There is a noticeable trend in U.S. courts toward increasing awards for pain and emotional distress in cases of wrongful death. The New York Court of Appeals, in the case of Greene v. Esplanade,1 issued a ruling in February 2021 to extend the right to compensation to a grandparent under the “zone-of-danger rule.”2 The case involved the tragic death of a 2-year-old child resulting from pieces of a building’s facade breaking off and falling on her. At the time of the accident, the grandmother was standing next to her granddaughter when debris suddenly fell from the building, and the grandmother herself—the plaintiff—was struck by the debris. She had initially based her claim on two causes of action: negligence and wrongful death. Subsequently, the plaintiff added a third cause of action, based on the negligent infliction of emotional distress in accordance with the “zone of danger” doctrine.
The “zone of danger” doctrine provides for a remedy for emotional distress when someone is threatened with bodily injury as a result of the defendant’s negligence, arising exclusively from the fact of witnessing the death or serious physical injury of an immediate family member of the person who witnessed the tragedy.” The term “immediate family” was at the heart of the debate in the Greene case. The plaintiff argued that she should be included within that definition based on the “unique and special nature” of the relationship between a grandparent and a grandchild. The Kings County Court granted her access to the “zone of danger” doctrine, noting, among other things, the specific recognition of grandparents’ custodial rights with respect to their grandchildren.
The defendants appealed, arguing that grandparents are excluded from the definition of “immediate family.” The appellate court reversed the lower court’s decision, holding that the grandmother was not part of the “immediate family,” based on the tradition of the danger zone doctrine. To that end, it relied on the 1984 case of Bovsun v. Sanperi3, which limited “immediate family” to only a spouse and children. Indeed, in Trombetta v. Conkling,4 the Court held that a niece could not obtain compensation for negligent infliction of emotional distress upon witnessing her aunt’s death, even though the plaintiff’s mother had died when she was 11 years old and her aunt was her sole maternal figure. Furthermore, in Jun Chi Guan v. Tuscan Dairy Farms,5 the court rejected a grandmother’s argument in the tragic circumstance in which her grandson was killed in a stroller she was pushing, even though she was the one who spent most of her waking hours with the baby.
Returning to the Greene case, the dissenting opinion provided a comprehensive historical overview of emotional distress, examining the seemingly unjust outcomes that resulted from the application of the term “immediate family” in the aforementioned judicial precedents. The dissenting opinion emphasizes that the current state of the law does not reflect contemporary family structures and current social norms. Furthermore, the dissent referred to the concept of common law as a living mechanism—one that always responds in a way that adapts to the reality of changing conditions. Therefore, when a rule produces arbitrary results, it is the court’s duty to investigate its viability and, if necessary, reformulate it or abolish it entirely.
It is not surprising that the definition of “immediate family” applied by the courts in recent years has sparked controversy, for while many families still fit the traditional structure of two spouses and children, other families fit into non-traditional models that include children being raised by grandparents, uncles, aunts, siblings, stepparents, and other unconventional arrangements.
The issue was the subject of a third trial, this time before the Court of Appeals, which ruled that the grandmother should be classified as a member of her deceased granddaughter’s “immediate family,” basing its decision on the growing legal recognition of the special status of grandparents, changing social norms, and common sense. However, the majority of the justices strongly emphasized that the decision does not establish “outer limits” to the definition of “immediate family,” having merely determined that, in this particular case, the grandmother fit the classification as a member of the “immediate family.” Interestingly, the justices in the minority concurred with the majority’s decision but criticized it, stating that the “Court missed the moment,” as the Court could have completely discarded the “immediate family” requirement, which is based on outdated definitions strictly modeled on the institution of marriage and degrees of kinship.
The significance of the decision is that it has become clear the court is willing to review the classification of additional types of family members of the claimant who are eligible for emotional distress damages. Several plaintiffs will attempt to test the “outer limits” of the definition of “immediate family.” Notably, several states—such as California, Oregon, Texas, and New Jersey—have already abandoned the “immediate family” rule or expanded it to include more permissive rules regarding who can obtain compensation in such circumstances. When considering the nuances of what constitutes familial affection and the bonds that make up a family, it is understandable that courts would adopt a more permissive and inclusive test to assess the nature of a bystander’s relationship with a victim.
But why has the New York Court of Appeals been reluctant to establish the “outer limits” of the term “immediate family”? Some would argue that by completely discarding the rule, the Court would open the floodgates to all manner of plaintiffs, with potentially tenuous affections or feelings toward the victim. Others believe that the varied nature of family ties and relationships is difficult to define, and that an open, case-by-case interpretation is preferable as the best solution for assessing the bystander-victim relationship, rather than a radical change in approach.
However, there is likely a historical component to the Court’s reluctance to discard or establish “outer limits” to the “immediate family” rule. Although the doctrine of the “zone of danger” is inherent to common law jurisdictions, it still stems from an era when courts and the legislature considered the award of damages for purely psychological harm or distress in the absence of physical injury to be contrary to public policy. In 1961, the court recognized for the first time that a plaintiff could obtain compensation for mental suffering, regardless of bodily injury. However, this recognition applied only to the direct victim. Claims by bystanders—regardless of their family relationship—were not covered, despite the suffering resulting from witnessing serious injury or the death of another person. The 1984 precedent Bovsun v. Sanperi opened a loophole in the general denial of compensation for emotional suffering or distress in circumstances where the bystander was a member of the “immediate family” and was confronted with the injury or death of a loved one. The element of physical danger makes the claim viable.
In the Greene case, however, the concurring justices urged the court to use its power to change both its own outdated rules and the outdated rules of common law, citing the case Woods v. Lancent, which established: “While legislative bodies have the power to amend old rules of law, nevertheless, when they fail to act, it is the duty of the court to adapt the law to current standards of justice, rather than to cling to the antiquated rules of the past.” However, the majority’s hesitation in the Greene, Bovson, and Trombetta cases to redefine the “outer limits” of the “immediate family”—or to reject such a limitation entirely— may be rooted in the historical circumstance that the legal framework regarding mental anguish and emotional suffering is largely based on a structure that limits both who can obtain compensation and what may be the subject of compensation.
By way of comparison, under German law, the relatives of the deceased are awarded what is known as “nervous shock damages” (“schockschaden”), which stems from the courts’ flexible interpretation of the concept of damage to health, as set forth in §823 of the BGB.6
Unlike in common law jurisdictions, where temporal and spatial proximity is required and the victim of the shock must have directly witnessed the accident (Aftermath Doctrine)—as Guilherme Reinig and Rafael Peteffi clearly explain7, under German law it is not necessary for the person affected by the shock to have witnessed the accident. There is, therefore, greater flexibility on this point, with liability arising even in cases of nervous shock suffered upon receiving news of the accident. The reason for this is that § 823(I) of the BGB does not establish any special requirement regarding the manner in which the shock was caused.
However, in Brazil, there is no independent remedy available to family members who witnessed the moment of death and actually suffered psychological distress due to the event itself—a fact that goes beyond the grief caused by the death of a loved one, which is also experienced by other relatives or close associates. Finally, due to concerns about indiscriminately opening the floodgates to multiple claims for consequential damages resulting from the immediate occurrence of a single event, the courts have so far opted to limit the number of plaintiffs.8
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1 Available here.
2 “The zone-of-danger rule, which 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, is said to have become the majority rule in this country. It is premised on the traditional negligence concept that by unreasonably endangering the plaintiff's physical safety, the defendant has breached a duty owed to him or her for which he or she should recover all damages sustained including those occasioned by witnessing the suffering of an immediate family member who is also injured by the defendant's conduct”.
3 Available here.
4 Available here.
5 Available here.
6 Section 823—Liability for Damages (1) A person who, intentionally or through negligence, unlawfully injures the life, body, health, liberty, property, or any other right of another person is liable to compensate the other party for the damages resulting therefrom.
7 REINIG, G. H. L.; SILVA, R. P. DA. Dano reflexo ou por ricochete e lesão à saúde psíquica: os casos de "choque nervoso" (Schockschaden) no direito civil alemão. civilistica.com, v. 6, n. 2, p. 1-34, 30 dez. 2017.
8 “It is true that the solution of simply multiplying the amount deemed reasonable by the number of plaintiffs has the potential to make the obligation of the party causing the damage excessively broad and far removed from standards based on proportionality and reasonableness. On the one hand, the solution that simply assigns that same amount to the group, regardless of the number of members, can also lead to injustices. This is because, while in the first case the total amount may prove exorbitant, in the second the individual share may be diluted and become negligible—opposite scenarios that will arise in the case of large families. 6. Therefore, in cases of moral damage resulting from the death of close relatives, compensation must be determined as a lump sum for the victim’s family and, as a general rule, should not exceed the equivalent of five hundred minimum wages, but may be increased by whatever is necessary so that the individual shares are neither diluted nor rendered negligible, raising the total amount to up to twice that value” (REsp 1127913/RS, Reporting Justice for the Judgment: Luis Felipe Salomão, 4th Panel, DJe 10/30/2012).
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