Grandma’s Love Recognized As Immediate (NY)
The New York Court of Appeals recently ruled in favor of expanding the definition of “immediate family” under the New York Zone of Danger theory of recovery to include grandparents. The certified question was whether the Appellate Division properly held a grandchild was excluded from the class of persons constituting a grandparent’s “immediate family”, and the Court answered it in the negative, remanding the action consistent with its holding.
The facts underlying this decision, as set forth in Greene v Esplanade Venture Partnership, were horrific. The plaintiff grandmother, Susan Frierson, was standing outside with her 2-year-old granddaughter when a portion of the defendant building’s façade dislodged and struck them. The child died the next day from her injuries.
Frierson sought recovery under the New York Zone of Danger rule which “allows one who is threatened with bodily harm in consequence of defendant’s negligence to recover for emotion distress flowing only from the viewing of the death or serious physical injury of a member of that person’s immediate family.” The Court of Appeals was called to address whether a grandchild may come within the limits of her grandparent’s “immediate family” for purposes of recovery under the Zone of Danger jurisprudence.
The Court, acknowledging the historical circumspection by the courts to expanding liability for emotional damages of those who witness an event in the “zone of danger,” ultimately concluded that recognition of a grandparent as “immediate family” in this context comports with the “shifting societal norms” that has evolved to recognition of the primacy and importance of grandparents’ roles in their grandchildren’s lives. To that point, the Court of Appeals noted not only legislative expansion in New York over the past 20 years of grandparents’ rights to seek custody of their grandchildren, but also evolving family structures, generally, such as “an increasing number of grandparents” who assist with, or fully, raise their grandchildren. The Court also commented on Plaintiff’s close relationship with her granddaughter, specifically.
Ultimately, it was not just the close bond between the grandparent and grandchild at issue in the case before them, but decades of evolution and recognition of grandparents’ roles, and legal rights, with respect to family structures and family law, that led the Court to the narrow expansion and recognition that grandchildren and grandparents should be viewed as “immediate family” for purposes of Zone of Danger liability.
Thanks to Vivian Turetsky for her contribution to this post. Please email Georgia Coats with any questions.