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A plaintiff negligently exposed to an unreasonable risk of bodily injury or death may recover 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 in bringing about such injury or death. The "zone-of-danger rule" renders compensable emotional harm caused by the negligent infliction of injuries upon another person in certain cases.
On May 17, 2015, plaintiff Susan Frierson and her two-year-old granddaughter, decedent Greta Devere Greene, were in front of a building when they were suddenly struck by debris that fell from the facade of that edifice. Emergency measures taken to save Greta's life failed, and she died the next day. Susan and Greta's mother, plaintiff Stacy Greene, subsequently commenced this action seeking damages for injuries sustained in that accident. The complaint was quickly superseded by an amended pleading in which plaintiffs alleged, among other things, that defendant Esplanade Venture Partnership owned the building, and that the remaining defendants were negligent with respect to the inspection of the facade of that structure. The amended complaint also alleged that the facade was in a dangerous condition, and that as a result, a piece of the facade broke, fell, struck Greta, and caused her to die. Based on those allegations, plaintiffs asserted two causes of action; the first sounding in negligence, and the second in wrongful death. Nowhere in that amended pleading, however, did plaintiffs assert a cause of action for negligent infliction of emotional distress on behalf of Susan under the "zone of danger" doctrine.
May plaintiff-grandparent Susan Frierson, who was in close proximity to the decedent-grandchild at the time of the death-producing accident, pursue a claim for bystander recovery under a "zone of danger" theory?
The court held that Susan Frierson’s motion for leave to serve and file a second amended complaint to assert an additional cause of action under the "zone of danger" doctrine should have been granted because her grandchild, who died when debris fell from a building, was "immediate family" for the purpose of applying the zone of danger rule. A discrete, limited class of persons that enjoyed a special status under modern New York family law came within the narrow avenue to bystander recovery, and a grandchild was the "immediate family" of a grandparent for the purpose of applying the zone of danger rule. A grandchild was within the understanding of what was meant by "immediate family," and the court of appeals and the legislature had recognized that the relationship of grandparent and grandchild enjoyed a "special status" among familiar relationships.