Elissa Motelson,, et al., Appellants,v.Ford Motor Company, et al., Respondents. (And Another Action.)BriefN.Y.October 22, 2014APL-2013-00299 Richmond County Clerk’s Index Nos. 12660/01 and 13545/01 Appellate Division, Second Department Docket Nos. 2009-04215 and 2009-06707 Court of Appeals STATE OF NEW YORK Action No. 1 – Index No. 12660/01 MATTHEW MOTELSON as Administrator of the Estate of GARY MOTELSON, Deceased, ELISSA MOTELSON, as Administratrix of the Estate of infant BRIAN MOTELSON, Deceased, EVAN MOTELSON, an infant by his parents and natural guardians, ELISSA MOTELSON and MATTHEW MOTELSON as Administrator of the Estate of GARYMOTELSON, Deceased, MATTHEWMOTELSON as Administrator of the Estate of GARY MOTELSON, Deceased, individually, and ELISSA MOTELSON, individually, Plaintiffs-Appellants, against FORD MOTOR COMPANY and FORD MOTOR CREDIT COMPANY, Defendants-Respondents. (Additional Caption On the Reverse) >> >> BRIEF FOR DEFENDANT-RESPONDENT FORD MOTOR COMPANY Elliott J. Zucker AARONSON RAPPAPORT FEINSTEIN & DEUTSCH, LLP Attorneys for Defendant-Respondent Ford Motor Company 600 Third Avenue New York, New York 10016 (212) 593-6700 Date Completed: March 18, 2014 Wendy F. Lumish (admitted pro hac vice) CARLTON FIELDS JORDEN BURT, P.A. Miami Tower 100 Southeast Second Street, Suite 4200 Miami. FL 33131 (305) 530-0050 To Be Argued By: Wendy Lumish (admitted pro hac vice) Time Requested: 30 Minutes Action No. 2 – Index No. 13545/01 MICHAEL J. MOTELSON, as Administrator of the Estate of STEVEN MOTELSON, Deceased, and ENID MOTELSON, Plaintiffs-Appellants, against FORD MOTOR COMPANY and FORD MOTOR CREDIT COMPANY, Defendants-Respondents. CORPORATE DISCLOSURE STATEMENT The following constitutes Ford Motor Company’s corporate disclosure information pursuant to 22 NYCRR §500.1(f): Ford Motor Company states that it has no parent corporation. The following is a list of publicly traded domestic and foreign companies in which Ford Motor Company directly or indirectly owns an equity interest of at least 10% but less than 100%: China – Jiangling Motors Corporation, Limited Turkey – Ford Otomotiv Sanayi Anonim Sirketi (Otosan) The following subsidiaries or affiliates have issued debt securities to the public: Ford Motor Credit Company, LLC Ford Credit Canada, Ltd Ford Holdings LLC FCE Bank i TABLE OF CONTENTS Page TABLE OF AUTHORITIES ................................................................................... iii PRELIMINARY STATEMENT ............................................................................... 1 STATEMENT OF THE CASE AND FACTS .......................................................... 3 QUESTIONS PRESENTED ...................................................................................... 8 1. Did the Second Department correctly hold that Plaintiffs cannot recover damages on a zone-of-danger claim because that claim was not submitted to the jury? ..................... 8 2. Even if Plaintiffs had submitted a claim for zone-of- danger damages, should the Second Department’s opinion be affirmed because Plaintiffs failed to present sufficient evidence to support a zone-of-danger claim? ............. 8 3. Even if Plaintiffs had submitted a claim for zone-of- danger damages, should a grandson be precluded from recovering zone-of-danger damages as a matter of law, because he does not meet the definition of immediate family member? .......................................................................... 8 ARGUMENT ............................................................................................................. 8 I. THE SECOND DEPARTMENT CORRECTLY HELD THAT A CLAIM FOR ZONE-OF-DANGER DAMAGES WAS NOT SUBMITTED TO THE JURY .............................................................. 8 A. The Issue Of Zone-Of-Danger Damages Was Not Tried. .......... 9 B. The Jury Was Not Instructed On Zone-Of-Danger Damages Nor Did The Verdict Sheet Require Findings As To These Damages. ............................................................. 10 II. EVEN IF A CLAIM FOR ZONE-OF-DANGER DAMAGES HAD BEEN SUBMITTED TO THE JURY, THE UNDISPUTED EVIDENCE NEGATES LIABILITY FOR THAT CLAIM .................................................................................... 15 TABLE OF CONTENTS (Continued) Page ii III. EVEN IF A CLAIM FOR ZONE-OF-DANGER DAMAGES HAD BEEN SUBMITTED TO THE JURY, GRANDPARENTS ARE NOT IMMEDIATE FAMILY MEMBERS FOR PURPOSES OF ZONE-OF-DANGER DAMAGES ......................................................................................... 17 CONCLUSION ........................................................................................................ 21 iii TABLE OF AUTHORITIES Page Cases Bovsun v. Sanperi, 61 N.Y.2d 219, 461 N.E.2d 843, 473 N.Y.S.2d 357 (1984) ....................................................................... passim Calabrese v. Chan, 244 A.D.2d 376, 665 N.Y.S.2d 541 (2d Dept. 1997) ....................................13 Doyle v. Doyle, 214 A.D.2d 918, 625 N.Y.S.2d 693 (3d Dept. 1995) ...................................... 8 Feng v. Metropolitan Transportation Authority, 285 A.D.2d 447, 727 N.Y.S.2d 470 (2d Dept 2001) .............................. 15, 16 Gonzalez v. New York City Housing Authority, 181 A.D.2d 440, 580 N.Y.S.2d 760 (1st Dept. 1992) ............................ 15, 16 Jun Chi Guan v. Tuscan Dairy Farms, 24 A.D.3d 725, 806 N.Y.S.2d 713 (2d Dept. 2005) ..................................7, 19 London v. Lepley, 259 A.D.2d 298, 684 N.Y.S.2d 785 (1st Dept. 1999) ...................................12 McDougald v. Garber, 73 N.Y.2d 246, 536 N.E.2d 372, 538 N.Y.S.2d 937 (1989) .........................13 Nussbaum v. Gibstein, 73 N.Y.2d 912, 536 N.E.2d 618, 539 N.Y.S.2d 289 (1989) .........................13 Pavel Yutsis Physician, P.C. v. Staten Island Univ. Hosp., 47 A.D.3d 781, 849 N.Y.S.2d 642 (2d Dept. 2008) ........................................ 8 Spensieri v. Lasky, 94 N.Y.2d 231, 723 N.E.2d 544. 701 N.Y.S.2d 689 (1999) .........................12 Stinton v. Robin’s Wood, Inc., 45 A.D.3d 203, 842 N.Y.S.2d 477 (2nd Dept.), lv. den., 10 N.Y.3d 708, 889 N.E.2d 80 (2008) .............................................17 TABLE OF AUTHORITIES (Continued) Page iv Trombetta v. Conkling, 82 N.Y.2d 549, 626 N.E.2d 653, 605 N.Y.S.2d 678 (1993) .................................................................. 18, 19, 20 Zea v. Kolb, 204 A.D.2d 1019, 613 N.Y.S.2d 88 (4th Dept. 1994) ............................ 15, 16 Other Authorities CPLR §5045(a) ........................................................................................................16 NY Const., art. I, § 2 ................................................................................................14 NY Const., art. I, § 6 ................................................................................................14 U.S. Const. Amend. XIV .........................................................................................14 1 PRELIMINARY STATEMENT The Second Department correctly applied the well-established rule that when plaintiffs fail to present evidence on a claim, fail to instruct the jury on that claim, and fail to submit a verdict sheet that includes that claim, a jury cannot award damages on that claim—and a trial court cannot substitute its own judgment for that of the jury. Its decision should be affirmed. Here, the jury found that there was a defect in the roof of the Ford vehicle that caused the death of the driver. The passengers in the vehicle made no claim that they suffered injuries related to the roof. They contended that their injuries were the result of a defect that caused the accident, but the jury rejected that claim. The rear seat passengers also claimed their injuries were the result of a defect in the seat belts, but the jury rejected that claim too. Post verdict, two of the passengers claimed for the first time that they suffered zone-of-danger damages related to the roof. It is well-established that zone-of-danger damages are only available in the limited circumstances where (1) the plaintiff observes a serious injury or death of an immediate family member that is caused by defendant’s conduct; (2) this observation occurs while the plaintiff is “contemporaneously” threatened with bodily harm from the same conduct that brought about the injury or death of the family member—i.e., the plaintiff is in the zone-of-danger; and (3) the observation of the injury or death causes the plaintiff’s 2 emotional disturbance. See Bovsun v. Sanperi, 61 N.Y.2d 219, 228-29, 231, 461 N.E.2d 843, 473 N.Y.S.2d 357 (1984). Thus, if these passengers intended to pursue that claim, they were required to present evidence at trial, and seek instructions and a verdict sheet that asked the jury to decide whether each of them suffered psychological injuries as a result of observing the driver’s death at a time when the passengers were themselves being threatened with personal injury by the defect in the roof. That claim was never submitted to the jury. Indeed, the term “zone of danger” appears nowhere in the trial transcript. The Second Department’s holding that this claim was not submitted to the jury should be affirmed. Even if these passengers had submitted a zone-of-danger claim to the jury, the judgment should be affirmed because there is insufficient evidence to establish that the passengers were in the zone-of-danger of the roof. Moreover, recovery of zone-of-danger damages is strictly limited to immediate family members—and because a grandfather is not considered an immediate family member under established law, his grandson cannot recover such damages. For these reasons, the Second Department’s judgment should be affirmed. Any other result would expand the zone-of-danger doctrine so that it would allow recovery to anyone involved in an accident in which another family member is injured. That is not the law and should not become the law in New York. 3 STATEMENT OF THE CASE AND FACTS The Accident Steven Motelson was driving a 1998 Explorer with his son Gary as the front seat passenger. (A438). Steven’s grandsons, Evan and Brian, and another adult were in the rear. (A438). Steven lost control of the vehicle, and it rolled over several times. (A1424). Brian and Evan were ejected from the vehicle as it rolled. (RA276). Steven and Brian died as a result of injuries suffered in the accident. (A1424). Gary and Evan did not sustain any physical injuries. (Plfs’ Br. at 5). The only injuries either Plaintiff claimed to have suffered were psychological injuries. The Claims That Were Tried As reflected in the transcript, as well as the instructions and verdict sheet to which Plaintiffs did not object, the case was tried on three distinct claims. First, Plaintiffs claimed that the speed control cable system in the Explorer was defective, causing Steven to lose control of the vehicle. Accordingly, the jury was asked whether this alleged defect was a substantial factor in “causing the plaintiffs’ injuries and/or death.” (A1093-96). The jury rejected that theory of liability. (A1093-96). Because that was the only claim upon which Gary sought damages, he was not awarded any. (A1093-96, 1102). Second, Plaintiffs claimed that as a result of a design defect in the rear seatbelts, they unlatched during the accident, causing the ejection of Brian and 4 Evan. Accordingly, the jury was first asked whether Evan and Brian were wearing their seatbelts and the jury found that they were not. (A1083). As a result, the jury did not reach the issues of defect or negligence with respect to the rear seat belts. (A1083-86). The jury found that 100 percent of Brian and Evan’s injuries were attributable to not wearing seatbelts. (A1100-1101). Based on this finding, the jury did not award any damages to Evan or to Brian’s estate. (A1099-1101). Third, Plaintiffs claimed that a roof defect caused Steven’s death. Accordingly, the jury was asked whether the roof system was “a substantial factor in causing Steven’s death.” (A1090-92). The jury found that the roof was reasonably fit for the ordinary purpose for which it was used, but that it was defective in design and that Ford was negligent. (A1090-92).1 On this basis, the jury awarded $1.5 million to Steven’s estate for loss of earnings and $5 million to his wife, Enid, for economic loss. (A1106-07). The Zone-Of-Danger Claim At trial, there was not a single reference to the term “zone-of-danger.” (RA1-3229). There were no jury instructions asking the jury to decide whether Evan or Gary “contemporaneously” observed an injury to an “immediate family” member, whether such an observation occurred while Evan or Gary were themselves threatened with bodily harm from the roof defect, or whether the 1 The jury was also asked whether a defect in the front seat belts was a cause of Steven’s death, and they answered no. (A1087-89). 5 observation of Steven’s death was the cause of Evan’s or Gary’s emotional injuries. (See A956-90). Given the absence of evidence and jury instructions on zone-of-danger damages, it is not surprising that there was no question on the verdict sheet related to any such claim. The jury was asked whether the roof design was “a substantial factor in causing Steven Motelson’s injuries,” (A1090-92) (emphasis added), but there was no question asking the jury to award Gary or Evan damages related to the death of Steven. (A1082-1107). The jury specifically awarded no damages to Evan. (A1100-1101). It awarded no damages to Gary because the only claim asserted by him related to the speed control cable system, which the jury found was not defective. (A1093-96). Post-Trial Motions and Rulings Plaintiffs moved to set aside the jury verdict, arguing that Gary and Evan were entitled to damages for pain and suffering, extreme emotional distress, and the cost of future psychiatric treatment based upon a claim for zone-of-danger damages. Plaintiffs also sought loss of consortium damages for Gary’s wife, Elissa, related to the same claim. (A1249-86). In its Amended Decision and Order, the trial court expressly disagreed with the jury’s finding that Brian and Evan were not belted, but acknowledged that it was not permitted to substitute its judgment for that of the jury. The court 6 concluded, however, that Gary and Evan “were both in the zone-of-danger and suffered emotional distress damages” and therefore awarded approximately $3.2 million to Gary, $5.4 million to Evan, and $150,000 to Gary’s wife as zone-of- danger damages. (A36a-43a). Appeal To The Second Department Ford appealed, arguing, among other issues, that the trial court erred in setting aside the jury verdict and awarding zone-of-danger damages, because Plaintiffs never attempted to try that claim, the jury instructions and verdict form did not ask the jury to decide that claim, and the jury made no findings that could support that claim. The Second Department agreed with Ford and reversed the trial court on this issue: [N]o separate causes of action sounding in infliction of emotional distress or zone-of-danger damages resulting from Steven Motelson’s injuries and death were submitted to the jury. The verdict sheet asked whether the negligent design of the roof was “a substantial factor in causing Steven Motelson’s injuries and death,” and not whether that defect caused injuries to any other plaintiff. Therefore, the [trial court] should not have ruled that they were entitled to damages on that theory. (A1426) (internal citations omitted). Given its holding, the Second Department did not reach Ford’s alternative argument that even if a zone-of-danger claim had been submitted to the jury, there was insufficient evidence to support such a claim. Nor did the Second Department 7 reach Ford’s additional, alternative argument that because a grandson is not an “immediate” family member entitled to seek zone-of-danger damages, the award as to Evan cannot stand. See Jun Chi Guan v. Tuscan Dairy Farms, 24 A.D.3d 725, 726-27, 806 N.Y.S.2d 713 (2d Dept. 2005) (holding that a zone-of-danger claim cannot be premised on injury to a grandson, because he is not immediate family). 8 QUESTIONS PRESENTED 1. Did the Second Department correctly hold that Plaintiffs cannot recover damages on a zone-of-danger claim because that claim was not submitted to the jury? 2. Even if Plaintiffs had submitted a claim for zone-of-danger damages, should the Second Department’s opinion be affirmed because Plaintiffs failed to present sufficient evidence to support a zone-of-danger claim? 3. Even if Plaintiffs had submitted a claim for zone-of-danger damages, should a grandson be precluded from recovering zone-of-danger damages as a matter of law, because he does not meet the definition of immediate family member? ARGUMENT I. THE SECOND DEPARTMENT CORRECTLY HELD THAT A CLAIM FOR ZONE-OF-DANGER DAMAGES WAS NOT SUBMITTED TO THE JURY A party may not recover damages on a claim that party never pursued at trial, or submitted to the jury in the instructions and verdict sheet. See, e.g., Pavel Yutsis Physician, P.C. v. Staten Island Univ. Hosp., 47 A.D.3d 781, 849 N.Y.S.2d 642 (2d Dept. 2008); Doyle v. Doyle, 214 A.D.2d 918, 625 N.Y.S.2d 693 (3d Dept. 1995). That rule requires affirmance of the Second Department’s decision here. Zone-of-danger damages are recoverable only where: (1) the plaintiff observes a serious injury or death of an “immediate family” member that is caused 9 by the defendant’s conduct; (2) this observation occurs while the plaintiff is “contemporaneously” threatened with bodily harm from that same conduct that brought about the injury or death of the family member (i.e., plaintiff is in the zone-of-danger); and (3) the observation of this injury or death is the cause of the plaintiff’s emotional disturbance. See Bovsun v. Sanperi, 61 N.Y.2d at 228-29, 231. To recover zone-of-danger damages here, then, Plaintiffs were required to present evidence and have the jury instructed on these elements. Plaintiffs failed to do so, as the Second Department correctly held.2 A. The Issue Of Zone-Of-Danger Damages Was Not Tried. As noted above, the term “zone-of-danger” does not appear in the trial transcript. (RA1-3229). And` Plaintiffs never argued to the jury that they sustained psychological injuries as a result of observing Steven’s death at a time when Gary and Evan were themselves being threatened with personal injury by the alleged defect in the roof. And that is fatal to their attempt to recover such damages. Plaintiffs try to cure that deficiency by pointing out that Ford does not dispute that these Plaintiffs suffered psychological injuries and that Ford had acknowledged as much in opening and closing arguments. (Plfs’ Br. at 15-16, 24, 2 Plaintiffs argue that the Second Department reversed the trial court “on what amounts to a pleading defect.” (Plfs’ Br. at 3). That is simply not so. The Second Department plainly based its ruling on Plaintiffs’ failure to submit the claim to the jury. 10 26). But the fact that these Plaintiffs suffered psychological injuries in the accident for which Ford was not found liable does not prove that they suffered psychological injuries as a result observing Steven’s death while in the zone-of- danger of the roof that the jury found to be defective as required by Bovsun. See Bovsun, 61 N.Y.2d at 228-29, 231. Plaintiffs did not pursue that claim. B. The Jury Was Not Instructed On Zone-Of-Danger Damages Nor Did The Verdict Sheet Require Findings As To These Damages. The instructions, to which Plaintiffs did not object, show that Gary and Evan’s damage claims were premised on defect claims related to the speed control cable system. Evan’s damage claim was also premised on the alleged defect in the seat belt that Plaintiff contended allowed his ejection during the accident. Because the jury rejected these claims, it did not award Gary or Evan any damages. Indeed, as to Evan, the jury specifically found that 100 percent of his damages were caused by the failure to wear a seat belt. In contrast, there were no instructions explaining the elements of a zone-of- danger claim, and no question on the verdict sheet related to this claim. The jury was asked whether the roof design was a substantial factor in causing the death of Steven, but they were never asked whether Gary or Evan were in the zone-of- danger of the roof, or if they suffered emotional damages as the proximate result of witnessing Steven’s death. Plaintiffs make multiple arguments in an attempt to demonstrate that the jury 11 instructions and verdict sheet covered zone-of-danger damages, but each one fails for the same reason–Plaintiffs confuse the psychological injuries sustained in the accident, for which the jury found that Ford was not liable, with alleged psychological injuries related to being in the zone-of-danger of the roof, which was not presented to the jury. For example, Plaintiffs argue that by instructing the jury that one element of Plaintiffs’ damages was their psychological and emotional injury, the jury was also charged as to zone-of-danger damages. (Plfs’ Br. at 15, 29). Likewise, they argue that Ford should have objected to the charge under Pattern Jury Instruction (PJI) 2:284 or should have “protested” when the court indicated that the verdict could include psychological damages as part of pain and suffering. (Plfs’ Br. at 30; Plfs’ Br. at 15, citing A990-91). The Second Department correctly addressed these points when it observed that the psychological damages referenced in the instruction were subsumed into pain and suffering, and there were no separate instructions on zone-of-danger damages related to Steven’s death. (A1425-26). Plaintiffs also argue that PJI 2:284 “represents the standard charge for emotional injuries of all kinds,” and that there are no separate charges for zone-of- danger damages. (Plfs’ Br. at 8, 19, 29, 30, 32). There is no dispute that PJI 2:284 covers emotional distress claims of all kinds. But that is precisely why the pattern instruction must be modified to cover the specific factual prerequisites for recovery 12 of zone-of-danger damages.3 And that is why a verdict sheet asking the jury to make findings on these elements was necessary. Plaintiffs’ suggestion that Ford should have objected to the instructions that were given ignores that those instructions were proper as to Plaintiffs’ claim for psychological injuries associated with alleged defects—a claim that is completely unrelated to that for which Plaintiffs now seek to recover zone-of-danger damages. Likewise, while Plaintiffs argue that Ford had the burden of asking for a separate instruction distinguishing this category of damages, or for specific interrogatories, (Plfs’ Br. at 31), it was Plaintiffs’ burden to ask for instructions on the claims for which they sought relief—and their failure to do so constitutes a waiver. See London v. Lepley, 259 A.D.2d 298, 684 N.Y.S.2d 785 (1st Dept. 1999) (holding that the plaintiff’s claim that the court should have instructed the jury on “significant disfigurement” was unpreserved for appellate review because she did not request the instruction, did not object to the charge as given, and did not object to the contents of the verdict sheet submitted to the jury); Calabrese v. 3 Despite Plaintiffs’ contentions, the PJI may be modified or rejected altogether. Indeed, the PJI begins with instructions that state in pertinent part that the “charges and comments contained in these volumes . . . are intended as guides.” It continues: “trial judges are not mandated to use them, and may adopt, modify or reject the charges so long as the court adequately conveys the sum and substance of the applicable law.” It also notes that “[e]ach case has its own unique elements and application of the law and the facts of the case will indicate to what extent a given charge should be modified or even rejected.” (Citing Spensieri v. Lasky, 94 N.Y.2d 231, 723 N.E.2d 544, 701 N.Y.S.2d 689 (1999)). 13 Chan, 244 A.D.2d 376, 665 N.Y.S.2d 541 (2d Dept. 1997) (“The plaintiff’s failure to ask for, or object to the absence of a … charge” and “his failure to object to the charge as given . . ., and his failure to object to the contents of the verdict sheet submitted to the jury renders any claim of error in the charge or the verdict sheet unpreserved for appellate review.”).4 Moreover, because there was no evidence presented on the issue, and therefore Ford had no reason to anticipate that Plaintiffs were pursuing damages on a zone-of-danger claim, Ford cannot be faulted for failing to request a charge on the claim. Had Ford known that Plaintiffs were pursuing the claims, it would have asked for specific instructions and interrogatories. Similarly, Plaintiffs contend that the jury’s affirmative response to the question of whether the roof defect was a substantial factor in causing Steven’s death, together with evidence that Gary and Evan suffered psychological injuries in the accident, was sufficient to support the zone-of-damages claim. (Plfs’ Br. at 15, 26-27). But tellingly, they support their argument by pointing to their proposed verdict sheet, which would have asked whether the roof support system was “a substantial factor in causing plaintiffs’ injuries and/or deaths.” (Plfs’ Br. at 27). 4 Plaintiffs contend that they would not be permitted to include “sub-species” of the same injuries. (Plfs’ Br. at 30). But the cases they cite relate to loss of enjoyment of life, which is a subset of pain and suffering, and therefore distinguishable from zone-of-danger damages that involve entirely different elements of proof. McDougald v. Garber, 73 N.Y.2d 246, 536 N.E.2d 372, 538 N.Y.S.2d 937 (1989); Nussbaum v. Gibstein, 73 N.Y.2d 912, 536 N.E.2d 618, 539 N.Y.S.2d 289 (1989). 14 That is not, however, the question that was ultimately asked of the jury—and Plaintiffs did not object to the question on the actual verdict sheet that was submitted to the jury. Plaintiffs also point to the actual verdict sheet, which allowed the jury to award damages if it answered yes to any of the liability questions. (Plfs’ Br. at 28). But the jury only found liability as to the roof. Plaintiffs could seek zone-of- danger damages, if at all, for injuries stemming from that defect—not from the accident itself, for which the jury held that Ford was not liable. Plaintiffs cannot, then, rely upon questions the jury did answer to recover on the basis of a question the jury indisputably did not answer (indeed, that was not even asked). In sum, as the Second Department correctly held, it was reversible error for the trial court to award damages on a claim for which Plaintiffs presented no evidence, included no jury instructions, and made no mention of on the verdict sheet. Indeed, to award damages on a claim that was not tried or submitted to the jury would constitute a violation of the constitutional due process rights of fair notice and an opportunity to be heard, see U.S. Const. Amend. XIV; NY Const., art. I, § 6, and the constitutionally protected right to a jury trial, see NY Const., art. I, § 2. The Second Department should therefore be affirmed. 15 II. EVEN IF A CLAIM FOR ZONE-OF-DANGER DAMAGES HAD BEEN SUBMITTED TO THE JURY, THE UNDISPUTED EVIDENCE NEGATES LIABILITY FOR THAT CLAIM Even if Plaintiffs had submitted a claim for zone-of-danger damages, the undisputed evidence negates a finding of liability as to any such claim. First, New York courts strictly enforce the requirement that a plaintiff prove he was within the zone-of-danger. For example, in Gonzalez v. New York City Housing Authority, 181 A.D.2d 440, 580 N.Y.S.2d 760 (1st Dept. 1992), the court concluded that a mother who was in back of an elevator when her daughter was crushed by the elevator doors was not within the zone-of-danger and therefore could not recover. Similarly, in Zea v. Kolb, 204 A.D.2d 1019, 613 N.Y.S.2d 88 (4th Dept. 1994), the court found that the plaintiff-mother was not in zone-of-danger when she was approximately 12 to 15 feet from the vehicle that struck and killed her daughter because “she herself was never threatened with bodily harm in consequence of defendant’s negligence.” So too, in Feng v. Metropolitan Transportation Authority, 285 A.D.2d 447, 448, 727 N.Y.S.2d 470 (2d Dept 2001), the court denied recovery of zone-of-danger damages to a plaintiff who was sitting five feet away from her child when he was struck by a train that she may not have been aware was approaching. Like the plaintiffs in Gonzalez, Zea, and Feng, Evan was not in the zone-of-danger because he was ejected from the vehicle before the 16 roof deformed. Thus, he was not entitled to recover. Second, there was no evidence that Evan contemporaneously observed the death of his grandfather. An eyewitness, Ms. Conover, testified that she was standing with Evan, 15 to 20 feet away from Steven when he was removed from the vehicle, placed in the median, and covered with a sheet. (A700). She indicated that she “tried to shield him from everything, but I know he was looking all over.” (A700). At most, this testimony reflects that Evan may have seen his grandfather’s body after the accident. This does not establish that Evan contemporaneously observed his grandfather’s death as a result of the roof deformation. See Feng, 285 A.D.2d at 448 (plaintiff that did not witness the injury cannot recover). The evidence does not support zone-of-danger damages for Gary, either. Although Gary, unlike Evan, remained in the vehicle after the accident occurred, he was not seated under the portion of the roof that deformed, and thus, like the mother in Gonzalez, was not in the zone-of-danger. See Gonzalez, 181 A.D.2d 440; Zea, 204 A.D.2d at 1019 (plaintiff was not in zone-of-danger because “she herself was never threatened with bodily harm in consequence of defendant’s negligence.”). Further, because Gary is now deceased, his estate is not entitled to recover for future damages. Thus, in all events, the award of $2,689,055 for future medications and psychiatric care cannot stand. See CPLR §5045(a) (“in all cases 17 covered by this article in which future damages are payable in periodic installments, the liability for payment of any installments for medical, dental or other costs of health care or non-economic loss not yet due at the death of the judgment creditor terminates upon the death of the judgment creditor”); Stinton v. Robin’s Wood, Inc., 45 A.D.3d 203, 842 N.Y.S.2d 477 (2nd Dept.), lv. den., 10 N.Y.3d 708, 889 N.E.2d 80 (2008). In sum, even if this Court were to conclude that the claim for zone-of-danger damages was submitted to the jury, the Second Department should be affirmed on the alternative ground that Plaintiffs failed to present prima facie evidence that could support zone-of-danger damages. Indeed, by asking that the Court decide the issue as a matter of law, Plaintiffs have implicitly acknowledged that they do not have such proof. (Plf’s Br. at 20). The trial court’s award cannot stand for that reason, too. III. EVEN IF A CLAIM FOR ZONE-OF-DANGER DAMAGES HAD BEEN SUBMITTED TO THE JURY, GRANDPARENTS ARE NOT IMMEDIATE FAMILY MEMBERS FOR PURPOSES OF ZONE-OF- DANGER DAMAGES This Court in Bovsun made clear that parents, children, and spouses are “immediate family” for purposes of recovering zone-of-danger damages. In a footnote, this Court declined to “decide where lie the outer limits of ‘the immediate family.’” Bovsun, 61 N.Y.2d at 234, n.13. Although the Court need not reach that issue in this case to affirm the Second Department, if the Court does reach the 18 issue, it should decline Plaintiffs’ ill-advised invitation to extend recovery of zone- of-danger damages. This Court already rejected a similar attempt to expand the doctrine in Trombetta v. Conkling, 82 N.Y.2d 549, 626 N.E.2d 653, 605 N.Y.S.2d 678 (1993), and there is no reason a different result should obtain in this case. In Trombetta, this Court declined to extend the zone-of-danger doctrine to allow a plaintiff-niece to recover damages for the death of her aunt. In that case, there was testimony that the plaintiff’s mother had died when plaintiff was only 11 years old, and her aunt had become the maternal figure in her life—with the two women sharing a strong emotional bond for over 25 years. In nonetheless holding that the plaintiff could not recover zone-of-danger damages, this Court explained: Although plaintiff suffered a personal tragic loss, that cannot justify the significant extension of defendants’ obligation to be answerable in damages for her emotional trauma. 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. 82 N.Y.2d at 553 (emphasis added). This Court went on to explain that as a policy matter, limiting liability to “a strictly and objectively defined class of bystanders” prevents “an unmanageable proliferation of such claims” and “takes cognizance of the complex responsibility that would be imposed on the courts in this area to assess an enormous range and array of emotional ties . . ..” Id. at 553-54. Sound policy and strong precedents therefore justified “confinement and circumscription 19 of the zone[-]of[-]danger rule to only the immediate family as surveyed in Bovsun.” Id. at 553. Relying on Trombetta, the Second Department in Jun Chi Guan v. Tuscan Dairy Farms, 24 A.D.3d 725, 726-27, 806 N.Y.S.2d 713 (2d Dept. 2005), similarly declined to extend zone-of-danger damages to permit recovery for a grandson’s injuries. In reaching that decision, the Second Department reasoned that the argument for extending zone-of-danger damages to permit recovery for a grandchild’s injuries was even less compelling than the argument this Court had already rejected in Trombetta. Accordingly, the Second Department concluded that absent further direction from the Legislature or this Court, it would not extend recovery of zone-of-danger damages beyond immediate family members. This Court should reject Plaintiffs’ similar invitation in this case. Plaintiffs counter that children can share a strong familial bond with their grandparents. See Plfs’ Br. at 40-41. That is true, but in Trombetta this Court already declined to extend zone-of-danger damages to include “a blood relationship coupled with significant emotional attachment or the equivalent of an intimate, immediate familial bond.” 82 N.Y.2d at 553. Plaintiffs offer no convincing reason to revisit that determination—and compelling reasons counsel 20 strongly against it.5 As this Court explained in Trombetta, limiting liability to “a strictly and objectively defined class” of plaintiffs “ prevents “an unmanageable proliferation of such claims” and “takes cognizance of the complex responsibility that would be imposed on the courts in this area to assess an enormous range and array of emotional ties . . ..” Id. at 553-54. This Court has appropriately drawn a workable, administrable, and sensible line for recovering zone-of-danger damages. It need not and should not revisit that determination here. 5 Plaintiffs cite cases allowing recovery for mental disturbance and emotional injuries to suggest that courts are willing to expand the scope of emotional damages allowed in various contexts. But that does not change the fact that in the zone-of-danger context, the requirements to recover are strictly construed and any exceptions are narrowly drawn. Bovsun, 61 N.Y.2d at 228-29, 231. 21 CONCLUSION For the foregoing reasons, the judgment of the Second Department should be affirmed. Dated: New York, NY March 18, 2014 WENDY F. LUMISH CARLTON FIELDS JORDEN BURT, P.A. Admitted Pro Hac Vice Attorneys for Defendant FORD MOTOR COMPANY Suite 4200, Miami Tower 100 Southeast Second Street Miami, Florida 33131 Telephone (305) 530-0050 Facsimile (305) 530-0055 ELLIOTT J. ZUCKER AARONSON RAPPAPORT FEINSTEIN & DEUTSCH, LLP Attorneys for Defendant FORD MOTOR COMPANY 600 Third Avenue, 5th Floor New York, NY 10017 Telephone (212) 593-6700 Facsimile (212) 593-6970
