Redefining ‘Family’: Emotional Damages and the Grieving Families Act
3.8.2022
There has been a palpable movement in the courts and in the Legislature to expand damages in cases of emotional pain and anguish and wrongful death.
The New York Court of Appeals, in the case of Greene v. Esplanade,[1] rendered a decision in February 2021 to expand recovery rights to a grandparent under the “zone of danger” doctrine.
The case involved the tragic death of a 2-year-old child resulting from pieces of a building façade that had broken off and fallen onto the child. At the time of the incident, the child’s grandmother was next to the child as debris suddenly fell from the building, and the plaintiff grandmother was herself struck by debris. The grandmother had initially filed a lawsuit based on two causes of action sounding in negligence and wrongful death. However, the grandmother moved to amend the complaint to add another cause of action based on negligent infliction of emotional distress pursuant to the zone of danger doctrine.
The zone of danger doctrine provides for a right of recovery for infliction of emotional distress where one is threatened with bodily harm as a consequence of a defendant’s negligence and flows only from the viewing of death or serious physical injury of a member of that person’s “immediate family.” The term “immediate family” was at the crux of the debate in the Greene case.
Procedural History of the Greene Decision
The case was first heard by the Supreme Court, King’s County. The grandmother argued that she should be classified as an “immediate family” member of the decedent child based on the “unique and special nature” of the relationship between a grandparent and a grandchild. The Supreme Court granted plaintiff’s right to amend the complaint based on the zone of danger doctrine and concluded that based on the “unique and special” relationship between the grandmother and grandchild, the plaintiff should be considered an “immediate family” member of the child. The court noted the specific recognition of special custody rights of grandparents with respect to grandchildren in support of its decision.
Defendants appealed to the Appellate Division, Second Department, arguing that grandparents are excluded from the designation of “immediate family.” The Second Department reversed the lower court, holding that the grandmother was not “immediate family” so as to permit her to recover on a claim that sounded in negligent infliction of emotional distress based on the zone of danger doctrine. The Second Department relied on the 1984 case of Bovsun v. Sanperi,[2] which stood for the proposition that the term “immediate family” encompasses only spouses and their children. The appellate court therefore concluded that the grandmother’s proposed amendment was patently devoid of merit and that leave to amend the complaint should be denied. The majority decision referenced several cases that highlighted the courts’ steadfast adherence to the definition of “immediate family” as described in Bovsun. In Trombetta v. Conkling,[3] the Court of Appeals held that a niece could not recover damages for negligent infliction of emotional distress for witnessing the death of her aunt where the niece’s mother had died when the niece was 11 and the aunt had been her sole maternal figure. Further, in Jun Chi Guan v. Tuscan Dairy Farms,[4] the Second Department rejected a grandmother’s argument that she should be considered immediate family and de facto maternal figure, where her grandson was killed in a stroller she was pushing, even though she spent the most time with the infant during his waking hours.
The Second Department’s dissenting opinion in Greene provided a comprehensive historical overview of emotional damages and applied pertinent law to the facts of this case. The dissent examined the seemingly arbitrary and unjust results that followed from the application of the term “immediate family” as limited by Bovsun, and further stated that the current state of the law does not reflect modern familial structures and modern societal norms. Further, the dissent referenced the concept of the common-law system as a living mechanism – one that is ever-growing and responding to the surging reality of changed conditions. The dissent provided that where a rule produces arbitrary results, it is the duty of the court to inquire into the rule’s continued viability and, if appropriate, reformulate the rule or abolish it completely.
As addressed in the dissent, it is not surprising that the definition of “immediate family” as applied by the courts in years past has evoked controversy and repeated challenges. While many modern families fall into the traditional two spouse and child/children structure, a great many families fall into untraditional models which include children being raised by grandparents, aunts, uncles, siblings, stepparents, and more.
The Court of Appeals Decision of Feb. 18, 2021
While reversing the lower court’s decision, the Appellate Division also granted leave to appeal to the Court of Appeals. The court ultimately decided that the grandmother in this case should be classified as an “immediate family” member of the decedent grandchild. While the court noted the “historically circumspect approach” to expanding liability for emotional damages, the court based its decision on the increasing legal recognition of the special status of grandparents, shifting societal norms, and common sense. The court further indicated that the Bovsun did not provide an exhaustive list of family members that could qualify as “immediate family.”
The majority, however, strongly emphasized that its decision does not establish “outer limits” to the definition of “immediate family.” In fact, the court indicated that it was tasked with determining only whether the grandmother in this case warranted a classification as a member of the “immediate family.” The court even referenced the fact that the decisions in Bovsun and Trombetta also refused to set “outer limits” of the term.
The concurring opinion agreed with the majority decision yet simultaneously rebuked the decision stating that the “Court has missed the moment.” The concurring justices indicated that the Court could have discarded the “immediate family” requirement altogether, which is premised on antiquated definitions based strictly by marriage and degrees of consanguinity. Further, the concurring opinion argued that the limitation of “immediate family” as provided by Bovson is underinclusive in that it assumes that only spouses and certain relatives have the type of emotional attachment to the third-party victim that justifies recovery.
The significance of the Court of Appeals decision in Greene is that it has become apparent that the court is willing to review the classification of additional types of plaintiff family members eligible for emotional damages. It should be anticipated that plaintiffs will seek to test the “outer limits” of the “immediate family” definition. Notably, various states such as California, Oregon, Texas and New Jersey have either abandoned the “immediate family” rule or expanded to more permissive rules as to who may recover under such circumstances. In considering the nuances of what constitutes familial affection, familial love and bonds that comprise family, it is understandable why New York courts may wish to move to a more permissive and inclusive test to consider the nature of a bystander’s relationship to a victim.
Why did the Court of Appeals not discard the “immediate family” requirement altogether? Also, why has the Court of Appeals been so reluctant to set the “outer limits” of the phrase of “immediate family”?
Some would argue that by either discarding the rule altogether or by expanding the outer limits, the Court may be allowing the floodgates to open to all types of plaintiffs, with potentially tenuous affections or sentiments to the victim. However, the courts are well adept in ferreting out proper individuals to recover damages in other areas of the law, so it is not clear why this area would be any different. Others may argue that the nuanced nature of familial bonds and relationships are too difficult to define, thus leaving an amorphous and open interpretation as the best solution to evaluate the bystander-victim relationship on a case-by-case basis, rather than a sweeping change of approach.
However, there is likely a historical component to the reluctance of the Court to either discard or set “outer limits” of the “immediate family” rule. While the zone of danger doctrine is a common-law doctrine, it is still borne out of an era where the courts and the Legislature found it to be against public policy to recover for damages arising purely from mental trauma or anguish in the absence of physical contact or injury. In 1961, the court first recognized that a plaintiff could recover on a claim for damages based on mental distress without physical injury.[5] Essentially, the Court determined that if the victim plaintiff could show that the defendant breached a duty of care and that the said breach resulted directly in the victim plaintiff’s emotional harm, even absent physical injury, it was a compensable claim. However, such recognition only pertained to the direct victim. Derivative claims of bystanders, regardless of their familial connection, were not recognized as having any merit despite them suffering emotional distress as a result of witnessing the injury or death of another. The Bovsun decision in 1984 then carved out a loophole to this general denial of recovery of derivative claims of emotional distress or anguish under circumstances where the bystander was an “immediate family” member and was confronted with fear of physical harm or injury while being in the proximity of danger, coupled with the mental anguish and trauma of witnessing the injury or death of a loved one. Adding the physical danger component to the doctrine is what makes the derivative claim viable.
In Greene, the concurring justices urged the court to use its power to change both old rules of law as well as outdated common law rules, and cited the case of Woods v. Lancent, which provided:
[W]hile legislative bodies have the power to change old rules of law, nevertheless, when they fail to act, it is the duty of the court to bring the law into accordance with present day standards of wisdom and justice rather than “with some outworn and antiquated rule of the past.” No reason appears why there should not be the same approach when traditional common-law rules of negligence result in injustice.[6]
However, the hesitancy of the majority in Greene, Bovson and Trombetta to define the “outer limits” of “immediate family,” or to reject such limitation altogether, may be rooted in the historical truth that the legal landscape in respect to the areas of mental anguish, mental trauma and emotional distress, has overarchingly been based on a framework and tradition of limiting those who can recover and what can be recovered.
The Grieving Families Act and the Push for Reform
A similar theme of the curtailing of damages for mental anguish and trauma can be seen in New York’s Wrongful Death Statute. The current Wrongful Death Statute is codified in the Estates, Powers and Trust Law. EPTL 5-4.4(a) states that the damages, as prescribed by 5-4.3, whether recovered in an action or by settlement without an action, are exclusively for the benefit of the decedent’s distributees. The distributees of a decedent are those who can take, per the statute, of the decedent’s estate when the decedent dies intestate (without a will). New York’s Wrongful Death Statute was enacted in 1847 when the family structure was far different from that of today. EPTL 5-4.3 indicates that a distributee can recover compensation for pecuniary injuries resulting from the decedent’s death. The current law is restricted to what the victim would have financially contributed to certain family members left behind.
This means that a whole host of victims, who die at the hands of the negligence of another, are considered practically worthless under the law in the event of wrongful death. Loved ones who suffer a death of their family member who is a retiree, disabled individual, a child, stay at home-parent, grandparent, is in between jobs, or makes a meager income, are faced with the harsh reality that their grief will not be compensated.
It should be noted that, unlike the common-law doctrine of zone of danger, a wrongful death action in New York is purely a statutory right and cause of action. The Court of Appeals, in Liff v. Schildkrout,[7] in denying a husband’s claim for loss of consortium within a wrongful death action concerning his deceased wife, held that the Legislature, by including the pecuniary injury limitation in its statutory scheme, prevents the courts from recognizing loss of consortium within a wrongful death action. The court explicitly stated that if a change should be made, it is for the Legislature, and not the courts, to make. This again displays the court’s sensitivity as to the intent of the Legislature and its careful efforts to not broaden the interpretation of the statute beyond its original aim.
In response to this current state of the law, which is leading to what some may argue is disparate and inadequate compensation to family members of the deceased, a new bill labeled the Grieving Families Act (S.74-A/A.6770) has been introduced to the Legislature. The bill provides for an avenue for damages to be awarded for grief and anguish as a result of the wrongful death of a victim, separate and apart from any pecuniary loss.
Specifically, the proposed bill provides the type of damages that may be awarded to the person for whose benefit an action for wrongful death is brought, i.e., grief and anguish; loss of love, society, protection, comfort, companionship and consortium; reasonable funeral expenses; reasonable expenses for medical care, treatment prior to death; pecuniary injuries due to loss of services, support, inheritance; and loss of nurture, guidance or education. The current version of the bill, which has been sent to the Senate Judiciary Committee, adds an important new amendment to extend the statute of limitation for wrongful death from 2 to 3 ½ years from the date of fatality.
If enacted, the proposed bill would lead to a vast expansion of the damages allowed for the pain, anguish and grief of loved ones as a result of a victim’s wrongful death and would bring New York in the company of the 40+ other states who have enacted similar legislation.
In sum, both the courts and Legislature are reviewing and taking steps toward expanding the compensation available to family members for emotional injuries suffered due to the injury or loss of a loved one. We should be on close watch for further developments in this area as the legal landscape is evolving beneath our feet.
V. Christopher Potenza is a shareholder of Hurwitz & Fine, focusing on general liability and tort defense, including product liability, premises liability, transportation and automotive liability, and malpractice, and serves as the co-chair of the Toxic Tort Committee of NYSBA’s Torts, Insurance, and Compensation Law Section.
Alice A. Trueman is an associate of Hurwitz & Fine in its Buffalo office, practicing in insurance and general liability defense.
This article appears in a forthcoming issue of the TICL Journal, a publication of the TICL Section. For more information about this section, please visit NYSBA.ORG/TICL.
[1] 36 N.Y.3d 513 (2021).
[2] 61 N.Y.2d 219 (1984).
[3] 82 N.Y.2d 549 (1993).
[4] 24 A.D.3d 725 (2d Dep’t 2005).
[5] See Battalla v. State of New York, 10 N.Y.2d 34 (1961).
[6] 303 N.Y. 349, 355 (1951), quoting Funk v. United States, 290 U.S. 371, 382 (1933).
[7] 49 N.Y.2d 622 (1980).
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