You are walking along the shoulder of a road with no sidewalk. You are facing traffic, as you are supposed to. To your right, walking with you, is your husband. Suddenly the car heading towards you veers off the road and onto the shoulder. You have time to jump to the left and escape injury. Your husband, on the other hand, is hit and killed. You watch this happen, horrified.
Clearly your husband’s estate has a claim for “wrongful death” against the negligent driver of the car. As his widow, you are probably going to be the administrator of that estate, and will sue on behalf of the estate. The estate will recover all the financial expenses stemming from the accident (medical and funeral expense) and will also recover for any pain and suffering he endured before death, and for any loss of financial support you and other family members will suffer.
But what about you. Do you have a personal claim (not just on behalf of the estate) against the driver for the emotional harm you suffered from being right next to your husband, and watching, when he was hit and killed? That image is going to haunt you for the rest of your life!
In New York, the answer is “yes” on the facts above. But change them just a bit, and the answer is “no”. (I’ll explain later).
This type of claim is called a “zone-of-danger” or a “bystander” claim. In New York, if you were in the “zone of danger” (at risk of being injured) when a person near you was killed or seriously injured, you can recover for your emotional distress in seeing this unfold, but only if the two of you are “immediate family””. Traditionally, courts in New York have seemed to interpret this to mean “nuclear” family: Father, mother, son, daughter, sibling. But not cousins, for example.
Recently, New York’s highest Court has expanded the “immediate family” rule to include the grandparent / grandchild relationship (see, Greene v Esplanade Venture Partnership). In so deciding, the Court took into account that grandparents are, these days, often more closely attached to their grandchildren (and visa versa) than in the past, noting the “special status of grandparents, shifting societal norms and common sense”.
The expansion of the rule is welcome. However, it should be expanded even further, in our view. Currently, it does not apply to couples who have lived together for years – even decades – unless they are married. This rules out all homosexual couples who are not married. It rules out best friends, too.
Unfortunately, Courts often have to make arbitrary rules like this. They draw a “line in the sand” to limit liability so as to minimize court fights. For example, if the Court were to expand the rule to say that “anyone who has a close and loving relationship” with the victim could bring a zone-of-danger claim, then there would be all kinds of court fights about how “close” and how “loving” the relationship was, and if it was significant enough to warrant a zone-of-danger claim. It sure is a lot easier to apply a hard-and-fast rule like “immediate family” (and then expand it, carefully, from time to time, as the Court did here to include grandparents.)
But the Court, in my view, should take into account not only the fact that grandparents are often closer to grandchildren than in the past, but that people don’t marry as often. There are many couples who live together without “officially” tying the knot, especially gay couples. How about a rule that if you have lived together as a couple for three straight years with the intent to continue to do so indefinitely then you qualify as “immediate family”.
My two cents.
If you believe you have a “zone-of-danger” claim — or any personal injury or malpractice claim — don’t hesitate to reach out to me. No consultation fee!
Email me at: email@example.com I’d love to hear from you!
Syracuse NY Personal Injury Lawyers
Michaels & Smolak, P.C.