognition of a new cause of action or of a cause of action in favor of a party not previously recognized as entitled thereto. In conformity with traditional tort principles, the touchstone of liability in these cases is the breach by the defendant of a duty of due care owed the plaintiff.

Application of the Law to These Appeals

Turning, then, to the appeals before us, the factual situations claimed bring both cases within the zone-of-danger rule. In each case plaintiffs assert that they were subjected to an unreasonable risk of bodily injury by negligent conduct on the part of defendants. In each, the seriously injured or deceased person was a member of the immediate family of plaintiffs, each of whom alleges serious emotional trauma as a result of observing the injury or death.^[13] Although plaintiffs in Bovsun did not actually see their husband and father being injured, they do assert their instantaneous awareness that he had been injured as well as their observation of him immediately after he was struck by defendants’ automobile. Plaintiffs in Kugel claim similar observations. Thus, the claims in both cases are sufficient, if substantiated by the evidence, to entitle plain

tiffs to recover for their asserted emotional distress damages.

For the reasons stated, in Bovsun, the order of the Appellate Division should be reversed, with costs, defendants’ motion to dismiss denied and the causes of action dismissed, reinstated. In Kugel, the order of the Appellate Division should be reversed, with costs, and defendants’ motions for summary judgment denied.

(dissenting). Permitting recovery for emotional distress from observing physical injury to another is a departure from precedent and recognition of a new duty. Because sound policy considerations supported this court’s decisions consistently denying such recovery, because no reason is given for a change, and because the limitations now imposed are artificial and arbitrary, and must in fairness give way to far-reaching liability affecting the public generally, I respectfully dissent.

On no less than six occasions during the last 15 years, this court has considered, and rejected, claims for emotional distress allegedly resulting from observing injury negligently inflicted upon another.^[1] Those decisions reflect a recognition that to allow recovery for such injuries would require the creation of a new duty and therefore an entirely new cause of action (Tobin v Grossman, 24 NY2d 609 , 613), because “there is no duty to protect from emotional injury a bystander to whom there is otherwise owed no duty, and, even as to a participant to whom a duty is owed, such injury is compensable only when a direct, rather than a consequential result of the breach.” (Kennedy v McKesson Co., 58 NY2d 500 , 506.) This is so even where a single negligent act concurrently injures both the plaintiff and the third person. Each may recover for personal pecuniary, bodily and psychic injury, but not for the trauma of seeing the other harmed. (Kennedy v McKesson Co., 58 NY2d 500 , supra; Becker v Schwartz, 46 NY2d 401 .)

To suggest, as the majority does, that it is neither creating a new duty nor overruling those decisions because we are today presented with different facts, is merely to

nized as “artificial and arbitrary,” and “hypertechnical and fortuitous.”

To suggest that even these limitations can contain liability, once the duty to compensate for observing injury to another is recognized, is to ignore this court’s own teachings. At the least, limitations such as “zone of danger” and “serious and verifiable” emotional disturbance present jury questions that will make it difficult ever to have claims for such injuries dismissed prior to trial.^[2] The apparent dearth of appellate opinions on this topic (majority opn, p 229, n 7) is not a reliable signal that recoveries will be few. What is overlooked is the universe of litigation that stops short of appellate review and the practice among insurance carriers to pass along added costs to their consumers — the very danger recognized in Tobin.

The Tobin rule is defensible, in that for articulated policy reasons recovery has been uniformly denied. This is a recognition of two principles firmly rooted in our law: first, that in the interest of the public generally, which must eventually bear the cost, not every injury can be compensable, even when suffered as a consequence of another’s negligence. (De Angelis v Lutheran Med. Center, 58 NY2d 1053 , 1055; Albala v City of New York, 54 NY2d 269 ,274.) Second, in a negligence action a “plaintiff sues in her own right for a wrong personal to her, and not as the vicarious beneficiary of a breach of duty to another.” (Palsgraf v Long Is. R.R. Co., 248 NY 339 , 343.)

The rule articulated today both lacks certainty and imposes limitations that are not fair.^[3] The central limiting

factor is that plaintiff be in the “zone of danger,” described as the majority rule in this country.* **^[4] But there is no rational relation between the “zone of danger” and the recovery allowed today. The “zone of danger” is a concept tied to a breach of duty to a person subjecting him to risk of personal physical injury. The recovery allowed today, however, is not for a breach of that duty but rather for observing the effect of a defendant’s breach of duty to another that in fact causes serious physical injury to that other person. Any duty not to subject a person to emotional distress from observing physical injuries to another would be breached when the other person is injured, whether or not the observer is within the “zone of danger.” (See Tobin v Grossman, 24 NY2d 609 , 617, supra.) Moreover, as a matter of fairness, one parent is no more entitled to recover for mental distress from observing a child’s injury than another who suffered the same anguish though not technically within the “zone of danger.” It is perhaps for these reasons that so many other jurisdictions have, like this court in the past, sharply criticized the “zone-of-danger” rule.^[5]

The other barriers erected today similarly are not rationally related to the new cause of action but are, like the