A “zone of danger” personal injury story was in the New York Law Journal yesterday, in a case of first impression. For those not familiar with the principle, a zone of danger claim for emotional injury can be made by an “immediate family” member:
“where a defendant negligently exposes a plaintiff to an unreasonable risk of bodily injury or death, the plaintiff may recover, as a proper element of his or her damages, 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 bringing about such injury or death.” Bosvun v. Sanperi, 61 NY2d 219 [1984]
So the question before Justice Joseph Maltese in Staten Island was to figure out what “immediate family” actually meant. In the Bovsun case that had established the zone of danger principle, New York’s Court of Appeals noted that, “Inasmuch as all plaintiffs in these cases were married or related in the first degree of consanguinity to the injured or deceased person, we need not now decide where lie the outer limits of the immediate family.”
Thus, Justice Maltese was confronted with the open question before him in Shipley v. Williams. He wrote that:
[T]his court has determined that a brother and a sister are “immediate family” members for purposes of establishing a cause of action for emotional distress when they were both within a “zone of danger” while the sister observed her brother sustain serious physical injury and death.
This tragic personal injury case arose when Shannon Shipley and her brother Jesse were passengers in an automobile involved in a collision with another car. As a result, Shannon witnessed her brother Jesse in tremendous pain, suffering severe injuries, which ultimately resulted in his death.
Shannon and Jesse were brother and sister, born from the same parents and lived together with their mother and father in the same household since their birth. The basis of the defendants’ motion is that Shannon and Jesse were not closely related enough to be considered members of the “immediate family.”
This was a case of first impression in New York. In reviewing the case law, Justice Matlese noted that one New York appellate court had already decided that a grandparent-grandchild relationship did not suffice to meet the “immediate family” threshhold. But there was no case law on brother-sister.
The defendants had argued that dismissal of the plaintiff’s complaint was mandated through a degree of consanguinity analysis. They argued that “The class of persons who may claim under the zone of danger rule is strictly limited to spouses, parents and issue of an injured person.” Brothers and sisters, defendants said, are relatives of the second degree of consanguinity.
Justice Maltese disagreed, and noted that while the Court of Appeals had not defined “immediate family” in the context of a zone of danger personal injury case, the legislature had done so in many other instances, including the Penal Law, Public Health Law and Social Services Law, always defining siblings as immediate family. More such definitions existed, noted the court, in the Emergency Tenant Protection Regulations, the Rent Stabilization Code the New York Rules of the Chief Judge and Black’s Law Dictionary.
The court ultimately found that a brother and sister, who lived together in the same household at the time of the accident are not members of their “immediate family” is contrary to the definitions established by the state legislature and legal reason.
Future judges will no doubt wrestle with half-siblings and step-siblings, some living apart from each other and some together. This will not be the last decision on the subject.