DARLENE TROMBETTA, APPELLANT, v. FRED J. CONKLING ET AL., RESPONDENTS.
82 N.Y.2d 549, 626 N.E.2d 653, 605 N.Y.S.2d 678 (1993).
December 20, 1993
4 No. 260 (1993 NY Int. 266)
Decided December 20, 1993
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This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Anthony A. Murad, for Appellant.
James P. Godemann, for Respondents.
BELLACOSA, J.:
Plaintiff-appellant's case poses a significant tort duty question for
this Court. We must now decide whether plaintiff, the niece of a woman
who was killed in an accident in plaintiff's presence and with whom
plaintiff shared a long and strong emotional bond, may qualify to
bring suit as a bystander for the negligent infliction of emotional
injuries under the Bovsun v Sanperi (61 NY2d 219) "zone of danger"
rule. If we were to conclude, as Supreme Court did, that plaintiff can
be deemed a member of the victim's "immediate family", her cause of
action lies. We agree with the Appellate Division's reversal of
Supreme Court and the dismissal of the complaint and, accordingly, we
affirm the Appellate Division order.
I.
On November 10, 1989, plaintiff Darlene Trombetta and her aunt,
Phyllis Fisher, were crossing Wurz Avenue in Utica, New York.
Plaintiff noticed a tractor-trailer bearing down on them. Realizing
that the truck was not going to stop, plaintiff grabbed her aunt's
hand in an attempt to pull her out of the truck's path. The effort
failed. Plaintiff, who was not physically touched or injured, watched
as the wheels of the truck ran over her aunt, killing her instantly.
Plaintiff commenced this action against defendants Fred J. Conkling
and Universal Waste, Inc., the driver and the owner of the vehicle,
respectively, asserting only a claim for negligent infliction of
emotional distress. At an examination before trial, plaintiff
testified that she and her aunt shared a close relationship.
Allegedly, plaintiff's mother had died when plaintiff was eleven, and
her aunt became the maternal figure in her life. They always lived
SNIPPETS:
James P. Godemann, for Respondents.
Plaintiff-appellant's case poses a significant tort duty question for this Court.
We must now decide whether plaintiff, the niece of a woman who was killed in an accident in
If we were to conclude, as Supreme Court did, that plaintiff can be deemed a member of the
We agree with the Appellate Division's reversal of Supreme Court and the dismissal of the
Plaintiff, who was not physically touched or injured, watched as the wheels of the truck ran
defendants moved to dismiss the complaint and for summary judgment.
Noting that Bovsun v Sanperi explicitly left open the issue of "where lie the outer limits of
The Appellate Division reversed and dismissed the complaint, confining the class of potential
The court declined to impose liability on defendants upon a showing that a "strong bond"
Recovery of damages by bystanders for the negligent infliction of emotional distress should
We determined that the mother did not state a cause of action and refused to adopt the
We reasoned that because the defendant had breached a duty owed to the plaintiff by exposing
On firm public policy grounds, we are persuaded that we should not expand the cause of action
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