'Greene': The Evolution of Zone of Danger
In their Trial Practice column, Robert Kelner and Gail Kelner discuss New York's zone of danger rule, which imposes liability for the infliction of emotional distress arising from the observation of harm to a third person and "has always been a strained doctrine under New York law." The discuss the rule in light of a recent Court of Appeals decision.
March 22, 2021 at 10:30 AM
13 minute read
New York's zone of danger rule, which imposes liability for the infliction of emotional distress arising from the observation of harm to a third person, has always been a strained doctrine under New York law. Until the very recent decision of the Court of Appeals in Green v. Espalanade Venture Partnership, 2021 NY Slip Op 01092 (Ct. App. Feb. 18, 2021), the "zone-of danger" rule articulated by the Court of Appeals in Bovsun v. Sanperi, 61 N.Y.2d 219 (1984) has been the controlling decisional law in New York. Bovsun permits a cause of action to be brought for damages arising from the negligent infliction of emotional distress to a bystander who is in the "zone of danger" when an immediate family member (as strictly defined) is injured or killed. It is a cause of action which must be separately pleaded and charged to the jury at the time of trial. Bovsun requires a claimant to be within the zone of potential injury and to be a witness to the infliction of injury to an "immediate" family member.
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