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THE ZONE OF DANGER THEORY OF LIABILITY IS AVAILABLE ONLY TO THE IMMEDIATE RELATIVES OF THE INJURED PARTY; PETITIONERS’ CHILDREN WITNESSED THE FATAL INJURY TO ANOTHER STUDENT WHO WAS NOT RELATED; PETITIONERS’ REQUEST FOR LEAVE TO FILE A LATE NOTICE OF CLAIM AGAINST THE SCHOOL DISTRICT ALLEGING INTENTIONAL AND NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petition for leave to file a late notice of claim against the school district should not have been granted. The petitioners are the parents of students who were participating in football training when the pole or log they were carrying dropped and fatally injured another student. The late notice of claim asserted intentional and negligent infliction of emotional distress based upon the petitioners’ children being in the “zone of danger.” However, the “zone of danger” theory can be raised only by the immediate relatives of the injured party:

“The zone-of-danger rule . . . allows one who is himself or herself threatened with bodily harm in consequence of the defendant’s negligence to recover for emotional distress resulting from viewing the death or serious physical injury of a member of his or her immediate family” … . Here, the petitioners’s children were not immediate family members of the decedent. Thus, they have no legally cognizable claim to recover damages for emotional distress they allegedly sustained from witnessing the accident … , or based upon the District’s alleged refusal to provide continued counseling and maintain the coaching staff support system, as such damages are a financial consequence of their emotional trauma … . Moreover, the District demonstrated that, under the circumstances presented, it was not authorized to pay for continued outside counseling services for the petitioners’ children, and the record reflects that the District provided ongoing counseling from mental health professionals employed by the District. Under the circumstances, the proposed claim against the District is patently meritless … . Matter of Kmiotek v Sachem Cent. Sch. Dist., 2019 NY Slip Op 07583, Second Dept 10-23-19

 

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EMERGENCY PHYSICIAN ERRONEOUSLY PRONOUNCED PLAINTIFF’S DECEDENT DEAD AND ALLEGEDLY REFUSED TO REEXAMINE HIM FOR NEARLY THREE HOURS, DESPITE THE PLEAS OF HIS FAMILY MEMBERS WHO ALLEGEDLY SAW HIM BREATHING, MAKING EYE CONTACT AND MOVING; SUPREME COURT SHOULD NOT HAVE PROHIBITED THE PARTIES FROM MAKING STATEMENTS ABOUT THE FACTS OF THE CASE; THE NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined Supreme Court should not have prohibited the parties and their attorneys from making statements about the underlying facts in this medical malpractice action, and the negligent infliction of emotional distress (NIED) cause of action should have been dismissed. Plaintiff’s decedent suffered cardiac arrest and was pronounced dead by an emergency physician (Perry). However plaintiff’s decedent was not in fact dead and the emergency physician allegedly refused to examine plaintiff’s decedent for nearly three hours. Plaintiff’s decedent subsequently died after surgery at another hospital:

Perry notified plaintiff that decedent had died, and plaintiff, along with decedent’s son and several other family members, was brought into the code room. Plaintiff alleges that, for the next two hours and 40 minutes, decedent was breathing, making eye contact, and moving around, which prompted her and the coroner to urge Perry and the nursing staff to examine decedent, but they refused to do so. When Perry examined decedent at 11:10 p.m. at plaintiff’s insistence, he observed that decedent was, in fact, alive. Decedent was transferred to another hospital, where he underwent heart surgery and subsequently died. * * *

Supreme Court erred in granting defendants’ motions for an order enjoining and prohibiting the parties and their attorneys from making extrajudicial statements about the action or the underlying facts in a public forum or in front of the media. Although defendants met their burden of “demonstrat[ing] that such statements present a reasonable likelihood’ of a serious threat to [defendants’] right to a fair trial” … , there is no evidence in the record “that less restrictive alternatives would not be just as effective in assuring the defendant[s] a fair trial” … . Absent “the requisite showing of a necessity for such restraints,” a court may not impose prior restraints on First Amendment rights … . * * *

We agree with defendants … that the court erred in denying their motions insofar as they sought summary judgment dismissing the … causes of action … for NIED … . . “A breach of the duty of care resulting directly in emotional harm is compensable even though no physical injury occurred’ … when the mental injury is a direct, rather than a consequential, result of the breach’ … and when the claim possesses some guarantee of genuineness’ … .  Here, defendants met their respective burdens of establishing as a matter of law that plaintiff and decedent’s son did not suffer mental and emotional injuries causally related to Perry’s erroneous pronouncement of decedent’s death, and plaintiff failed to raise a triable issue of fact by demonstrating the requisite ” guarantee of genuineness’ ” with respect to her claims of mental or emotional injuries … . Cleveland v Gregory C. Perry, M.D., FDR Med. Servs., P.C., 2019 NY Slip Op 06306, Fourth Dept 8-22-19

 

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GRANDMOTHER WAS IN THE ZONE OF DANGER WHEN PIECES OF THE FACADE OF A BUILDING FELL AND KILLED HER TWO-YEAR-OLD GRANDCHILD, BECAUSE GRANDMOTHER IS NOT ‘IMMEDIATE FAMILY’ SHE CANNOT RECOVER UNDER A NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS THEORY, THE MOTION TO AMEND THE COMPLAINT TO ADD THAT THEORY SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, over an extensive two-justice dissent, determined the grandmother of a two-year-old child who witnessed the child’s death was not a member of the child’s “immediate family” and therefore could not recover for negligent infliction of emotional distress, despite the grandmother’s being in the zone of danger when the child was struck by falling pieces of a building-facade. The motion to amend the complaint to add the negligent infliction of emotional distress cause of action should not have been granted:

… [I]n Trombetta v Conkling (82 NY2d 549, 551), 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, despite the fact that the niece’s mother had died when the niece was 11 years old, and the aunt had allegedly been the maternal figure in the niece’s life. At the time of the accident, the plaintiff was 37 years old and her aunt was 59 years old (see id. at 551). In rendering its determination, the Court of Appeals stated: “On firm public policy grounds, we are persuaded that we should not expand the cause of action for emotional injuries to all bystanders who may be able to demonstrate a blood relationship coupled with significant emotional attachment or the equivalent of an intimate, immediate familial bond” (id. at 553).

In Jun Chi Guan v Tuscan Dairy Farms (24 AD3d 725), this Court held that the relationship of grandparent and grandchild does not constitute “immediate family” so as to permit recovery for negligent infliction of emotional distress. In Jun Chi Guan, the plaintiff grandmother was pushing her infant grandson in a stroller, when a truck owned and operated by the defendants struck the stroller, killing the infant (see id. at 725). This Court rejected the grandmother’s argument that she should be considered immediate family because she was the family member who spent the most time with the infant during his waking hours (see id. at 726). Further, this Court held that “it is not appropriate for this Court to expand the class [of persons constituting immediate family] absent further direction from the Court of Appeals or the New York State Legislature” (id.). Greene v Esplanade Venture Partnership, 2019 NY Slip Op 03771, Second Dept 5-15-19

 

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ALTHOUGH DEFENDANT MAY NOT HAVE INTENDED TO INJURE PLAINTIFF IN A PHYSICAL ALTERCATION WITH OTHERS, THE COMPLAINT ALLEGED ONLY INTENTIONAL CONDUCT BY THE DEFENDANT, THE NEGLIGENCE AND NEGLIGENT INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CAUSES OF ACTION WERE PROPERLY DISMISSED (SECOND DEPT).

The Second Department determined the negligence and negligent infliction of emotional distress causes of action were property dismissed. Although defendant (Domnitser) may not have intended to strike plaintiff in an altercation with others, the complaint alleged only intentional conduct by the defendant:

Although “the same act may constitute battery or negligence depending on whether or not it was intentional, . . . there cannot be recovery for both”… . As such, “if the only inference that may be drawn from plaintiff’s evidence is that defendant’s contact with plaintiff was intentional, plaintiff may recover only in battery and the issue of negligence should not be submitted to the jury”. Accordingly, “[o]nce intentional offensive contact has been established, the actor is liable for battery, not negligence” … .

Here, the plaintiff alleged that he was injured as a result of Domnitser’s intentional acts which were directed toward third parties during the physical altercation. Contrary to the plaintiff’s contention, even if Domnitser lacked any intent to make physical contact with, or otherwise injure, the plaintiff, the conduct attributed to Domnitser in the amended complaint, even as amplified by the plaintiff’s affidavit, constituted intentional, rather than negligent, conduct … . …

“A cause of action to recover damages for negligent infliction of emotional distress generally requires a plaintiff to show a breach of a duty owed to him [or her] which unreasonably endangered his [or her] physical safety, or caused him [or her] to fear for his [or her] own safety” … . A negligent infliction of emotional distress cause of action “must fail where, as here, [n]o allegations of negligence appear in the pleadings'” … . Borrerro v Haks Group, Inc., 2018 NY Slip Op 07282, Second Dept 10-31-18

NEGLIGENCE (BATTERY, ALTHOUGH DEFENDANT MAY NOT HAVE INTENDED TO INJURE PLAINTIFF IN A PHYSICAL ALTERCATION WITH OTHERS, THE COMPLAINT ALLEGED ONLY INTENTIONAL CONDUCT BY THE DEFENDANT, THE NEGLIGENCE AND NEGLIGENT INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CAUSES OF ACTION WERE PROPERLY DISMISSED (SECOND DEPT))/NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS (BATTERY, ALTHOUGH DEFENDANT MAY NOT HAVE INTENDED TO INJURE PLAINTIFF IN A PHYSICAL ALTERCATION WITH OTHERS, THE COMPLAINT ALLEGED ONLY INTENTIONAL CONDUCT BY THE DEFENDANT, THE NEGLIGENCE AND NEGLIGENT INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CAUSES OF ACTION WERE PROPERLY DISMISSED (SECOND DEPT))/BATTERY (NEGLIGENCE, ALTHOUGH DEFENDANT MAY NOT HAVE INTENDED TO INJURE PLAINTIFF IN A PHYSICAL ALTERCATION WITH OTHERS, THE COMPLAINT ALLEGED ONLY INTENTIONAL CONDUCT BY THE DEFENDANT, THE NEGLIGENCE AND NEGLIGENT INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CAUSES OF ACTION WERE PROPERLY DISMISSED (SECOND DEPT))

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NO QUESTION OF FACT RAISED ABOUT WHETHER FENCING CLUB WAS LIABLE FOR THE SEXUAL ASSAULT OF A FENCING STUDENT BY A FENCING COACH, CLUB’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant fencing club's motion for summary judgment in this negligent hiring and supervision, negligent infliction of emotional distress action should have been granted. A fencing coach (Kfir) who worked for the club engaged in an unlawful sexual relationship with infant plaintiff, for which the coach  went to prison. The Second Department held that the respondeat superior cause of action was not viable because the coach was not acting within the scope of his employment. The court further found that the defendant club demonstrated it did not have notice of the coach's criminal propensities and did not breach a duty owed plaintiffs:

… Fencers Club established its prima facie entitlement to judgment as a matter of law dismissing the cause of action seeking to hold it liable under the doctrine of respondeat superior, as Kfir's misconduct was committed for wholly personal motives, and not in furtherance of Fencers Club's business and within the scope of his employment … .

… Fencers Club established its prima facie entitlement to judgment as a matter of law by demonstrating that it had no knowledge of any propensity by Kfir to commit sexual misconduct, either prior to or during his employment with Fencers Club . The coaches, parents, and students of the club were shocked when they learned of the criminal misconduct, which took place outside of Fencers Club's premises and in Kfir's apartment. Although it was later revealed that Kfir gave massages to the infant plaintiff and another fencing … student in a workout room, and that he made sexually provocative comments toward the infant plaintiff during fencing lessons, these incidents were never reported to Fencers Club. Much of the communication between the infant plaintiff and Kfir took place by cell phone or text message, outside of Fencers Club's purview. …

Although the plaintiffs point to the fact that Fencers Club did not conduct criminal background checks prior to hiring their instructors, “[t]here is no common-law duty to institute specific procedures for hiring employees unless the employer knows of facts that would lead a reasonably prudent person to investigate the prospective employee” … . Here, there was no evidence that Fencers Club had knowledge of any facts that would have caused a reasonably prudent person to conduct a criminal background check on Kfir. Moreover, the plaintiffs failed to come forward with any evidence that a criminal background check of Kfir would have revealed a propensity to commit sexual assault … . … Fencers Club established its prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging negligent infliction of emotional distress by demonstrating that it did not breach a duty of care owed to the infant plaintiff … . KM v Fencers Club, Inc., 2018 NY Slip Op 05923, Second Dept 8-29-18

NEGLIGENCE (NO QUESTION OF FACT RAISED ABOUT WHETHER FENCING CLUB WAS LIABLE FOR THE SEXUAL ASSAULT OF A FENCING STUDENT BY A FENCING COACH, CLUB'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/NEGLIGENT HIRING AND SUPERVISION (NO QUESTION OF FACT RAISED ABOUT WHETHER FENCING CLUB WAS LIABLE FOR THE SEXUAL ASSAULT OF A FENCING STUDENT BY A FENCING COACH, CLUB'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS (NO QUESTION OF FACT RAISED ABOUT WHETHER FENCING CLUB WAS LIABLE FOR THE SEXUAL ASSAULT OF A FENCING STUDENT BY A FENCING COACH, CLUB'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EMPLOYMENT LAW (NO QUESTION OF FACT RAISED ABOUT WHETHER FENCING CLUB WAS LIABLE FOR THE SEXUAL ASSAULT OF A FENCING STUDENT BY A FENCING COACH, CLUB'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/RESPONDEAT SUPERIOR (NO QUESTION OF FACT RAISED ABOUT WHETHER FENCING CLUB WAS LIABLE FOR THE SEXUAL ASSAULT OF A FENCING STUDENT BY A FENCING COACH, CLUB'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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“Extreme and Outrageous Conduct” Is Not an Element of “Negligent Infliction of Emotional Distress”—Elements of Private Nuisance, Intentional Infliction of Emotional Distress, and Negligent Infliction of Emotional Distress Explained in Some Depth—Complaint Should Have Been Dismissed for Failure to State a Cause of Action

The Second Department, in a full-fledged opinion by Justice Miller, reversed Supreme Court and dismissed the complaint for failure to state a cause of action.  The opinion is important because it clarified “negligent infliction of emotional distress,” explaining that “extreme and outrageous conduct” is not one of the elements. Although the court held that the complaint did not state causes of action for intentional infliction of emotional distress, negligent infliction of emotional distress, or private nuisance, the nature of those causes of action was explained in some depth. The defendants owned property next door to the plaintiffs’ home.  The defendants rented to tenants, who were not parties to the lawsuit.  The tenants apparently held loud parties at which drugs were used and sold. The plaintiffs at one point called the police to complain about the tenants’ behavior. Subsequently two masked men entered plaintiffs’ home to intimidate them. Plaintiff-husband ultimately shot the two intruders and in the process accidently shot his dog. The men were arrested by the police. The opinion is too detailed to properly summarize here, but the essence of the court’s ruling is that the tenants’ behavior was not sufficiently linked to any acts or omissions by the defendants. The court wrote:

The elements of a private nuisance cause of action are: “(1) an interference substantial in nature, (2) intentional in origin, (3) unreasonable in character, (4) with a person’s property right to use and enjoy land, (5) caused by another’s conduct in acting or failure to act” … . * * *  … [T]he duty to abate a private nuisance existing on real property arises from the power to possess the property and control the activities that occur on it. Accordingly, a landowner who has relinquished possession of his or her property will not be liable for a private nuisance that arises on the property if the landowner neither created the nuisance nor had notice of it at the time that possession of the property was transferred … . In the absence of any such knowledge or consent to the objectionable activity which may be attributable to the landowner at the time the lease is executed, the common-law duty to abate a nuisance that exists during the course of a tenancy lies with the tenant, in his or her capacity as the one in possession of the property … .

… [U]nder New York law, a cause of action alleging intentional infliction of emotion distress “has four elements: (i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress” … . * * * ” Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community'” … . * * * Although the individuals who broke into the plaintiffs’ home may have engaged in extreme and outrageous conduct, the complaint alleges no basis upon which the intruders’ conduct may be imputed to the defendants. The defendants’ intentional conduct, as alleged in the complaint, amounts to nothing more than a failure to ensure that their tenants and their friends refrained from committing the acts described in the complaint. * * *

[Re: negligent infliction of emotional distress] …. [T]o the extent that certain of this Court’s past decisions have indicated that extreme and outrageous conduct is an element of negligent infliction of emotional distress … , those cases should no longer be followed. … [A] breach of a duty of care “resulting directly in emotional harm is compensable even though no physical injury occurred” … . However, the mental injury must be “a direct, rather than a consequential, result of the breach” … , and the claim must possess “some guarantee of genuineness” … . … Applying the correct standard to the complaint in this case, we conclude that the plaintiffs’ failure to adequately allege extreme and outrageous conduct is not fatal to their cause of action alleging negligent infliction of emotional distress … . Nevertheless, we conclude that the complaint is deficient in another respect, as it failed to adequately allege facts that would establish that the mental injury was “a direct, rather than a consequential, result of the breach” … . Taggart v Costabile, 2015 NY Slip Op 05464, 2nd Dept 6-24-15

 

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The Medical Examiner Who Conducted an Autopsy of Plaintiffs’ 17-Year-Old Son Upon the Son’s Death in an Auto Accident Was Not Under a Statutory or Ministerial Duty to Return the Brain or to Inform Plaintiffs He Had Removed The Brain for Further Examination and Testing

The Court of Appeals, in a full-fledged opinion by Judge Pigott, over a two-judge dissent, determined the medical examiner, who conducted an autopsy of plaintiffs’ 17-year-old son after his death in a car accident, was under no statutory or ministerial duty to inform plaintiffs he had removed plaintiffs’ son’s brain for further examination and testing, nor was he under a duty to return the brain. Plaintiffs therefore did not have a “negligent infliction of emotional distress” or “violation of right of sepulcher” cause of action against the city. (Plaintiffs had been awarded significant damages at trial:)

When the Legislature enacted statutes granting medical examiners (and others) the authority to conduct autopsies and dissections (see Public Health Law §§ 4209; 4210), it acknowledged through the enactment of section 4215 (1) that there would be situations where the decedent’s body may not be buried or incinerated within a reasonable time after the decedent’s death, as per section 4200 (1)’s directive. Thus, section 4215 strikes a balance permitting the lawful dissection of a body, while concomitantly ensuring that once the lawful purposes have been accomplished the body will be buried, incinerated or properly disposed of as per section 4200 (1), and that the penalties for the interference or injuries to the body would “apply equally to the remains of the body after dissection . . .”

When section 4200 (1) and section 4215 (1) are read in tandem, there is no language that would cause a medical examiner to divine from section 4215 (1) that he or she is required to return not only decedent’s body, but the organs and tissue samples that the medical examiner is legally permitted to remove. Similarly, our right of sepulcher jurisprudence does not mandate that a medical examiner return decedent’s organs and tissue samples. Thus, because there was no governing rule or statutory command requiring a medical examiner to turn over organs and tissue samples, it could not be said that he or she has a ministerial duty to do so. At most, a medical examiner’s determination to return only the body without notice that organs and tissue samples are being retained is discretionary, and, therefore, no tort liability can be imposed for either the violation of the common-law right of sepulcher or Public Health Law § 4215 (1). Once a medical examiner returns a decedent’s body sans the organs and tissue samples, the medical examiner for all intents and purposes has complied with the ministerial duty under section 4215 (1). Absent a duty to turn over organs and tissue samples, it cannot be said that the medical examiner has a legal duty to inform the next of kin that organs and tissue samples have been retained. * * *

There is simply no legal directive that requires a medical examiner to return organs or tissue samples derived from a lawful autopsy and retained by the medical examiner after such an autopsy. The medical examiner’s obligations under both the common-law right of sepulcher and Public Health § 4215 (1) are fulfilled upon returning the deceased’s body to the next of kin after a lawful autopsy has been conducted. If the Legislature believes that next of kin are entitled to notification that organs, tissues and other specimens have been removed from the body, and that they are also entitled their return prior to burial of the body or other disposition, it should enact legislation delineating the medical examiner’s obligations in that regard, as it is the Legislature that is in the best position to examine the issue and craft legislation that will consider the rights of families and next of kin while concomitantly taking into account the medical examiner’s statutory obligations to conduct autopsies. Shipley v City of New York, 2015 NY Slip Op 04791, CtApp 6-10-15

 

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No Allegation Plaintiffs’ “Physical Safety” Was Endangered Re: Cause of Action for Negligent Infliction of Emotional Distress/No Allegation of Sufficiently Extreme and Outrageous Conduct Re: Cause of Action for Intentional Infliction of Emotional Distress—Those Causes of Action Were Therefore Properly Dismissed

The plaintiffs alleged defendants defrauded them in connection with a deed which purported to transfer plaintiffs’ property to a third party and the related mortgages.  In addition to the action to quiet title pursuant to Real Property Actions and Proceedings Law, the plaintiffs alleged causes of action for negligent and intentional infliction of emotional distress (among several others). The Second Department determined those causes of action were properly dismissed and explained the pleading defects, notably (1) the absence of a duty which could give rise to tort liability, (2) the failure to allege plaintiffs’ “physical safety” was endangered (negligent infliction of emotional distress), and (3) the failure to allege sufficiently extreme and outrageous conduct (intentional infliction of emotional distress):

Here, as the [defendants who initially serviced the loan payments made by plaintiffs] correctly assert, the complaint fails to state a cause of action to recover damages for negligent or intentional infliction of emotional distress as against them. The relationship between the plaintiffs and those defendants “does not give rise to a duty which could furnish a basis for tort liability” in negligence … . Further, the plaintiffs did not allege that their “physical safety” was endangered or that they were caused to fear for their physical safety, which is generally an element of a cause of action based on negligent infliction of emotional distress … . Moreover, the conduct complained of is not sufficiently extreme and outrageous to support the cause of action to recover for damages for intentional infliction of emotional distress … . Pirrelli v OCWEN Loan Servicing, LLC, 2015 NY Slip Op 04625, 2nd Dept 6-3-15

 

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