In a case of first impression, New York’s highest court has expanded the scope of “bystander recovery” for the negligent infliction of emotional distress. A cause of action for negligent infliction of emotional distress compensates a witness for experiencing shock and emotional distress as a result of observing harm to another person. In many states, recovery for the negligent infliction of emotional distress is limited to persons who are in the zone of danger and who witness injury to someone who is a member of their family.
In Greene v. Esplanade Venture Partnership, 36 N.Y.3d 513, 2021 WL 623832 (2021), the plaintiff and her two-year-old granddaughter were in front of a building when they were struck by debris that fell from its façade. The child died the next day, and the grandmother sued various defendants for emotional distress that she experienced as a result of witnessing injury to her granddaughter. The Greene court noted that in an older New York case, Bovsun v. Sanperi, 61 N.Y.2d 219, 461 N.E.2d 843 (1984), the court held that recovery was limited to those who witness injury or death of an “immediate family” member. The Bovsun court did not determine the scope of “immediate family” in this context, and in a subsequent case, the New York Court of Appeals denied a bystander claim on behalf of a niece who was nearby when her aunt was struck and killed by a truck. See Trombetta v. Conkling, 82 N.Y.2d 549, 626 N.E.2d 653 (1993).
In the Greene case, the issue was whether a grandchild is a member of a grandparent’s immediate family for purposes of bystander recovery. The Greene court observed that the concept of family has evolved over time, noting that same-sex marriage is now recognized and that New York grants standing to grandparents to seek custody of grandchildren in some cases. The Greene court ruled in favor of the plaintiff grandmother, holding that the relationship of grandparent and grandchild enjoys a “special status” among familial relationships and that a grandchild is the “immediate family” of a grandparent for the purpose of applying the zone of danger rule.